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Features
Firing for Absenteeism and Lateness
WHAT THE COURTS SAY ABOUT JUST CAUSE

In the first of this two-part series, we outlined the basic legal rules surrounding termination for just cause and looked at the law regarding one of the most common reasons for firing an employee – dishonesty. In this second article, we review the law addressing another common reason for firing employees – absenteeism and lateness.

In general, absenteeism and lateness justify dismissal when the conduct is found to have amounted to “willful disobedience” of an employer’s order or policy.
Malcolm MacKillop
LL.B,
Senior Partner,
Shields O’Donnell
MacKillop LLP

The court will also consider other factors when deciding if there is just cause including: the seriousness of the absenteeism/lateness, taking into account the employer’s work environment and the nature of employment; whether the employee has been warned in the past for similar conduct; whether the employee occupies a senior position or has considerable length of service; whether the employee’s conduct prejudiced the employer’s business; whether the employer has tolerated similar conduct in the past; whether the reason for the absence was reasonable and therefore excusable; whether the employee was dishonest about the reason for their absence; and whether the employee’s absence was intentional.

One of the most common questions managers ask is whether an employee can be fired for a single absence. The answer is “yes”, but typically this applies only for junior employees and where the absence is highly prejudicial to the employer. For example, in Aeichele v. Jim Pattison Industries Ltd. (c.o.b. Jim Pattison Toyota), [1992] B.C.J. No. 1952 (S.C.), the employee was a probationary sales manager at a car dealership who was explicitly told that he would be terminated if he missed the final day of a three day sale. The court found that the instruction was reasonable in the circumstances as the sale was a significant event and the presence of a sales manager was “critical”. The employee missed the final day of the sale and was fired for just cause.

However, in most cases a single instance of absenteeism does not justify termination. In Baxter v. Hallmark Ford Sales Ltd., [1995] B.C.J. No. 2776 (S.C.), an experienced business manager who was fired after extending her return to work from a medical absence by only four days was wrongfully dismissed.

Courts are also lenient with long service employees even if the absence is caused by the employee’s misconduct outside of work. In Heynen v. Frito Lay Canada Ltd., [1999] O.J. No. 3560 (C.A.), a driver-salesman with 23 years’ of unblemished service was fired after being convicted of a criminal offence while on medical leave which caused him to miss an additional two months of work. The court found he was wrongfully dismissed because the employer failed to provide any reason why it couldn’t continue to cover the employee’s absence until he was released from jail.

Another common question from managers is whether an employee can be fired for taking unauthorized vacations. The answer is “yes”, but again the employer must show the absence caused significant prejudice. In Bratti v. F & W Wholesale Ltd., [1989] B.C.J. No. 1440 (B.C. Co. Ct.), a baker whose role was essential for the employer’s business submitted a vacation request late. This request was denied because the employer was very busy and short-staffed. The employer made it clear that if the baker took the vacation he would not have a job when he came back. The baker went on vacation and was fired.

Hendrik
Nieuwland,LL.B.,
Associate,
Shields O'Donnell
MacKillop LLP

The court concluded the termination was justified. Similarly, in Gonzalo v. Moores The Suit People Inc. (c.o.b. Moores Clothing for Men), [2006] S.J. No. 381 (Q.B.), a tailor who took an unauthorized vacation in December (the employer’s busiest time of year) contrary to the vacation blackout policy was fired for just cause.

However, there typically will not be just cause if an employer approves a vacation but reneges at the last minute and the employee nonetheless takes her vacation. This happened in Watson v. Summar Foods Ltd., [2006] O.J. No. 4541 (S.C.J.). In that case, the employee had the employer’s prior approval to be out of the country and had purchased plane tickets. Five days before the vacation, the employer withdrew the approval and without giving any reason, ordered the employee to change her plans. The employee refused, went on vacation and was fired. The court concluded that the employee was wrongfully dismissed.

Lastly, many managers ask when an employee can be fired for chronic lateness. If an employee is chronically late for a long period of time and the employer clearly documents its warnings, there will be just cause. This happened in Cardenas v. Canada Dry Ltd., [1985] O.J. No. 1724 (Dist. Ct.), where the employee had consistently missed over 50 days of work every year for the past three years and consistently punched in late.

