Canadian Employment Law Today

April 17, 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 Colin G. M. Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2019 2 | April 17, 2019 Have a question for our experts? Email Ask an Expert Canadian HR Reporter, a Thomson Reuters business 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Moving an employee to a fixed-term contract Question: If an employer wants to terminate a full-time employee and then rehire the employee on a fixed-term contract, what would the notice entitlement for the termination be? Would the employee be required to accept the fixed-term contract as mitigation of damages from the termination? Use of a company laptop during personal time: What rules apply? Can an employer investigate an employee's use of a company-issued laptop while on the employee's own time outside of work hours? Can this use be the basis for discipline? Answer: ere are a number of legal issues that must be considered in determining whether an employer may investigate an em- ployee's personal use of a company-issued device. Before investigating, an employer should consider what conduct it is entitled to investigate and how to carry out an inves- tigation while respecting privacy rights. Employers commonly issue company- owned devices such as laptops or smart- phones to employees for use in their work. Employees are often allowed to use these devices for personal purposes as well. Also, employees may regularly use email, instant messaging, and social media on their com- pany devices in a way that can blur the dis- tinction between work and personal life. In most cases, an employer can discipline or dismiss an employee for off -duty misconduct that aff ects the employer's legitimate business interests. Such misconduct may include ac- tivities like inappropriate social media posts, and bullying and harassment of colleagues. Such conduct may warrant investigation and possibly discipline, but an employer's capac- ity to investigate is not without limit. An ap- propriate balance must be struck between the employer's interest in managing its business and the employee's right to privacy. Provincial and federal privacy legislation sets out rights and obligations which protect individuals' personal information in a variety of contexts, including the workplace. While privacy laws are similar across Canada, em- ployers should check the applicable legisla- tion before investigating an employee's use of company-issued technology. Under privacy laws, employees are en- titled to know how their personal informa- tion is being collected, used and disclosed by the employer, and for what purposes. As a result, an employer's ability to investigate an employee's use of a company-issued de- vice will often depend on the content of its workplace privacy policy, and whether that content has been adequately communicated Answer: An employer can terminate an employee without cause by giving the amount of notice required by the express or implied terms of her employment contract. Similarly, if an employer wants to make a fundamental change to the employment contract without the employee's consent, the same notice is owed before the change can be implemented. An employee's notice entitlement can be set out expressly in the contract. If there is no contract with an enforceable termina- tion clause, a requirement to give "reason- able notice" will be implied by the common law. Courts determine reasonable notice based on the circumstances of each case, with important factors usually being age, length of service, character of employment, and availability of similar employment. If an employer terminates an employee without cause and fails to provide the re- quired notice, the employee will have been wrongfully dismissed. Similarly, if insuffi - cient or no notice of a fundamental change to an existing contract is provided, the em- ployee may treat the change as a constructive dismissal. Either circumstance gives rise to a right to claim damages from the employer in lieu of notice. However, a dismissed employ- ee has a duty to mitigate her losses by seeking comparable alternative employment, unless the employment contract provides other- wise. Whether an employee will be required to mitigate by accepting a fi xed-term con- tract with the same employer will depend on the circumstances of each case. In Evans v. Teamsters, Local 31, the Su- preme Court of Canada dealt with the issue of when an employee who has been wrong- fully dismissed is required to mitigate dam- ages by accepting an off er to return to work for the same employer. e court empha- sized that the same duty to mitigate will ap- ply in the context of a constructive dismissal. e Supreme Court found that the cen- tral question is whether a reasonable per- son in the position of the dismissed em- ployee would accept the employer's off er. For example, a reasonable person might be expected to do so if the salary is the same, the working conditions are not substan- tially diff erent, the work is not somehow demeaning, and the personal relationships involved are not acrimonious. However, an employee cannot be expected to return to work in an atmosphere of hostility, embar- rassment or humiliation. If an employer wants to move an em- ployee from an indefi nite term contract to a fi xed-term contract, the fi rst option would be to persuade the employee to agree to this change. To make the new agreement en- forceable, the employee would need to be given some sort of valuable consideration (such as a signing bonus or a salary increase) in return for agreeing to the new contract. If the employee is not inclined to agree to the change, the employer could provide the employee with notice of termination of her current contract and an off er of re-employ- ment at the end of the notice period under a new fi xed-term contract. As noted above, the amount of notice that would be required would be the same as the notice needed to terminate the employment relationship. If the employer sought to move the em- ployee from an indefi nite contract to a fi xed- term contract without providing suffi cient notice, the employee could claim construc- tive dismissal. However, the employee would have a duty to mitigate, and the issue would be whether the employee was required to ac- cept the fi xed-term contract being off ered in mitigation of damages. is would depend on the terms of the fi xed-term contract. For example, if an employee who has been em- ployed for a short period of time is off ered a fi xed-term contract with a term of one year or more, with an equivalent position and salary, it would likely be diffi cult for the employee to argue that it would not be rea- sonable to accept that contract. By contrast, if a long-service employee is off ered a fi xed- term contract with a relatively short term, or with a reduced salary, the employee would likely be able to reject that off er and pursue a claim for wrongful dismissal damages. e position that is off ered will also be im- portant. In Chong v. Nuance Global Traders (Canada) Inc., a computer systems analyst was dismissed and then off ered a four-month contract as a project manager. e court ruled that the employee was not required to accept because the fi xed-term role involved duties vastly diff erent than the full-time role. For more information see: • Evans v. Teamsters, Local 31, 2008 Car- swellYukon 22 (S.C.C.). • Chong v. Nuance Global Traders (Canada) Inc., 2002 CarswellBC 823 (B.C. S.C.). CONSIDER on page 7 »

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