How to Deal With Employee Misconduct

by Leanne E. Standryk

Leanne E. Standryk provides a detailed and extensive look into misconduct by employees. This article covers all aspects of misconduct, including the different types of misconduct and how an employer can and cannot respond under the law.

The most basic obligations of the employment relationship are the employee’s duty to work and the employer’s duty to pay for the work. These principles are at the root of every employment relationship. From these obligations arise certain other incidental obligations, for example, employees are required to perform work while at work, perform work in a competent manner and report for work on a regular basis, unless they have a justifiable excuse. Employers on the other hand have an obligation not only to pay the employee for work performed but to pay the agreed upon rate, treat employees fairly with civility, decency, respect and dignity. In a perfect world, everyone complies with their obligations. Employers manage the workplace in a fair and efficient manner and employees conduct their work in a satisfactory manner in compliance with all reasonable rules and policies established by their employer. In a perfect world, it would never happen – but the reality is, many employers will one day be faced with the dilemma of deciding what to do and how to deal with employee misconduct.

When dealing with employee misconduct, companies must keep careful mind of the legislative and common law legal framework that governs the employment relationship. Regard must be made to relevant legislation such as the Employment Standards Act 2000, Ontario Human Rights Code, Workplace Safety and Insurance Act, Occupational Health and Safety Act (reprisal provisions) and to principles such as constructive and wrongful dismissal.

To effectively manage the employment relationship and deal with potential misconduct, employers are well advised to develop and maintain reasonable rules of conduct and performance expectations. Communicate these to employees and ensure consistent application and enforcement. Provide appropriate counseling and training to your workforce. Carefully consider each incident of misconduct and the appropriate reaction. Avoid knee jerk instantaneous reactions. These only serve to increase potential employer liability.

The purpose of this paper is to review strategic practical methods of dealing with employee misconduct, to inform the reader of factors to consider when faced with the dilemma of deciding what to do and how to deal with employee misconduct.

The Starting Point

The Employment Contract

There is no question that one of the most valuable tools an employer can have is a well written employment contract for non-unionized employees. A written contract provides a permanent record of the terms and conditions of employment and will serve to reduce any misunderstanding or ambiguity between the employer and the employee. The contract no doubt should include not only the calculation of compensation but also outline the terms of probation, an acknowledgement of compliance with employer policies and workplace rules, restrictive covenants (where appropriate) and termination provisions.

The contract is the embodiment of rights and obligations for both the employer and employee. By way of incorporating the terms and conditions surrounding the termination of employment, the employer substantially decreases the risk of being sued for wrongful/constructive dismissal.

Policy Manuals, Procedures and Workplace Rules

Policy manuals, procedures and workplace rules form an important part of an employment relationship. These documents commonly contain the details of the relationship between the employer and employee and often “fill the gaps” between the formal offer letter and the actual working conditions. They help:

1. set the standard for employee conduct and provide guidance to management, supervisors and staff;
2. tell employees what you expect from them and what they can expect from you in return;
3. create a reference guide for everyone on how you want certain issues handled and shape the culture of your organization;
4. provide a mechanism for dispute resolution; and
5. minimize the risk of litigation.

The effect and enforcement of your policies will depend on a number of factors including:

• When the policy was provided to the employee;
• Whether the employee agreed to be bound by the policy, is aware of the policy and its contents;
• Whether the policy is reasonable;
• Whether the policy was applied consistently in the past;
• Whether the employee received counseling and training with respect to the policy.

Provide initial orientation of employer policies at the time of hire. Provide a copy of the policy/manual to the employee at the time of hire. Make the policies available to the employees in a central location for their review. With the growing use of computers, thought should be given to creating an Intranet page where such policies are posted for employees to review as necessary.

The importance of informing employees of policies and consistent enforcement cannot be understated. In Lambe v. Irvin Oil Ltd. [2002] N.J. No. 316, the employee was terminated for breach of company policy relating to the use of the company vehicle, telephones and credit cards for personal benefit. Rather than having a written policy, the company relied on “common sense” to argue that the use of company property for personal use justified termination of the employment relationship. The employee argued that he often used his personal vehicle on occasion for company use and felt justified in filling his car with gas using the company credit card.

The court was critical of the fact that the employer had no policies in place. The Court recognized that in order to justify the penalty of termination for breach of company policy, the policy would have to be:

1. reasonable in its terms;
2. received by the employees;
3. known and understood by the employees;
4. consistently enforced throughout the company; and
5. clear as to the consequences of the breach.

Courts have consistently held that in order to justify a termination of employment, the implications of the policy breach would have to be sufficiently serious and there would have to be an absence of reasonable excuse by the employee. This being said, even where policies are clear and well-known, an employer still must examine the breach considering all of the circumstances in order to determine whether termination is an appropriate penalty. Where termination would be too harsh, the employer must either terminate without cause or use corrective measures short of dismissal.

The Problem Employee – Distinguishing between Culpable and Non-Culpable Conduct

It is an implied term of the contract of employment that an employer may terminate an employee for just cause. In the employment context, just cause for dismissal means that the employer has an appropriate reason or “justification” for firing an employee. In the same situation, the employer is relieved of the obligation to provide notice of termination or payment in lieu of such notice. Where just cause is present, the employer is entitled to summarily dismiss an employee and unilaterally end the employment relationship.

Traditionally employers were only required to establish a single incident of serious misconduct in order to justify terminating an employee for cause. But in a number of decisions, judges have made it clear that the employment relationship should not be severed lightly. The standard therefore to uphold a dismissal for just cause is becoming more and more challenging.

Courts have long recognized the central role that employment plays in the daily aspect of an individual’s life. Chief Justice Dickson (as he then was) stated in the Supreme Court of Canada’s decision in Reference re: Public Service Employee Relations Act: ” Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self worth and emotional well being.”[1]

Given the importance of work to an individual’s identity, the courts have gradually narrowed the scope of just cause in order to recognize and address the power imbalance that often exists between employer and employees. To uphold a termination for just cause, the employer must be prepared to show that the misconduct was of such a nature and character that the employment relationship was effectively at an end. This requires that the grounds for the misconduct be examined objectively and assessed on a case-by-case basis in light of the employee’s position, length of service, past record and circumstances giving rise to or surrounding the misconduct to determine whether termination for just cause is in fact a proportional response. In analyzing an employee’s conduct a distinction must be drawn between culpable and non-culpable conduct.

