By Cédric P. Lamarche
The recent events involving Canadian Armed Forces Brigadier-General, Daniel Ménard, have raised many questions regarding the propriety of relationships at work.
Ménard, who falls under the purview of the Canadian military law regime, was recently accused of engaging in an intimate relationship with a member of his staff. The accusations have resulted in Ménard’s removal from his command post in Afghanistan. Under the rules established by the Canadian Armed Forces, soldiers are strictly forbidden from engaging in acts of intimacy while away on deployments. These rules were put in place in order to prevent the deterioration of discipline and structure within the ranks.
Military rules aside, is an employer permitted to terminate an employee for having a romantic relationship with a colleague?
Employers do have the right to implement reasonable policies and require that their employees adhere to them. As long at the policies are exercised reasonably, fairly and in good faith by the employer, employees must comply with the rules established by management. In order to be fair and reasonable, employers must ensure that company policies are clearly communicated to their employees, that employees are provided with the clear message that failure to follow company policies could result in disciplinary action, including discharge, and that the policies are applied equally across the board.
Pursuant to federal and provincial human rights legislation, employers have a duty to provide employees with a work environment free from harassment, including sexual harassment. Accordingly, employers must take the necessary steps to prevent and eliminate certain types of unwanted negative sexual behaviour and attitudes from the workplace. As a result of the Royal Assent of Bill 168, the “steps” that Ontario employers must take include the implementation of written policies which specifically address workplace harassment.
The problem with consensual romantic relationships in the workplace is that they may lead to conflicts of interests. The obvious example is that of a manager involved in an intimate relationship with a subordinate. In that example, the employee who is in a position of power may have the ability to influence managerial decisions involving his or her partner. As can be gleaned from this simple example, employers may be faced with problems that arise where a consensual intimate relationship between employees leads to power abuses; problems that can be particularly difficult to manage.
The implementation of workplace policies containing anti-conflict of interest guidelines may be the answer to these problems. Such policies should discourage employees in positions of power from engaging in relationships or situations that would either create or lead to the perception of a conflict of interest. At the very least, the policies should impose an obligation upon managers or employees who exercise managerial decisions affecting employees with whom romantic interests are shared to disclose the potential conflicts such that decisions affecting particular employees can be impartially reviewed or require the decision makers to be removed from the decision making process.
Policies or rules forbidding romantic relationships between employees in the workplace will have limited efficacy as their enforceability is highly questionable. Employees who are subjected to such policies or rules could certainly challenge them on the basis of unconscionability. Whether such challenges will be successful will likely depend on the nature of an employer’s business and the reasonableness of the policies.
Cedric Lamarche is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.