Getting fired for being too wired

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

After a flurry of new legislation in recent months, it is now — or soon will be — against the law in most Canadian jurisdictions to use a cellphone or other hand-held device while driving. The restrictions vary depending where you are — in some places, hands-free devices are allowed; in others, all electronic devices are banned. Either way, governments have made the move to try to make the roadways safer by getting rid of some of the distractions drivers face.

Employers with employees on the road need to ensure they remain safe and obey the law, and draft appropriate policies restricting the use of cellphones. But what if employees break these policies? How serious should it be treated?

In Alberta, which is one of only two provinces — the other being New Brunswick — that doesn’t have an official ban on cellphones for drivers either in effect or pending, Edmonton-based Steels Industrial Products talks tough when it comes to employee cellphone. The company has a policy banning employees from using any kind of cellphone or texting device while behind the wheel of a company vehicle. Even hands-free devices are banned. The company wants safety to be a top priority and feels the blanket ban ensures employees on the road will be safe. Any Steels employee that breaks this policy can be fired.

An employer can argue a violation of such a policy is a serious safety breach, but does it provide just cause for termination?

The answer, as always, depends. If the employer is in a jurisdiction where it’s illegal to use such devices, it may stand a better chance of having the termination stick. But if there is no law on the books, simply violating a policy may not justify termination.

Even where it is the law, is the misconduct egregious enough to justify immediate dismissal?

The transit service in Washington, D.C., fired 31 employees last year for using cellphones while driving. In Canada, it might not be so easy. It’s more likely this type of misconduct, despite its potential safety risk, wouldn’t be sufficient cause for dismissal and the employer would have to provide reasonable notice. Though employers like Steels want to show they’re serious about safety, progressive discipline is probably a better route to take.

Is violating an employer’s cellphone policy a serious enough breach of safety to warrant dismissal? How much should depend on whether it violates the law or not?

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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