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Features
Changing Technology: Monitoring Employee Computer Usage
WHERE SOCIAL NETWORKING SITES AND THE WORKPLACE COLLIDE

The employee of a Calgary oilfield service company wanted to spend the day with friends so he called in sick. During the course of the day photos were taken of their “excursion” and posted on Facebook. A co-worker, who had to pick up the extra work because his colleague was off sick, saw the photos on Facebook and reported it to the boss. The “sick” employee was disciplined and had to make up for his day off.

Dacid Ray
Grant Thornton
LLP
There are 150 million people on Facebook and the web site reported that people 30 years and older are the fastest growing demographic. The web site also reported that the average user has 100 friends connected to their site. Many companies, including my own, have chosen to ban access to Facebook and other social networking systems on the company internet. Employers and employees are discovering that social networking websites are blurring the lines between public and private access. Employers are facing new challenges on the privacy issues of accessing the web sites and employees are finding that posting information on sites like Facebook can be much like putting it on a billboard.

Employees can be disciplined for conduct even after work hours where the conduct is prejudicial to the best interests of the employer and even casual comments on blogs can provide the employer with grounds for discipline. In October, thirteen Virgin Atlantic cabin staff were fired for participating in a critical discussion about their employer on Facebook.

There has also been discipline against teachers for comments made on Facebook and in one case a teacher was disciplined for comments made about the mother of one of his students. Some teachers’ associations have recommended against their members allowing students to become “friends” on Facebook mainly because of the access the students will have to personal information about the teacher and potential repercussions for comments made by the teacher on the site. Some boards of education have either banned this type of communication with students or asked teachers to remove their profiles completely from any networking site. With social networking sites any racy photo or damning comment can be copied by “friends” and becomes public access even when the owner sets up the appropriate privacy settings.

Employers need to monitor employee usage of workplace technology to ensure integrity and protection from viruses and other threats. There is a darker side to social networking sites, even outside the well known cases of pedophilia, bullying and terrorism. The employer also wishes to avoid liability in the event that there is a problem resulting from misuse of the system and their failure to be in a position to show that technology was properly monitored. Courts and arbitrators have held that employers have a right to prevent inappropriate use of computer systems and that employees have little expectation of privacy in e-mail messages or work performed using those systems. Courts have held that employees in a non-unionized work site have even less expectation of privacy than a unionized work site but do not completely abandon their right to privacy.

Employers should have a policy putting employees on notice of the reason for electronic monitoring of computer systems including email and internet usage. The policy should provide employees with guidelines on appropriate use. Most employers allow for limited personal use in recognition that some personal e-mail or access to appropriate sites may not affect productivity or cause risk to the technology network. The policy should also notify employees of the consequences for unauthorized use (usually discipline up to and including termination). Employers should also ensure that the policy is properly communicated with tools such as sign off annually and at the time of hire or pop up reminders when employees sign onto the system.

At least 25% of employers admit that they use a review of social networking sites to research job applicants although the number of employers using them is probably closer to 75%. Employment search firms say that social networking sites can give insight into a person’s ethics, personality and behaviour patterns. Accessing the social networking site of an employee or applicant for employment is obviously collection of personal data and it may even contain medical information. There are no court cases on point as yet, however, there is a strong argument that the posting is publicly accessible and therefore there is implied consent on the part of the person posting. Implied consent would allow the employer to collect, use and disclose the information without invading the privacy of the individual. Where appropriate privacy settings have not been set on the web site by the individual the employer can assume that it is meant for public access. The employer should also keep in mind that a court or arbitrator will also look at the reasonableness of the access to the personal information to ensure that there is not an unreasonable invasion of privacy.

New technology has provided both a danger and benefit for the employer but there are no clear guidelines from courts or arbitrators outlining grounds for discipline of employees for misuse of new social networking tools. There are also no guidelines for the employer’s use of those tools for background checks. Social networking sites result in a constant interplay between the employee’s duty of loyalty to the employer and the employee’s expectation of privacy.

David Ray is the Senior Practice Leader of Security & Investigations with Grant Thornton LLP, a full service accounting and consulting firm with offices across Canada.



