Canadian Employment Law Today

June 21, 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 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 and he didn't remove himself from other em- ployees before experiencing flatulence. CKF management met with Southwell on March 15, 2016, and Southwell was told he should report any medical issues to his man- ager. Since the company knew of no medical conditions, he was given a letter summariz- ing the complaints against him and indicat- ing expectations of improvement. Over the next one-and-one-half months, there were no reported issues with South- well's hygiene. On April 30, Southwell met with his supervisor for a performance evalu- ation. e supervisor raised concerns over Southwell's performance and his ability to follow instructions. Southwell was rated as requiring improvement on most of his per- formance criteria. On May 16, CKF terminated Southwell's employment while he was still on his pro- bationary period, claiming his continued unsatisfactory performance and failure to demonstrate improvement was the reason for dismissal. ree months later, in August 2016, Southwell was diagnosed with a disability that caused his body odour and excessive flatulence. He then filed a human rights complaint, arguing his disability played a role in the decision to terminate his employ- ment, contrary to human rights legislation. e tribunal noted that CKF acknowl- edged the possibility that Southwell had an underlying medical condition that contrib- uted to his issues of body odour and flatu- lence. However, when the company asked him to take steps to address these issues, Southwell chose not to see a doctor. is wasn't the fault of CKF and the company ful- filled its duty to inquire into the possibility of a disability, said the tribunal. e tribunal found that there was no in- dication Southwell suffered from a disability at the time of his dismissal, as he had made no such claim and there was no way CKF could have known he had one. In addition, if Southwell's body odour and flatulence were caused by his disability, there was no evi- dence they were related to his termination, said the tribunal. "Mr. Southwell points to the March let- ter, wherein the issues of his body odour and flatulence are raised, as evidence that his dis- ability was a factor in the termination of his employment," said the tribunal. "However, that letter was issued about two months prior to the termination of his employment, and those issues were never raised again – not in any of the notes or other documents in evidence." e tribunal determined that CKF had a "reasonable non-discriminatory expla- nation" for Southwell's dismissal — poor performance. ere were concerns about his performance right from the start and his performance evaluation was consistent with that issue. CKF presented a series of reports of Southwell's training and evalu- ation throughout March 2016 that showed continued performance issues. ere were some occasional improvements, but these were marginal. In addition, after the March 15 letter, there was no reference to South- well's medical condition or hygiene issues. e tribunal found Southwell's disabil- ity did not play a role in the decision to terminate his employment and dismissed his complaint. See Southwell v. CKF, 2017 BCHRT 83 (B.C. Human Rights Trib.). Disability diagnosed after termination « from EMPLOYER on page 1

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