In my experience as an employment lawyer on the management side,
outside of the movies, workers who sleep at their desks, or who
retroactively alter their records, charging their employer
thousands of dollars in false expenses usually lose their jobs.
However, this is the chimerical world of our civil servants.
They earn more than their taxpayer peers yet are judged by
standards the rest of us can only gasp at.
Pamela Wallin's counsel has denounced the Senate's plan
to suspend her without pay for two years, calling it a
"fundamental affront to Canadian democracy." Now,
that's chutzpah. In private sector employment law, based on the
press reports, she would have been fired for cause a long time
While criticizing a lack of fairness — and she should, in
my view, have an opportunity to explain herself before being
suspended or fired — her counsel states that "Asking her
to defend herself on the floor of the Senate on the subject of
hundreds of contentious expenses is unfair." But, isn't
that precisely the due process and full public hearing she has said
I can't think of a private sector executive who would not
have been fired for cause for what Wallin or Mike Duffy or Patrick
Brazeau are alleged to have done. By moving to suspend these three,
the Senate may be hoping to forestall genuine inquiry into what
Canadians are getting for their dollars from the appointment of
this collection of faithful party workers and fundraisers. But that
does not make the motion wrong-headed. As an employment lawyer, I
believe it does not go far enough.
Without casting aspersions on the legitimacy of Duffy's sick
leave claim, I will say that employees on the point of being fired
will often suddenly call in sick, happy to provide medical notes if
Whether or not his claim is genuine, illness does not prevent
suspension or discharge for cause for conduct preceding that sick
claim. Disability plans often permit disability benefits to
continue even following dismissal but as soon as the employee is
recovered they will have no job to return to. And the insurance
company, if prudent, will take a sharp look at claims which appear
Duffy alleges heart difficulties but in my experience most such
claims are stress related. And stress is not a disability under
human rights legislation and is only disabling at its extreme.
Employees who misconduct themselves and realize they are about
to be fired are under stress. But to absent oneself from work, the
medical condition must be so severe that it cannot be accommodated
by being provided lighter, less exacting, duties.
Going back to the never-ending farce at Toronto City Hall: How
many employers make public photos of employees misconducting
themselves, along with comments suggesting the employee be
dismissed? If the employee was not sleeping, he will have a
significant libel action against the City. And even if he was, the
courts won't easily countenance that profound an intrusion into
I cannot recall any private sector employer openly advertising
its employees' misconduct with pictures and condemnations
widely circulated. But, however unorthodox, again, that does not
mean it's wrong-headed. If sloth is so widespread at City Hall
that this is what is required to shake up the culture, one lawsuit
may be a small price to pay.
This article originally appeared in the Financial Post.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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