January 31, 2023

As you may be aware, there are numerous circumstances where an employer must inform employees of a new or revised policy or regulation and the consequences of violation before the employer can enforce any discipline in the case of non-compliance.

With today’s technologies, there are numerous ways to advise employees either collectively or individually about a new or revised policy.

However employees are advised, it is important in all cases that you receive verifiable notification that the employee(s) are aware of the policy and of the consequences for non-compliance.

In the case of Union of Rolls-Royce Canada Workers – CSN and Rolls-Royce Canada Ltd., 2022 QCTA 314, arbitrator Marie-Eve Crevier of the Quebec Arbitration Tribunal (the “Tribunal”) ruled that the mere proof of an email to which a policy is attached is insufficient to demonstrate that an employee has knowledge of said policy.

Background
In May of 2019 a machinist with the company was given a one-day suspension without pay for acting disrespectfully toward a security guard who stopped him in the plant.

The machinist had been stopped by the security guard because he was speaking on the telephone while walking on company property. This is prohibited under the employer’s occupational health and safety policy entitled “Use of a Communication Device in the Workplace” (the “Policy”).

A disciplinary investigation was initiated by the employer, which resulted in the one-day suspension being imposed for having violated the Policy and for having acted in a disrespectful manner towards the security guard.

The grievor’s union filed a grievance requesting that the suspension be rescinded and the disciplinary measure be removed from the grievor’s employee file. Among the grounds for the request was that the policy was not known to the employee and therefore the employer could not consider the incident relating to the Policy in imposing the discipline.

Decision
It is well established in case law that a policy must be known by the employee in question before the employee can be sanctioned for violating the policy. Further, the onus is on the employer to demonstrate that the employee has knowledge of the policy.

The Tribunal found in this case that there was not sufficient evidence to show that the grievor was aware of the company’s Policy. 

When the Policy had come into effect, the employer sent an email to a general employee mailing list with the Policy attached. The employee maintained that he was not on that mailing list. There was no evidence presented at the hearing to contradict the grievor’s testimony, nor was any evidence presented that he had seen it on the company’s intranet or had received information about the policy in any way.

The Tribunal concluded that the mere evidence of an email having been sent is insufficient to show that the grievor was aware of the Policy.  It further equated transmission by email to delivery of a letter sent by regular, rather than registered, mail. In either case, there is no evidence that the recipient actually received the correspondence.

Accordingly, the Tribunal found that the grievor could not be faulted for violating a rule that was not brought to his attention.

The Tribunal allowed the grievance in part. It rescinded the one-day suspension imposed on the grievor and substituted a written warning for the suspension because of the grievor’s behaviour.

Takeaway for Employers
In order for company policies to be enforceable against employees, employers must ensure that the policies or policy changes have been brought to the attention of employees and that the employees are aware of the policy or changes. Simply sending an email is not sufficient to demonstrate that an employee has been made aware of a policy.

As I have previously advised, good practice includes having employees sign an acknowledgement of the policy. In lieu of a physical signature, acknowledgment could be received through an email reply from the employee or some other verifiable digital or electronic means.

It is also a good practice to post the policy or policy changes in the workplace or on the company intranet, but these may not in themselves be considered evidence that employees are aware of the policy or regulation.

Please contact me with any questions you may have or for assistance working through your staffing matters.