Discipline Hot Spots: Off-duty conduct, surveillance, violence, and more
In recent years, prompted largely by the rise of social media and advanced technology, employers have initiated disciplinary processes in increasingly novel and continually evolving circumstances. In this audio conference, experienced counsel will explore leading cases in discipline, with a focus on the following hot spots:
- Off-duty conduct: When can employees be disciplined or discharged for off-duty misconduct? Are different considerations applicable in unionized versus non-unionized workplaces? What type of evidence is required to establish that off-duty conduct has harmed an employer's business interests, including its reputation? How will decision-makers assess whether public statements made outside the workplace, including tweets, Facebook or blog posts, and YouTube videos, damage the employment relationship? Is dismissal more likely to be upheld for employees working in trust-sensitive positions, such as teachers and health care workers?
- Surveillance: Can an employee be disciplined based on evidence obtained via surveillance? How are arbitrators and privacy commissioners balancing an employer's right to manage and control the workplace and employees' privacy interests?
- Violence: What unique considerations apply where an employee's conduct involves violence, including threats or harassment? Will the employer's duty to ensure workplace safety justify dismissal? Where such behaviour has attracted public scrutiny, will the employer's desire to distance itself from the misconduct warrant discharge?
- Disloyalty and breach of trust: In what circumstances can an employee be disciplined for publicly criticizing his or her employer? When can an employee be disciplined for misconduct constituting a breach of trust, such as improperly accessing confidential information or misusing employer resources?
- Damages in lieu of reinstatement: When an employer has not demonstrated just cause for discharge, in what circumstances will an arbitrator order damages in lieu of reinstatement? In contrast to the Supreme Court of Canada's decision in AUPE v. Lethbridge, which characterized damages in lieu of reinstatement as a remedy for "exceptional" or "extraordinary" circumstances only, have arbitrators recently become more inclined to award damages in lieu of reinstatement?