Canadian Employment Law Today

November 20, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Stuart Rudner Ask an Expert RUDNER LAW TORONTO 2 | November 20 , 2019 Have a question for our experts? Email jeffrey.smith@keymedia.com Canadian HR Reporter, 2019 Stuart Rudner Ask an Expert RUDNER LAW TORONTO Answer: at is an interesting question, par- ticularly in today's day and age. To begin with, the legal concept that is being discussed is that of insubordination: the refusal to carry out a reasonable order made by an employer. As I have often said and written, any form of misconduct, including insubordination, will justify some degree of discipline but not nec- essarily dismissal. As I have written about in my book, You're Fired! Just Cause for Dismiss- al in Canada, the threshold for establishing just cause for dismissal is quite high. And, of course, it will depend very much upon all of the relevant factors, including the individual's length of service, disciplinary history and re- sponse to progressive discipline. In order to constitute insubordination, there must be a lawful and reasonable order. e question in this case is whether ordering an individual to use her personal social me- dia accounts to promote the employer's busi- ness is reasonable. I'm not aware of any case that has addressed this issue directly, but, in my view, it may be diffi cult for an employer to establish that it is entitled to impose such a requirement upon its staff . Unless it can, then it would not be able to impose disci- pline, let alone summary dismissal, as a re- sult of the employee's refusal. Of course, if such a requirement was clearly set out in the employment agree- ment, then it may be far more plausible for the employer to insist that the employee had an obligation to promote the business in her personal social media accounts. In the absence of such an explicit contractual agreement, however, I would be reluctant to advise a client to impose summary dismissal in such circumstances. Stuart Rudner is the founder of Rud- ner Law, an employment law fi rm in Markham, Ont. He can be reached at stu- art@rudnerlaw.ca or (416) 864-8500. Promoting the business on employees' personal social media Question: Can an employer require its employees to use their personal social media to promote the employer's business? If an employee resists such a directive, can it be grounds for discipline? Assigning duties of departed employee to others Question: Is there any liability for constructive dismissal or other employment standards issues if the duties of a departing employee are assigned to an existing employee with no change in pay or reduction in the employee's other duties? Answer: ere is a fairly common miscon- ception out there that if an employer main- tains an employee's pay level, it is entitled to make changes to other terms of employ- ment, such as their position and duties. at is entirely untrue. It is important to remem- ber the basic defi nition of a constructive dis- missal: a substantial change to a fundamental term of the employment agreement. It does not refer to a change to compensation only. ere are many cases in which constructive dismissal has been established despite the fact that compensation was left untouched. is type of scenario is not uncommon, particularly when there is a downsizing. I have often seen situations where the people that survive the downsizing are left to work the equivalent of two or more full-time jobs in order to compensate for those that were let go. In most cases, the employer does not off er to increase their compensation at all. Essentially, they are asked to work two jobs for the price of one. at can easily consti- tute a constructive dismissal and entitle the individual to compensation. Of course, every situation must be as- sessed based upon its own particular facts, and the onus will be on the employee to prove that what occurred constituted a sub- stantial change. e onus is also on the em- ployee to register an objection to the chang- es. When we are retained by individuals with potential constructive dismissal claims, we always recommend that they put their objec- tions on the record and allow the employer the time to remedy the situation. As regular readers will be aware, if the employee can prove that she was constructively dismissed, then her legal position will be the same as an employee whose employment is terminated outright. Of course, one of the factors that can become particularly important is that of mitigation; unlike an employee that was dismissed outright, the constructively dis- missed employee still has employment avail- able and, in many cases, courts will fi nd that she should mitigate her damages by remain- ing in that role until fi nding something else. e employee will have to show that a rea- sonable person would not do so. at may be possible if she can show that the expecta- tions were simply unachievable. Unlike an employee that was dismissed outright, the constructively dismissed employee still has employment available. In order to constitute insubordination, there must be a lawful and reasonable order. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as reinstatement offers, RCMP harassment, and past misconduct by employees. You can view the blog at www.employmentlawtoday.com.

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