Canadian Employment Law Today

February 1, 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 | 7 More Cases « from JAILED on page 1 Employee's absence wasn't from voluntary decision and including dismissal. e letter came back undelivered since Lynch wasn't home. Rumours about Lynch's incarceration had begun to circulate among Horizon staff. However, because it had no contact from Lynch since his absence began, Horizon determined Lynch had abandoned his position. It terminated his employment effective Dec. 21. On Dec. 29, Lynch was sentenced to six months in jail because it was his seventh conviction. He was sent to the same correction centre until Feb. 17, 2016, when he was transferred to a halfway house in Fredericton until his release on March 29. Two days after Lynch's sentencing, Horizon learned from a newspaper article that he had been convicted and jailed. e organization determined that Lynch should have applied for a leave of absence to cover his jail time, as he knew the steps from previous applications for leaves. Lynch found out about the termination in mid-February when his caseworker called Horizon to determine if he had a work placement for when he transferred to the halfway house. Lynch then called his union — the Canadian Union of Public Employees, Local 1252 (CUPE) — which grieved the dismissal and specifically pointed to the collective agreement provision that stated leaves of absence could be granted at the discretion of the hospital. Adjudicator John P. McElvoy noted that "abandonment" involves "a conscious and voluntary decision with known consequences." However, when Lynch was remanded to custody immediately after his conviction, he was unable to contact Horizon, as he was only allowed to contact his lawyer and the ombudsman. In addition, when his caseworker contacted Horizon, he wasn't allowed to speak with the employer. McElvoy found that while Horizon officially learned of Lynch's incarceration on Dec. 31, 2015, it was aware of rumours circulating amongst employees, some of who knew Lynch was in jail, before then. However, it sent the warning and termination letters to Lynch's home address — where he would be unable to get it if the rumours were true — and made the decision to terminate him without expanding its attempts to find out the situation. "It would have been relatively easy for the employer to communicate with Lynch once the rumours of his arrest were known," said McElvoy. "Had the rumour been that Lynch was in hospital, one wonders if the employer's response would have been the same." Adjudicator McElvoy also found that since there were trained casual employees available to fill in for Lynch, there was no real evidence that Horizon's operations suffered from Lynch's absence. Ultimately, McElvoy determined that Lynch did not willingly abandon his position since he had been unable to communicate with Horizon, and Horizon could have found out what was going on with a better effort at communication. Horizon was ordered to reinstate Lynch with compensation for lost wages and benefits from Sept. 13, 2016 — with his six-month leave of absence factored in and more than five months deducted for Lynch's lack of efforts to mitigate his loss of income or communicate with Horizon. See Horizon Health Network and CUPE, Local 1252 (Lynch), Re, 2016 CarswellNB 544 (N.B. Lab. and Emp. Bd.). 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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