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Loss Prevention Manual
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RE: LOSS PREVENTION MANUAL

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The purpose of this Memorandum is to give suitable suggestions from legal perspective that is required to update the Loss Prevention/Human Resource Manual (the “HR Manual”). I will deal with the following areas of law for the purpose of this manual, namely (a) The Employment Standard Act, 2000 (ESA) (b) Judicial position relating to disciplinary proceedings, constructive dismissal and fair hearing, and (c) Judicial position on the Human Rights Code. In light of these suggestions, it would be advisable to update the HR Manual

Updates relating to the ESA

As Sobeys has over 125,000 employees throughout Canada, it is imperative that the Loss Prevention/Human Resource Manual (the “HR Manual”) is updated so as to factor in the respective state legislations as well as the Federal laws. As per the Ministry of Labour update (2015), as the corporation is into retail business and has more than 1,500 retail outlets, the Employment Standard Act, 2000 (ESA) will be applicable to the employees working in the retail outlets located in the state of Ontario it is imperative that the Manual is updated to ensure compliance with the Employment Standards Act, 2000 (ESA) that is applicable to the state of Ontario, Canada (Section (3) (1) (a) of the ESA)
The Ontario Ministry of Labour Guide (2015) states that even in the cases where there is no specific qualification for public holiday, most employees in retail sectors are vested with the right to refuse working on a public holiday. The Ontario Ministry of Labour Guide Further clarifies that even if a particular employee has given written consent as regards his willingness to work on a public holiday, he is very much within his rights to refuse working on a public holiday. However, in such case, the concerned employee will be under an obligation to give a prior written notice of 48 hours before the commencement of his period of work was to begin during the public holiday. The Ontario Ministry of Labour Guide (2015) further clarifies that in the event the public holiday falls on a day that would under the normal course is a working day, then, in such circumstances, the retail employees would be eligible for seeking off along with the right to be paid for public holiday. The Ontario Labour Guide (2015) further qualifies that in the event the event the public holiday coincides with a day that would not under ordinary circumstances be construed as a public holiday, then, in such circumstances, the retail employee shall be eligible for a day off on another day along with being entitled to payment for a public holiday. The HR Manual is required to be suitably modified to set out adequate procedure for holiday application vis-à-vis the consequent right to paid holiday and compensation off in compliance with the ESA. The Ontario Ministry of Labour Guide (2015) further specifies that a retail business employee who has been hired post September 4, 2001 is not entitled to refuse working on Sundays. However, this is subject to the exception of religious mores and traditions. In case of religious beliefs, the employee is under a statutory obligation to give a 48 hours written notice to the employer. It has further been clarified that in the event Sunday coincides with a public holiday, then, in such circumstances, the employee is entitled to refuse working on such Sunday. The Ontario Ministry Labour Guide (2015) further clarifies that by virtue of a contract, an employee cannot be forced to work on Sunday as this would amount to a violation of Human Rights Code. The Ontario Ministry Labour Guide (2015) further clarifies that the employer is not entitled to use coercive tactics of dismissal or intimidation and/or penalization with a view to force an employee to work in violation of the provision laid out in the ESA Act.
In light of this, it is advisable to update the HR Manual with respect to holidays as set out in the ESA Act and the further update the Disciplinary/dismissal clause by categorically setting out the mandate of the ESA as regards prohibitions of disciplinary action/dismissal etc.

Updates relating to disciplinary proceedings, constructive dismissal, wrongful dismissal, improper work investigation and fair hearing.