Culpable conduct is conduct within the employee’s control which gives rise to an inference of blameworthiness. Non-culpable conduct is conduct that is beyond the employee’s control and usually not correctable through punishment. While non-culpable conduct may give the employer grounds to terminate the employment contract, the concept of cause generally refers to culpable conduct within the employee’s control. There are certain actions which may more clearly indicate culpable conduct, ie., the employee shows continued and “willful disobedience”, steals from the workplace or engages in conduct which is discriminatory, harassing or harmful to other employees.

Internet Abuse

Internet abuse by employees – in every profession, in every rank, and of every nature – is a serious problem for employers seeking at once to integrate the internet as a high efficiency business tool and at the same time manage its alluring, non-work related temptations. While the internet and e-mail access have increased the speed of doing business and lowered its cost, they have also introduced a potential minefield that lurks behind every computer screen. One author has described it “many times, internet access is an open invitation to waste time.”[2]

The types of inappropriate internet and e-mail usage span a wide spectrum. One can find online gaming and gambling, pornography, chat rooms, hate sites and copyright violations. Without adequate systems in place to monitor employee usage, most employers will be completely unaware of the abuse taking place.

Some may argue that employers who allow some form of personal use during work hours may be creating a more productive workplace, as employees will have fewer reasons to take the time to physically leave the office to tend to their personal errands such as banking. However, whether and to what extent to allow personal access to the internet is a business decision. A review of the case law makes it clear that personal use does not have to include accessing or distributing inappropriate material in order to warrant discipline. “Cyber-slacking” is a modern variation of the age old problem: employees spend their time doing anything but working. The question then is how much is too much to equal culpable conduct deserving of discipline?

In Mount Royal College and Mount Royal Support Staff Assn. (Horan Grievance),[3] the grievor was dismissed due to excessive use of the employer’s resources, equipment and the internet to further her part-time dog breeding business. The grievor was employed for a period of 14 years as the library secretary at the time of her dismissal. She admitted to using her work e-mail for personal matters but said it was common for employees to do so. On one day she received 69 personal e-mails. The arbitrator concluded that the use of the employer provided e-mail amongst other resources was not culpable in and of itself since the employer’s policies were ambiguous and inconsistently applied. The problem, however, was the “amount of time the grievor spent using the equipment during her regular work hours”[4] Despite the fact that the employer had not raised any concerns about the grievor’s work performance and that her performance appraisals were positive, the Arbitrator stated the following in upholding the dismissal: It is true that there were no specific concerns demonstrated about the quality of the work assigned to her. In fact, the Grievor’s recent performance appraisals were positive. This is not the issue, however. An employer has a right to expect employees to focus their attention during working hours on activities that benefit the employer. It is reasonable for an employer to instruct employees to refrain from devoting substantial work time to personal matters. The College’s direction to the Grievor was explicit – do not perform personal work on College time. Because the Grievor disobeyed this order, I can only speculate on how much more productive and valuable her services would have been to the College had she devoted the time spent on personal matters to work on behalf of the College. Clearly she had an obligation to the College in this regard and clearly this was an obligation that she knowingly did not fulfill. Thus, the fact that the Grievor adequately performed work assigned to her cannot shield her from the consequences of deliberately engaging in personal work once assigned tasks were completed.[5]

In Dupont Canada Inc. and C.E.P. Local 28-o (Maitland Site)[6] the employer discovered that the grievor was using a female co-worker’s computer to access the internet and download pornographic files. The grievor had by-passed the log-in requirement and evaded immediate detection. The employer later discovered it was in fact the grievor who had been engaging in the online activity. The grievor had access to his own computer but deliberately chose to mask his behaviour by using a co-worker’s computer. Computer disks were obtained from the grievor’s locker containing images of nude women, group sexual activity, etc. The majority of the Board concluded that the grievor’s termination was justified, despite the fact that “there is some form of inconsistent enforcement of the penalties“ regarding the use of computers, while not models of clarity, clearly were known by the Grievor who admitted he breached these.”[7]

In the case of Canadian Union of Public Employees, Local 37 and Calgary (City) (Graham)[8] the grievor was employed in the city’s waterworks unit where, among other things, the city’s drinking water safety levels are tested. The employer’s internet policy permitted personal use of the internet “for occasional personal obligations without criticism.” The grievor was a senior operator with 23 years service, was suspended and ultimately dismissed after he failed to respond to alarms on more than one occasion. These alarms are set off to notify employees in the unit that chlorine levels in the water have dropped below acceptable levels, putting the city’s water supply at risk for higher levels of bacteria and increasing the potential for health risks to the community. One alarm lasted for 2 hours without the grievor making any attempt to respond or to inform his immediate supervisor. It was discovered that the grievor had been in an online chat room that day for 2 hours and 50 minutes. The personal nature of the messages made it clear that the grievor was not attending to his responsibilities at all. In upholding the termination, the Board states: By his actions he has shown himself to be untrustworthy, to lack the credibility and honesty of a person entrusted with caring for the health and safety of the City’s drinking water. As an employee of 23 years, the grievor knew better. He knew the City internet policy and his foreman had spoken to him on 3 separate occasions about the need to respect the City’s policy. Knowing this the grievor made a decision and abused the policy.[9]

Although it is not clear whether the grievor was accessing inappropriate chat rooms or making inappropriate statements in these chat rooms, it is clear that his personal use interfered with his job and compromised the reputation and integrity of the employer’s business goals and expectations. This was sufficient reason for dismissal.

In considering appropriate discipline on cyber-slackers, employers must also be aware that arbitrators have been willing to entertain the possibility that internet addiction, either independently or as a part of a larger psychological problem, may qualify as a disability in certain circumstances. If so, it would be deserving of reasonable accommodation under the Ontario Human Rights Code.

In the case of City of London and C.U.P.E. Local 101 (M.D.) [10] the grievor was a case worker in the Ontario Works division of the City and was terminated because of his increasing appetite for viewing pornography from his workspace computer. The grievor was employed for a period of 10 years and had never been disciplined prior nor had he been criticized in any fashion for his performance. The grievor admitted at the outset he began to view pornography “mostly during lunch but occasionally during work hours. At the end, I’d log on first thing in the morning and it’d be minimized on my tool bar all day”.

The grievor was spending approximately 2 hours every day while working, viewing pornography. The arbitrator noted that this was a significant amount of time. The grievor had a history of mental illness and the employer was aware that he had been diagnosed as a paranoid schizophrenic. The grievor was successful in arguing that he had an addiction to viewing certain sites and that his viewing of pornography was causally related to his medical condition. In the end, the arbitrator found that the employer had just cause to discipline but that discharge was not appropriate in the circumstances.

