Canadian Employment Law Today

May 10, 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 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 business was declining. Purcee wanted bet- ter results, but Carroll felt the owners were ignoring his suggestions. On Aug. 9, 2012, Carroll submitted his written resignation and asked for a fair sev- erance package. Purcee refused to accept and recommended Carroll and think over a two-week holiday about a proposal to al- low him to continue his work in Madagascar. Carroll submitted a business proposal on Sept. 17 outlining a transition to servicing the mining project's operations. Purcee didn't respond until February 2013, when itindicated it didn't see business efficacy in it. Communication between the parties were strained after that. On May 31, Carroll responded to a request for a list of project business to be completed during the year by stating his terms of sever- ance. A few days later Carroll told one of the owners that he planned to move his family back to Canada in July and he would be ready to discuss the matter "in a couple of days." On June 7, Purcee determined Car- roll had resigned and provided him with one month's salary, commissions, and return airfare for him and his family. Carroll sued Purcee for wrongful dismissal, but Purcee argued Carroll voluntarily re- signed from his employment and refused to continue working in Madagascar. e court found that both parties knew eventually Carroll would return to Canada, particularly since his daughter was scheduled to start school in the fall of 2013. e position in Madagascar wasn't intended to be perma- nent, but no term was discussed. However, there was also no discussion about Carroll re- turning to work in Calgary, and Carroll didn't mention this until the end, said the court. In addition, the court found Purcee didn't make any "overtures to terminate Mr. Car- roll's employment." Rather, it was Carroll who initiated discussion over severing the employment relationship. However, the court also found Carroll's mention of resignation came from "a place of upset and frustration" over the company's failure to accept his proposals. When he in- dicated he would be moving back to Canada, it wasn't a declaration of resignation as he said he would be ready to discuss things in a couple of days — consistent with someone wanting to continue the relationship. In addition, the court noted each time Carroll mentioned resignation, it came with an offer to negotiate a severance package – there was no specific date of resignation and Purcee didn't try to discuss the terms. "(Carroll's) resignation was not clear and unequivocal, but rather an invitation to dis- cuss the terms of his exit from (Purcee) and in any event, the employer purported to ac- cept his resignation on completely different terms," the court said. e court also found Carroll performed his job duties up until the date Purcee ac- cepted his resignation. As a result, it couldn't be argued he abandoned his employment. e court determined Carroll was dis- missed without cause. e employment contract had no termination clause, so Car- roll was entitled to common law notice. Since he held an important position with a large amount of autonomy and had been away from business connections in Canada, the court found Carroll was entitled to seven months' reasonable notice. His salary, com- missions, and expenses for the notice period were calculated at $147,701.50. See Carroll v. Purcee Industrial Controls Ltd., 2017 Car- swellAlta 516 (Alta. Q.B.). Canadian Employment Law Today | 7 More Cases « from WORKER'S REQUEST on page 1 Employee asked for 'fair severance package'

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