November 12, 2003 by Israel Foulon LLP
Question: Is it appropriate to dismiss an employee close to the holiday season?
Answer: If an employer is dismissing an employee for cause, the time of year cannot impact an employer’s decision to proceed with the dismissal. Proceeding with the dismissal will avoid any allegations that the employer condoned the employee’s conduct by not acting sooner.
Conversely, when dealing with the dismissal of an employee without cause and with notice or pay in lieu of notice, employers should be aware judges are usually sympathetic to employees who have been dismissed during the holiday season and, therefore, a court may be inclined to increase the notice period beyond what might otherwise be considered sufficient or normal.
Under these circumstances, with no imminent and substantial risk to the operations of the company by keeping the employee on, it is advisable to postpone the dismissal until January after the holiday season is over.
Dealing with absenteeism during the holiday season
Question: How should an employer deal with employee absenteeism during the holiday season?
Answer: Employees have an obligation to maintain regular attendance at work during the holiday season, though employers are somewhat constrained when responding to lateness or absenteeism. Lateness will not be a cause for dismissal unless there is a pattern of lateness and specific warnings have been given.
Similarly, an absence from work may not be sufficient to establish cause for dismissal unless the absence has had adverse effects on the company’s operations or there have been previous absences accompanied by a warning to the employee that any further absences would result in a dismissal.
Maintaining a professional work environment during the holiday season
Question: What are some considerations for employers when trying to maintain a professional work environment during this festive time of year?
Answer: When trying to maintain a professional work environment during this time of year, an important issue to consider is alcohol consumption. Alcohol consumption by employees at company parties can be cause for great concern to employers during the holiday season.
At least one Canadian court has found an employer liable to third-party claims following a motor vehicle accident caused by an employee who consumed alcohol at a company Christmas party.
Employers must communicate to employees that they are expected not to drink and drive, and taxi chits should be provided to discourage them from doing so. Employers should also consider having a cash bar at a company party instead of providing an open bar all evening.
Alcohol consumption has also been the cause of an increase in harassment claims at this time of the year. The conduct complained of usually involves inappropriate touching, kissing or comments. While some of these cases can be resolved easily with the consent of both parties, other cases may require a full investigation and potentially serious discipline.
Employers must be careful not to underestimate the validity of a harassment claim just because of the time of year, or the occasion at which it occurred. It may be advisable for employers to send a memo to all employees regarding professional and respectful behaviour during company holiday events as well as redistributing the company harassment policy.
Finally, the holiday season is usually a time when customers, suppliers and business contacts are acknowledged and appreciation for patronage is expressed. Small gifts are usually given or received by companies. However, if an employee inappropriately gives or receives a gift where a business relationship exists, there may be a conflict of interest which could justify summary dismissal.
A conflict of interest situation will arise where the employee is doing something for his benefit which is contrary to the best interests of the employer’s business. Both real and potential conflicts of interest can be grounds for dismissal for cause. Accordingly it is always advisable for employers to have a clearly written conflict of interest policy outlining what, if any, gifts are acceptable. Once again, employees should be reminded of the existence and terms of such a policy during the holiday season.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today