Canadian Employment Law Today

February 19. 2014

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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February 19, 2014 2 Published by Canadian HR Reporter, a Thomson Reuters business 2014 Searching employee's locked desk Question: Does an employer have the right to search an employee's locked desk without the employee's permis- sion? Is the desk considered the employ- er's property with personal items in it? Answer: Employer searches of employ- ees and their personal effects are con- troversial. On the one hand, employees have a clear interest in being free from unnecessary intrusions into their priva- cy. On the other hand, employers have competing interests: ensuring the safety of workers and others, protecting their property from damage, enforcing com- pany polices and achieving productivity. In all searches, the most important concept is the employee's reasonable expectation of privacy. This is the gov- erning principle in determining what searches are acceptable and which go too far. In R. v. Cole, the Supreme Court of Canada confi rmed that an employee's personal information, even if stored on computers owned by the employer, may attract a reasonable expectation of pri- vacy. A similar argument could be made for a locked desk or other storage areas. The fact that the desk is owned by the employer does not automatically re- move employee privacy rights. Case law has established the employer does not have a general right to inspect an em- ployee's desk or locker without a spe- cifi c clause in the employment or collec- tive agreement permitting it. Otherwise, lockers can only be searched when there are "reasonable grounds for suspicion." As such, and where employees have a reasonable expectation that a particu- lar place or item is private, the company will have diffi culty justifying a search. Posting signs, for example, that desks are company property and can be searched at any time, would go some way to re- ducing such an expectation. This allows employees to make informed decisions as to what to leave in their desks. How- ever, the task of reducing the reasonable expectation of privacy at the workplace may take some time. Furthermore, though consent from the employee to search the locker or desk has not been considered absolutely nec- essary, the arbitrators in University Hos- pital vs. London & Distric Services Work- ers' Union, Local 220, stated that the employer should observe these rules: • Conduct the search only if there is ad- equate cause to justify it. • Conduct the search in a non-discrimi- natory manner. • Exhaust other alternatives prior to conducting the search. Employee's need to care for sick child Question: Is there a risk of family status discrimination if an employee is only given unpaid leave to care for a sick child? Answer: Canadian jurisprudence is clear that childcare obligations are with- in the scope of the defi nition of family status, which was defi ned in Brown v. Canada (Department of National Rev- enue - Customs & Excise) as "a parent's right and duty to strike that balance (be- tween work obligations and child rear- ing) coupled with a clear duty on the part of an employer to facilitate and ac- commodate that balance." In fact, the ground of family status is included in human rights legislation in most prov- inces across Canada and has been in the Canada Human Rights Act since 1984. With respect to the test for family sta- tus discrimination, courts and tribunals across the country have taken varying views on this issue. The leading Brit- ish Columbia authority on discrimina- tion based on family status is Campbell River & North Island Transition Society v. H.S.A.B.C., which found employ- ees are required to prove a change in employment which results in serious interference with a substantial family obligation. In contrast, federal labour arbitrators and the Canadian Human Rights Tribunal have rejected the Camp- bell River approach and found in favour of employees when a rule or practice has the effect of limiting the conditions or opportunities of employment on the basis of a characteristic relating to their family. These decisions have suggested the broad approach to family status is consistent with human rights principles that protect against any discrimination based on a prohibited ground. Notwithstanding that the law is in a relatively unsettled state, and assuming accommodation is required in these cir- cumstances, the issue here is what an employer must do to meet its duty to accommodate an employee who has to care for a sick child. Case law suggests an infl exible or "blanket" policy stipu- lating an employee to take unpaid leave may be discriminatory: for example, see the Federal Court decision in Johnstone v. Canada (Border Services Agency). As such, it is wise for employers to ensure any accommodation policy is broad and fl exible so it may be adapted to the unique needs of individual employ- ees. For example, it may — though not necessarily — be a reasonable accom- modation to provide unpaid leave to an employee to tend to a child with a 24- hour fl u. That said, it may in such cir- cumstances be more appropriate to offer fl exible hours or even a work from home option, provided it does not result in un- due hardship to the employer. On the other hand, only providing unpaid leave to an employee who is required to tend to a long-term sick child may not satisfy the duty to accommodate. This situation could involve unique issues that may re- quire some other accommodation. The employer would do well to canvass al- ternative ways by which the employee may be reasonably accommodated. Additionally, it will be important to provide employees with family-care leaves as per the applicable legislation. The key for employers is to show that the individual requiring time off to care for her sick child was not treated differ- ently with regard to her absence from work in relation to family status. Ultimately, accommodation situations tend to be very fact-specifi c. There is no cookie-cutter mould that can be, or should be, universally applied to. Em- ployers should make good-faith efforts to work with individual employees to fashion reasonable accommodations when the need arises. For more information see: •R. v. Cole, 2012 CarswellOnt 12684 (S.C.C.). •University Hospital v. London & District Service Workers' Union, Local 220, 1981 CarswellOnt 2007 (Ont. Arb.). •Brown v. Canada (Department of Na- tional Revenue - Customs & Excise), 1993 CarswellNat 2658 (Can. Human Rights Trib.). •Campbell River & North Island Tran- sition Society v. H.S.A.B.C., 2004 Car- swellBC 1012 (B.C. C.A.). • Johnstone v. Canada (Border Services Agency), 2013 CarswellNat 152 (F.C.). Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@ with Brian Kenny Ask an Expert Have a question for our experts? Email MacPherson Leslie & Tyerman, Regina

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