Canadian Employment Law Today

November 3, 2021

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: Vacation time is designed to provide employees with an opportunity to rest, spend time with their families and friends, and re- charge their batteries away from the workplace. If an employer creates a work environment where employees need to put in significant ex- tra hours in order to get away on vacation, the employer may find itself exposed to a variety of challenges, such as increased sick leave and overtime claims, poor workplace morale, and difficulties with recruitment and retention. Employees who work overtime hours lead - ing up to a period of vacation will generally be entitled under employment standards legisla- tion or collective agreement provisions to be paid for those hours at premium rates, unless they are exempt from overtime pay. Employers are entitled to exercise discretion in the best interests of the business when sched - uling employee vacations. An employer is well advised to schedule vacations at times where business demands do not require employees to work extra hours before or after taking vaca- tions, or where there is sufficient coverage for the absent employee. Employers should ensure that employees have the opportunity to take their annual vaca- tion regularly. In some jurisdictions, employ- ment standards legislation puts the onus on the employer to make sure employees appro- priately schedule their time off. In British Columbia v. British Columbia Nurses' Union, [1993] BCCAAA No. 371 (Munroe), the collective agreement contained language which protected against undue increases in workload caused by absences due to vacation. The arbitrator found that this language applied both to employees covering for the absent em - ployee and to the workload of the absent em- ployee upon their return from vacation. The arbitrator stated that it was not sufficient for the employer to say "We do not expect you to do more than is reasonably possible." Instead, the employer was found to have a positive ob - ligation to ensure it had arranged for sufficient vacation coverage. Whether or not protection from excessive workload due to vacation is explicitly contem - plated by the terms of a collective agreement or employment agreement, employers should set expectations with employees regarding what must be completed before their vacation, what can be delegated, and what can wait for the em - ployee's return. Agreeing to overtime arrange- ments in advance may limit the employer's liability and help ensure that parties respect legislated hours of rest and meal breaks, when necessary. As employers are struggling to manage work hours of employees working remotely due to the pandemic, it is more important than ever for employers to communicate expectations and set boundaries on work hours clearly. For more information see: • British Columbia v. British Columbia Nurses' Union, [1993] BCCAAA No. 371 (Munroe) (B.C. Arb.). ANSWER: It is well-established that an em- ployee who makes offensive, derogatory or ha- rassing comments on social media about their employer or co-workers can be subject to dis- ciplinary action and, in some cases, dismissal. Making disparaging comments publicly about one's employer will often breach the duty of loyalty inherent in the employment relation- ship. Relevant factors may include the content of the remarks, the confidentiality of the in- formation that was disclosed, the nature and extent to which the comments were made pub- lic, whether the statements were true or false, the extent to which the employer's reputation was damaged or jeopardized, the impact of the criticism on the employer's ability to conduct its business, and the interest of the public in having the information made public: British Columbia (Attorney General) v. B.C. G.E.U. In Camosun College v. C.U.P.E., Local 2081, the arbitrator ruled that in some circumstances, an employee is under a broader civic obligation to make public statements which are plainly against the employer's interests. The duty of fidelity does not compel an employee to keep quiet in the face of wrongdoing in the work - place. However, employees are not free to act on mere suspicions. Before making public allega- tions of misconduct, the employee is under an obligation to investigate and verify the concerns as far as possible. The employee is also obliged to take every reasonable opportunity to correct the concerns within the organization before taking them public. Commenting negatively on social media about managers or co-workers can be a breach of an employee's obligation to refrain from en - gaging in workplace bullying and harassment. Where a complaint about such behaviour is made, the employer will have a duty to inves- tigate and take reasonable steps to ensure it is providing a safe workplace. The situation is more difficult, however, where derogatory or harassing comments that appear on social media are not made by an em - ployee, but by an external third party. If the third party is an employee's friend or family member, the employer may be able to establish through investigation that the employee was behind the comments, in which case disciplinary action or even discharge may be appropriate. But if a con - nection to the employee cannot be established, the employer will need to look to other means to protect its business and workforce. Depending on the circumstances, this may include threatening or commencing an action for defamation, seeking an injunction, report - ing the matter to the police, asking the social media host to take down the offending post, or blocking emails from specified accounts. How- ever, before an employer takes these steps, it is often advisable to consider whether actively en- gaging with the third party is going to have the desired effect, or whether it may simply result in an escalation of the offending behaviour. For more information see: • British Columbia (Attorney General) v. B.C.G.E.U., 1981 CarswellBC 1176 (B.C. Arb.). • Camosun College v. C.U.P.E., Local 2081, 1999 CarswellBC 4507 (B.C. Arb.). Colin Gibson is a partner with Harris and Com- pany in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Canadian HR Reporter, 2021 2 | | November 3, 2021 November 3, 2021 COMPANY'S on page 7 » Employee liability for inappropriate behaviour by friends and family QUESTION: If an employee's friend or family member makes inappropriate or harassing comments about an employer or other employees on social media, can the employer hold the employee responsible? Excessive workload from taking vacation Question: Is there a liability risk if employees regularly have to put in extra hours to get their work done before they take vacation leave? Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com HARRIS & COMPANY, VANCOUVER with Colin Gibson Agreeing to overtime arrangements in advance may limit liability.

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