Human Resources Professionals Association

February 8, 2017Hamilton, ON

Presented by

Cody Yorke

Off-Duty ConductManagement, Discipline, and Dismissal

Disclaimer

The user is authorized to use this presentation for the user’sown needs only, and is not authorized to make copies thereoffor sale or for use by others.

The information provided in this presentation is in respect ofthe law of the Province of Ontario only and is intended asgeneral legal information only. This presentation is notprovided for the purpose of providing legal advice or acomplete statement of the law on the particular topics. Everysituation is unique and involves specific legal issues.

If you would like legal advice with respect to the topicsdiscussed in this presentation, we would be pleased to assistyou.

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Introduction

Rudner MacDonald LLP

Toronto and Markham

Advise both employers and employees

Work with clients to proactively deal with issues and also put out fires

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Why Should We Be Concerned About Off-Duty Conduct?

Organizational reputation

Share value

Widespread use of social media

Things can reach much further than their intended audience

Balance employer interests and employee rights and privacy

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Recent Incidents

Mr. Lube employee: “Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.”

Hydro One employee: “F*** her right in the P****” on live television.

Jian Ghomeshi

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FaceBook post:

“have to work this weekend because our new

products failed initial tests”

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Case law

• Lougheed Imports Ltd (West Coast Mazda) v. UFCS Local 1518 (2010)

– employees fired for postings on Facebook

– posting included homophobic slurs and threats online against bosses

– “don't spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know”

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Case law

Merritt v. Tigercat Industries (2016)– Employee was arrested, at work, on two counts of sexual assault

against minors – did not involve any employees of Tigercat

– Employer initially suspended the employee

– When the employee returned to work, a female employee reported that she felt uncomfortable with the Plaintiff at work, because he had made inappropriate advances on her a few years earlier, at the Plaintiff’ farm

– Employee was dismissed for cause

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Privacy issues

General recognition of employer right to monitor usage

Corporate email or otherwise

Searching company-owned equipment

Cole and other decisions

Have a policy

Include statement in contract: don’t put it on our system if you don’t want us to see it

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Case law

• R v. Cole

• Expectation of privacy even over documents on employer-issued computer

• Criminal case

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Managing the Problem Before it Arises

Two main tools:

– Employment Contracts

– Policies

Purposes:

– Prevention

– Creating Management Rights

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What to include

Social Media Policy

Use of Company Property

Privacy

Non-Disparagement

Duty to act in Company’s interests

Mission Statement/Statement of Values

Implementing Policies

Have a policy

Incorporate policies into employment contracts

Use clear and unambiguous language

Keep the policy up to date

Publicize the policy

Make employees aware of concerns

Ensure supervisors and managers are aware of the policy and how to monitor

Monitor behaviour

Discipline violators

Can you Discipline for Off-Duty Conduct?

Generally, what employees do on their own time is their business

Unless– The conduct renders the employee unable to perform his or

her duties satisfactorily

– The conduct interferes with the efficient management of the operation or workforce

– The conduct leads to a refusal or reluctance of other employees to work with him or her

– The conduct harms the general reputation of the Employer, its product or its employees

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Types of Discipline

Warning– Verbal (and documented in writing)

– written

Suspension– Paid

Dismissal– With just cause

– Without just cause

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Warnings/Suspension

Set out misconduct

Refer to policies which were violated

Explain the impact of the misconduct

– Company’s reputation

– Other employees

Set expectations

Warn that further misconduct may lead to termination with just cause

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Two types of Dismissal

Dismissal for just cause – no further obligation to the employee

Dismissal without cause – need to assess employee’s entitlement to notice/pay in lieu/severance

No in-between or “near cause”

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Dismissal for Just CauseMcKinley v. B.C. Tel, Supreme Court of Canada, 2001:

[T]he test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer. “In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal”.

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Dismissal for Just Cause

Capital Punishment of Employment Law

Employer must prove:

1. that the alleged misconduct took place, and

2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit the crime”

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Dismissal without Cause

Entitlement to Notice of dismissal or pay in lieu

Two sources of entitlement– Employment Standards Act, 2000

– Common Law

Can contract our of common law

Cannot contract out of the ESA

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Questions?

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Cody Yorke

cyorke@rudnermacdonald.com

416.640.6402www.rudnermacdonald.com

Blog: rudnermacdonald.com/blog

FaceBook: facebook.com/RudnerMacDonald

Google+: plus.google.com/+Rudnermacdonald

YouTube: youtube.com/rudnermacdonald“What to do When Your CEO Goes Rogue:

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