The Supreme Court of British Columbia in the case of Vernon v. British (2012) Columbia gave an important ruling on the principles of wrongful investigation. In this case, the British Columbia’s Liquor Distribution Branch had employed Vernon for a period of over 30 years. During the entire tenure of 30 years, Vernon had unscathed and brilliant track record as an employee. Vermont’s employment was terminated. She was terminated under the pretext that her junior made numerous allegations as regards her conduct. Pursuant to a court enquiry, these allegations were found to be baseless. On account of suffering wrongful investigation, Vermont filed a case against her employers for wrongful investigation and dismissal. The British Columbia Court ruled in favour of Vermont and awarded damages to the tune of $35,000 in the form of aggravated damages. Further, the court also awarded punitive damages for an amount of $ 50,000. While deciding upon this case, the court severely criticised the investigation procedure that was followed in the instant case. The court also gave worthwhile commentary on the entire process of investigation by citing another case (Page 58)
The following principles laid down by the court should be followed and the HR Manual should be accordingly updated in the areas of investigation and dismissal: (a) Each and every different case must be viewed independently and any determination on a particular case must strictly be as per the facts and circumstances specific to such case; (b) The determination by the HR committee must strictly be on the basis of factual matrix of a particular case (c) There should be strong and cogent reasons that calls for an employee’s dismissal. Mere displeasure of the employer would not suffice. (c) To add to this, mere dissatisfaction or displeasure as regards the performance of the employee is not a strong enough reason to call for dismissal. To this end, there must be certain other aggravating factors, namely gross misconduct or substantial and serious incompetence.
(d) The responsibility for proving that dismissal was for just and reasonable cause lies on the employer; (e) Objective standards should be employed while gauging and determining the performance of an employee with respect to preparing the grounds for dismissal. The objective standards are all the more important during investigating an employee who is at a management level (f) it is always the responsibility of the employer to prove that the cause for dismissal is just and reasonable. To this end, the proof is necessarily required to be beyond any kind of balance of probability. (g) It is the duty of the employer to establish the following (i) the exact criteria and specification for the performance and execution of the job; (ii) the Employer is under an obligation to prove that he had adequately conveyed the requisite standard to the employee; (iii) the employer is under a duty to prove that in order to enable the employee to meet the specifications set out by the employer, a detailed set of instructions in clear and cogent manner was given to the employee (iv) despite of all the assistance and support, the employee just did not have the necessary competence to meet the standards set by the employer (v) suitable warning was issued to the employee that in the event of the failure of the employee to meet the standards set out by the employer, the employee will be dismissed.
(h) In the event the employee’s execution of duties completely fails to meet the reasonable standard of expectations on account of the fact that he is being grossly deficient, and there is a very strong probability that the employee is likely to be discharge, then, in such circumstances, it is not mandatory to give written notice to the employee. (i) In certain cases, where the employee is highly incompetent and the level of incompetence calls for necessary action, then, in such circumstances, the benchmark of competence that calls for dismissal is substantially lower especially in the cases when considerable number of warnings have been issued to the employee on account of his unsatisfactory and poor performance.
(j) While determining whether sufficient number of advance warnings have been given for numerous occurrences of under-performances, the employer is under an obligation to show that (i) an objective criteria that can be considered as reasonable has been established by the employer; (ii) there is a gross failure on the part of the employee to meet the standards set by the employer (iii) there was a distinct warning to the employee as regards the fact that in the event the employee successively fails to meet the specifications set by the employer, there are very great chances of great disrepute and damage being caused to the standing of the employer and the employer shall face grave risk in the event of continuous poor performance of the employer (iv) the employee has time and again failed to comply with the standards set by the employer.
(k) In the event an employer has pardoned inadequate performance by any employee at a particular stage of employment, then, in such circumstances, the employer cannot make reliance on such pardon to bring future action of dismissal on account of such past performance. (l) However, condoned behaviour may hold precedence in the event an employee continues to underperform despite repeated warnings. This is because there is always an underlying implication to the effect that pardon is granted on the grounds that the employee will ensure compliance and good performance. (2012, Page 58)
It can thus be seen that the judiciary has set down strict criteria that is required to be followed while setting out the procedure of investigation and dismissal. These principles are applied by the judiciaries to determine whether the process of investigation was in accordance with the principle of fair play and natural justice and whether the employee has been provided adequate opportunity to rectify his or her conduct and whether the employer is providing enough assistance and cooperation to the employee in order to enable the employee to improve his performance. It also appears that mere poor performance independently cannot become a reason for dismissal. It has to be coupled with misconduct. The employer is required strict objective criteria and mere whims and fancies of employers are not entertained.
Another important case is the one decided by Court of Appeal of Ontario in the matter of Chandran Versus The National Bank of Canada (2012 ONCA 205). In the instant case, the employee held a high management position at the National Bank. As the management received several complaints about the employee from his juniors, he was offered a new position that comprised of the similar pay and grade. In the new role, the subordinates were not supposed to report to the employee. Consequently the employee resigned from the Bank and found an alternate employment after a period of 14 months. The employee subsequently sued the Bank of constructive dismissal. The Bank advanced the argument that it was the duty of the employee to mitigate the extent of economic loss caused to him by accepting alternate employment. The Court of Appeal nevertheless agreed with Chandra and accepted his arguments that by offering alternate position, the Bank had constructively discharged Chandra. The court further asserted that the employee Chandra was not duty bound to mitigate. This is for the simple reason that the new position offered to the employee would have led to severe humiliation. Further it would have been highly embarrassing for the employee to work with the employees were previously reporting to him.
(d) whether all the principles of natural justice was followed while conducting investigating; (h) whether the new position offered to the employee puts the former social status of the employee in the company in jeopardy (i) what steps did the company take to mitigate the hazard caused to the employee (j) whether the employee is under obligation, if any, to mitigate the economic loss caused to the employee on account of constructive dismissal. Keeping in mind the above factors, it is imperative to update the HR Manual to provide detailed provisions as regard fair dismissal process so as to avoid constructive dismissal under all possible circumstances.
Another important case in point is the one decided by Court of Superior that of Barton v. Rona Ontario Inc.,
In this case, the employee was terminated under the pretext that the employee’s subordinate had violated the policy concerning health and safety that mandated each employee to help those who are differently abled to access the higher floors of the store. In this regard, the subordinate of the employee failed to help the disabled person access the higher floors who wanted to climb the second floor of the store for purpose of participating in a training session.
The critical fact of this case is that the employee himself was not present at the stage when the subordinate refused helping as per the health and safety policy. However it was alleged that the employee was aware of the whole circumstances and yet failed to act. After the employee was terminated, he sued the employer for wrongful dismissal. He was awarded 10 months’ pay as against the notice. The court did not agree with the zero tolerance policy practiced by the employer. To this end, the court opined that the employer should always keep in mind the degree of misconduct and the consequent penalty imposed and should sparing apply the zero tolerance policy.
This case brings out an important aspect as regards enforcing various disciplinary policies vis-à-vis wrongful dismissal. The employer cannot blindly enforce policy without examining the degree of misconduct. In each and every case the principle of natural justice is required to be followed and the employer is under an obligation to levy punishment that is proportional to the breach. Any act that is otherwise would amount to an outright violation of the principle of natural justice. Even though it is mandatory that health and safety policy is strictly implemented by the employee, yet in case of zero tolerance policy, extra precaution is required to be practiced by the employer, specifically if the direct consequence of such policy is termination/dismissal.
The above judicial position clearly elucidates various steps/principles required to be followed by an employer during the stage of disciplinary proceedings, procedures for dealing with dispute, dismissal, fair hearing, discharge and termination. It is mandatory that the principle of natural justice is followed rigorously and no employee is discharged/dismissed without being given a free, impartial and fair hearing after completing detailed investigation. In this regard, dismissal should be the last resort and all attempts should be made by the company to ensure that the employee is provided with all possible assistance to continue his employment with the company. Only in the event of repeated breach coupled with gross misconduct that is not improved/rectified after series of warning; the employer can consider terminating the employee.
Human Rights of the Employee: It is imperative to consider the various legislations related to human rights issues and consequently update the HR Manual to ensure strict compliance with such statutes. The primary purpose of such legislations is to ensure that there is no discrimination at work place. The online portal of HR council clarifies that it is imperative that employers are aware of Human rights legislations as they apply at every stage of employment including the stages from recruitment until workplace harassment. It is the duty of every organization to make efforts to create a favourable work atmosphere for any employee. The work place should have an inclusive approach and should respect diversity. The HR Manual should be updated to ensure compliance with the Employment Equity Act and the Canadian Human Rights Act.
An important case on this point is that of Devaney v. ZRV Holdings, [2012 HRTO 1590]. In this case, the employee was an architect. The employee was responsible for caring for his mother by means of a work arrangement that was flexible and consequently suited his obligation to provide care to his mother. Gradually, the condition of employee’s mother grew from bad to worse.
The employer formed an opinion that the employee’s performance was getting affected on account of this condition and consequently dismissed the employee. A complaint for violation of human rights was filed by the employee on the grounds of discrimination on account of family condition. The Human Rights Tribunal of Ontario agreed to the employee’s argument and awarded him damages of $ 15,000. This case laid down the principle that the term “family status” is inclusive of “elder’s care”
It light of the above case, it is imperative to ensure that the HR Manual is updated to comply with the provision of the Canadian human right laws. Various characteristic of the term “discrimination” is required to be analysed in order to ensure that there is no discrimination by the employer that leads to a consequent human rights law violation. Care must be taken to ensure that every stage of HR process is human rights law compliant without any distinction.

