Canadian Employment Law Today

with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com 2 | September 28, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Answer: Generally speaking, an employer has no authority over what employees do on their own time, unless their off -duty conduct aff ects the employer's legitimate business interests. However, an employer has an obligation to provide a safe work en- vironment that is free from discrimination, violence, bullying and harassment, and it may have an obligation to act if an em- ployee's off -duty behaviour contravenes the employer's policies and/or the applicable human rights or occupational health and safety laws. Courts and tribunals have ruled that the "workplace" can extend well beyond an em- ployer's offi ce or plant, and can include any location where employees perform work on behalf of the employer, or that is other- wise under the employer's control. For ex- ample, the workplace can include remote worksites, customer premises, conferences and company social gatherings. Also, an employee's online activities can constitute workplace conduct that an employer may have a right or obligation to regulate. Even conduct that clearly occurs outside the workplace and on an employee's per- sonal time may engage the employer's legiti- mate business interests, if the conduct has a negative eff ect on the work environment, or impacts the employer's ability to manage its operations eff ectively. Where an employer receives a complaint, report or other information suggesting that an employee's off -duty conduct may be af- fecting other workers or the employer's business interests, the employer should take prompt steps to fi nd out what has happened, and determine whether the employer has a right or duty to take action. If the complaint involves allegations of discrimination, bul- lying or harassment, the employer may have an obligation under its policies or the law to conduct a formal investigation. In all cases, the employer's inquiries or investigation should be conducted as promptly as pos- sible, and in a manner that is thorough, im- partial, and fair to all concerned. In the situation presented by your fi rst question, a claim by employees that they feel "uncomfortable" working with a coworker because of his off -duty behaviour is a vague assertion that would require further investi- gation before you could determine whether there was a need to take action. What are the particulars of the off -duty conduct the co- worker is alleged to have engaged in? Why is that conduct making the complainants uncomfortable working with him? Is there a suffi cient connection to the workplace that the employer should get involved? And before taking any action, what does the co- worker have to say in response to the com- plaints against him? By following up promptly and diligently on this complaint, you can ensure that your organization is satisfying its legal obligation to provide an environment that is free from discrimination, bullying and harassment. e process will also provide you with an opportunity to reinforce your respectful workplace policies. e answer to your second question will also depend on the outcome of your fact-fi nding inquiries regarding the com- plaint. What are the details and context of the altercation that occurred between the employees outside work? Could that altercation have an adverse impact on the work environment or your organization's business? In a situation like this, an em- ployer should be careful to ensure that it is not venturing into areas that fall outside its jurisdiction. If two employees have had an argument or even a fi ght on their own time at a location outside the workplace — such as a bar or somebody's home — it may not be appropriate or necessary for the employer to take any action, apart from tell- ing the employees they must not bring their dispute into the workplace and must treat one another in a respectful and professional manner while at work. Off -duty misconduct can provide grounds for disciplinary action or even discharge, if the employee's misconduct had an adverse impact on the workplace, or was otherwise prejudicial to the business interests or repu- tation of the employer. While evidence that co-workers have refused to work with the employee because of off -duty misconduct may be relevant in a discipline or discharge case, arbitrators have emphasized that em- ployability is not based on popularity, and have required reliable objective evidence of actual or potential injury or harm in such a situation. is underscores the need for an employer to conduct a proper investigation into the off -duty conduct and its impact on the workplace, before it proceeds to take ac- tion. Tattoos and piercings in the workplace Question: Are customer complaints, or a risk of losing customers, a legitimate business reason for implementing a dress code requiring employees to cover tattoos and remove facial jewelry? Answer: e existence or risk of customer complaints are among the factors that may be considerations in creating a dress code. However, such complaints may not be suffi - cient to justify requiring employees to cover tattoos and remove facial jewelry. While personal appearance is not a pro- tected ground, human rights statutes pro- tect employees from discrimination based on factors such as race, sex, disability and religion. In this regard, a dress code that requires employees to cover tattoos and re- move facial jewelry could be found to be dis- criminatory. For example, tattoos or pierc- ings may be connected to an employee's race, place of origin or religious beliefs, or may serve the purpose of covering facial or body scarring due to a medical condition. Evidence of customer complaints will likely not enable an employer to justify a discriminatory dress code. It is accordingly essential that any dress code prohibiting vis- ible tattoos or piercings be carefully drafted to avoid discrimination, and to allow excep- tions as a reasonable accommodation. Before implementing a dress code, an em- ployer should consider whether the require- ments are reasonable. is is important for workplace morale, but also when the em- ployer is considering what it is going to do if an employee fails to comply. If an employee is disciplined or dismissed for non-compliance, the employer may need to prove that the rel- evant requirement was reasonable. e majority of case law in this area arises from unionized workplaces, where arbitra- tors have considered union challenges to dress codes or appearance policies. Arbitra- tors have found that in evaluating the reason- ableness of such policies under the tests set GOOD REASON on page 6 » Off-duty conduct: When should an employer take action? Question: If an employee's off-duty behaviour makes other employees uncomfortable to work with him, does the employer have an obligation to do anything? What if two employees had an altercation outside work that would have been harassment if it had happened in the workplace? Colin Gibson Ask an Expert Off-duty conduct: When should an employer take action? Question: employees uncomfortable to work with him, does the employer have an obligation to do anything? What if two employees had an altercation outside work that would have been harassment

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