Canadian Employment Law Today

March 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.

Issue link:

Contents of this Issue


Page 6 of 7

Canadian HR Reporter, a Thomson Reuters business 2017 wouldn't affect his return date, but it was dis- appointed because the leave was costing the company additional transportation, time, lo- gistical, and accommodation costs. Trans North felt Parker had been dishon- est about his leave and was guilty of "derelic- tion of duty," but it allowed him to return as the Haines Junction base manager. Later in 2014, Parker was offered work again for the same New Zealand company but his leave request was denied. In the summer of 2015, Parker asked for an extended leave during the slow winter and work as a seasonal pilot in the summer. How- ever, the base operated year-round and Trans North told Parker if he left for New Zealand, he would be replaced as base manager. In August 2015, Parker accepted a posi- tion with the New Zealand company and asked for another leave. e company grant- ed the leave starting in November but asked him to clear out all his personal property from the base manager's house by Nov. 30 so it could be available for other staff members. Parker said he planned to be back before the summer season, so it wasn't necessary to put another pilot in the house. e company replied that it didn't want to "fulfill the role of Haines Junction base man- ager with a contract pilot" and permission to live in the house would be discontinued if he only worked in the summer. Parker em- phasized that he was not relinquishing his base manager job and would be back to per- form those duties "by March 1 st at the latest." Parker asked for clarification of his em- ployment status and Trans North said it considered him the base manager until Nov. 30. After that, it would remove him from that role. e company went on to say it would like to "continue utilizing you in the capac- ity of a full-time line pilot, from the White- horse base" but if he didn't want such work, it would consider him for contract pilot work. Parker asked for contract pilot work out of Haines Junction, but the company said the only contract work was out of Whitehorse. Parker sued for constructive dismissal, ar- guing Trans North unilaterally changed his work location, altered his pay structure, and removed his managerial responsibilities. e adjudicator noted that in three years with Trans North, Parker worked at three different bases. He worked as a line pilot, training pilot, and base manager. He expe- rienced frequent changes to his position and location mainly at his own request. e adjudicator found that Parker's em- ployment was described from the begin- ning as "on a when and where needed basis." e fact Trans North had six bases — three operating year-round — meant there was an expectation of operating out of different locations at different times of the year. And though he was base manager for part of his employment for a small stipend, his main job was still that of a pilot, and the company didn't change his base salary, flight pay, vaca- tion, or benefits, said the adjudicator. "ere is no dispute that Trans North uni- laterally removed Mr. Parker from the po- sition of base manager at Haines Junction," the adjudicator said. "However, in my view, that unilateral change was not fundamental given the nature of Mr. Parker's employment history as well as the terms of the employ- ment contract." See Parker and Trans North Turbo Air Ltd., Re, 2016 CarswellNat 6708 (Can. Lab. Code Adj.). Canadian Employment Law Today | 7 More Cases « from EMPLOYEE'S on page 1 Pilot wanted seasonal work, not year-round work 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. Subscribe Today! CALL TOLL FREE 1-800-387-5164 ONLINE AT Emplo y ment Law Today Canad a ian Subscribe today for only $175 Order No. 20610-17

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian Employment Law Today - March 1, 2017