Howard Levitt: Ill-advised it may be, but Whole Foods was well within its rights to ban the poppy

Even if the prescription against paraphernalia is arbitrary and senseless, companies still have the right to enforce them.

A workplace is not a democracy and the Charter of Rights does not apply to employer-employee relationships. An employer can tell you how to comport yourself, what rules to follow, how you style your communications with both co-workers and outside third parties and how to approach and perform your job. It can even, with limited restrictions, conduct surveillance through tattleware on keyboards and cameras in the workplace. Employers, short of toxic abuse, can adopt any management style they wish. Employees have no such liberty.

Employers should exercise these rights intelligently. To do otherwise will drive employees from their workplace and damage the morale of those who remain. Although ill-advised, arbitrary rules, with few exceptions, are not illegal.

Shocking to many, employers can also legally discriminate. They can hire people based on good looks, how the employee shakes their hand (in pre-COVID-19 days) during the employment interview or on any arbitrary factor they select. The only exception is that they cannot hire, fire or treat an employee differently based upon grounds in the Human Rights Code, i.e., race, creed, sexual orientation, etc.. They can discriminate based on anything else.

Short of requiring sexualized-based attire, which would be a human rights violation for jobs other than say, a server at a Hooters restaurant, they can even dictate what employees wear, prescribe uniforms or proscribe accessories.

The general public confusion surrounding this became clear respecting Canada’s recent “poppy scandal”.

Canadians were apoplectic at grocery chain Whole Foods’ initial refusal to permit its employees to wear poppies on and around Remembrance Day. It may have been an insane branding exercise — which forced the Amazon.com Inc.-owned grocer to quickly retreat when both provincial and federal governments inveighed and boycotts were threatened — but it had the absolute legal right to do it.

Just as employers can require uniforms and dress codes, they can prohibit people from wearing any form of branding. They might do it, sensibly in some circumstances, because they do not want customers to be antagonized by political, religious or other slogans with which some of their customers disagree. Just as customers are voting with their feet against retail and grocery stores that do not enforce mask guidelines, employers would not want any of their customer base choosing not to attend because of what their employees were wearing. Even if the prescription against paraphernalia is arbitrary and senseless, companies still have the right to enforce them, unless they demand sexualized outfits, as that is a violation of the Human Rights Code.

Many employees have contacted me, shocked that employers have curtailed their “free speech” in the workplace in various contexts and assume that this must be illegal. It is not. Employer, with few limits, control their workplaces. This does not permit them to be abusive or humiliating but permits much else.

Despite an employer’s presumptive right, this will be interpreted sensibly by the courts. Whatever the employer prescribes or proscribes, an employee in breach of it can be fired but the firing will not be for cause unless the court agrees that the conduct had a substantial deleterious impact on the employer, the rule was made clear and the employee was properly warned. Cause is a difficult test to meet. But the employer is free to fire employees without cause and create a workplace of its own design.

The right to control employee conduct extends, to a much lesser extent, to conduct outside of the workplace. Although significant control does not exist there, employers still have the right to require employees to not conduct themselves in a way that would be highly embarrassing to the employer or damage its brand. And doing so, in a material way, by being involved in scandalous activity which redounds to the company’s embarrassment, can be cause for the employee’s discharge.

Early in my practice, I remember being at a pretrial (essentially a mediation session) before a judge of the Superior Court. The employee in that case complained that he was not permitted to do something which he knew the company owner had himself done. The judge quickly replied, “This is not a democracy. It is an industrial corporation.”

Here are some of the questions I received recently.

Q:I have been working for a company for 25 years that’s been taken over by another company. Now employees were told to sign a letter of resignation in order to work for the new company. I did because I have to work, but it it legal? How about my 25 years of service? Am I entitled to severance pay?

A:I do not know what you precisely signed. If you were hired on by the new employer, you are presumptively entitled to the combined length of service. Signing a letter of resignation likely will have no impact on that entitlement, if fired by the new employer. However, if you signed an employment contract with the new employer, that could impact on your entitlement if it is enforceable.

Q:If I resign, can I change my mind and go back to work?

A:The courts provide a cooling off period when employees have resigned in the heat of the moment. There is no specified time for this so my best advice is to attempt to rescind your resignation as soon as possible. Generally, if the employer has accepted the resignation and taken action based upon it, i.e. hired someone to replace her, the employee will be unable to retract it. Therefore, my advice to employers who do not wish the employee to return is to do just that.

Q:If an employee tests positive for COVID-19, does the employer have an obligation to tell other employees who might have been in close contact. The employer is stating confidentiality for not informing other staff.

A:They have to inform and not doing so could make them liable for negligence.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Some questions are edited for clarity and space.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.