In my experience as an employment lawyer on the management side, outside of the movies, workers who sleep at their desks, or who retroactively alter their records, charging their employer thousands of dollars in false expenses, usually lose their jobs.
However, recent high-profile cases suggest this is the chimerical world of our civil servants. They earn more than their taxpayer peers yet are judged by standards the rest of us can only gasp at.
Pamela Wallin's counsel has denounced the Senate's plan to suspend her without pay for two years, calling it a "fundamental affront to Canadian democracy." Now, that's chutzpah. In private-sector employment law, based on the press reports, she would have been fired for cause a long time ago.
While criticizing a lack of fairness - and she should, in my view, have an opportunity to explain herself before being suspended or fired - her counsel states that, "Asking her to defend herself on the floor of the Senate on the subject of hundreds of contentious expenses is unfair." But, isn't that precisely the due process and full public hearing she has said she desires?
I can't think of a privatesector executive who would not have been fired for cause for what Wallin or Mike Duffy or Patrick Brazeau are alleged to have done. By moving to suspend these three, the Senate may be hoping to forestall genuine inquiry into what Canadians are getting for their dollars from the appointment of this collection of faithful party workers and fundraisers. But that does not make the motion wrong-headed. As an employment lawyer, I believe it does not go far enough.
Without casting aspersions on the legitimacy of Duffy's sick leave claim, I will say that employees on the point of being fired will often suddenly call in sick, happy to provide medical notes if questioned.
Whether or not his claim is genuine, illness does not prevent suspension or discharge for cause for conduct preceding that sick claim. Disability plans often permit disability benefits to continue even following dismissal but as soon as the employee is recovered they will have no job to return to. And the insurance company, if prudent, will take a sharp look at claims which appear opportunistic.
Duffy alleges heart difficulties but in my experience most such claims are stress related. And stress is not a disability under human rights legislation and is only disabling at its extreme.
Employees who misconduct themselves and realize they are about to be fired are under stress. But to absent oneself from work, the medical condition must be so severe that it cannot be accommodated by being provided lighter, less exacting, duties.
Going back to the neverending farce at Toronto City Hall, how many employers make public photos of employees misconducting themselves, along with comments suggesting the employee be dismissed. If the employee was not sleeping, he will have a significant libel action against the City. And even if he was, the courts won't easily countenance that profound an intrusion into his privacy.
I cannot recall any privatesector employer openly advertising its employees' misconduct with pictures and condemnations widely circulated. But, however unorthodox, again, that does not mean it's wrong-headed. If sloth is so widespread at City Hall that this is what is required to shake up the culture, one lawsuit may be a small price to pay.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Dismissal in Canada.
Employment Law Hour with Howard Levitt airs Sundays at 5 p.m. on CFRB in Toronto.
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