References

Ontario Ministry of Labour “Retail Workers” February, 2015. Retrieved from: http://www.labour.gov.on.ca/english/es/pubs/guide/retail.php
Section 3 of the ESA. Retrieved from: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_00e41_e.htm
Ontario Ministry of Labour “Retail Workers” February 20, 2015. Retrieved from: http://www.labour.gov.on.ca/english/es/pubs/guide/publicholidays.php#special. Available at: http://www.lexology.com/library/detail.aspx?g=eb665052-6490-4fe1-a38c-ce8192b9cba9
Vernon v. British Columbia (2012) (Liquor Distribution Branch), 2012 BCSC 133 - http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc133/2012bcsc133.pdf.
Adrian Chandran Vs National Bank of Canada Retrieve from (2012): Retrieved from: http://www.canlii.org/en/on/onca/doc/2012/2012onca205/2012onca205.pdf.
Barton v. Rona Ontario Inc., 2012 ONSC 3809 (2012) Retrieved from http://www.canlii.org/en/on/onsc/doc/2012/2012onsc3809/2012onsc3809.pdf.
Human Resource Council “HR Policies & Employment Legislation” (2012) Retrieved from: http://hrcouncil.ca/hr-toolkit/policies-human-rights.cfm
Devaney v. ZRV Holdings, 2012 HRTO 1590 Retrieved from: http://www.canlii.org/en/on/onhrt/doc/2012/2012hrto1590/2012hrto1590.pdf