In the end, employers should be aware that decision makers have applied the traditional approach regarding the discipline of cyber-slackers. Ultimately, the punishment must be commensurate with the misconduct, taking into account all relevant mitigating and contextual factors.

Harassment

Harassment is defined in the Ontario Human Rights Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.[11] Every person who is an employee has a right to freedom from harassment in the workplace by the employer….or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, same-sex partnership status, family status or disability.[12] The Human Rights Code also guarantees that “every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer…or by another employee.”

In Geluch v. Rosedale Golf Association, Limited[13] an Ontario court action, the plaintiff was hired to the position of General Manager. The Club had a volunteer Board of Directors that relied on the General Manager to oversee the Club’s operations, to run special events and to attend all committee and Board meetings. The Club terminated Geluch’s employment in response to a complaint made by a former employee of the Club, Anne Taylor. Taylor alleged that she had been harassed and abused by Geluch during her time at the Club. The Board voted to dismiss Geluch immediately. Geluch brought an action for wrongful dismissal and claimed he was terminated without cause and was therefore entitled to reasonable notice of termination, unpaid vacation pay, aggravated and punitive damages as well as compensation for his mitigation costs. The Club argued just cause for termination and that Geluch had breached the terms of his employment by engaging in abusive behaviour towards Club staff and sexually harassing employees. The Club also claimed that Geluch had engaged in improper use of the Club credit cards, paid out salary increases in a lump sum without Board authorization, abused his food and wine privileges and withheld financial information from the Board of Directors.

Madame Justice Himel, in her decision, noted that because there was no fixed law defining the degree of misconduct that justifies dismissal, a court must consider the nature of the misconduct and it consequences within the totality of the employment context, including the nature and history of the employment relationship. Courts must also be mindful of the fact that work is an essential component of one’s personal identity, The Court reviewed the evidence relating to the allegations and concluded that the Club had failed to establish cause for dismissal. Although Geluch had behaved inappropriately toward employees on occasion, the incidents were not serious and there was no pattern of behaviour sufficient to justify summary dismissal.[14] The decision is important given the Court’s comments with respect to the Club’s response to the harassment complaint. The Court held that the club’s Board had been misguided in its response to the harassment allegations. When the Board heard the allegations against Geluch, it should have directed that an independent person – not a Board member – be retained to investigate the matter fully. The Plaintiff should have been suspended with pay, pending the completion of a full investigation and then, given a full opportunity to respond to the allegations. Information collected during the course of the investigation should have been presented to the Board for impartial determination. Madame Justice Himel further stated that, in a workplace investigation, procedural safeguards must be put in place. After reviewing the surrounding circumstances, the Court found that Geluch, as a long standing employee was not treated fairly by the Club and was not afforded any opportunity to tell his side of the story or respond in any way.[15] The treatment of Geluch by his employer was found by the Court to be particularly harsh given that Geluch had never been given any warnings about his behaviour and had no record of discipline in his employee file. Having concluded that the employer failed to establish just cause, the Court awarded Geluch the equivalent to fifteen months’ reasonable notice. In making her decision Madame Justice Himel considered the fact that Geluch’s prospects of re-employment had been substantially hampered by the circumstances surrounding his departure from the Club. The Court awarded a further two months’ notice in Wallace damages.

Despite the decision in Geluch, the majority of the case law reveals a commitment of the Ontario Court of Appeal to uphold termination of employees in situations of investigated and substantiated sexual harassment in the workplace. In Simpson v. Consumers’ Association of Canada et al. [16] , the plaintiff was dismissed from his position as executive director of the Consumers’ Association of Canada (the “Association”) for sexually harassing female employees. The plaintiff sued the Association for wrongful dismissal. The trial judge allowed the action. He found that six different incidents of sexual harassment had taken place, but that they had occurred outside of the workplace and as such, found that the Association did not have just cause for dismissal.[17] He based this decision also on his findings that the Association did not have a sexual harassment policy; that it was a working environment in which certain sexual conduct was tolerated; that some of the impugned conduct was consensual; that one of the women had forgiven the plaintiff’s conduct; and that his conduct was unrelated to other events, such as the women’s resignations.[18] Feldman, J.A. reviewed each of these reasons and allowed the appeal. She found that because the trial judge placed much emphasis on his finding that Mr. Simpson was a credible witness, in contrast to his finding that the complainant women were exaggerating or lying, he “failed to consider objectively Mr. Simpson’s admitted conduct toward female employees.”[19] She concluded that “viewed objectively and in its totality, the conduct of the respondent as revealed in [the six incidents] constituted sexual harassment warranting dismissal.[20] In Bannister v. General Motors of Canada Ltd.[21] the Ontario Court of Appeal again overruled the trial judge’s finding that the alleged conduct of the supervisor did not amount to sexual harassment justifying dismissal. In that case, the supervisor engaged in several different acts of sexual harassment with different young women (summer students) in his department. Carthy J.A. defined sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.”[22] Cathy J.A. found that “wearing persistence” was not a necessary constituent of sexual harassment in the context of termination. [23] In other words, the supervisor did not need to persist with any one of the complainants specifically, or engage in the conduct repeatedly. Rather, it was sufficient that he engaged in this conduct with several different women. Carthy J.A. also found that the Respondent had failed in his supervisory responsibilities. The Court of Appeal reversed the trial judge’s finding and found that the supervisor’s actions did justify dismissal.

Bannister should be read in conjunction with Gonsalves v. Catholic Church Extension Society of Canada[24] which was released at the same time. In Gonsalves a long term employee, who held a supervisory position, was dismissed due to allegations that he had engaged in persistent sexual harassment of a subordinate female employee. The conduct included at least one sexual assault. Carthy J.A. once again writing for the Court held that the supervisor was not entitled to a warning upon the employer becoming aware of the misconduct. On this point the Court drew a parallel between sexual assault and employee theft: “As a generality, it seems no more appropriate to address sexual assault by a warning than to issue a warning to an employee caught stealing money…”[25] this parallel was “aptly drawn in the circumstances of [this] case, which….involved protracted harassment that crossed the line on at least one occasion into criminal assault.”[26] Ultimately the Court of Appeal once again reversed the decision of the trial judge and dismissed the wrongful dismissal action.

