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Dealing with harassment and discrimination in the workplace • Can an employee be terminated for showing up to work drunk? • Compassionate care leave in British Columbia
By Peter Israel
|Canadian Employment Law Today

Dealing with harassment and discrimination in the workplace

Question:

My co-worker is from Albania and he is always being made fun of by our co-workers. When my manager witnesses this, he does not try to stop this behaviour. What should my co-worker do? Is my manager obliged to help?

Answer:

All provinces and territories do not permit harassment based on prohibited grounds of discrimination. Place of origin, ethnic origin and citizenship are all prohibited grounds of discrimination. Employees have the right to be treated with civility, decency, respect and dignity in the workplace.

Any demeaning or offensive behaviour based on membership or perceived membership in a protected group can be harassment. This includes verbal threats, intimidation, jokes, unwelcome remarks or offensive pictures and posters. Harassment can be inflicted not only by the employer but by co-workers, customers, clients or anyone connected with the workplace. All harassment in the workplace violates human rights laws, regardless of who is inflicting it.

Employers are required to provide employees with a work environment free of harassment. Employers are required by law to take steps to prevent and deal with harassment in the workplace. They can be held responsible for harassment in the workplace even if they are completely unaware the harassment was occurring.

If an employee is being harassed he should approach the harassers and tell them to stop. The employee should make it clear this behaviour is unwelcome. If the employee is uncomfortable approaching the harasser the employee should approach a member of management with his concerns. If there is a company harassment policy the employee should follow its stated procedure. It is also important to document and maintain a written record of the incidents of harassment.

Complaints to the employer regarding harassment should be investigated quickly and thoroughly. If the employer is not of assistance other options are available. An employee who is a union member may approach a union representative and the union may be able to file a grievance on behalf of the employee. The local human rights body should be contacted to provide advice and assistance.


Can an employee be terminated for showing up to work drunk?

Question:

An employee came to work drunk one day last week. Can I terminate his employment solely based on this incident?

Answer:

Intoxication at work is not necessarily enough to justify dismissal. A formal warning must generally precede dismissal for intoxication unless this was an extremely serious incident. Whether a single incident of misconduct justifies dismissal depends on the specific circumstances of the situation.

Consideration must be given to the extent of the employee’s drunkenness and behaviour, the employee’s position and past service, the nature of the business, and whether there were any mitigating factors. Alleged intoxication will not support a dismissal with cause without sufficient proof.

Factors in determining whether an employee’s intoxication at work justifies dismissal include:

•whether the drunkenness was prejudicial to the employer’s business interests;

•whether the employer has condoned the behaviour in the past;

•whether the employee endangered him/herself or other employees;

•whether the performance of the employee was affected;

•whether there is clear company policy or a term in the employment contract against such behaviour; and

•whether there were serious consequences due to the intoxication

Consideration must also be given to human rights legislation as dismissal of an employee due to alcohol dependence may constitute discrimination based on a disability.


Compassionate care leave in British Columbia

Question:

I work in British Columbia, and my mother is very sick. How much time am I entitled to take off to help her during her illness?

Answer:

According to the British Columbia

Employment Standards Act

an employee is entitled to take up to five days of unpaid leave during each employment year for family responsibility. Family responsibility includes the care, health or education of a child in the employee’s care, or the care or health of any other member of the employee’s immediate family.

Immediate family is defined as the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee and any person who lives with an employee as a member of the employee’s family.

An employer is obliged to give an employee leave if he so requests. The employer must not terminate the employment or unilaterally change a condition of the employment due to a family responsibility leave.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or pisrael@goodmancarr.com.

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