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Crime and punishment

Employers must get all the facts straight before deciding on discipline, no matter how serious the alleged misconduct

By Jeffrey R. Smith

When an employer suspects, or knows for certain, an employee is guilty of misconduct, it’s essential to make sure it knows all the facts.

If it doesn’t, and proceeds with discipline, it might be in for some trouble. Even a short suspension could be seen as unfair if it turns out to be too harsh for the misconduct or the extent of the employee’s involvement.

If an employer doesn’t conduct a proper investigation into misconduct, it could be open to a grievance (in a union setting) or legal action. It’s always a good idea to get the employee’s side of the story, no matter how bad the situation is. The more serious things are, the more important it is to have all of the facts.

A few years ago, the Correctional Service of Canada (CSC) was informed that a corrections officer at one of its institutions in British Columbia had been charged with sexual assault 18 months earlier. CSC was given a police report that summarized the case but had no other documentation. There had yet to be a conviction and the corrections officer didn’t know the status of the charges. However, CSC decided to suspend him for failing to notify it of the charges and possible breaches of the code of conduct for correctional officers, including giving a false name to police.

CSC launched an investigation and suspended the officer without pay, but the investigators didn’t talk to the officer, nor did they receive any other information other than the police report. The suspension stretched into months and the investigation wasn’t completed. Finally, after a grievance was filed, an arbitrator found the drawing-out of the investigation turned the suspension from administrative to disciplinary.

As it turned out, CSC had made some assumptions based on the “hearsay” evidence of the police report, such as that the officer gave a false name to police (he didn’t) and the charges were for “violent sexual assault.” (The police report made no mention of violence.) Without a proper investigation, there were no grounds for a disciplinary suspension and the adjudicator ordered reinstatement. (Basra v. Canada (Deputy Head — Correctional Service), 2012 CarswellNat 1638 (Can. Public Service Lab. Rel. Bd.))

Even when an employee faces serious criminal charges that could affect the employer’s trust or violate a code of conduct, a permanent decision on the course of action should not be made until a full investigation is conducted in a timely manner. Employers must be careful not to make assumptions and pay careful attention to the information they have, or they might end up being the ones facing discipline — from a court or arbitrator.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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