One area where there is no room for negotiation
is “behaviour associated with
any kind of criminal conduct.” Employers
should protect themselves with a policy
and an employment agreement stating
that “a criminal conviction is cause for a
termination,” said Taylor.
“The one thing that has to be considered
is that there are different laws
that may protect people who have criminal
convictions, depending on where
they are in Canada,” she said. “In British
Columbia and Prince Edward Island,
the criminal offence has to be specifically
related to employment. Ontario
does not have that requirement, so you
can discriminate according to criminal
conviction if they have not been pardoned;
I frequently see employers in
Ontario go beyond what would be considered
work conduct in terms of any
kind of criminal behaviour that could
affect the company.”
She cites a decision involving Linamar
Corporation of out of Guelph, where an
employee was fired for cause after being
charged but not convicted with possession
of child pornography. The court decided
that “the charge in and of itself constituted
cause for termination because it reflected
and prejudiced Linamar’s interest in that
community. That’s probably the leading
case in completely off-duty conduct affecting
job status,” said Taylor.
“For employers seeking to protect
themselves, there are, broadly, three important
issues,” said Hodkinson. “The first
is to actually have articulated policies with
respect to what is acceptable behaviour in
the workplace and the use of social media
in the workplace. If a particular industry
or company has very specific requirements
such as security or confidentiality, they
need to be articulated.”
Second, she says, these policies must be
extremely clearly communicated throughout
the workplace. Finally, there has to be
a management commitment to upholding
the spirit of those policies.
“All organizations, certainly in Ontario,
have been required to have policies that
prohibit workplace harassment since June
of 2010,” said Taylor. “When something is
brought to HR’s attention, they need to
follow back the rumours, referencing the
policy and assuring employees that if there
policies & procedures
“IDEALLY, YOU WOULD BE ABLE TO
DRAW A VERY BRIGHT LINE BETWEEN
YOUR PERSONAL LIFE AND YOUR
PRIVATE LIFE. HOWEVER, IN THE AGE
OF SOCIAL MEDIA, THERE’S REALLY
NO BRIGHT LINE ANYMORE.”
– SUSAN HODKINSON, CHIEF OPERATING OFFICER AND
HR CONSULTING EXPERT, CROWE SOBERMAN LLP
is a problem, it will be dealt with. You always
have to give the person a chance to
explain themselves; due process and fairness
are absolutely essential.”
Is there a likelihood that former employees
will sue for wrongful dismissal?
“Unionized employees can’t sue, but
they can bring a grievance,” she said. “Nonunionized
employees can always sue for
wrongful dismissal, regardless of whether
there’s any merit – with the proviso that if
they are found responsible, they are responsible
not only for their own legal costs but also
for a share of their employer’s.”
Essentially, organizations need to be sure
to have written policies that are communicated
and understood by their employees.
“The key for small business is to have
these policies in place,” said Hodkinson.
“There are lots of people who do this
work. It’s a small investment; it’s like buying
property and casualty insurance.” ■
HRPATODAY.CA ❚ MARCH/APRIL 2015 ❚ 33