Canada: Update on Discharge and Discipline

Last Updated: February 1 2005

This article was originally published in Blakes Bulletin on Labour & Employment in February 2005

Article by John-Paul Alexandrowicz & Lyndsay Wasser, ©2005 Blake, Cassels & Graydon LLP

Recent arbitration awards have addressed four potential grounds for discipline or discharge of interest to unionized employers.

Disclosure of Confidential Documents and Public Criticisms

This topic is increasingly of interest to employers balancing the need for employee loyalty with employees’ privacy rights. Where the employer is a public body, arbitrators have also considered the need to maintain the public’s trust and keep the public informed of the government’s activities.

Two arbitration awards are noteworthy because of concerns that have arisen following the 9/11 terrorist attacks. Both Treasury Board (Health Canada) and British Columbia (Morris) involved government employees who either publicly criticized government actions or revealed confidential information they had discovered in the course of their duties.

In Treasury Board, the grievor was suspended for five days for making critical comments to the media regarding the Canadian government’s decision to stockpile antibiotics and smallpox vaccines. The grievor was a microbiologist employed to evaluate drug and food safety for Health Canada, but was not a member of the group responsible for the stockpiling decision. Though he had been advised by his employer to make it clear to the news media that he was speaking as a private citizen, he neglected to do so.

The arbitrator stated that federal employees have a duty of loyalty that includes a requirement to attempt to resolve concerns internally before publicly criticizing a government policy. He found this duty exists unless the matter is urgent or it would be inappropriate or impossible to proceed via internal mechanisms. The arbitrator concluded that public servants’ right to free speech carries some obligations and the five-day suspension was justified in light of the fact that the grievor’s comments were “theatrical,” “derogatory” and “unproven.”

In British Columbia (Morris), the grievor was suspended and then discharged for disclosing a confidential government document to an ex-lover, who then created a “highly publicized media frenzy”. The employee admitted she acted wrongly, but claimed that termination was too severe in light of her long service, clean disciplinary record, good performance evaluations, immediate acknowledgement of guilt and sincere apology.

The arbitrator concluded the grievor’s actions were not premeditated, because she did not anticipate her ex-lover would disclose the document. He also concluded the grievor was unlikely to repeat her mistake. He substituted a six-month suspension for the discharge, conditional upon a one-year probationary period regarding all confidential aspects of her employment.

Slightly different considerations arise in cases involving non-governmental employers, since arbitrators do not need to consider the public interest in protecting the ability of the government to function effectively. Nevertheless, arbitrators still face the difficult task of balancing the employee’s right to free speech with the employer’s right to demand loyalty from its employees.

In a 2004 case involving the University of Manitoba, the grievor was discharged for publishing accusations and criticisms regarding his university employer on a web site that he created for that purpose. The grievor was highly concerned about the presence and handling of asbestos at the university and had tried unsuccessfully to address his concerns through multiple avenues, including complaints to his union and to a workplace safety and health officer.

The arbitrator reinstated the grievor to his previous position, with compensation for lost wages and benefits, holding that an employee’s duty of fidelity must be balanced against his or her constitutional right to freedom of expression. He noted the grievor was genuinely concerned over the health threats posed by asbestos. The arbitrator stated that an individual’s freedom of expression does not provide absolute protection and the employer may have been entitled to discipline the grievor under different circumstances. However, in this case, he found the dismissal to be unwarranted because there was no progressive discipline, the issue was one of public interest, the conduct did not create a serious problem for the employer or impact its asbestos control program, and other acts of insubordination were not “sufficiently grave” to destroy the employer-employee relationship.

Taken together, the awards in this area indicate that most arbitrators feel that some discipline is warranted when an employee speaks out against his or her employer in an inappropriate manner. However, arbitrators also recognize employees’ rights to free speech and dismissal was not found to be appropriate in any of the above cases.

Misuse of E-Mail

Recently, there have been numerous discipline and discharge cases involving employees who use workplace e-mail accounts for personal, and sometimes inappropriate, purposes. Again, arbitrators must balance employees’ rights to privacy against employers’ rights to control the use of work-related resources.

The misuse of computers by employees has recently received media attention in a case involving the use, downloading and transmission of pornographic materials by 90 Yukon government workers. The government’s investigation of the matter led to protests by the workers and it was dubbed a “witch-hunt” by the union. The government and the union settled the matter with the assistance of a mediator. Employee suspensions were reduced in most cases, but letters of reprimand remained in employee files and two discharged employees were not reinstated.

