Canadian Employment Law Today

June 2, 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: Withholding pay without the employ- ee's authorization is generally prohibited under provincial employment standards legislation and will only be permissible in very narrow and rare circumstances. However, some jurisdictions, including Ontario, allow an employer to with - hold or make a deduction from an employee's wages where the employee has provided written authorization. In most cases, that authorization must be very specific. For example, in Ontario, the employee's authorization must refer to a specific amount or provide a formula from which a specific amount may be calculated. Employers in most provinces can also with - hold or deduct pay where it is granted by a court order or statute. For example, where employees refuse or fail to comply with the employer's request, the employer may be able to obtain an Anton Piller Order through the court system: See Peters & Co Limited v Ward. An Anton Piller Order is a type of civil search warrant granted by the court that enables the applicant employer to attend at the employee's premises without notice and take possession of records or items to which the employer asserts a claim. However, this is considered an extraordinary and costly remedy. As such, employers should not look to this as a first solution. Instead, employers should act proactively and clearly outline their expectations in both the offer of employment and the termination of employment with respect to the return of company property. In the final communication with the employee, employers should provide clear instructions requiring the employee to return any company property, to whom the property should be returned and the method of delivery. Often, where employers offer a without-prejudice offer of severance in addition to any statutory entitlements, an employer can make payment of those additional funds condi - tional on the return of property. Additionally, employers should be mindful of the date by which they must issue the employ- ee's final pay. In Alberta, employers can elect to pay the employee's earnings either 10 consecu- tive days after the end of the pay period in which the termination of employment occurs or 31 consecutive days after the last day of employ- ment, whichever the employer prefers. These requirements vary by province and should be front of mind when an employee resigns or is terminated, because they apply regardless of when an employee returns their final property. Employers should consider consulting with their legal counsel if they would like to obtain an employee's written authorization to withhold pay until the employer's property is returned or if they wish to pursue the matter through the courts. For more information, see: • Peters & Co. Limited v. Ward, 2015 ABCA 6 (Alta. C.A.). Canadian HR Reporter, 2021 Answer: When a company provides computers to employees and permits personal issue, the most common issue that arises is whether the employee has a reasonable expectation of privacy. As a starting point, employees who are permitted to use their employer-issued computers or cellphones for personal use will have a reasonable expectation of privacy. However, the application of this area of law is fact- and circumstance-specific and there are instances where this expectation of privacy will be diminished. As such, the application of the below information will depend on your individual employer policies, terms of use and employment relationship in addition to the nature of the material being accessed. In considering this issue, courts and arbi - trators often apply the four-part test from the Supreme Court of Canada's seminal decision in R v. Cole, whereby the employee's reasonable expectation of privacy is assessed on the "totality of the circumstances." This analysis is informed by both the employer's workplace policies and the subject matter of the documents them - selves. In Cole, the top court noted that where the information goes to the "biographical core" of the employee such that it is intimate, private and personal, a greater expectation of privacy will naturally arise. This is true even where the employer has a strong policy in effect — for example, see BC Hydro & Power Authority v International Brotherhood of Electrical Workers, Local 258. An example of information that goes to the "biographical core" of an employee includes communications with their spouse — see, for example, SGEU v. Unifor, Local 481. Nonetheless, this privacy interest will still be balanced against the employer's manage - ment rights and will not always be upheld in favour of an employee. Just this past year, Ontario courts considered whether employees who use personal accounts on employer-issued computers have an expectation of privacy. In Elementary Teachers Federation of Ontario v. York Region District School Board, two teachers had logged into their personal email accounts on an employer-issued laptop. In these accounts, the teachers kept a log of the negative interac - tions they had with their co-workers that they intended to bring to their union. The principal of the school became aware of the log and entered the teacher's classroom to find that the laptop was open with the log visible on the screen. The employer subsequently issued letters of discipline to the teachers, which they grieved. The court upheld the arbitra - tor's determination that, in the totality of the circumstances, the teachers had a diminished expectation of privacy because the laptop was left open and logged into their private account and the information did not go to the "biographical core" of the teachers. The broader case law demonstrates that, while employers may permit employees limited personal use of workplace computers, the employer is entitled to restrict the terms and conditions on which that use may be permitted. The appropriate discipline issued by employers who discover that their employee has misused its computers is varied and fact-dependent. However, where the breach is coupled with other infractions, termination is a possibility. For example, the Alberta Court of Appeal in Poliquin v. Devon Canada Corp. upheld the termination of a supervisor who was using the employer's computer and internet access to view and transmit pornographic and racist material in violation of the employer's Code of Conduct. In addition to the foregoing, the following 2 | | June 2, 2021 June 2, 2021 Have a question for our experts? Email Ask an Expert MCLENNAN ROSS LLP, CALGARY with Tim Mitchell Getting company equipment back from quitting employee Question: If a remote employee quits, can the employer do anything (such as withhold the final paycheque) to make sure all of its equipment is returned? CERTAIN on page 6 » Privacy and shared computers Question: If employees are allowed to use shared company computers for personal reasons, does the expectation of privacy change if they don't sign out of the personal accounts?

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