For All Employers

Breaking News: Employees & Social Media

A sign of the times? At least one USA state (Maryland) has passed legislation making it illegal for employers to request the passwords to social media on-line accounts from current or prospective employees, so that the employer can investigate the employees' off-duty or pre-employment activities.

Employer Alert: "Double Discipline" Arbitration Decision

Court of Queen's Bench confirms arbitration decision that rejected "double discipline" and reinstated employee. 

In Saskatchewan v Saskatchewan Government and General Employees' Union, 2012 SKQB 35, the employer had reason to believe that a unionized employee was engaged in misappropriation of trust monies. She was initially suspended with pay pending the outcome of an audit, as a forensic audit was being arranged. Five months later, the forensic audit report confirmed financial discrepancies, some of which were directly tied to the employee. The employee's suspension was then converted to a suspension without paypending further investigation. No further investigation actually took place (although the audit was reviewed by others and a decision on her employment was made). The same manager who converted the suspension to a "without pay" suspension issued the final letter of termination. 

The arbitrator, with the subsequent approval of the Court, found that the termination was a second discipline for the same offence. The dismissed employee was therefore reinstated. 

Commentary and Recommendations:

  1. Make sure that there is an actual investigation conducted after the "suspension pending further investigation" point. Using a suspension to immediately remove the employee from the workplace before the decision to terminate is made, is now risky if the investigation is essentially done.
  2. This decision raises questions again about the advisability of using "suspensions with pay" as a disciplinary penalty, as the arbitrator did not recognize the suspension with pay as discipline. 
  3. It may be advisable to have a higher level position issue all termination letters, with lower level positions handling suspensions and written warnings.

Case Commentary: What's the Difference?

Summary: The Saskatchewan Case 
Recently, a Saskatchewan employment law case made front page news in both Regina and Saskatoon. It involved employees who were drinking and driving in a company truck during working hours. They were involved in a single vehicle accident and the company truck was demolished. Neither employee had any previous discipline in their personnel files. Both employees were dismissed, and sought reinstatement through a grievance filed on their behalf by their union alleging that there was no just cause for their dismissals. The labour arbitrator reinstated them after a four-month suspension, and the Court of Queen's Bench refused to overturn the arbitrator's decision. 

Summary: The Ontario Case
In Ontario, the Ontario Supreme Court dealt with a 45 year old employee who had been drinking alcohol and then drove his employer's truck. He was involved in a single vehicle accident and the company truck was demolished. There was no previous discipline in his personnel file. He was dismissed, and sought damages through the courts for the wrongful dismissal, alleging that there was no just cause for his dismissal. The Ontario court upheld the dismissal, found just cause, and the former employee had to pay a portion of his employer's legal costs (around $29,000). 

So, Why the Difference in Deciding Whether There Was Just Cause?
Here are key facts that did not make a difference: 

  1. The Ontario employee had 23 years of service, with no prior disciplinary record. The Saskatchewan employees were around the same age, but had over ten less years of service each (12.6 and 11.5 years). 
  2. The Saskatchewan employees found alternate work immediately, at a higher salary, thereby enjoying enviable job prospects. The Ontario employee had no certifications, education or training that would assist him in finding another comparable job at 'middle age'. 
  3. Both employers had company policies prohibiting drinking alcohol while at work, which all of these employees had received. 

Here are key facts that appeared to make a difference:

  1. The Ontario employee had to ask permission to use the truck (which he didn't), even though he was away from head office performing site or customer visits. The Saskatchewan employees didn't need to request permission.
  2. The Ontario employee pleaded guilty to one criminal offence relating to his drunk driving, whereas the Saskatchewan employees pleaded guilty to highway traffic offences (open liquor - and the driver was given a 24-hour roadside driving suspension). This obviously related to the perceived level of impairment, despite both employers having zero tolerance policies for workplace drinking and driving. 
  3. The Ontario employee claimed that he was not drunk at the time of the accident (a blood sample was taken several hours later after he had been transported to hospital). The Saskatchewan employees also claimed they were not drunk. The Court interpreted the Ontario employee's statement as a failure to show remorse. The Saskatchewan arbitrator believed the two employees were remorseful. 
  4. The Ontario Court considered the potential harm to the employer's business and its reputation. There was only a casual mention of this by the Saskatchewan labour arbitrator. 
  5. The Saskatchewan employer had tolerated, twenty years ago, incidents where employees would drink and drive, with minimal or no workplace consequences. This had changed within the past decade. Interestingly, another Saskatchewan arbitrator had been appointed to deal with many of these prior incidents and had enforced short-term workplace suspensions. However, within the following year after this incident, the Saskatchewan employer had imposed one- or two-day suspensions for employees who had consumed alcohol when they were being paid to work (though the driving of a company vehicle was not involved). 

Conclusion and Analysis:
An analysis of the two parallel cases can lead to only one conclusion:
Consistent application of company policy will determine whether your policies have any enforceability and impact. "What you permit, you promote." 

To read the full cases, see:

Saskatchewan Telecommunications v Communications, Energy and Paperworkers Union, 2011 CanLII 65814
View case »
Dziecielski v. Lighting Dimensions Inc., 2012 ONSC 1877
View case »

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