Workplace policies against misconduct are good to have but they’re no good if employees aren’t aware of them
By Jeffrey R. Smith
Rules are rules. And as far as workplace rules go, they are not made to be broken, unless an employee wants to get in trouble and perhaps lose her job. However, unlike the legal principle where ignorance of the law is no excuse, when it comes to workplace rules, ignorance can be an excuse if the employer hasn’t made the rules clear.
There have been many cases where employees have been disciplined or dismissed for misconduct or violation of workplace policies but once a grievance or complaint was filed, the sanction was revoked by an arbitrator or court because the employee simply wasn’t made aware of the rule or the consequences of breaking it.
A recent case demonstrates an employer that wasn’t happy with an employee’s actions and tried to use a rule prohibiting the behaviour, but there wasn’t any indication the employee knew of the rule and it wasn’t simply made up to give the employer an excuse to dismiss the employee.
The case involved an Ontario manager of a car dealership who had to travel to another town for weekly meetings with upper management. Each week, the employee drove to where the meeting was and stopped at a restaurant for lunch, where he usually had a glass of wine. After a couple of years of this practice, someone at the weekly meeting smelled alcohol on the employee’s breath and warned him. Upper management told him to be responsible at work, but as long as he was he could do what he wanted at lunch.
About a month later, upper management told the employee a customer had complained he had been drinking at work and the company had a zero tolerance policy against alcohol at work. The employee denied he had consumed alcohol that day, saying the glass of wine before the weekly meetings was the only time he drank alcohol during a workday. It was also the first he had heard of a zero tolerance policy on alcohol, as there was no posted policy anywhere and he hadn’t been told of it.
A few months after that, the employee was dismissed after staff allegedly complained about him being intoxicated at work. The zero tolerance policy was brought up again as basis for the dismissal.
A court found the employee had been wrongfully dismissed, as there was no real evidence of the employee being intoxicated at work and the rest was hearsay. Though the employee admitted consumed a glass of wine on workdays when he had lunch before the weekly managerial meeting, this wasn’t sufficient evidence of intoxication. And, though the company claimed it had a zero tolerance policy against alcohol consumption during work hours, the employee was unaware of it — not surprising since the policy wasn’t actually written anywhere. In addition, the company hadn’t said the employee needed to stop having wine at lunch once a week or face consequences, such as possibly being fired: see Volchoff v. Wright Auto Sales Inc., 2015 CarswellOnt 19856 (Ont. S.C.J.).
A zero tolerance policy may be good to have for an employer wanting to ensure certain behaviours don’t happen in the workplace, but if employees aren’t informed about them and the policies aren’t posted, an employer might as well not have them.
Ignorance may be bliss if employees who break the rules weren’t made aware of them in the first place.
