KING CITY, Ont. — Despite a high-profile case in which Hydro One recently fired an employee for making belligerent, embarrassing comments on live TV, trucking companies may want to think twice before canning employees for off-duty conduct.
That warning came from Chris Andree, a partner with Gowling Lafleur, Henderson LLP, during a legal update delivered to attendees at the Private Motor Truck Council’s annual meeting this week.
Employees can be “disciplined” for a single instance of inappropriate off-duty conduct, Andree said, but that doesn’t mean they can be dismissed.
“There’s a vast difference between business just cause, and legal just cause,” he warned.
If it’s a single incident, the courts are more likely to side with the employee, especially if it was a long-term employee with no pattern of such behaviour.
“Basically, they measure the misconduct against (the employee’s) body of work to this point,” Andree explained. “If they are a five-year, otherwise satisfactory performer with no other issues in their disciplinary file and they behave in a way that’s unflattering to your organization, it probably doesn’t constitute just cause. An action by a three-year employee can lead to just cause but the same conduct by a 33-year employee may not. It’s not just the conduct, it’s the conduct versus their body of work.”
This has become a major issue in all industries with the emergence of social media, where employees can quickly damage their employer’s brand or business relationships with a single tweet or Facebook post to a potentially broad audience.
“In the last five years, social media has had a tremendous impact on the consequence of off-duty conduct,” Andree noted.
He pointed out employees do owe their employer a “duty of loyalty and fidelity, even when not at work.”
But, “The under-30s will have no concept of that,” Andree said. Young employees particularly need to be reminded of this duty, Andree said, so that a nexus is established between off-duty conduct and the workplace.
Independent vs dependent contractors
Andree also spoke about continuing confusion over the status of “independent contractors,” but not before thanking the trucking industry for continuing to use so many independent contractors and giving employment lawyers an abundance of business.
“The fact you call someone an independent contractor and they say ‘Yes, I am’ and they file their tax returns as self-employed,” does not make them independent contractors, Andree warned. “It has far more to do with the substance of the relationship.”
Usually if there’s any ambiguity, the courts and tribunals will deem the contractor an employee, or a “dependent contractor,” which has major implications for the employer.
“The level of control is the fundamental issue,” he explained. “Do you control this individual the same way you control your employees?”
In one recent case, a husband-wife team who were former employees became independent contractors in 1987. A written agreement with the company indicated they were to devote their full time and attention to that company, however they did begin generating up to a third of their revenue from other sources. Still, when the company closed shop, the husband and wife were deemed to be dependent contractors and they were awarded 26 months pay in lieu of notice.
One way companies can protect themselves against this is to insist their independent contractors incorporate their businesses, Andree suggested.
“If you do nothing else with these independent contractors, please make sure they are incorporated,” he implored. “From the employer’s perspective, it’s very important they be incorporated.”
The Stronger Workplaces for a Stronger Economy Act
Andree also gave a timely update on the Stronger Workplaces for as Stronger Economy, 2014 Act, which became law in Ontario May 20. This will require all provincially regulated employers to give their employees a one-page handout by June 19 – today! – outlining their rights under the Employment Standards Act. New employees going forward will have to be presented with the document within 30 days of their hiring.
“Every employee in Ontario, by the end of the day tomorrow, is to have received this document,” Andree said. “It says, ‘Here are all the reasons you should be dissatisfied with your employer’.”
Among the things it highlights are how overtime pay should be calculated, something that could prove problematic for trucking companies, Andree warned.
“This is creating much anxiety among employers that are not calculating overtime right,” he said.
Employers will also have to be able to prove that employees were given the document. Andree recommended including it in written employment agreements, which he said should exist for every employee in the company.
Temporary help agency changes
Another new change coming in November will affect carriers using driver services agencies. Under the new regulations, employers will be on the hook if the temporary help agency doesn’t pass on wages to the worker.
This means using a reputable, well established staffing agency is crucial, Andree warned, otherwise if the agency runs off with the money the client will have to pay twice.
Also, the company using temporary workers will need to keep track of the hours worked by each of the temporary workers; they can no longer rely on the agency alone to do this. Those records will have to be retained for three years.
Drug and alcohol testing
As always, the subject of drug and alcohol testing was on the minds of managers. Andree reminded attendees that in Canada, addiction is considered a disability and not cause for termination.
Even if a driver is unable to enter the US as part of their employment agreement due to a drug test failure, the employer will have to find alternative work for them, if such work exists within the company.
“Here in Canada, we’re really big on ensuring accommodation occurs,” he explained. “No one is entitled to be barred from the workplace unless you can show you can’t accommodate whatever the disability is.”
This is especially true for provincially regulated carriers in Ontario.
“Don’t assume that just because the job description says they’re required to go to the US as part of their job that that means there’s no duty to accommodate them,” Andree said.
Another issue is that there’s currently only one test available that can detect drug impairment at the time the test was taken, and results take several days to obtain. This means while it’s easy to determine on-the-job impairment from alcohol using a breathalyzer, employers currently have no way to prove a driver was impaired by drugs while at work.
“We only care about impairment on the job, not lifestyle choices, at least in Canada,” Andree pointed out.
Random drug testing is only permitted for safety-sensitive workplaces, and that doesn’t include trucking, he said. Some sectors, such as the oil and gas industry, have made pre-employment and random drug testing standard by working it into collective bargaining agreements with unions.
“Employers said ‘We don’t care what the law is, this is what we’re going to do,’ and the unions conceded that point,” he explained.
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