Read together, Simpson, Bannister and Gonsalves clearly signify a toughening stance on sexual harassment by the Court of Appeal. With respect to sexual harassment, the Court in recent years has imposed a strict standard of workplace conduct. While all allegations of sexual harassment must be taken seriously, there is a continuum and not every case will justify summary dismissal. Harassment involving aggressive, non-consensual physical contact clearly falls at the most serious end of the continuum. Thus, in determining whether harassment justifies dismissal for cause, the following are considered relevant:

– Degree and nature of the harassment; – Whether the employee was told the behaviour was offensive and unwelcome – Whether the employer had a formal harassment policy in place; – Whether it was one of the employee’s responsibilities to enforce the policy; – Whether the employee was in a position of authority; – The nature of the relationship between the employees; – Whether the employee was harassed by more than one individual; – Whether there was an admission of guilt.

Bullying in the Workplace

Bullying is different from harmless incivility, rudeness, boorishness, teasing and other well known forms of interpersonal torment. Bullying is a form of violence, but only rarely involves fighting. It is mostly non-physical violence and crosses boundaries of gender, race and organizational rank. Regardless of how bullying is manifested – either verbal assaults or strategic moves to render the victim unproductive and unsuccessful – it is culpable conduct within the control of the culprit employee and most often deserving of some form of disciplinary action.

Over the last several years our courts have begun to develop a legal remedy for bullied/harassed workers under the umbrella of constructive dismissal. While historically workers were protected from harassment that could be linked to the prohibited grounds of discrimination under the human rights legislation there was really no remedy for employees who were subject to general harassment. This started to change as early decisions began to carve out protection for employees based on constructive dismissal principles and finding that it was a fundamental implied term of any employment relationship that employers treat employees with civility, decency, respect and dignity.

The door was blown open so to speak with the decision of Shah v. Xerox Canada Limited[27] . A new branch of constructive dismissal was established eliminating the need to prove a breach of a fundamental term of the employment agreement, if the conduct of the employer demonstrated it no longer intended to be bound by the employment contract.

Shah was hired by Xerox in 1983. Up until 1995, when he accepted the position of technical support analyst, he had received good reviews and pay increases. In his new position he reported to a different manager, Mr. Harvey. Shortly after his appointment, Shah’s group adopted a work philosophy known as “empowerment” with a view to encouraging entrepreneurial and independent thinking with each employee being the “owner” of his or her own work. Shah did not adapt well to this approach. He found it confusing and unclear as to whom he should report to.

Shah began to receive serious critical performance reviews and a warning in March 1996. The tone of the warning – harsh and intimidating. He requested a transfer to another department. It was denied. After returning to work from sick leave, Shah was assigned a large number of tasks. He reluctantly agreed to the tasks but refused to sign a form which set out time lines for completion that he believed unreasonable. As a result, he received another warning. Shah requested a 6 week leave of absence to deal with some personal problems. The request was denied and he was put on probation. Shah subsequently resigned and pursued a claim for wrongful dismissal.

The Court found that the relationship deteriorated because of inefficient management structures. The Court found that the supervisor was authoritarian, impatient and intolerant. Shah’s position as a member of the group had become intolerable. In the circumstances, the Court concluded that it was not necessary to find a fundamental term of the employment contract had been breached in order to find that a constructive dismissal had occurred. Rather, Cullity J. found that the circumstances established by Xerox had repudiated the entire relationship without cause and stated: Where the conduct of management personnel is calculated to cause an employee to withdraw from the employment, it may, in my judgment amount to constructive dismissal. The test, I believe, is objective: it is whether the conduct of the manager is such that a reasonable person in the circumstances should not be expected to persevere in the employment.

The decision in Shah was applied in Saunders v. Chateau des Charmes Wines Limited [28] also involving circumstances of mistreatment between a supervisor and subordinate. However, employers in meeting their obligation to create a harassment free environment must not overlook objectionable behaviour amongst non-supervisory employees.

In Sheppard v. Sobeys Inc.[29], the Newfoundland Court of Appeal made the following statement which is often referred to in bullying cases: As the term constructive dismissal suggests there is no actual dismissal by the employer, however, the employee must establish that there has been a variation of a fundamental term of the contractual relationship between the employer and the employee of such severity and effect which, in the absence of the agreement of the employee, would amount to a repudiation of the contract. The employee is thereupon entitled to treat the contract at an end. Clearly abusive treatment, which would include harassment of an employee by co-employees and, particularly, where these co-employees occupy senior or supervisory positions, can be construed as a variation of a fundamental term of a contract of employment such as to constitute a repudiation of the contract by the employer.

See also Stamos v. Annuity Research and Marketing Service Ltd.[30] and Morgan v. Chukal Enterprsies Ltd. Bullying behaviour can be blatant or quite subtle and may include the following:

– Physically abusive or aggressive behaviour such as pushing, hitting, finger pointing or standing close to an employee in an aggressive manner. – Yelling, name calling. – Persistent, excessive, unjustified criticism. – Setting impossible goals and deadlines. – Forgetting to share credit for collaborative work. – Demeaning, belittling others.

Substance Abuse

In general, while the use of alcohol or illicit drugs on the job may be grounds for summary dismissal, much depends upon the circumstances of each case. Where it is a condition of employment that the employee be alcohol and drug-free while on the job, an employee may be dismissed without notice if under the influence of drugs or alcohol while at work.[31] In circumstances where the prohibition against alcohol and drug use is not a specific term of the employment contract and where the consequences of being intoxicated will not jeopardize public safety, fellow employees or the employer’s property, the courts have generally held that in order to constitute just cause for summary dismissal, the intoxication must:[32]

1. affect the employee’s ability to perform the job functions;
2. be prejudicial to the employer; and
3. must be accompanied by a sufficient warning that use of alcohol will result in dismissal.

Severe substance abuse is classified as a form of substance dependence or illness. The common law courts have long since recognized alcoholism or substance abuse as an illness. Generally speaking, since alcoholism is an illness, the Human Rights Code will operate to protect the individual in the workplace and, it therefore follows, that alcoholism is not cause for dismissal unless it affects an employee’s work performance.”[33] According to the Ontario Human Rights Commission’s Policy on Drug and Alcohol Testing, the following examples represent situations in which the use of legal or illicit drugs or alcohol may fall within the Human Rights Code’s definition of handicap:

Where an individual’s use of drugs or alcohol has reached the stage that it constitutes severe substance abuse, addiction or dependency, e.g. maladaptive patterns of substance use leading to significant impairment or distress including:

– recurrent substance abuse resulting in a failure to fulfill major obligations at work; – recurrent substance abuse in situations which are physically hazardous; – continued substance abuse despite persistent social, legal or interpersonal problems caused or aggravated by the effects of the substance.

