Canadian Employment Law Today

January 18, 2017

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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Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 3 Cases and Trends Speeding, sleeping derails engineer's employment AN ONTARIO locomotive engineer's termination for violating railway rules on speeding and sleeping has been upheld. e locomotive engineer worked for Ca- nadian Pacific Railway (CP) in London, Ont. Over the years, he assembled a disciplinary record adding up to 95 career demerits. In December 2012, he was dismissed for vio- lating one of CP's cardinal rules — failing to ensure his train was operated in a "safe and controlled manner" — after he exceeded the maximum permissible speed on multiple occasions and failed to stop before moving over two public crossings at grade. His mis- conduct was deemed "gross negligence," but he was reinstated in a settlement. e employee was later suspended for 15 days for running through a switch. On June 24, 2015, the employee and his crew were told to stop what they were doing and go to a train yard near Cambridge, Ont. Because of the short notice, they were late to achieve their target and the trainmaster didn't make alternate arrangements for their lunch break as stipulated in the collective agreement. e crew worked through their lunch break until they completed the assign- ment seven hours after the start of their shift. About 25 minutes after the crew returned to home base, two supervisors approached the employee's locomotive, which was shut down and not moving. ey saw the employ- ee lying back in the conductor's seat with his legs and feet stretched over a seat. He was wearing safety glasses and his hooded sweat- shirt was covering his face. Both supervisors confirmed the employ- ee was sleeping, then opened the door and called his name twice before he woke up. e employee was told he was violating a CP general rule that prohibited employees from engaging in "non-railway activities which may in any way distract their atten- tion from the full performance of their du- ties" while involved in train movement or track switches. e employee explained that he was "on duty but not performing work, when I was relaxing on my break." Following this incident, CP examined the locomotive's black box to determine the em- ployee's running speeds and locations dur- ing his previous two shifts. e investigation found the employee had exceeded the 10 mph authorized speed for the area — which featured residential subdivisions — nine times, travelling between 13.6 and 17.2 mph. ree of these occasions constituted "un- controlled movement" — five mph above permissible speed — and the emergency brake was never applied as required. e employee wasn't able to explain his speeding, other than it happened in a rural area with hills and valleys that affected the speed. He claimed he was operating the train in a safe manner, "keeping in mind fuel con- servation and wear and tear on equipment." CP dismissed the worker for speeding and sleeping on the job. e union grieved the dismissal, arguing CP had "thrown the book" at the worker and used "every possible rule violation" as a reason to dismiss him. e arbitrator found that while sleeping on the train was against the rules, the work- er had finished his assigned work and had worked through his lunch break. However, the worker was also dismissed for speeding, and given his prior discipline for similar misconduct and safety considerations, the arbitrator found dismissal was an appro- priate action. e worker had 25 years of service, but his disciplinary record didn't justify a mitigation of the penalty, the arbi- trator said in dismissing the grievance. See Canadian Pacific Railway and Teamsters Canada Rail Conference (Gilks), Re, 2016 CarswellNat 6514 (Can. Railway Office of Arb. & Dispute Res.). Every two weeks Canadian HR Reporter hits the desks of HR management decision-makers across Canada. Human resources professionals are under pressure to drive performance, increase productivity and streamline processes. By providing real-world solutions to perplexing HR situations, we give you the tools and information to make more calculated decisions. Professional advice on the latest trends and insights for HR representatives help to sustain business, simplify hiring processes, and ensure budgets are met. STAY CURRENT. GET AHEAD. STAY AHEAD. To order your subscription call 1.800.387.5164 | 416.609.3800 PM40065782 RO9496 September 5, 2016 INSIDE FIGHTING FRAUD Insurance fraud prevention requires a joint approach between plan sponsors and insurers CCHRA partners up Agreements with SHRM, CERC formalize relationships page 2 Pink hair Starbucks' relaxed dress code part of growing trend page 3 Mental health More integrated approach needed to help people page 13 page 15 ENFORCEMENT > pg. 8 Pokemon GO presents challenges for employers But risks can be managed eff ectively: Experts BY LIZ BERNIER POKEMON GO, the mobile game that's sweeping smartphones of the nation, has seen a meteoric rise in popularity. And just as the game has blurred boundaries be- tween public and private space, it has also blurred boundaries be- tween work and play. Many employees are taking the mobile game — among oth- ers — to work with them, and that has the potential to create issues for employers, according to Erin Kuzz, founding member of law fi rm Sherrard Kuzz in Toronto. Chief among the risks are safety and security concerns, and pro- ductivity challenges, he said. "When I turn my mind to the workplace issues that are raised by Pokemon Go and some of these related apps and games, two things are particularly glaring," said Kuzz. "Number one is the security is- sues where people are download- ing any kind of app or external game onto their phone, and that could be a phone that is used for work purposes — whether it's an employer-owned device or a BYOD (bring-your-own device) that's been approved for use in the workplace — it creates security issues." With Pokemon Go, there are counterfeit or non-genuine ver- sions that have been found to con- tain malware, she said. "When you have employees po- tentially exposing the employer's system to malware… it's an issue," she said. "Employers have to think about how they want to tackle this very quickly. "My advice would be to prohibit use of anything like that on a work device — because you just can't control what happens if someone downloads malware." Many of the risks are around cyber security, said Leah Fochuk, consulting services manager at HR consulting fi rm Salopek & Associ- ates in Calgary. "Because you sign up through Google, the app is really capturing a lot of sensitive data," she said. Companies that use BYOD of- ten deal in sensitive or confi dential information and defi nitely need to be aware of those risks. "Even when you're downloading it, if people are downloading the app not from offi cial vendors, the risk of introducing malware could potentially aff ect your entire net- work," said Fochuk. "On the IT side, there are some pretty big risks that would need to be managed." Also, there are potential safety hazards when it comes to distrac- tion or trespassing. "Players are practising distract- ed walking: eir heads are down, they're not necessarily seeing where they're going," said Fochuk. "As a company, you would hate to have something happen on your Ontario looking to make changes to labour laws Card-based certifi cation, precarious work, better enforcement among concerns BY JOHN DUJAY IN a massive undertaking, the On- tario government is looking to up- date not one but two labour laws with its Changing Workplaces Review. First proposed in 2015, the re- view would see the province's 1995 Labour Relations Act and 2000 Em- ployment Standards Act updated. "It's important our laws refl ect the realities of the modern econ- omy, and that's why we're consult- ing with people in communities across the province and reviewing our legislation," said Minister of Labour Kevin Flynn. Led by lawyer Michael Mitchell and former justice of the Ontario Superior Court John Murray, the review received more than 300 written submissions and met with various labour and employer groups. e co-chairs released an interim report in July. e 312-page report touches on a variety of issues relevant to em- ployers and labour groups. e Ontario Federation of La- bour (OFL) has been waiting quite some time for the changes, said OFL president Chris Buckley. "It's a springboard for a once-in- a-generation opportunity to bring sweeping changes to Ontario's employment laws and to make it fair for every worker across the province." If the exercise was to poke at as many of the issues as possible, it's achieved that goal, said labour and employment lawyer Craig Rix at Hicks Morley in Toronto. "What I see mostly in the re- port is a longstanding list of like- to-have proposals that have largely come from organized labour." Slap on the wrist for TTC's social media account Greater care needed: Arbitrator BY SARAH DOBSON THE Toronto Transit Commis- sion (TTC) found itself in hot water recently when an arbitrator ruled one of its Twitter accounts contributed to the harassment of employees and needed to be changed — but not shut down. In his decision, arbitrator Rob- ert Howe said social media sites operated by the TTC could be considered to constitute part of the workplace. And a number of the tweets on @TTChelps consti- tute harassment. "It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bar- gaining unit employees from that type of harassment by members of FIXED > pg. 6 INAPPROPRIATE > pg. 10 Pavlo Farmakidis (left), recruitment co-ordinator at Woodbine Entertainment Group in Toronto, and Mark Diker, senior manager of recruitment and talent planning, ran a job fair using Pokemon Go that attracted about 500 candidates. See page 18. 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