In recent years, prompted largely by the rise of social media and advanced technology, employers have initiated disciplinary measures in novel circumstances. In this audio conference, experienced counsel will explore leading cases in discipline, with a focus on the following current issues:
- Off-duty conduct: When can employees be disciplined or discharged for off-duty misconduct that has an impact on the workplace? What type of evidence is required to establish that off-duty conduct has harmed an employer’s business interests, including its reputation? How will decision-makers assess whether public statements made outside the workplace, including tweets, Facebook or blog posts, and YouTube videos, damage the employment relationship? Is dismissal more likely to be upheld for employees working in positions of trust?
- Surveillance: Can an employee be disciplined based on evidence obtained via video surveillance? How are arbitrators and privacy commissioners balancing an employer’s right to manage and control the workplace and employees’ privacy interests?
- Violence: What considerations apply where an employee’s conduct involves violence, including threats or harassment? Where such behaviour has attracted public attention, will the employer’s desire to dissociate itself from the misconduct justify discipline? In what circumstances will the employer’s duty to ensure workplace safety justify dismissal?
- Disloyalty and breach of trust: When can an employee be disciplined for publicly criticizing his or her employer? When can an employee be disciplined for misconduct constituting a breach of trust, such as improperly accessing confidential information or misusing employer resources?
- Damages in lieu of reinstatement: When an employer has not demonstrated just cause for discharge, in what circumstances will an arbitrator order damages rather than reinstatement?