There may also be just cause for fewer instances of lateness if the employee is in a senior position. In Riley v. Crown Trust Company, [1977] A.J. No. 606 S.C. (T.D.), the employee frequently reported to work late, but it was never a real concern of the employer’s until he was promoted.

After the promotion, the employee had his own office which forced him to walk by approximately 40 employees, which set a bad example. The employee was warned about his lateness on two occasions and was told that he was jeopardizing his employment if the conduct continued. Despite these warnings, the employee continued to show up late with the same frequency and was fired. The court found that the termination was justified.

However, if the employer does not take prompt and consistent action, termination will not be justified even in the face of chronic lateness. In Cain v. Roluf ’s Ltd. (Roluf ’s Camera Centre), [1998] O.J. No. 661 (Gen. Div.), the employee was terminated after being late 65 times and leaving work early 36 times in the year prior to her dismissal. The court concluded that the employee was wrongfully dismissed because the employer allowed the employee’s misconduct to continue and deteriorate over a long period of time, and provided inadequate and inconsistent warning letters.

Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O’Donnell MacKillop LLP of Toronto.

Social Networking Changes Confidentiality & Privacy Landscape
BE CAREFUL OF WHAT YOU USE FROM SOCIAL NETWORKS

With the explosion of social networking sites such as Facebook, Twitter and LinkedIn, the way people communicate and build relationships has dramatically changed. The World Wide Web has a far greater impact on society due to its versatility and how it functions in our everyday life.

It changed the way we communicate and build relationships. It has the potential to reduce privacy and social confidentiality norms and expectations which were once taken for granted regarding our private lives.
Brian Sartorelli
President and CEO
Investigative
Research Group

The Internet has changed the way we communicate, pay bills, buy, sell and instant message. This modification of privacy expectations is beneficial in a generation that is nomadic in nature.

Social networking provides excellent opportunities to keep in touch with friends and family who live in a world seemingly without borders.

From a criminal/civil perspective, the risks with posting personal information and photos on social networking sites are based on the cyber integrity of the site being utilized. Regardless of the cyber security measures in place, there will always be “hackers” to hack into networks, manipulate and steal personal information. Our personal information is no longer ours, but available to the entire world.

Online merchants take the information they obtain from customers and apply it to their own businesses to become more profitable. The Internet is increasingly used to foster fraudulent schemes and has created new opportunities for wrongdoing. Organized criminals are extremely adept at targeting social networking sites.

Potential crimes resulting from the theft of personal information range from identity theft and fraud to the most heinous of physical offences.

Internet fraud does not have the traditional boundaries.

In a bank robbery, there is typically physical evidence such as fingerprints, witnesses and surveillance video.

None of this is available in online crime and what little evidence there is will not exist for long.

From a private investigative perspective, social networking is an excellent source of information. It provides opportunities to locate individuals, colleagues, friends, associates, assets and identify social habits. A social network can build on relationships who share interests. The Internet is filled with millions of people who are looking to meet other people to gather and share information and build their own community.

Networking information is becoming very beneficial in defending civil litigation claims. For example, a statement made during an Examination for Discovery which claims an accident victim cannot participate in various activities or does not enjoy life to the fullest since an accident can sometimes be challenged based on information and photos posted online. With an estimated 350 million Facebook users worldwide combined with Google’s incorporation of various Facebook data in their search engines, the potential for personal information data-mining opportunities has increased exponentially.

Recently the courts have tended to support the disclosure of information posted on social networking sites. A Superior Court of Ontario decision in 2009 (Leduc vs Roman) ordered that some selected information profiled on Facebook was admissible.

Further, other Court rulings have suggested that an individual’s reasonable expectation of privacy is not justified when dozens of photos and personal information are posted on a website, notwithstanding the fact that individuals have to be invited to view the content. In other words, a social networking entry is not a private diary.

The legal obtaining of social networking information can be problematic depending on the security options imposed by the registrant.

Posing as a friend or back-dooring the site through the manipulation of an associate’s Facebook entry has legal and ethical implications. The attainment of such evidence would likely be deemed inadmissible in future civil proceedings. However, legal remedies can be attempted through the attainment of a court order to force the disclosure of Facebook accounts which, depending on the circumstances, could be very beneficial to insurance companies defending civil litigation claims.

Private investigation companies can enjoy considerable experience and expertise in data mining internet social networks. Data mining is applying methods to data with the intention of uncovering hidden patterns.

