Canadian Employment Law Today

February 15, 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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with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email 2 | February 15, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Vacation policy changes: When is advance notice required? Question: Is changing vacation policy (such as when employees receive more vacation) considered a fundamental change that requires notice, or can it be effective immediately? Recovering electronic devices from a dismissed employee Question: Are there any liability risks regarding privacy if an employer confiscates a work laptop or mobile device from a dismissed employee that is full of the employee's personal files? Answer: e liability risks surrounding per- sonal files on employer-owned electronic devices that were used by a dismissed em- ployee are governed by privacy legislation. e federal Personal Information Pro- tection and Electronic Documents Act (PIPEDA) governs private sector employ- ers, except those in provinces with substan- tially similar legislation: British Columbia, Alberta, and Quebec. is discussion will focus on the federal PIPEDA; please refer to your provincial legislation if applicable. Personal files on a dismissed employee's work-issued electronic devices are the em- ployee's "personal information," which is defined as information about an identifiable individual, where there is a possibility that an individual could be identified through that information. Privacy legislation imposes strict obligations on organizations regarding the collection, use, disclosure, and retention of personal information. When an employer recovers electronic devices which contain personal files, this amounts to the collection of personal in- formation. Organizations have obligations under PIPEDA with regard to the collection, use and disclosure of personal information: • Organizations are responsible for personal information under their control. • e purpose of the collection, use, or dis- closure of the information must be one that a reasonable person would consider appropriate in the circumstances. • e knowledge and consent of the individ- ual are usually required before personal information may be collected. • e collection of personal information must be limited to that which is necessary for the purpose identified. • Personal information must not be used or disclosed for purposes other than those for which it was collected. • Personal information must be retained only as long as is necessary. • Personal information must be as accurate, complete, and as up-to-date as is necessary for the purposes for which it is to be used. • Personal information must be protected by security safeguards. • An organization must make readily avail- able to individuals specific information about its policies and practices relating to the management of personal information. • Upon request, an individual must be in- formed of the existence, use, and disclo- sure of her personal information and be given access to that information In most cases, there is no reasonable or appropriate purpose that would permit an employer to retrieve and view personal files on an electronic device recovered from a dis- missed employee. Further, it is likely the in- dividual has not consented to the collection of such personal information and it would therefore be in contravention of PIPEDA. A dismissed employee has the right to in- quire about and gain access to the personal information the organization has in its pos- session within 30 days. If a person were to discover that her former employer had col- lected personal information from electronic devices, the employee could make a com- plaint to the Privacy Commissioner. Under PIPEDA, organizations must de- velop policies and procedures that protect the rights established by the act. A best prac- tice is to include language in a privacy policy specifying that employer-owned electronic devices are not to be used for personal pur- poses, and that employees should have no expectation of privacy with regard to the in- formation stored on such devices. When an employee is dismissed or re- signs, ask if they have personal information on the devices they are returning. If they do, arrangements should be made to delete it and, if requested, provide a copy. Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ Answer: When considering amendments to vacation policy, the first issue to be ad- dressed is whether the change would be a constructive dismissal. A constructive dis- missal occurs where an employer makes a unilateral, fundamental change to a term or condition of employment without providing reasonable notice to the employee. A change of this magnitude amounts to a repudiation of the contract of employment. Two of the most common types of con- structive dismissal are demotions and re- ductions in remuneration. A reduction of 20 per cent or more will usually qualify as fundamental change, while reductions of 10 per cent or less generally will not. Decreases between those thresholds will normally re- quire an assessment of the context and cir- cumstances: see Pavlis v. HSBC Bank Can- ada. is same percentage analysis can often be applied to benefits and vacation time. Of course, it is never that simple. Context- ual factors will also be examined and a find- ing of constructive dismissal will depend on all the circumstances of the case. In Hamil- ton & Olsen Surveys Ltd. v. Otto, the Alberta Court of Appeal ruled that the withholding of the company's contribution to the plain- tiffs' RRSP plan and the reduction of their annual vacation from six to four weeks was not a constructive dismissal, as the changes affected all staff and were caused by exter- nal economic pressures. In other cases, the courts have found that the cumulative effect of changes which separately would not be fundamental, can together amount to a con- structive dismissal: see Schwann v. Husky Oil Operations Ltd. and Kussmann v. AT & T Capital Canada Inc. When an employer plans to change vaca- tion policies, it is good practice to provide advance notice and an explanation. If there is a risk the change may be suffi- ciently fundamental to be a constructive dismissal, the employer may be able to avoid legal claims by giving the affected employees reasonable notice of the change. In most Can- adian jurisdictions, the amount of notice re- quired is equivalent to the notice entitlement for termination without cause. If the change affects a large number of employees, it will often be advisable to determine the lengthi- est notice period required and give all em- ployees that amount of notice so the change can be implemented on a common date. See Pavlis v. HSBC Bank Canada, 2009 CarswellBC 939 (B.C. S.C.); Hamilton & Ol- sen Surveys Ltd. v. Otto, 1993 CarswellAlta 108 (Alta C.A.); Schwann v. Husky Oil Operations Ltd., 1989 CarswellSask 325 (Sask. C.A.); Kussmann v. AT & T Capital Canada Inc., 2002 CarswellBC 926 (B.C. C.A.).

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