Courts have indicated that substance abuse is a disease for which there is no medical cure. Viewed in that way, it is a permanent illness/disability. Therefore, the employer will be subject to the duty to accommodate the needs of the alcohol or drug addicted/dependent employee to the point of undue hardship. However, the courts have recognized that substance abuse is treatable and can be controlled even though relapses may occur.[34] In short, while the substance abuse is an illness falling within the four corners of the human rights legislation, the illness will not prevent summary dismissal where the addiction/dependency prevents the employee from properly discharging his/her duties. This is particularly so where the employee has been offered assistance by the employer to combat the dependency and where the employee has been warned that future inappropriate conduct may result in dismissal.

In practice, when dealing with an individual who is under the influence of alcohol or intoxicating drugs, an employer should determine whether the “use” is an isolated incident or symptomatic of an addiction/dependency. If it is determined that the employee suffers from a dependency, it is advisable for the employer to require the employee to undergo counseling or rehabilitation either through an employee assistance program or some other available program. The employee should be required to complete the treatment and should be provided with a written warning that further incidents involving alcohol or drug abuse will be the subject of disciplinary action up to and including discharge of employment.

It may be that employers who provide for employee assistance and counseling will, in certain circumstances, have satisfied any duty to accommodate under the human rights legislation. Careful consideration should be given to the Human Rights Code and it is well advised to seek the assistance of legal counsel when dealing with such employees.

When Must you Accommodate Employee Misconduct?

The duty to accommodate flows out of the application of human rights legislation. The Courts have characterized such legislation as “fundamental” and having “quasi-constitutional” status, thus the provisions of the human rights legislation are to be construed liberally and purposively. It is clear that an employer may not discriminate directly or indirectly against a person respecting their continued employment based on an actual or a perceived disability. In cases where there is a causal connection between the workplace offence and a “disability” as defined by the Human Rights Code, an employer has a positive duty to accommodate the individual to the point of undue hardship.[35]

Where an employee suffering from a disability recognized by the Code commits a workplace offence, an employer must be cognizant of a possible connection between the workplace offence and the employee’s disability. A review of the case law indicates that arbitrators, tribunals and tiers of fact consistently find that where an employee’s behaviour is a manifestation of a disability, discipline may not be appropriate.

The first step is to assess whether a causal connection exists between the disability and the workplace offence. Once it is established that a relationship exists, the analysis then shifts to whether there is a reasonable prognosis for recovery that will enable the employee to return to work and perform his or her duties at an acceptable level. This will then engage the “accommodation process”.

The Discipline Process – Post Investigation Procedures

After the investigation has been concluded and all necessary parties have been consulted, the employer should decide upon the appropriate course of action and put any discipline into effect. If an employee is to be disciplined, the employer should notify him or her as soon as possible. The reasons for the discipline should be provided to the employee.

Workplace discipline requires clarity, consistency and appropriate levels of reaction. Discipline may be issued in the form of a verbal or written warning, a paid or unpaid suspension, demotion or termination. After deciding that an employee’s conduct warrants discipline, an employer must ensure that the discipline is in reasonable proportion to the offence.

It is important for employers to give employees warning regarding unacceptable behaviour (unless it is the result of a single incident deserving of termination). Not only does this allow an employer to create a paper trail, it also gives the employee the opportunity to correct any deficiency. Warnings are generally the least severe step. Verbal warning is generally considered the first step in any discipline process and is meant to advise an employee that his or her conduct is unacceptable and must be changed. Verbal warnings are seen to address minor misconduct and disputes can arise later as to precisely what was said. Thus it is well advised that management document the contents of the discussion in the personnel file, carefully noting that the employee misconduct was subject only to a verbal warning. In the event that the employee engages in further misconduct, the verbal warning can be referred to and relied upon in instituting subsequent discipline. In situations of a more serious nature, a verbal warning may be inappropriate even for a first time occurrence. Thus, a progressive discipline policy should specifically state that steps in the policy may be skipped in the event of serious misconduct.

The language of written warnings should be tailored to the severity of the misconduct, with notes such as “you are advised that this is unacceptable; further incidents will lead to additional discipline up to and including termination”. A copy of the written warning should always be placed in the personnel file as such letters can be used later in the event that the employee is terminated for cause. Written warning should always refer back to previous warnings which the employee has received, particularly if the earlier warning was for the same or similar misconduct.

Some types of conduct are more conducive to warnings than others. A serious act of theft or other illegal activity may not require a warning. In disruptive behaviour cases, particularly where the incidents complained of are trivial but annoying, it is accepted that a warning is required prior to dismissal.[36] The more serious the wrongdoing, the less likely an employer will be required to give the employee a warning. The onus is on the employer to ensure the employee understands the criticism and the consequences of his or her conduct.[37] When faced with misconduct by an employee and attempting to determine the appropriate measure of discipline, consider the following:

– the bona fide confusion or mistake by the employee as to whether he or she was entitled to do the act complained of; – the employee’s inability, due to drunkenness or emotional problems, to appreciate the wrongdoing of his or her act; – the impulsive or non-premeditated nature of the act; – the relatively trivial nature of the harm done; – the frank acknowledgement of misconduct by the employee; – the existence of a sympathetic personal motive for dishonesty, such as family need, rather than hardened criminal activity; – the past record of the employee; – the employee’s prospects for likely good behaviour; – the economic impact of the discharge in view of the employee’s age, personal circumstances, etc. – similar misconduct by other employees and discipline imposed[38] It is critical that employers maintain proper documentation throughout the disciplinary process and leading up to termination. If an employer is moving towards a termination for cause, it is absolutely necessary to ensure that all the facts are true and accurate and documented. Records should be maintained. The doctrine of culminating incident allows an employer to review an employee’s previous record any time the employee’s conduct justifies the imposition of discipline. Where the final incident of misconduct itself does not warrant the severity of the penalty imposed, the employer may rely on the employee’s prior disciplinary record to justify that penalty. For this reason, disciplinary records will be important in determining the appropriate penalty. It is recommended that personnel records be retained until at least the expiration of 2 year limitation period related to wrongful dismissal claims.

Last Chance Agreements Last chance agreements are written agreements most often negotiated by employers, the unions and affected employees to create mutually acceptable standards and binding requirements for the continued employment of employees who would otherwise face termination.

