Zero tolerance policies

Question: We’ve heard conflicting opinions on whether zero tolerance policies for certain types of misconduct are enforceable. Can such a policy truly stand up?

Answer: Zero tolerance policies can stand up if they are applied consistently, fairly and in a non-arbitrary, non-discriminatory manner. A zero tolerance policy means that a breach of the policy will attract some form of discipline. It does not mean that every breach of the “zero tolerance” policy will justify an employee’s dismissal.

Zero tolerance policies must comply with the rules of progressive discipline and, in unionized workplaces, with the “KVP” principles.

The rules developed in the 1965 case of KVP Co. Ltd. essentially state that while employers in unionized workplaces have the right to unilaterally impose rules, those rules must be: communicated to employees; reasonable; administered in a fair and consistent way; and compliant with the collective agreement. On the basis of KVP, an employer cannot rely simply on its own rule or “zero tolerance policy” to justify a particular disciplinary penalty. Rather, discipline imposed under a zero tolerance policy must be just and reasonable in the circumstances, and in accordance with any applicable collective agreement. A zero tolerance policy that tries to impose termination on any employee who breaks a rule will not be enforceable if the discipline would not otherwise be warranted, but for the policy.

Arbitrators have consistently found that they are not bound by zero tolerance policies that ignore the progressive discipline model. Where arbitrators determine that a zero tolerance policy is off-side, they will disregard the policy and impose the correct level of discipline based on all the circumstances. For example, in a recent Ontario arbitration decision, an arbitrator agreed that it was appropriate for the employer to have a zero tolerance policy respecting alcohol on the worksite, but that a 36-hour suspension was too harsh a penalty for an employee who had a bottle of vodka in his car, when the employee’s daughter had borrowed the car and left the bottle unbeknownst to the employee (U.S. Steel - Hamilton and USW, Local 1005 (Chapman), Re).

In sum, the use of zero tolerance policies can be beneficial for employers to defend a disciplinary response as appropriate when discipline procedures are undertaken in a consistent and fair manner. While a zero tolerance policy does not give the employer the right to terminate employees for violations of the policy in every case, as long as the discipline resulting from a breach of a zero tolerance workplace policy is reasonable in the circumstances, it is likely to be upheld at arbitration.

For more information see:

• Bhasin v. Hrynew, 2014 CarswellAlta 2046 (S.C.C.).

• Paquette v. TeraGo Networks Inc., 2015 CarswellOnt 9801 (Ont. S.C.J.).

• Styles v. Alberta Investment Management Corp., 2015 CarswellAlta 1858 (Alta. Q.B.).

• Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.).

• U.S. Steel - Hamilton and USW, Local 1005 (Chapman), Re, 2014 CarswellOnt 9267 (Ont. Arb.).