Private investigation firms can be deployed to proactively conduct effective and discreet investigations to take advantage of the society’s movement to open source and Internet social networking site. The company should be certified in Open Source Intelligence (OSINT) and intelligence collection management which involves finding, selecting and acquiring information from publicly available sources and analyzing it to produce intelligence.

It is easy to get caught up in the aspects of Internet social networking sites. What you choose to share is there for all to see. Just like in “real life” there is such a thing as sharing too much information.

Brian Sartorelli is President and CEO of Investigative Research Group and can be reached via email at brians@irgcanada.com.

NOTE: Brian Sartorelli will be presenting on WSIB Fraud Updates at IPM’s Fall Conferences in Toronto November 1, 2012 and Ottawa November 6, 2012. Click here for more details



Measuring Human Capital Risks
STEPS TO SUCCESSFUL MANAGEMENT

If everything stayed the same, you would never have to worry about managing change. But then again, you may not have a job because your organization wouldn’t need you. The good news is that when it comes to managing people, there are always changes and how well you manage those changes and the risks that go along with them determine your real usefulness to the organization.

As an HR professional, your main task is to help ensure that the management team has the necessary human resources to carry out their work for the organization. This is especially acute in times of growth, downsizing or when there are major changes on the horizon-basically, all the time. In today’s workplace, there is constant change. The level at which an organization manages its human resources and plans for human capital risks may mark the difference between success and failure.
Philip H. Gennis,
LL.B.,CIRP,
Trustee,
msi Spergel Inc

Human capital risk management is not new. Seasoned HR professionals have been practicing it for years. So what is human capital risk? A simple definition would be that the organization has the appropriate level of human resources to carry out its functions. Human capital risk is also the measurement of the gap between what you have and what you need. Making sure that happens is human capital risk management and the process of reducing any gaps is called Human Capital Optimization.

Breaking it down even further, the Conference Board of the United States found 27 human capital risks, any one of which could cause serious harm if not prevented. These ranged from gaps in critical skills within the company’s workforce to unethical behaviour to managing talent through mergers and acquisitions. Their study in the U.S. also found that human capital risk ranked fourth out of 11 risks in terms of potential business impact but only tenth out of 11 in terms of how well it was currently being managed. That indicates there is much work to do for HR professionals in this area.

Where do we begin? The first step to managing human capital risk is to identify and measure it within our organization. We already have a number of metrics collected which we can use for this purpose such as retention rates and the use of casual or temporary workers. This information will be useful when we start assessing our human capital risks. Many organizations have also started measuring skills as a way to identify the gaps between what a business has now and what it would need to meet any potential risk in the future.

Skills are a great measurement tool for risk management because they are both quantitative and reliable. They are easier to identify and every organization already uses hundreds in the everyday working life of the business. We have learned a lot about skills over the past thirty years and can now easily categorize them as technical, leadership or management skills. We know that skills are broken down into knowledge which can be taught or absorbed and abilities which enable them. It has been estimated that there may be as many as 1,000 skills that have already been identified and every organization will use between 600 and 800 of them.

The first step to kick-starting your human capital risk management program is to identify which skills are present, active and working in your organization, as well as any potential skills that may be held by key employees or sections but are currently unused or dormant. Through this process, you can create a skills map for your business that shows exactly where those skills are in the organization. This map can then be compared with your corporate goals or strategic plans, especially in the segments that deal with human resources, both now and in the future.

Determine if you have the skills already on board to create that new product line next year or if you have the internal capacity to deal with the departure of a group of senior managers.

What are your organization’s greatest human capital risk challenges?

According to the U.S. Conference Board, the top eleven include: poor alignment of HR strategy and activities with business strategy; shortage of critical skills within the company’s workforce; shortage of critical skills in the external labor force; gap between talent capabilities and business goals; succession planning/ leadership pipeline and the impact on business performance and continuity; over/under use of external talent to fill key roles; ineffective selection processes result in poor hiring; excessive turnover/ failure to retain critical talent; inability to compete for critical talent; alignment of pay and performance; loss of critical knowledge through attrition.

Philip Gennis, commercial insolvency & restructuring specialist with msi Spergel Inc., reminds us that it is up to senior HR professionals to maintain a proactive role in the business and also keep an eye out for any tell-tale signs of financial difficulty. Gennis, among other financial experts, feels that the challenge to HR professionals is to successfully combine the substantive experience of a traditional HR manager with the strategic orientation required in business today. Not only will this give you a leg up in dealing with the inevitable human resource crises, it may also give you some insight into the potential for success or failure of the enterprise which employs you.