Implementing Progressive Discipline
KEY FEATURES OF AN EFFECTIVE POLICY

I am the sole human resource professional of a small non-union manufacturing company and I have an employee who is giving me a headache. The employee started off by coming into work late without advance warning or a telephone call. Now he is refusing to take orders from his supervisor and his carelessness has caused a small mishap on the production line resulting in two hours of downtime during a peak production period as well as a minor health and safety issue. Unfortunately, the supervisor has not warned the employee to improve or the consequences of failing to improve, either verbally or in writing. The supervisor is at her wits end and she now wants to terminate this employee for just cause. What concerns do you see if I terminate this employee for just cause and are there any ways to avoid this situation in the future?

Simon R. Heath
B.A., MIR, LL.B.,
Keyser Mason
Ball LLP
This case is a textbook example of the importance of an employer implementing and adhering to a progressive discipline policy in the workplace (be it a unionized or non-unionized workplace). In the absence of a progressive discipline policy you could dismiss the employee for alleged just cause based on the “cumulative effect” of his poor performance and misconduct. However, this dismissal is likely not going to withstand the scrutiny of a court in a wrongful dismissal action. My primary concern is that it does not appear that you have the requisite disciplinary record or documentary evidence required to substantiate your just cause termination. That is because the supervisor failed to provide the employee with verbal or written reprimands and/or warnings of unacceptable performance, counseling and/or training on how to improve his performance and the consequences for failing to improve (i.e., that he could be disciplined up to and including dismissal). The lack of progressive discipline could make the employee’s prior cumulative record of culpable misconduct meaningless in that the employer may be precluded from relying on the employee’s past conduct if the employee was never properly disciplined and advised to correct his/her behaviour for it in the first place. Moreover, if your just cause dismissal fails, it turns into a wrongful dismissal which could attract a sizeable damage award.

The best way to avoid this type of situation in the future and to ensure that you have the documentary evidence required to justify a termination is to implement a corrective discipline policy. Progressive discipline is a proven and judicially recognized way for employers to formally address discipline in the workplace in a uniform manner. Progressive discipline policies should be clearly written in such a way that employees can easily understand and that supervisors, managers and human resources professionals can easily apply.

Progressive discipline policies are almost universally premised on the following series of four steps, which become increasingly formal along the continuum if the inappropriate employee behaviour continues. The key to success is that the employee must be counseled on how to correct his/her behaviour at each step of the process. The first step is a verbal warning where a supervisor counsels the employee with respect to the nature of the infraction and the action required to correct it. If the poor behaviour continues, the second step is a written warning that lists the nature of the infraction and the action necessary to correct it in the future. The third step is a suspension whereby the employee is suspended from employment without pay for a period of time depending on severity of the conduct. The final step is a termination for cause if the employee fails to change his/her conduct despite the employer’s previous corrective efforts. Management usually retains the right to decide where on the continuum to start progressive discipline given the severity of the workplace misconduct. Further, past misconduct and its failure to be corrected justifies increasingly severe penalties.

In order to provide a progressive discipline policy with greater clarity, some policies specifically provide guidelines on what type of employee conduct will attract what type of employer disciplinary sanctions (with management reserving the right to deviate from the guidelines on a case-by-case basis if the facts justify such deviation). For example, it is very common for a progressive discipline policy to enumerate three types of offences and the disciplinary response associated with each. For example, Level One infractions, which are the least serious and include unauthorized leaves and poor work performance may start with a verbal warning and work their way up to a dismissal if the behaviour is not corrected. In contrast, a Level Two infraction, which could include dishonesty or insubordination, may start at a written warning (instead of a verbal warning) and end with dismissal as the ultimate sanction if the behaviour is not corrected. Finally, Level Three violations, which are the most serious, such as theft, falsifying work records or violent behaviour would attract a suspension or termination as an appropriate first response depending on their severity.

At all times an effective progressive discipline policy is dependent upon consistent employer application and strict adherence to the time lines contained within the policy. All alleged breaches, meetings, counseling sessions and corrective action must be documented and placed in the employee’s file. Documenting all incidents give the employer the disciplinary record and documentation necessary if the employer ever has to defend its action in the future.

In the example above, if the employer had a progressive discipline policy in place it could have warned the employee about coming into work late. If the behaviour continued despite counseling efforts, the employer could have issued him a written warning about not taking direction from supervisor. If the poor behaviour continued, the employer could issue a suspension for the carelessness on the production line and consider a just cause termination for the health and safety issue. The employer would have had all of the documentary evidence required to justify its decision.

Simon R. Heath, B.A., MIR, LL.B., is an associate in the law firm Keyser Mason Ball LLP and can be reached at sheath@kmblaw.com


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