1. Copyright © 2008 by Nelson, a division of Thomson Canada Limited. 14–1 Part 5: Employee Relations Chapter 14: Employee Rights and Discipline Prepared by Linda Eligh, University of Western Ontario

2. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–2 Learning Objectives After you have read this chapter, you should be able to: 1.Explain the difference between statutory rights and contractual rights. 2.Discuss how wrongful discharge, just cause, and due process are interrelated. 3.Identify employee rights associated with access to employee records and free speech, and the issues associated with workplace monitoring, employer investigations, and drug testing. 4.List elements to consider when developing an employee handbook. 5.Differentiate between the positive approach and progressive approach to discipline.

3. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–3 Rights and Responsibilities Issues Rights  Powers, privileges, or interests that belong to a person by law, nature, or tradition. Responsibilities  Obligations to perform certain tasks and duties. Statutory Rights  Rights based on laws and statutes passed by federal, provincial and territorial governments.  Equal employment opportunity  Collective bargaining  Workplace safety

4. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–4 Contractual Rights  Rights based on a specific contract between an employer and employee.  Can be spelled out formally in written employment contracts or implied in employee handbooks and published policies. Employment Contract  An agreement that formally outlines the details of employment.

5. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–5 Typical Provisions in Employment Contracts Fig. 14-1

6. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–6 Restrictive Covenants  Often used to protect a business against exploitation by employees, ex-employees, shareholders or previous owners.  Non-disclosure clauses are intended to protect business plans, trade secrets, customer lists, and other confidential information that are the “property” of a business.  Non-solicitation clauses are used to ensure the employee won’t solicit customers to sell any products or services substantially similar to those currently sold by the business.  Non-Compete Agreements prohibit individuals who leave the organization from competing with an employer in the same line of business for a specified period of time.

7. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–7 Restrictive Covenants  Dismissal without cause clauses state clearly that even if the employee is dismissed without notice or in an unfair or bad-faith manner, the covenant applies.  Shorter restrictions -- since Courts often take a dim view of long restrictions, employers are going to a shorter period, often 12 months.  Notice of resignation clauses require employees to give a specified amount of notice during resignation, and during the notice period the employee can’t engage in competitive activities.  Implied Contracts  The idea that a contract (even an implied or unwritten one), exists between individuals and their employers and affects the employment relationship.

8. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–8 Rights Affecting the Employment Relationship Wrongful Dismissal  Termination of an individual’s employment for reasons that are unfair, unreasonable, or without sufficient cause.  Wallace v. United Grain Growers Constructive Dismissal  Occurs when an employer did not directly dismiss the employee but the employer changed the job so completely that the employment contract was effectively at an end. Just Cause  Reasonable justification for taking employment-related action

9. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–9 Keys for Preparing a Defense Against Wrongful Discharge: The “Paper Trail” Fig. 14-2

10. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–10 Rights Affecting the Employment Relationship Due Process  Requirement that the employer uses fair means to determine employee wrongdoing and/or disciplinary measures, and that the employee has an opportunity to explain and defend his or her actions.  Distributive justice is perceived fairness in the distribution of outcomes.  Procedural justice is the perceived fairness of the processes used to make decisions about employees. Complaint Procedures and Due Process  Complaint procedures used to provide due process for non- unionized employees differs from those for unionized employees (e.g. “open door” policy).

11. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–11 Criteria for Evaluating Just Cause and Due Process Fig. 14-3

12. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–12 Alternative Dispute Resolution (ADR) Ombuds Ombuds ArbitrationArbitration Peer Review Panels Alternative Dispute Resolution

13. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–13 Balancing Employer Security Concerns and Employee Rights Right to Privacy  Defined in legal terms for individuals as the freedom from unauthorized and unreasonable intrusion into their personal affairs. Privacy Rights and Employee Records:  Federal Privacy Act regulates the collection, use and disclosure of personal information held by federal public agencies.  Provincial and territorial acts guarantee individuals’ rights to view and correct their personal information.  PIPEDA was enacted to provide Canadians with a right of privacy regarding how their personal information is collected, used or disclosed by an organization in the private sector.

14. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–14 Balancing Employer Security Concerns and Employee Rights Respecting Employee Privacy Employee Medical Records Privacy Rights and Employee Records Security of Employee Records Employee Personnel Records

15. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–15 Employee Record Files Fig. 14-4

16. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–16 Balancing Employer Security Concerns and Employee Rights Monitoring of E-Mail/Voice Mail Monitoring of E-Mail/Voice Mail Advocacy of Controversial Views Whistle-BlowingWhistle-Blowing Employees’ Freedom of Expression

17. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–17 Recommended Employer Actions on E-mail and Voice Mail Fig. 14-5

18. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–18 Balancing Employer Security Concerns and Employee Rights Conducting Video Surveillance at Work Conducting Video Surveillance at Work Tracking Internet Use Monitoring Employee Performance Workplace Monitoring

19. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–19 Employer Investigations Conducting Work- Related Investigations Conducting Work- Related Investigations Honesty and Polygraph Tests Reviewing Unusual Behaviour Employer Investigations

20. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–20 Means Used to Reduce Employee Theft and Misconduct Fig. 14-6 Before HireAfter Hire  Applicant screening  Workplace monitoring  Honesty testing  Review of unusual behaviour changes  Background investigation

21. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–21 Substance Abuse and Drug Testing Drug Testing and Employee Rights  Random and pre-employment drug testing of public employees are a human rights violation and not allowed under the Canadian Human Rights Act.  Post-accident workplace drug testing for “reasonable” cause, and random alcohol testing for safety-sensitive employees are generally acceptable under the law.  Employers can test for impairment for workers in safety-sensitive jobs, but only with “strong reasonable cause” such as the occurrence of an accident.

22. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–22 How Substance Abuse Affects Employers Financially Fig. 14-7

23. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–23 HR Policies, Procedures, and Rules Policies  General guidelines that focus organizational actions  “Why we do it” Procedures  Customary methods of handling activities  “How we do it” Rules  Specific guidelines that regulate and restrict the behaviour of individuals  “The limits on what we do”

24. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–24 Typical Division of HR Responsibilities: Policies, Procedures, and Rules Fig. 14-8

25. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–25 Employee Handbooks Legal Review of Language  Eliminate controversial phrases in wording.  Use disclaimers disavowing handbook as a contract.  Keep handbook content current. Readability  Adjust reading level of handbook for intended audience of employees. Use  Communicate and discuss handbook.  Notify all employees of changes in the handbook.

26. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–26 Communicating HR Information Internal Publications and Media Downward and Upward Internal Communications Electronic Communication

27. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–27 Employee Discipline Discipline  A form of training that enforces organizational rules. Positive Discipline Approach  Counseling  Written documentation  Final warning (decision day-off)  Discharge

28. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–28 Typical Division of HR Responsibilities: Discipline Fig. 14-9

29. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–29 Progressive Discipline Process Fig. 14-10

30. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–30 Reasons Why Discipline Might Not Be Used Organization culture of avoiding discipline Lack of support by higher management Guilt overcomes ability to discipline Fear of loss of friendship Avoidance of time loss Fear of lawsuits

31. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–31 The Hot Stove Rule Good discipline/rule is like a hot stove: Provides a Warning (feels hot) Is Consistent (burns everyone) Is Immediate (burns now) Is Impersonal (burns all alike)

32. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–32 Discharge: The Final Disciplinary Step Termination Process  Coordinate manager and HR review  Select a neutral location  Know when “not” to conduct termination  Conduct the termination meeting  Briefly discuss termination benefits  Retrieve company property  Escort the employee from the building  Arrange for safe transportation home  Notify the department staff

33. Copyright © 2008 by Nelson, a division of Thomson Canada Limited.14–33 Employee Discipline Separation Agreements  An agreement in which a terminated employee agrees not to sue the employer, in exchange for specified benefits.  To be legally enforceable, considerations usually should be additional items not part of normal termination benefits.  Care must be taken to avoid the appearance of constructive discharge of employees.  Should be reviewed by legal counsel.