In the majority of cases, last chance agreements are used by employers following the discharge of an employee for excessive absenteeism or other problems related to alcohol or substance abuse, although they are also negotiated in other situations, such as where an employee has had a severe attendance or punctuality problem that is unrelated to alcohol or drugs or has been the subject of repeated attitude and performance issues. In these situations, last chance agreements can be an effective means of preserving the employment relationship while clearly communicating to an employee the standards which he or she must meet to retain his or her employment. As a result, employers and unions can settle disciplinary, discharge and employment frustration matters without having to expend the time, cost and effort involved with litigation and, at the same time, fashion an agreement that is tailored to their own unique circumstances and expectations.

Historically, the arbitral community held that last chance agreements are valid and enforceable against the parties. Arbitrators have held that it is important to labour relations that a last chance agreement be honoured and respected in order to encourage parties to continue to try to resolve problematic situations humanely without litigation.

The defining feature of most recent last chance agreements is that they specifically limit an arbitrator’s scope of review to the question of whether the terms of the agreement have been breached. While arbitrators are generally reluctant to interfere with the terms of a last chance agreement, the jurisprudence has clearly established that last chance agreements are not immune from human rights obligations.

Again, the Human Rights Code prohibits discrimination in employment based on certain enumerated grounds.[39] If, for example, an employee’s misconduct is causally connected to one of the enumerated and protected grounds, the impact of the Code must be considered. Last chance agreements and the terms and conditions they impose must be reviewed in light of the employer’s duty to accommodate. Despite the sound labour relation policy reasons for enforcing last chance agreements, there is little doubt that where such agreements are found to fall short of an employer’s duty to accommodate and are thus in contravention of the Code, they will not be enforceable. Last chance agreements negotiated in response to an employee alcohol or substance abuse, or innocent absenteeism resulting from a chronic medical condition are often prima facie discriminatory. Accordingly, the question will arise whether the last chance agreements can meet the 3 step justification test established by the Supreme Court of Canada in Meiorin.[40]

The lesson to be learned from the various cases regarding the validity and enforceability of last chance agreements are that despite the impact of the Human Rights Code last chance agreements may still be appropriate and successfully implemented in a variety of situations. For example, a last chance agreement may be useful where an employee has a severe attendance problem, attends work under the influence of drugs or alcohol, or engages other employees and management in verbal or physical confrontations.

The last chance agreement may provoke the employee into recognizing the severity of the problem and cause him or her to seek treatment. If the employee does not successfully rehabilitate him/herself, or the problem is not conducive to rehabilitation, a last chance agreement that is properly drafted and implemented may evidence the employer’s attempt at accommodation and result in a discharge that will be upheld at arbitration. The critical lesson is that a last chance agreement is not a substitute for accommodation and will only be upheld if it is part of a comprehensive accommodation program designed to assist the employee in performing the essential duties of the job. As a result of case law interpreting the impact of the Human Rights Code there is now more uncertainty regarding the legal enforceability of the agreements but, they are still considered by arbitrators to be a “valuable and important document” in furtherance of good labour relations.

Termination for Cause

Traditionally factors such as the type of employee misconduct[41], the length of the employee’s service[42] and the character of employment[43] have been considered by the courts in determining whether an employee was properly dismissed for cause. In McKinley v. B.C. Tel[44]the Supreme Court of Canada clarified the law of summary dismissal and found that issues of employee misconduct must be considered in the context of the employee relationship. According to Justice Iacobucci, each case is to be examined on its own particular facts and circumstances and should consider the nature and seriousness of the misconduct in order to assess whether it is reconcilable with sustaining the employment relationship.[45] According to the Supreme Court of Canada in McKinley, the relevant test to determine just cause is whether the employee misconduct has given rise to a breakdown in the employment relationship.[46] In considering whether a breakdown has occurred, the courts are to consider whether the employee’s conduct has been established on a balance of probabilities and if so, whether the nature and degree of the misconduct warrants dismissal.[47] The Court therefore has adopted a “contextual approach to establishing cause which requires an examination of all of the relevant factual circumstances.

The onus is on the employer to establish a cause for dismissal on a balance of probabilities. This means that it is more likely than not that the employee misconduct did occur. Generally speaking, the more serious the allegations, the more careful the court will be in looking at the employer’s evidence.

The likelihood that a court will reject an employer’s cause argument is increased where the employer:

– fails to both warn the employee that his or her job is in jeopardy and does not give him or her a reasonable opportunity to correct deficiencies before dismissal; – condones part improper practices or fails to apply its policies and procedures; – fails to interview all relevant witnesses, regardless of whether they have evidence which is favourable or unfavourable to the employer’s allegations of cause; – fails to allow the employee to respond to all the allegations of misconduct; – delays in the internal investigation into the conduct; – fails to advise the employee of relevant policies and procedures, if the breach of those policies and procedures relating to investigations and terminations; and – relies upon inconclusive circumstantial evidence.

Manner of Termination

Historically, an employer was liable for damages only where the termination was itself unlawful, or where the manner of termination disclosed a separate cause of action, such as defamation. However, Wallace v. United Grain Growers Ltd.[48] , a decision of the Supreme Court of Canada held that an employee may recover damages even where the dismissal was for cause and the manner of dismissal did not constitute a separate cause of action. The Court imposed a duty of good faith and fair dealing upon employers when terminating the employment relationship. Employers have an obligation to be “candid, reasonable, honest and forthright with their employees at dismissal”. Where an employer breaches this implied duty of good faith in the manner of termination, the employee may be compensated by an increased notice period.

The decision is intended to compensate victims of bad faith conduct marked by callous and insensitive treatment on the part of employers in the manner they dismiss their employees. The Supreme Court of Canada attempted to draft the decision clearly so as to prevent a flood of claims for bad faith damages. In attempting to do so the Court provided a non-exhaustive list of the types of conduct that may constitute bad faith, as follows:

– permitting an employee to learn of the termination through an advertisement for his/her replacement; – firing the worker on the day he or she returns from a disability leave; – wrongful accusations of theft and then publishing the allegation; – refusing to provide a letter of reference; – giving a false explanation for the termination; – making negative public statements; – harassing the employee while on sick leave.

