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CANADIAN HR LAW
Nov 5, 2012

Policies: Think before you draft, read before you act

Too many organizations put policy manuals together with little thought – and then discipline employees for breaching the policies they think they have, without actually reading them
    

By Stuart Rudner

It goes without saying organizations should have workplace policies in order to establish what is, and is not, acceptable conduct.

However, as I mentioned in a previous post, it is foolish to blindly use templates without considering their applicability to the workplace in question. Organizations that do so miss the opportunity to tailor their policies to their workplace, organizational culture and business goals. In many cases, management does not even really understand what their policies mean.

Lessons from Dupont Canada

A good example of the danger of not understanding your own policies can be found in the case of Dupont Canada Inc. v. Communication, Energy and Paperworkers Union of Canada, Local 28-O (Panter Grievance).

In that case, the employer’s monitoring system found 24 pictures of “sunshine girls” — semi-clad women in pin-up style poses which are published daily by some tabloid newspapers — that the employee had transferred from one personal web-based email account to another via his employer’s Internet connection. Those who are familiar with these photos will already know that, while the pictures may be inappropriate in the workplace, the women in these photos are not nude, or even topless, and are not engaged in sexual activity. As a result, the arbitrator correctly concluded that the employee had not breached the policy in question, and the dismissal was unwarranted.

In dealing with these images, Arbitrator Roach disagreed with the employer’s assertion that these images were “pornographic”. As he stated: 

"Although the nature of the pictures are offensive to a segment of society and may be offensive to some fellow employees…without attempting to attach a label to these pictures it [is] suffice to say that for the purpose of this arbitration they are not as labelled by the Employer….“pornographic, sexually explicit pictures”, as these words are commonly understood by the population at large. This does not mean that the Employer cannot prohibit the viewing of this material at the workplace so as to provide a better climate for fostering self respect of all of its employees. However, it must be emphasized that the ground upon which the Employer relied on…to terminate the Grievor’s employment was that he interacted…with inappropriate material, namely “pornographic, sexually explicit pictures.”

In other words, the pictures may have been offensive, but the policy only banned "pornographic, sexual explicit pictures," which these were not. A properly-worded policy might have assisted the employer. However, without such a policy, the behaviour in question was not sufficient to justify the discipline which the company sought to impose.

The preparation of  policy manuals is typically at the bottom of the pile on someone's desk or the bottom of their to do list. It is usually pushed aside in favour of pressing matters and "putting out fires."

And when organizations finally get around to putting a policy manual, they often outsource the task and fail to take the time to explain their goals. The end result is they may have an impressive policy manual, but it probably does not address the specific issues that the organization faces, and does not clearly set out the rules they desire. Furthermore, after the policy manual is in place, many managers assume they know what it says, but don't bother to confirm this before taking action.

The Dupont case is a good example of why it is so important to consider the goals you are seeking to achieve in your policy manual before it is finalized.

Otherwise, it may not say what you think it does, or what you want it to. And when you embark on the path of disciplining an employee for breach a policy, ensure you know what the policy says and that you are confident the conduct is actually in contravention of the policy in place.

Stuart Rudner is a leading HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.
    
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