Managing the Discontented Employee

OBAMarch 25, 2014

Toronto

Presented by

Stuart E. Rudner

Managing the Discontented Employee

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Intro

I use social media personally & professionally

Know of what I speak Work with clients to proactively deal

with issues and also put out fires

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Why Should We Be Concerned About Misuse?(cont’d)

• Not just “desktop issue”– Laptops– iPads– Smartphones

• 24/7

• On duty

• Off duty

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“Cyberslacking”

• Staff with FaceBook open all day

• Hours & hours online

• Talking and texting on personal cell phone while at work

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FaceBook post:

“have to work this weekend because our new

products failed initial tests”

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• Lougheed Imports Ltd (West Coast Mazda) v. UFCS Local 1518 (2010)– employees fired for postings on Facebook– posting included homophobic slurs and threats

online against bosses – “don't spend your money at West Coast Mazda

as they are crooks out to hose you and the shop ripped off a bunch of people I know”

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Recent Incidents

Mr. Lube employee: “Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.”

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Setting clear Rules

• 24 pictures of “sunshine girls” – “ Although the nature of the pictures are

offensive to a segment of society and may be offensive to some fellow employees… without attempting to attach a label to these pictures it [is] sufficient to say that for the purpose of this arbitration they are not as labeled by the Employer…. “pornographic, sexually explicit pictures”…”

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Dismissals for Just Cause

Capital Punishment of Employment Law Employer must prove:

1. that the alleged misconduct took place, and

2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit the crime”

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The Contextual Approach

Employer must consider all circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position

No absolute rules Same set of facts can yield different

results

Can you Discipline for Off-Duty Conduct?

Generally, what you do on your time is your business

Unless– The conduct renders the employee unable to

perform his duties satisfactorily.– The conduct interferes with the efficient

management of the operation or workforce.– The conduct leads to a refusal or reluctance of other

employees to work with him.– The conduct harms the general reputation of the

Employer, its product or its employees.

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Privacy issues

General recognition of employer right to monitor usage

Corporate email or otherwise Searching company-owned equipment Cole and other decisions Have a policy Include statement in contract: don’t put it

on our system if you don’t want us to see it

Employment Agreements

Basic Checklist (cont’d):– Hours of work– Vacation / holidays– Dress code– Conflict of interest– Expenses– Social Media

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Stuart E. Rudner

srudner@rudnermacdonald.com

647.255.3100www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me, join the Canadian HR Law Group and visit the

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