February 02, 2012

Acts of dishonesty are taken very seriously in all workplaces, but is automatic discharge for dishonesty justified? What factors support the termination of employment for dishonesty? What factors support a lesser penalty? What standard of proof does an employer need to establish when a dishonest act is suspected? What if the act occurs outside of work time? What if the employee misconduct stems in whole or in part from a disability? What effect will an employee’s lack of candour have on the appropriate disciplinary response to dishonesty? A panel of experts in this field will discuss these issues and address the following questions:

  • Defining Dishonesty: What are some examples of dishonest conduct related to employment? What type of conduct will “irreparably damage” the relationship of trust between the employer and employee such that automatic discharge is warranted?
  • Factors Supporting Discharge: What is the impact of the McKinley decision of the Supreme Court of Canada, which holds that discipline must be proportional to the particular form of dishonesty involved? How will an employee’s lack of candour, lack of remorse or unwillingness to accept responsibility affect an arbitrator’s response to discharge? Does an employee have the right to remain silent in the face of alleged impropriety? What inferences, if any, may be drawn from such silence?
  • Mitigating Factors Supporting Lesser Sanctions: To what degree do the following considerations mitigate misconduct and support a lesser penalty – Seniority? A dire financial situation? The lack of a prior disciplinary record? Remorse?
  • Theft: Is discharge the presumptive response in cases of workplace theft? What sort of evidence will support discharge for theft? Does it matter whether the theft occurred in an unsupervised setting? How does the value of stolen goods affect the decision about whether to discharge the employee? Is an employee required to report theft by another employee?
  • Attendance and Abuse of Sick Leave: How will arbitrators view dishonesty in recording one’s attendance (for example, altering clock-in and clock-out times)? Is such conduct considered a form of time-theft? In what circumstances will sick leave abuse or time-theft warrant discharge?
  • Off-Duty Acts of Dishonesty: What connection between off-duty dishonest behaviour and employment is necessary to warrant discipline? Will off-duty dishonest conduct that is criminal in nature justify discharge? Must off duty criminal conduct be proven beyond a reasonable doubt, or will proving the conduct on a balance of probabilities suffice? Is an employer permitted to suspend an employee against whom criminal charges have been brought? Is the employer required to undertake its own investigation if it wishes to suspend an employee who has been charged with a criminal offence? Is conviction for a criminal offence sufficient to justify discharge? Will an acquittal result in an arbitrator quashing the dismissal of an employee?
  • Dishonesty and Disability: Where dishonesty is causally related to an employee’s disability, must the employer accommodate the employee rather than terminate the employment? Should the employer use a ‘hybrid approach’ to discipline, distinguishing between culpable and non-culpable factors with a view to applying a correctional approach to the former and an accommodation approach to the latter? Or, is a human rights analysis and accommodative approach always required?