It seems that the public are far more eager to accord procedural
fairness to miscreant Canadian Senators than they are to National
Football League players caught in an act of violence.
Such is the case with former Baltimore Ravens' player Ray
Rice, who has already been convicted in the court of public opinion
for knocking out cold his then fiancee and now wife. No one is
demanding that the NFL await the outcome of any criminal trial
before passing judgement. Public sentiment is notoriously elastic
and is more overwrought by physical abuse of female partners than
by apparent thefts from the public purse.
The victim Janay Palmer's pleas for support were quickly
rationalized as the words of the proverbial abused woman who too
quickly forgives her abuser, and will likely be abused yet
How does all this relate to the workplace? The public, in
Rice's case is right. With the Canadian senators, it is
However, employers should never let the criminal courts decide
their disciplinary path. They should conduct their own
investigation, in parallel, if necessary, with the criminal one,
come to a conclusion and dismiss or not accordingly. Too many
employers fail to even investigate, let alone discharge, employees
who are criminally charged for actions in the workplace.
Although the criminal process can perdure for years, workplace
justice demands rapid resolution. Is the employer to retain the
employee, or even suspend him or her, for such an extended period?
And, in some cases the employee is ultimately discharged on a
technicality, with the merits of the case left unaddressed.
Ironically, sometimes the technicality that results in an automatic
acquittal is the passage of time itself.
What if an employee, suspended without pay, is acquitted on the
merits after three years? The employer would be on the hook for
three years pay to someone it could have fired without cause, for,
say eight months pay. Merely posing this question reveals the
ludicrous position the employer is placed in.
Finally, the test for "guilt" or "innocence"
is different in a criminal trial as opposed to one for wrongful
dismissal. In criminal court, the employee will be acquitted if
there is any reasonable doubt as to whether he committed the
misdeed. In civil cases, the employee has a much reduced prospect
of success. Even if they can prove a reasonable doubt, there will
still be found to be cause for discharge if it is more likely than
not that they committed the misconduct.
Another employment law issue arising from the Rice case is that
of double jeopardy. Many believe the NFL knew about the assault
video and had access to it, yet it awarded only a two week
suspension to him. Only when public opinion was engaged did the
league decide to discharge him outright (the CFL also chimed in
declaring him unwelcome on any of its teams).
If a Canadian employer assesses an employee's conduct and
determines that that employee should be suspended for two weeks (or
any other period), it is virtually impossible for the employer to
change its mind and later increase the penalty. It is otherwise, of
course, if new facts arise which they could not
reasonably have been aware of earlier.
If Rice were a Canadian employee, would his conduct be cause for
legal discharge? Undoubtedly yes. The fact that the misconduct did
not occur in the workplace and did not technically involve his
employer is irrelevant under Canadian law. If an employee acts in a
fashion, albeit outside of work, that seriously depreciates the
employee's brand, the courts have held that they can be
And, the more senior the employee, the more they have a legal
fiduciary or in a position of trust, the more likely that off-duty
conduct will be cause.
Employers too often fail to understand this and dispense with
the employee's services after paying lavish severance —
as it happens, an entirely unnecessary expense.
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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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