Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 itor of Eclipse in the Belleville, Ont., area. He did not notify Eclipse of his new em- ployment. In February 2016, Vine provided Eclipse with another medical note that stated he suffered from "panic attacks secondary to generalized anxiety disorder that started in December 2014" when he was working as a dispatcher. e note went on to say that Vine experienced increasing stress over time because of another dispatcher and the company's failure to listen to his con- cerns about that dispatcher. e physician concluded that the panic attacks and flare- ups of colitis that manifested in April 2015 were a culmination of the anxiety Vine had suffered since December 2014 and were precipitated by the change in his workplace environment — the employer's meeting and increased scrutiny of Vine's relation- ship with his colleague — that increased his stress. Eclipse soon learned that Vine was work- ing part-time for a competitor and deter- mined he had abandoned his position. e company terminated his employment in April 2016. "e termination is based on your in- ability to return to work citing 'unable to return to work for medical reasons' yet we have been informed that you are working for one of our competitors," the termina- tion letter stated. "Further, you made no at- tempt to contact us to indicate that you are healthy enough to work." Vine sued Eclipse for unjust dismissal under the Canada Labour Code for termi- nating his employment while he was off work on medical leave. e adjudicator noted that according to the medical information Vine had pro- vided — the medical notes in May 2015 and February 2016 — Vine was unable to work because of conditions exacerbated by the workplace and his interaction with the other dispatcher. However, when Vine started working as a part-time truck driver in the fall of 2015, it contradicted the medi- cal information he provided. In addition, Vine's failure to inform Eclipse of his new employment meant he was not updating the company on his true condition. When Eclipse found out about Vine's new job, it was reasonable for the company to con- clude Vine did not want to return to work for it and that he had abandoned his posi- tion, said the adjudicator. e adjudicator determined that Eclipse had just cause to terminate Vine's employ- ment and dismissed Vine's complaint. "(Vine) was capable of working as a truck driver but chose not to return to work with (Eclipse)," the adjudicator said. See Vine and Eclipse Delivery & Logistics Solutions Inc., Re, 2016 CarswellNat 6747 (Can. Lab. Code Adj.). Canadian Employment Law Today | 7 More Cases « from TAKING on page 1 Working from home not an option 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 www.hrreporter.com/subscribe 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 www.employmentlawtoday.com/subscribe Emplo y ment Law Today Canad a ian www.employmentlawtoday.com Subscribe today for only $175 Order No. 20610-17 The worker was capable of working as a truck driver but chose not to return to work. He didn't update the employer on his true condition.

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