Similar incidents of widespread misuse of company e-mail accounts were brought to arbitrators in British Columbia and Ontario in 2003. In those cases, relevant issues considered by employers in meting out discipline included the nature and volume of the material transmitted, the level of offensiveness of the material, length of service, employment and performance records, and acknowledgement of responsibility. In some cases, the employer had a computer-use policy, which banned communications involving documents containing pornography, nudity and sexual acts and also circulated a policy stating e-mail may be monitored for routine analysis or in response to a complaint. However, arbitrators have also noted that some behaviour is unacceptable in the workplace even without any notice from the employer.

An arbitrator in one case concluded the employees’ behaviour warranted discipline since the vulgar e-mails violated the employer’s policies and would bring the employer into disrepute. The arbitrator also found that the grievors knew, or should have known, about the employer’s policies. The arbitrator concluded the level of discipline imposed on the grievors was appropriate because the employer had not acted in an arbitrary or discriminatory manner.

The misuse of e-mail arose in a slightly different context in the 2003 case of Naylor Publications Co. There was no widespread problem of e-mail abuse nor was there any activity involving pornographic material, but the grievor had used her work e-mail account to send personal e-mails to her partner and her friends. These personal communications contained insubordinate comments and derogatory remarks about her co-workers, as well as some suicidal and threatening remarks. The grievor claimed she was just “blowing off steam”.

The grievor was discharged on the basis of her “extreme animosity towards Naylor and co-workers.” The employer argued that even if the grievance were upheld, reinstatement would not be appropriate because the grievor’s co-workers had been shown the derogatory emails and did not want her to return to the office.

The arbitrator concluded the dismissal was excessive and the grievor should be reinstated. The arbitrator did not find the grievor had a reasonable expectation of privacy because the employer had a well-known policy of monitoring e-mail. The arbitrator did not accept that the grievor was “just blowing off steam.” He agreed that all workplace threats are inappropriate and must be taken seriously, even though it was unlikely the grievor actually intended to commit workplace violence.

The arbitrator concluded that although discharge may have been appropriate in these circumstances, the employer was precluded from taking such action in this case because of the failure to refer to the grievor’s misuse of the e-mail system in an earlier warning letter. The arbitrator also considered the grievor’s insight into her wrongdoing and remorse for her actions, as well as her ability to respond appropriately to discipline in the past. The arbitrator found there was no just cause to dismiss the grievor and this was not an extraordinary case where damages should be substituted for reinstatement.

These arbitration awards clearly illustrate that employees’ privacy rights are not absolute. If an employer has a policy of monitoring or reviewing e-mail and that policy is known to employees, it seems clear that arbitrators will not protect employees who misuse their workplace e-mail accounts.

Threats of Violence

Over the past few years, there have been many awards involving discipline for threats against individuals, as well as vague and indefinite threatening comments. Both employers and arbitrators have begun to take threats more seriously and to discipline them more severely.

In the 2003 case of Ajax Pickering Transit Authority, the grievor was frustrated with his inability to change his status from a casual employee to a part-time employee. During a telephone conversation regarding the issue, he uttered a statement to the effect of, “What do I have to do to be heard around here, come in and shoot someone?”

The arbitrator noted that generalized or implied threats of violence must be taken seriously. He also stated that regardless of whether the employee actually intends to harm anyone, he or she should realize that the purpose of threatening words is to intimidate others. The arbitrator concluded the grievor intended his statement to be intimidating, because his goal was to draw attention to his concerns. The arbitrator found it was reasonable for the employer to treat the grievor’s statement as a threat, regardless of whether he “had the means or moral capacity to carry it out.”

The arbitrator noted that threats do not warrant discharge in all cases. In this case, the arbitrator indicated the employer should have known that the grievor was experiencing significant stress and anger as a result of his perception that he was being treated unfairly, given his “obsessive insistence on reiterating his status at every opportunity.” The arbitrator concluded the employer should have addressed the grievor’s concerns and emotional state earlier. Also, the employee had no record of prior discipline and no history of violence. The arbitrator reinstated the grievor without back pay, but also ordered him to be examined by a medical specialist familiar with the issues of occupational stress and workplace violence. The employer was not required to assign any work to the grievor until he received medical clearance.

In the Ajax Pickering Transit Authority case, the arbitrator was not willing to take arbitral notice of a general increase in workplace violence. However, in another recent case, the arbitrator did consider “the impact of increased violence in society generally and particularly in workplaces”. In that case, the arbitrator was prepared to recognize the upward trend in workplace violence in determining whether the discipline imposed upon a particular employee was appropriate.