You need to be able to see at a glance where your organization is at risk today and prepare contingency plans to protect the organization against a severe loss of income, production or prestige.

MQ Staff Writer

Run Better Meetings
AVOID MAYHEM & GET RESULTS

Meetings are the perfect arena to demonstrate your leadership skills, communicate savvy and presentation ability. It’s also where others can discover whether you’re on top of your responsibilities and can be trusted with further matters.

There is nothing more frustrating than to be in a meeting that has no direction, so call a meeting only when you have a clear purpose.

Invite Only Essential People

Smaller groups are more efficient, so include only the people directly involved in the subject matter. Also, when deciding between two possible attendees, invite the person who is more open-minded and will readily express their opinions. Don’t surround yourself with staff just so you can have an audience to hear you talk.
Catherine
Graham Bell,
President
PRIME
Impressions

Prepare an Agenda

Most people dislike meetings because they’re often disorganized, too little gets accomplished and they feel like their time has been wasted. Prepare an agenda that lays out what you want to achieve. Distribute it before the meeting so that participants can bring any pertinent information and enter fully into the discussion. They can also follow along while you keep things on track, especially if a specific amount of time has been allotted to each agenda item.

Timing

Give enough advance notice and the approximate length of the meeting so that participants can block off the appropriate time. Start on time and don’t repeat material for latecomers.

Avoid calling meetings just before lunch unless you are serving food, late Friday afternoon, especially before a holiday weekend or first thing Monday morning.

Assign Key Roles

There are three essential roles that need to be filled for effective meetings: Chair, Timekeeper and Scribe. Larger organizations using Robert’s Rules of Order will also have a Parliamentarian or Gatekeeper to interpret the rules and help monitor discussions.

  • The Chair calls the meeting, sets the agenda, lays down the ground rules and makes sure that they are followed. The Chair also encourages everyone to contribute, ensures that the critical people are in attendance and asks people to take on tasks.

  • The Timekeeper keeps track of time and informs the Chair when the time is up.

  • The Scribe takes minutes (notes of the meeting that summarize the main points discussed), distributes them before the next meeting and compiles an action list that outlines the tasks taken on by particular attendees.

    The participants have their own role. They need to be prepared, know and observe the ground rules, actively listen and contribute, share the air, send another person if they are unable to attend and discourage unproductive, disruptive behaviour.

    Action lists

    When someone volunteers to take on a task, the Chair should instantly ask for a completion date which is then entered into the minutes. This action list is then distributed by the Scribe immediately after the meeting as a reminder.

    Meeting Challenges

    There will always be challenges in meetings that try the patience of participants. To maintain your professional stance, it’s important to handle these situations with tact so that no one loses face and the meeting isn’t disrupted.

  • Reluctant Participants: To encourage quiet people to contribute, instead of saying: “You haven’t said anything during the whole meeting,” you can try: “I know you’ve worked on this project and we’d value your opinion on this matter.” If the person doesn’t have a reply, suggest that you return for ideas later.

  • Constant Commentators: Thank them for their contribution and then ask to hear from others. If you’re aware of the problem beforehand, you can outline at the beginning of the meeting how you want participants to give feedback. You can also request that comments be held until all the topics have been presented, or break participants into groups and have them work as a team to report their thoughts.

  • Co-opters: Some participants will want to lead the discussion away from the planned agenda to their pet projects. Place such items in the “Issue Bin” until the end of the meeting, when “Other Business” is covered, time permitting.

  • Put-Downs: To handle people who think that their ideas are the only ones worth considering, remind the whole group that personal experiences may differ and that therefore all views are valid, even if they’re unusual or unpopular.

  • Private Conversations: Participants who talk to their neighbours not only disrupt those around them, but are also being impolite. So as not to confront them with equal rudeness, tactfully invite the person to share with the whole group. This may draw the person into the meeting. If the talking persists, being silent until the talking stops also speaks volumes.

    Catherine Graham Bell, AICI CIP, President of PRIME Impressions, is author of Managing Your Image Potential: Creating Good Impressions in Business, a dynamic international trainer, and one of only 14 Certified Image Professionals in Canada. She can be reached at catherine@prime-impressions.com.

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