Canadian Employment Law Today

December 2, 2020

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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Answer: The short answer to this question is no, provided that the employee is working from the work computer in both instances. If the employee is working from a per- sonal computer, there's a greater risk that the employer may infringe on the employee's privacy rights by inadvertently obtaining per- sonal information about the employee that the employer did not have permission to ob- tain. For example, an employee is much more likely to store personal information, such as family photographs and personal emails, on their personal computer than on their work computer. There is also the risk that the em - ployer may uncover information relating to grounds protected under human rights legisla- tion, such as the employee's medical records, gender expression or family status. Obtaining such information could potentially expose the employer to a future claim for discrimination if, for example, the employee is later passed over for a promotion. Even if an employee is working from a cor - porate computer, they have a general right to privacy. However, this right can be altered where there is clear notice that the employee should not have an expectation of privacy. Al - though there is no formal legislation govern- ing the monitoring of employees' workplace computers in every jurisdiction, privacy com- missioners and arbitrators have developed var- ious tests to determine whether specific types of employee monitoring are acceptable. There are many tools available to employers who wish to monitor their employees' com- puter habits. However, employers should be wary, as none of these methods distinguish be- tween an employee's private and business use of their computer. Even accidentally recording an employee's banking transactions or per- sonal emails could potentially create a liabil- ity issue for an employer. That said, if the em- ployer makes it clear that an employee should have no expectation of privacy when using the corporate equipment, the employer will have more latitude. It's important that employers have clear and comprehensive workplace policies regarding the use of workplace computers for personal use. Employers should also have policies re - garding the collection, preservation and dis- closure of employee confidential informa- tion. When creating these policies, employers should be mindful of any applicable federal and provincial privacy laws. For example, the Personal Information Protection and Elec- tronic Documents Act (PIPEDA) regulates the private sector's collection, use and dis- closure of personal information. However, it only applies to federally regulated employees. Provinces such as Alberta, British Columbia and Quebec have enacted their own privacy legislation for provincially regulated, private- sector employees. However, Ontario has not yet developed its own privacy legislation and instead employees in that province may be able to rely on the tort of "intrusion upon se - clusion." Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He can be reached at stuart@rudnerlaw.ca or (416) 864- 8500. Answer: Generally speaking, an employee who is on a temporary layoff is required to return to work once recalled by their employ - er. If an employee refuses to return to work after being recalled, their refusal may be con- sidered a resignation. There are, however, instances when refus- ing to return to work may be justifiable. For example, if the employer attempts to recall the employee to a different position or with different terms and conditions of employ - ment, the employee may be justified in refus- ing to return to work. In such circumstances, the employee may be entitled to treat the change as a constructive dismissal of their employment and seek compensation as a result. A constructive dismissal is a unilateral and substantial change to a fundamental term of the employment agreement or relationship. What constitutes a fundamental change will vary depending on the particular facts of each case; examples can include a significant reduction in the employee's compensation or a significant change to their role and re - sponsibilities. Where an employee rejects the proposed changes, the employer may terminate the employee's employment by providing rea- sonable notice or pay in lieu of notice in accordance with either the employee's em- ployment contract, applicable employment standards legislation or the common law. Alternatively, the employer may also choose to return the employee to their previous po- sition. It should be noted that an employee who has been constructively dismissed or wrong- fully dismissed is required to mitigate their losses by making all reasonable efforts to find new, comparable employment; this may include accepting an offer of re-employment into a different role. Failing to do so can con - stitute a failure to mitigate their damages and may dramatically impact their entitle- ment to termination pay. However, the law also makes it clear that comparable employment does not mean any employment. It is intended to refer to employment that is commensurate with the previous employment with respect to mat - ters such as status, duties, hours and remu- neration. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert RUDNER LAW, TORONTO with Stuart Rudner Recalled worker refusing different position Question: If an employer temporarily lays off a worker and then offers the worker a different job, can it consider the worker to have quit if the worker refuses the different job? Canadian HR Reporter, 2020 2 | | December 2, 2020 December 2, 2020 Monitoring employee activity on work computer at home Question: Is there a difference in liability between monitoring employee activity on their work computer while they're in the office and when they're working from home? The employee's right to privacy can be altered when there is clear notice that the employee should not have an expectation of privacy. There are instances when refusing to return to work may be justifiable.

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