I showed up to work, where’s my parade?

How employers can legally motivate employees who are resolute in their unproductivity

Most employers have had to deal with problem employees at one time or another. While they may feel it would be nice to get rid of such employees, it may sometimes feel like workers are so protected by employment legislation and dismissal can be so difficult without avoiding reasonable notice costs, it’s easier to just endure with these employees. However, there are some things employers can do within the law to coax better performances from poor workers.

Have you ever found yourself looking over at a fellow employee, wondering by what thread he has managed to hang on to his job? Perhaps it is his drinking during the workday, failure to meet deadlines, continuous smoke breaks or chronic tardiness that has left you gobsmacked.

I recently worked with an employer client who was convinced that it simply had to live with the "hand it was dealt" when discussing problem employees. Poppycock! There is much an employer can do to motivate even the most unenthusiastic employee.

Chronic tardiness

We have all witnessed employees who stroll in to work after the weekend, balancing an iced latte in one hand and shopping bags in the other, well after the official work day has begun. Chronic tardiness may be cause to terminate the employment of wayward employees provided employers don’t condone this behaviour. In the 1998 case of Cain v. Roluf’s Ltd., photographer Suzanne Cain was fired for her frequent tardiness. She was late 65 times in her last year of employment. However Roluf was found to have condoned her behaviour as it never warned her that she would be terminated if she didn’t show up to work on time. The court did not accept that Roluf had cause to terminate Cain.

Conversely, in the earlier decision of Elliott v. Parksville (City), Avril Elliot was tardy, failed to perform duties on time, was insubordinate and had a demotivating impact on staff. She was terminated for cause. Elliot was a secretary and about 44 years of age at trial. For about a two-year period leading up to her dismissal she was often tardy and took extensive breaks for coffee and lunch. The court found that her lackluster work ethic had a disconcerting effect on the rest of the staff and upheld her termination for cause.

A single employee who routinely skirts the rules with no recourse will demoralize an entire workforce. Time is an objective measure and one can readily discern if an employee has failed to make it to work on time with no possible defence. Employers should monitor and address tardiness instantly to drive down this behavior in the workplace.

Working from home

Like centaurs and unicorns, work-life balance is the stuff of myth and folklore. Joking aside, the desire to work from home is growing with employees that seek more flexibility in their workday. More often than not, working from home can turn into an employer’s biggest nightmare, amplifying an employer’s need to supervise remote employees. Employers must monitor remote employee productivity, routinely handle issues of "time theft" or worse, condone lower productivity and deal with fractured employee engagement. Employers are never required to meet employee requests or demands to work from home unless required to do so as a result of a bona fide accommodation request. In that vein, the British Columbia Human Rights Tribunal dismissed an application made by Diane Perehudoff in 2015 when she alleged that her employer Zellstoff Celgar Limited (Celgar) discriminated against her when it did not allow her to continue to work from home following a medical related leave.

Perehudoff was a 35-year employee of Celgar employed as a Purchasing Assistant. From 2009 to 2013, Perehudoff took five medical leaves. Following a four-month medical leave in 2011 she alleged that Celgar was intentionally taking steps to force her to resign or retire early and that Celgar, contrary to the B.C. Human Rights Code, refused an accommodation which permitted her to work from home.

While Perehudoff provided some medical documentation which stated that a medical leave was in order due to anxiety and depression, Celgar argued that her request to work from home was not in connection with any physical or mental disability but was based on her dislike of commuting (especially in the winter); that suffering from "stress" is not itself a disability; and took the position that it didn’t have the medical information before it to justify why such an accommodation is medically required. Ultimately the tribunal agreed with Celgar, finding that Perehudoff had no reasonable prospect of establishing that she had a mental disability which prevented her from working unless she was allowed to work from home and that her allegation of discrimination on the ground of a disability must be taken as "mere conjecture."

Drinking during the 9-to-5

So far, we have seen cases where an employer has triumphed in the legal sphere over unruly employees. In the recent case Volchoff v. Wright Auto Sales Inc., however, the employer didn’t take the steps it needed to prove cause for perceived misconduct. Larry Volchoff, a 63-year-old manager, worked long hours running the employer's Cambridge, Ont., dealership, selling cars and supervising a group of ten workers. Volchoff was terminated for alleged cause after his employer alleged that he was under the influence of alcohol at work on several occasions and that he allegedly drove vehicles when impaired.

As part of his role, Volchoff attended weekly managers’ meetings in Waterloo. Before each meeting he stopped at a local restaurant for lunch and had a glass of wine. This was his regular practice (confirmed at trial by the restaurant owner) and no issue was made of it until February 2014 when management was informed by the office receptionist that she smelled alcohol on Volchoff’s breath and that he may need a breath mint.

Volchoff was then spoken to by management. He immediately admitted to having a glass of wine at lunch and mangement warned him that he was expected to be responsible with alcohol at work. In the weeks and months that followed, management presented Volchoff with various accusations including that several employees and one customer lodged complaints about him allegedly being inebriated while on the job. He steadfastly denied these allegations. Despite the employer claiming it had a zero-tolerance policy with respect to alcohol in the workplace, the trial judge found there was no sufficient evidence that the policy existed and awarded Volchoff damages for wrongful dismissal.

Many employers who are reading this article may think that their workplaces are already rampant with misbehaving employees. However, it’s never too late to turn the workplace culture around to increase productivity. Here are some take-aways to improve efficiency:

Build expectations into employment agreements. The best way for employees to understand workplace expectations is to learn them when they join the organization. Employers should clearly communicate their requirements on punctuality, grooming, sick days or other problem areas. For existing employees, new policies that address these issues can be created.

Introduce progressive discipline. Standardize the discipline procedure when it comes to chronic poor behaviours. Verbal warnings, warning letters and suspensions will weed out the bad apples. Remain consistent and don’t forget to document. Explore termination for employees that have proved to be incorrigible.

Personal warning letters to offending employees. When introducing new policies, write to offending employees about the policy. Acknowledge that while certain conduct may have been condoned previously, expectations have increased and breaches of the policy will be subject to discipline.

Follow through! Employer policies and employment agreements are only worth the paper they are written on unless employers spend the time and energy to enforce them. Take time at staff meetings and one-on-one employee interactions to reinforce workplace expectations. When an employee is being given a raise or a promotion is another great time to reinforce the rules!

For more information see:

Cain v. Roluf’s Ltd., 1998 CarswellOnt 835 (Ont. Gen. Div.).
Elliott v. Parksville (City), 1990 CarswellBC 713 (B.C. C.A.).
Volchoff v. Wright Auto Sales Inc. 2015 CarswellOnt 19856 (Ont. S.C.J.).


Sunira Chaudhri is a partner with Levitt and Grosman LLP in Toronto, practicing labour and employment law. She can be reached at (416) 597-3373 or [email protected]

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