In a 2003 arbitration case, Aradco Management Ltd., an employee’s discharge was upheld despite the fact that the threats uttered by the grievor were not directed at any particular individual. The grievor was angry about criticism directed at him for leaving his workstation without permission. He made comments over the course of two days that before quitting or being fired he would “break somebody’s head/neck” or “do something you’ve never seen before.” The grievor denied making the threatening comments.

In determining that dismissal was justified in this case, the arbitrator stated that the conduct was extremely serious, given that it involved a threat of bodily harm and possibly actions causing large-scale property damage. Further, the outburst was not fleeting, but persisted over the course of two days. Also, the arbitrator felt that there was no true apology in this case.

These recent cases involving threats of workplace violence show that arbitrators may take different approaches to the appropriateness of explicitly noting general increases in workplace violence, but in most cases they will support employers who respond to all threats, whether they be vague or specific, jokes or spontaneous utterances, with severe discipline.

Special Relationships

Sometimes, there may be a higher standard of behaviour required of employees who act as role models for others or for employees that work in close proximity to vulnerable persons. This higher standard of behaviour can extend to employees even when they are not on-duty.

One example of an employee who occupies such a position is a teacher. Other employees who have contact with children may also be judged differently from employees who do not occupy such roles. Correctional officers also tend to be subject to increased scrutiny, even with regard to their off-duty conduct, because they are supposed to act as role models to inmates.

In the 2004 case of Catholic District School Board of Eastern Ontario, the employer discharged the male grievor for sending several sexually explicit e-mails to two male students (nine to a 15-year-old student and two to a 17-year-old student) over a period of five months. When the police interviewed the grievor he denied any sexual attraction to children. The police did not bring any criminal charges against the grievor because the e-mails did not contain child pornography and they were not obscene under the criminal law. The grievor explained his actions as “an error in judgement” and presented psychiatric evidence to support that explanation.

The arbitrator determined that discharge was an appropriate response and that a lesser penalty should not be substituted. There was no compelling explanation for the grievor’s behaviour and the grievor did not seem to grasp the seriousness of his conduct or the vulnerability of the students involved. The arbitrator did not feel that the grievor could be trusted to refrain from similar conduct in the future because the grievor could not provide an explanation for why he sent the e-mails in the first place.

Sometimes, teachers may also be disciplined for bad judgment when actions occur while off-duty. In the 2003 case of Kootenay-Columbia School District No. 20, a teacher was suspended for her behaviour outside of school hours in a bar. The teacher was drunk and had engaged in an altercation with a bartender who was attempting to get an underage student to show identification proving her age.

Although the arbitrator reduced the teacher’s suspension from three days to one, the arbitrator held that the teacher should have known her intervention would be seen by the student, the bartender and other observers as an attempt to protect the student from the consequences of her illegal actions. The arbitrator noted that off-duty conduct should only be disciplined if the teacher’s conduct is serious enough to potentially bring the administration of the school system into disrepute or to undermine confidence in the teacher and the public school system.

Teachers are not the only school employees whose conduct is subject to a different level of scrutiny than employees who do not work in close proximity to children. In the 2004 Ottawa-Carleton District School Board case, a custodian at a secondary school was terminated for using marijuana on school property and during working hours when a “coffee house” event for students was underway nearby. The arbitrator ultimately upheld the dismissal despite the grievor’s eight years of service and lack of a prior disciplinary record. This result is interesting because the arbitrator concluded the conduct did not actually violate any law, since the grievor’s use of marijuana occurred during a period when a section of the Controlled Drugs and Substances Act was temporarily suspended by a court ruling that the law prohibiting possession of marijuana was unconstitional. The employer, however, did have a substance abuse policy, which applied to all controlled and restricted drugs and promoted a drug-free environment and an anti-drug culture in the schools. Even though the custodian was not expected to act as a role model to students, the arbitrator found that the employee’s proximity to children justified dismissal in this case.

Arbitrators have also held corrections officers to a higher standard, even with regard to their off-duty conduct. For instance, in Alberta (Crepeau), the arbitrator found that the employer was justified in dismissing a corrections officer for unproven but highly publicized drug and weapons-related criminal charges. The arbitrator found that the grievor’s behaviour harmed the employer’s reputation and made it impossible for the officer to exercise his authority over detainees on any moral ground, given that many inmates were convicted of activities similar to those that the grievor was charged with committing.

These awards illustrate that employees who act as role models for others must be cognizant of that responsibility at all times. Behaviour that may be tolerable in some employees will be unacceptable where the employee’s position involves guardianship over others.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

3 Nov 2016, Other, Vancouver, Canada

“Risk” is the new black. It’s on the lips of every CEO, CFO, GC and board member — as it should be. Can you spot it? How do you analyze it? Are you equipped to manage it?

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.