Terminations – Practically Speaking

1. Ensure that two representatives of the employer are present during the termination meeting.
2. The interview should be conducted by the employee’s immediate manager who is likely to have a good rapport with the employee. If there are likely to be communication issues between the direct manager and the employee, the human resources representative should conduct the interview.
3. Conduct the interview in an honest, reasonable forthright manner.
4. The meeting should be conducted in a private location where interruptions can be avoided. Every effort should be made to shield the employee from the embarrassment of being terminated in the presence of co-workers or in public areas.
5. Terminations should be conducted at a time that would enable the employee to avoid any possible embarrassment derived from encountering his or her co-workers when leaving the premises. It should be conducted early in the week in order to provide the employee with the opportunity to seek independent legal advice.
6. The law requires the notice to be specific, unequivocal and clearly communicated to the employee.
7. The purpose of the meeting should be clearly established at its outset.
8. Provide the employee with an opportunity to respond but do not debate the issue.
9. Individuals conducting the meeting should not become defensive. Their role is to communicate the termination clearly not defend it.
10. In the context of a termination for cause, a letter that sets out the reasons for the dismissal may influence the impression of the employee’s lawyer and could ultimately avoid costly litigation. Grounds for the dismissal should be set out clearly in the letter.
11. Conclude the meeting by making arrangements for the employee to remove their personal belongings from the premises and return all company property. Offer to provide the employee with a method of transportation home.

Final Note – The Honda Case: Consider it a Warning

On March 17, 2005, the Ontario Superior Court of Justice released a decision that contains one of the highest awards for damages in an employment law case that Canada has ever seen. In the controversial decision of Keays v. Honda Canada Inc.[49], Mr. Justice McIsaac granted a total of 24 months’ salary in lieu of notice and an additional $500,000 in punitive damages to a 14-year employee of Honda Canada Inc., who he found had been wrongfully terminated for insubordination. Given the unprecedented nature of this award, most lawyers expect the decision to be appealed. If upheld, this decision could break new legal ground for the quantum of damages awarded in employment law cases. Because the punitive damages were awarded for a breach of the duty to accommodate under the Ontario Human Rights Code, future complainants may seek a civil remedy rather than file a complaint under the Code.

The Facts

Kevin Keays worked as an associate in the Quality Engineering Department at the Honda plant in Alliston, Ontario. Keays was responsible for instructing his colleagues on the performance and operation of the new Honda global computer system. After an eight year exemplary employment record, Keays began experiencing health problems, which his physician diagnosed as Chronic Fatigue Syndrome (“CFS”). As a result of this condition, Keays was frequently absent from work. This impacted on his ability to provide sufficient attendance to satisfy the requirements of Honda’s “lean” operations. His health deteriorated to the extent that Keays was absent on short-term and long-term disability for a period of two years. He returned to work following the termination of his insurance benefits.

Upon his return to work, Keays continued to miss work on a regular basis. As a result, he was “coached” by way of a written report, which was the first step in Honda’s attendance management program. When Keays complained that his illness prevented him from meeting Honda’s attendance expectations, he was informed of a program that exempted employees from attendance-related discipline if they had a disability recognized under the Code. The accommodation program also required Keays to validate each of his absences with a note from his physician. In the meantime, Keays retained legal counsel and his absences continued to increase in number.

The nature and severity of Keays’ CFS disorder was also controversial. An internal physician at Honda expressed concerns about the treatment Keays’ personal doctor had recommended. He also expressed the view that Keays should be on a graduated return-to-work program. Consequently, Honda engaged the services of a medical specialist, who was asked to review Keays’ medical file and consider whether his absences were justified. In order to obtain a better understanding of his medical condition, the specialist requested that Keays attend at his office for an assessment. By letter from his legal counsel, Keays declined to attend this meeting “pending clarification of the purpose, methodology and the parameters of the assessment.” As Honda did not believe such an explanation was necessary, it made another request for Keays to attend at the physician’s office. When Keays refused again, he was formally terminated for insubordination. Keays responded with a lawsuit against Honda, claiming wrongful dismissal.

The Decision

Throughout the decision, the Court expressed its astonishment at Honda’s “callous and insensitive treatment” of Keays, given his vulnerable state of health and his conscientious attitude towards work. In holding that Keays had been wrongfully dismissed, the Court found that Honda had been unreasonable in refusing to give Keays an explanation for the purpose of the proposed meeting and that Keays therefore had a legitimate excuse for not attending the meeting. The Court also held that Honda’s decision to terminate Keays was completely disproportionate to his alleged insubordination. Accordingly, the Court concluded that Keays had been justified in refusing to follow his employer’s directions.

The Damage Award

On the basis of Keays’ age, length of employment, character of employment and the availability of similar employment, the Superior Court ruled that he was entitled to 15 months’ pay in lieu of notice. The Court also stressed Honda’s flat and egalitarian management structure as a reason for a longer notice period, despite Keays’ relatively low-level position.

The Court also awarded an additional nine months’ pay for “bad faith” damages, relying on the Supreme Court of Canada decision in Wallace v. United Grain Growers Ltd. supra which held that the extension of notice periods is permitted where the employer engages in bad faith conduct in the course of dismissal. Honda had displayed bad faith behaviour towards Keays, the Court held, by alleging that Keays’ claims concerning his condition were false, by unilaterally canceling the accommodation program and by making a “planned and deliberate” attempt to terminate Keays.

In what is perhaps the most remarkable aspect of the judgment, however, the Court decided that in addition to the 24-month notice period, the case also warranted an award of punitive damages. The trial judge found that Keays had been harassed and discriminated against by his employer. In very strong language, the judge criticized Honda for terminating Keays’ employment when all he was seeking was accommodation of his disability, as was his right under the Code. The judge specifically noted that the maximum penalty of $10,000 under the Code did not come close “to an appropriate deterrence and denunciation of the outrageous and high-handed conduct of this defendant.” Taking all this into consideration, the Court stated that Honda’s conduct was deserving of “significant denunciation” and, as a result, awarded punitive damages in the amount of $500,000.

The Bottom Line For Employers

The ultimate impact this case will have on employers is not yet clear. Many are concerned that it will open up a floodgate of wrongful dismissal claims from employees seeking limitless amounts of damages. If upheld on appeal, this case will certainly raise the stakes in many wrongful dismissal cases. It may also signal that, in certain cases, complainants will turn to the civil courts rather than the Human Rights Commissions in order to obtain larger damage awards. Much will depend on what the Court of Appeal decides to do in this case.

In the meantime, the Honda case stands, at the very least, as a strong reminder of the risks of litigation and the failure to accommodate disabled employees. However, employers can take some comfort in the knowledge that the Honda decision is quite anomalous. Punitive damages are quite rare in employment law cases and, when they have been awarded, have seldom topped $25,000. For example, in Quebec, where courts are generally reluctant to award punitive damages, according to Article 1621 of the Civil Code of Québec, the amount of such damages may not exceed what is sufficient to fulfill their preventive purpose.

