Sharper Than a Serpent’s Tooth: Responding to employee disloyalty and breaches of trust

Issues
Shakespeare once characterized betrayal as being sharper than a serpent’s tooth. While workplace betrayal may not rise to the dramatic heights of Shakespearean tragedy, arbitrators and courts have consistently recognized disloyalty and breach of trust as misconduct that strikes at the very heart of employment relationships, warranting serious discipline. What type of behaviour is considered to be breach of trust? What factors do courts and arbitrators consider in determining whether an employment relationship is salvageable?

In this session, seasoned labour experts will examine loyalty and trust in employment relationships, addressing issues such as the following:

Does the duty of loyalty apply only to public servants, or can other unionized employees also owe such a duty to their employers?
Do workers generally have a duty to avoid conflicts of interest, even in the absence of collective agreement provisions or company rules? What are some examples of conduct that have been found to constitute a conflict of interest?
Generally speaking, what is the main defining characteristic of breach of trust? What are some examples of dishonest conduct that would constitute a breach of trust? When will dishonesty be sufficiently egregious to provide just cause for dismissal? Does the conduct have to irreparably damage the relationship of trust between the employer and employee to warrant discharge?
Is theft or similar dishonest behaviour viewed as a “capital offence” justifying discharge, or have adjudicators moved away from applying a zero-tolerance standard for such offences?
What evidence is required to establish that an employee has engaged in dishonest behaviour? What is the standard of proof?
Will progressive discipline be required in every case, or does some conduct so undermine the foundation of trust that an employer can move straight to dismissal?
Are there any common factors that courts and arbitrators consider when assessing the appropriate disciplinary penalty for breach of trust? Does it matter if the employee did not personally derive a benefit from their dishonest conduct?
How significant is an employee’s willingness to acknowledge wrongdoing and take responsibility for their actions? What other mitigating factors should unions advance to support a lesser penalty? Genuine remorse? Seniority? A clear disciplinary record? A dire financial situation?