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Workplace Policies

Contextual factors to consider when assessing whether employer has just cause to dismiss an employee

Jurisdiction: - Ontario

A new test for dismissing an employee for just cause was established by the Supreme Court of Canada in McKinley v B.C Tel, 2001 SCC 38. In that case the Court stated that, among other things, employers must undertake a contextual analysis of ths misconduct.

In a recent case - Corso v. Nebs Business Products Limited, [2009] O.J. No. 1092
(Ont.S.C.J.)  - the Ontario Superior Court set out a useful checklist of the contextual factors that should be considered.

The case concerned the dismissal of an employee who, in the face of a detailed Conflict of Interest policy, covertly developed a computer program product that would be detrimental to the employer's core business.

The checklist is as follows:  read more »

Sexual harassment at Christmas party and dishonesty during investigation lead to senior employee's dismissal

Jurisdiction: - British Columbia

The plaintiff's employment with Marriot Hotels of Canada Ltd. was terminated for cause on February 1, 2007. He was 46 years old, had been employed by the hotel for 22 years and held the position of Director of Sales and Marketing.

Prior to the incidents in question, the plaintiff's employment record was free of any discipline.

The defendant hotel alleged cause for dismissal based on the fact that the plaintiff:

  • Was a senior manager with responsibilities for supervising the company holiday party, permitted the excessive consumption of alcohol, engaged in sexually suggestive dancing, and condoned an "after-party" where Marriott employees drank heavily;
  • Engaged in inappropriate sexual touching with a female subordinate in the bathroom at the after-party; and
  • Was dishonest when he denied the sexual touching allegation during the defendant's investigation of his misconduct.

Distribution of drink tickets, alcohol consumption and suggestive dancing

In relation to these allegations, the court found that:  read more »

Canadian Human Rights Commission releases "Policy and Procedures on the Accommodation of Mental Illness"

Jurisdiction: - Canada/Federal

The Canadian Human Rights Commission recently created an internal policy and procedural guideline on the Accommodation of Mental Illness, which they have decided to share with others.

According to the Commission, "The policy...outlines the accommodation process and
provides guidance to help managers and supervisors take the initiative to ensure employees with a mental illness are offered appropriate accommodation when necessary."

The document will be of significant value to any organziation looking to create its own written policy setting out how it will satisfy its legal duty to accommodate employees with mental illnesses. You can view the policy here.

Union construction sector in BC develops first ever drug & alcohol policy for construction worksites

Jurisdiction: - British Columbia
Sector: - Construction

The Construction Labour Relations Association and the Bargaining Council of British
Columbia Building Trades Unions announced today that they have jointly developed a Substance Abuse Testing And Treatment Policy as part of their collective agreement negotiations.

The policy will apply to all union construction workers in BC; it is believed to be the only such industry-wide agreement in Canada.

According to the news release, under the policy:  read more »

"Dismissal and the Calculation of Notice of Termination: Beware of Company Policies!"

Jurisdiction: - Quebec
Sector: - Transportation

Quebec lawyer Dominique Launay has written an article on, "Dismissal and the Calculation of Notice of Termination: Beware of Company Policies!" (Winter 2006-07).

It addresses the Quebec Court of Appeal's decision in Aksich v. Canadian Pacific Railway, 2006 QCCA 931, which concerned the intersection of the employer's termination policy and article 2091 of the Civil Code of Québec

"An Employer's Guide to Understanding and Avoiding Alcohol Liability"

Mothers Against Drunk Drivers Canada, or MADD Canada, have prepared "An Employer's Guide to Understanding and Avoiding Alcohol Liability (Second Edition)", with the assistance of a professor in the Faculty of Law, University of Western Ontario. It provides a thorough review of the key cases in Canada on liability for alcohol related incidents and accidents.

Guidance for employers on how to develop a workplace "Substance Abuse Policy"

Earl Phillips, a lawyer in Vancouver at McCarthy Tetrault LLP, has published "Substance Abuse Policy", a paper that provides guidance to employers on how to develop a workplace substance abuse policy.

"Recreational Drug Use and Pre-Employment Drug Testing: Human Rights Legislation and New Challenges for Employers"

Jurisdiction: - Alberta - Ontario
Sector: - Oil & Gas

Lawyer Gary T. Clarke and articled student, Joana Thackeray, at Fraser Milner Casgrain LLP in Vancouver have written a paper entitled, "Recreational Drug Use and Pre-Employment Drug Testing: Human Rights Legislation and New Challenges for Employers".

The paper was published in Canadian Employment and Equality Rights, Vol. 7, Number 34, October 2006 and concludes with some concrete advice for employers who are looking to implement pre-employment drug testing.