In contrast to the Honda decision, in a recent decision of Mr. Justice Scott Echlin of the Ontario Superior Court of Justice, Yanez v. Canac Kitchens[50], the Court strongly admonished plaintiff’s counsel for indiscriminately claiming “Wallace” damages in too many cases”. According to the Yanez decision, “Wallace” damages should be asserted only in cases where the employer has truly engaged in bad faith behaviour that, for example, causes the employee humiliation, embarrassment or injury to his or her self-esteem. The Court also went so far as to say that in future cases, plaintiffs should be deterred from asserting “Wallace” damages which are clearly unjustified and should not have been claimed. Hopefully, this case and others that reflect a similar position will help to narrow the application of the Honda decision at least until the Ontario Court of Appeal has had the opportunity to weigh in on this matter.

Conclusion

The discipline and termination of employees for misconduct is a difficult yet necessary part of operating a business. It is imperative that employers understand and recognize what types of conduct merit discipline and respond appropriately. An appropriate response includes selecting the right types of discipline, but equally important are the procedures followed for documentation and substantiating the basis for discipline and/or termination. Termination of non-union employees raises several issues beyond the scope of this paper. Employers must be aware of their statutory and common law obligations. Recent trends demonstrate the increasing difficulty in substantiating “just cause” terminations and demonstrate that larger damages awards for wrongful dismissal are being awarded.

The rule of thumb is to take the time to consider the circumstances and avoid knee jerk reactions in dealing with employee misconduct. Document, document, document, document and always seek the appropriate legal advice prior to conducting a termination.

[1] [1987] 1 S.C.R. 313. [2] G. Taillon, “Controlling Internet Use in the Workplace” The CPA Journal, online: NYSSCPA http://www.nysscpa.org/cpajournal/2004/704/perspectives/p16.htm. [3] [1998] A.G.A.A. No. 12 (Mount Royal College) [4] Ibid. para 67. [5] Ibid para 81. [6] (2000), 92 L.A.C. (4th) 261 [Dupont (Maitland)] [7] Ibid para 7. [8] [2003] A.G.A.A. No. 30 (Calgary (City)) [9] Ibid paras 88 89. [10] (2001), 101 L.A.C. (4th) 411 [11] R.S.O. 1990 c.H-19 s. 10(1) [12] ibid s. 5(2) [13] [2004] O.J. No 2740 (S.C.J.) (“Geluch”) [14] With respect to the allegations of theft and fiscal mismanagement, the Court ruled that since the Club’s ledger had gone missing, it was impossible to determine whether or not Geluch had behaved inappropriately. With respect to the lump sum payment of the salary increase, the Court concluded that it was an error in judgment but not malfeasance sufficient to justify dismissal without notice. Finally the Court dismissed the allegation that Geluch had withheld important financial information from the Board, holding that it was ultimately the Club auditor’s responsibility to convey important fiscal and budgetary information to the volunteer Board. [15] Geluch, para 157. [16] (2001), 57 O.R. (3d) 315 (C.A.) [Simpson] Application for leave to appeal to the Supreme Court of Canada dismissed with costs, without reasons, August 15, 2002 [17] Ibid para 50. [18] Ibid. [19] Ibid para 56. [20] Ibid para 6. [21] (1998), 40 O.R. (3d) 577 (C.A.) [Bannister] [22] Ibid para 1. [23] Ibid para 30 [24] (1998), 164 D.L.R. (4th) 339 (C.A.) [Gonslaves] [25] Ibid para 15 [26] Davis Harris, Wrongful Dismissal, Volume 1, (Toronto:Thomson Carswell, 2004) at 3-144.5 [27] [1998] O.J. No 4349 (affirmed by the Court of Appeal [2000] O.J. No. 849) [28] [2002] O.J. No. 3990 [29] [1997] N.J. No. 78 [30] [2002] O.J. No 1865 (O.S.J.) 32 Cable v. Day & Reweighs Ltd. (1992), 97 Nfld. & P.E.I.R. 264 (Nfld.T.D.) as in D’Andrea et al Illness and Disability in the Workplace, supra note. [32]H.A. Levitt, Law of Dismissal in Canada, 2nd ed. (Aurora, Ont: Canada Law Book, 1992). According to Skaarup v. Andover & Perth United Farmer’s Co-operative Ltd. (1987), 85 N.B.R. (2d) 50 (N.B.C.A.), the factors apply equally to employees with drug related problems. [33]Cox v. Canadian National Railway Co. (1988), 84 N.S.R. (2d) 271, 88 C.L.L.C. 14,035 (S.C.). [34]Visentin v. Shell Canada Ltd. (1989), 100 A.R. 155. [35] British Columbia (Public Service Employee Relations Commission) v. British Columia Service and Employees’ Union [1999] 3 S.C.R. 3 at 15. [36] Bagnall v. Calvin Klein Cosmetics (Canada) Ltd. (1994), 5 C.C.E.L. (2d) 261 (Ont.Ct.Gen.Div) [37] Ditchbur v. Landis & Gry Powers Ltd. (1995), 16 C.C.E.L. (2D) 1 [38] Re Canadian Broadcasting Corporation (1979), 23 L.A.C. (2d) 277; Day v. WalMart Canada Inc. (2001), 4 C.C.E.L. (3d) 226 [39] Human Right Code supra note 13,14 [40] Ibid note 36. the Supreme Court of Canada laid out a test (the “Meiorin” test) to determine if an apparently discriminatory requirement could be allowed as a bona fide occupational requirement (“BFOR”): 1.Was the rule adopted for a purpose that is rationally connected to the job function performed? 2. Was the rule adopted in good faith, that is, in the genuine belief that it was necessary for the stated purpose? 3. Could the purpose have been accomplished by some other method, thereby accommodating the employee without undue hardship? [41] Daley v. Depco International Inc. [2004] O.J. No 2675 (O.S.C.J.) [42] Echlin and Certosimo, Law of Summary Dismissal in Canada (Aurora: Canada Law book, 2004) at pg. 2-14 [43] ibid p. 2-11-2-13. [44] (2001), 9 C.C.E.L. (3d) 167 (S.C.C.) [45] Ibid, page 190 [46] Ibid page 187 [47] Ibid [48] (1997), 152 D.L.R. (4th) 1 [49] [2005] O.J. No. 1145 [50] [2004] O.J. No. 5238