Written by Barbara J. Stratton Q.C., Simon Foxcroft, Matthew Riskin, Katherine J. Fisher and Shaun Parsons
Troublesome employees can disrupt a workplace and subject employers to reputational and economic costs. A panel from the Bennett Jones Employment Services group recently shared their views on four contemporary issues employers face at the Bad for Business: How Employers Deal with Problem Employees seminar in Edmonton.
Here is a brief summary of their key insights:
#MeToo and More: Combatting Workplace Harassment
Barbara Stratton Q.C.
Increased social awareness of harassment has called into question the attitude and culture of many workplaces. However, are employers prepared? When Navigator released its 2018 Sexual Harassment in the Workplace: The Public’s Perspective, they found that 66 percent of Canadians believed they have a good understanding of sexual harassment and only 7 percent believed they had a poor understanding. However, nearly half of the respondents stated they had been affected by sexual harassment of some kind, which included jokes about sex, flirting, comments on outfits, etc. These findings highlight the obvious gap between understanding and actions.
Employers have a legal duty to complete a hazard assessment on the workplace, develop a prevention plan, train employees on how to recognize report and avoid harassment, investigate and report all incidents, and provide support to employees affected by these incidents. Without proper policy, processes, education, and checks and balances in place, an employer has both a legal and reputational risk.
Keep Calm and Carry On: OH&S Issues Arising from Cannabis in the Workplace
The rapid legalization of cannabis in Canada has presented employers with an assortment of new occupational health and safety issues relating to work place impairment. This challenge is compounded by relatively limited scientific understanding of the effects of cannabis consumption on humans, and uncertainty on how to assess impairment on an objective basis at the field level.
In Alberta, the current version of the Occupational Health and Safety Act came into force in the summer of 2018. Despite sweeping revision, it remains void of provisions expressly addressing the issue of worker impairment as they would with other work place hazards. The lack of legislative clarity hinders the ability to develop effective and enforceable drug and alcohol policies, and has resulted in great uncertainty in the employer’s right to utilize work place drug and alcohol testing programs.
The Government of Saskatchewan is presently engaged in a consultation process to determine whether it should include provisions in its health and safety legislation expressly directed to worker impairment. It is the speaker’s sincere hope that Alberta may decide to follow suit. Regardless, employers in Alberta should ensure that their existing drug and alcohol programs have been updated to encompass cannabis, and they should seek to implement appropriate training and education.
Social Media and Just Cause
Social media provides a world-wide platform to an individual's thoughts and opinions, for better or for worse. When ill-considered statements are posted, the response backlash can be quick and at times passionate. This means that within hours, an employer can find themselves in a reputational crisis based on the comments posted by an employee.
Social media activity typically falls into the category of off-duty conduct. While social media cases are still rare, there are several examples of case law on off-duty conduct, generally. For instance, in a recent B.C. Supreme Court case Klonteig v West Kelowna (District), 2018 BCSC 124, the Court confirmed that off-duty conduct can constitute just cause for termination, but to do so “it must be or be likely to be prejudicial to the interests or reputation of the employer.” This case highlights that, for the most part, there is no such thing as off-duty when it comes to social media activity that could be prejudicial to an employer.
It is within the employer’s right to use the social media posts from an employee’s public account as cause when carrying out a termination. That being said, it is also beneficial for an employer to have a strong policy with regards to social media use. So long as the policy is reasonable, this is a way to ensure that employees are aware of the parameters around their conduct, and can provide employers a stronger basis for termination, should the need arise.
Desperate Times, Desperate Measures: Current Issues in Employee Fraud in Alberta
Employee fraud is a widespread problem, costing Canadian employers hundreds of millions of dollars of losses every year. A study done by the Association of Certified Fraud Examiners in 2012 indicated that the average business loses 5 percent of its revenue to occupational fraud every year. Small businesses may be particularly vulnerable due to fewer anti-fraud controls in place within these organizations.
When employee fraud is suspected, employers should act in a timely manner and not condone an employee's misconduct. When seeking to rely on fraudulent conduct as after-acquired cause for dismissal, courts are reluctant to consider allegations of cause known at the time of dismissal but not relied upon by the employer. Courts generally require strict proof, making it more difficult for employers to rely on such a defense. Employers should not allege after-acquired cause without a sufficient basis. Employees can claim punitive damages, and an award may be significant.
Be aware that employees may have a reasonable expectation of privacy, even when using company owned electronic equipment. A reasonable expectation of privacy may impact an employer's ability to access this equipment for the purpose of carrying out a fraud investigation.
Managing the Risks
Problem employees can disrupt even the best-managed companies. Our Employment Services group at Bennett Jones strives to work with employers to manage their human capital and mitigate employment risk and disputes.