How is discipline affected if manager allowed misconduct to happen?
Question: If an employee’s violation of an important company policy – that all employees must sign a promise to comply with — is allowed by the employee’s manager, can the company discipline the employee once it finds out about the violation?
Answer: Employers generally have the right to determine how their businesses should be managed. This right includes the ability to implement workplace rules and policies. To be enforceable, however, a company policy must be reasonable, clear, communicated to the affected employees, and not inconsistent with any applicable collective agreement or contractual requirements.
In addition, a company policy must be enforced consistently. If breaches of a policy are ignored or condoned by persons within the company who are responsible for enforcing the policy, or if enforcement is otherwise sporadic, the employer will not be able to rely on a breach of the policy as justification for discipline or discharge. Adjudicators have consistently ruled that an employer who has knowledge of an employee’s misconduct is expected to take appropriate action within a reasonable timeframe. Otherwise, if the employer overlooks the misconduct or delays unreasonably in doing something about it, it is likely to be found to have condoned the offence.
Where it is alleged that an employer has condoned an employee’s breach of policy, the first question will often be whether the employer was aware — or ought to have been aware — of the breach. An employer cannot be found to have condoned an employee's misconduct that it could not reasonably have been aware of.
There may also be an issue about whether the manager or company representative who is alleged to have condoned the breach had the actual or ostensible authority to do so. Here, a decision maker will look for evidence that the person in question had the actual or apparent responsibility for enforcing or reporting a breach of the policy. If the only person who was aware of the breach was a co-worker or a supervisor with no managerial powers, a condonation argument is unlikely to succeed.
In Brazeau v. International Brotherhood of Electrical Workers, the employee was dismissed following an investigation into allegations that he had sexually harassed a co-worker. The co-worker reported concerns regarding sexual harassment to her superior, but the superior took no steps to discipline or discharge the employee. The trial judge rejected the employee’s condonation argument, finding that while the victim’s superior had not dealt with the situation adequately, the employer could not be said to have condoned the misconduct because its international president, who was the only person with the power to dismiss the employee, had not been made aware of the harassment until he received a report prepared by an external investigator.
To avoid condonation issues, employers should ensure that managerial and disciplinary responsibilities are clearly defined within their organizations. Managers should receive proper training to ensure they are aware of the employer’s policies, the consequences for breach, and the responsibilities for enforcing policies and reporting breaches promptly.
For more information see:
• Brazeau v. I.B.E.W., 2004 CarswellBC 368 (B.C. S.C.).
Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or email@example.com.