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3 border guards walk into a bar…

Suspension of CBSA trainers overturned in case that shows workplace policies aren't much use if employees don't know them

By Jeffrey R. Smith

There are things employees are allowed to do at work and things they aren’t allowed to do.

The employer has the right to set the rules in the workplace — within reason — and employees must follow those rules or risk getting in trouble. But simply having rules doesn’t necessarily mean it’s fair to discipline an employee who breaks them.

An employer had better make sure a wayward employee was given proper notification of the rule before lowering the boom. Workplace rules and policies are only as good as the efforts made to disseminate them to employees.

A recent arbitration decision involving Canada Border Services Agency (CBSA) employees and the handling of their firearms — Christenson v. Deputy Head (Canada Border Services Agency), 2013 CarswellNat 988 (Can. Pub. Service Lab. Rel. Bd.) — illustrates how policies may not be any good if they’re too vague.

Three CBSA use-of-force and firearm trainers walked into a bar — no, this isn’t the start of a joke — wearing their uniforms and sidearms following a training session in Windsor, Ont.

They were there for dinner, but a supervisor who happened to be there told them they shouldn’t be wearing their guns. Later, their supervisor found out and told them the same thing and they were each suspended for five days for violating a policy that said “all border services officers and inland enforcement officers, investigators, intelligence officers and members of management who are issued such equipment” were not to wear their guns while on personal errands or meal breaks outside of border points of entry or other CBSA facilities.

They were to properly store the guns before leaving the premises.

However, the three trainers claimed the policy didn’t apply to them because the policy didn’t list trainers as part of the group subject to the policy. They also claimed to have been allowed to go on short errands with their guns at their home facility in Ottawa and nobody in Windsor had specifically told them they couldn’t do it.

The arbitrator agreed that although the policy may have been intended to apply to everyone carrying firearms, the wording wasn’t clear enough for that to be the case. Since the trainers didn’t know they were subject to the policy, there was no wilful misconduct and they shouldn’t have been suspended, said the arbitrator.

An employer who wants employees to follow its policies and is thinking of disciplining someone for breaking it, must make sure employees are clearly aware of the policies. If the wording is vague as with the CBSA firearms policy, the intention of the policy may not be served.

The same can be said if the policy is clear, but not communicated effectively. Simply posting a notice in a corner usually isn’t enough, as it would be too easy for someone to say she didn’t see it.

Employees have to mind the rules, but the employer must make sure they know the rules.

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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