Home|Audio Conferences|Sharper Than a Serpent's Tooth

Sharper Than a Serpent's Tooth: Responding to employee disloyalty and breaches of trust

Thursday, September 10, 2020, 12:30 pm - 2:00 pm EDT



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Moderators


Mihad Fahmy

Lawyer/Workplace Investigator


Speakers


Greg Fingas

Union Counsel
Gerrand Rath Johnson LLP
Jessica Kearsey

Employer Counsel
Deloitte Legal Canada LLP

Issues

Shakespeare once characterized betrayal as being sharper than a serpent's tooth. While workplace betrayal may not rise to the dramatic heights of Shakespearean tragedy, arbitrators and courts have consistently recognized disloyalty and breach of trust as misconduct that strikes at the very heart of employment relationships, warranting serious discipline. What type of behaviour is considered to be breach of trust? What factors do courts and arbitrators consider in determining whether an employment relationship is salvageable?

In this session, seasoned labour experts will examine loyalty and trust in employment relationships, addressing issues such as the following:

  • Does the duty of loyalty apply only to public servants, or can other unionized employees also owe such a duty to their employers?
  • Do workers generally have a duty to avoid conflicts of interest, even in the absence of collective agreement provisions or company rules? What are some examples of conduct that have been found to constitute a conflict of interest?
  • Generally speaking, what is the main defining characteristic of breach of trust? What are some examples of dishonest conduct that would constitute a breach of trust? When will dishonesty be sufficiently egregious to provide just cause for dismissal? Does the conduct have to irreparably damage the relationship of trust between the employer and employee to warrant discharge?
  • Is theft or similar dishonest behaviour viewed as a "capital offence" justifying discharge, or have adjudicators moved away from applying a zero-tolerance standard for such offences?
  • What evidence is required to establish that an employee has engaged in dishonest behaviour? What is the standard of proof?
  • Will progressive discipline be required in every case, or does some conduct so undermine the foundation of trust that an employer can move straight to dismissal?
  • Are there any common factors that courts and arbitrators consider when assessing the appropriate disciplinary penalty for breach of trust? Does it matter if the employee did not personally derive a benefit from their dishonest conduct?
  • How significant is an employee's willingness to acknowledge wrongdoing and take responsibility for their actions? What other mitigating factors should unions advance to support a lesser penalty? Genuine remorse? Seniority? A clear disciplinary record? A dire financial situation?

Additional Information

MATERIALS
Valuable, up-to-date materials and case summaries will be available for downloading from our website. Each audio conference is accompanied by a PDF of concise summaries of the cases discussed.

AUDIO FILES
Audio conference MP3 files are available for $265. Those who have purchased the live audio conference may purchase the corresponding downloadable audio MP3 file for the discounted price of $165.

The recorded MP3 file and materials are available for download one business day after the live audio conference. After purchasing, you will receive an e-mail with instructions on how to access and download the audio conference MP3 file and materials by visiting My Account and selecting Order History. For audio file purchases for upcoming audio conferences, once the MP3 file is available through our site, registrants will receive an update e-mail informing them that the links are now ready.

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