Canadian Employment Law Today

August 30, 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 Canadian Employment Law Today | 7 More Cases Employer misunderstood ECE requirements « from BEING TEMPORARILY on page 1 Twidale couldn't meet the minimum stan- dards for the position, he could terminate her for "just cause." Brisebois then terminat- ed Twidale without asking for further details about her medical condition. Twidale filed an employment standards complaint, saying Tune Town wrongfully dismissed her by failing to pay her compen- sation for length of service. She also denied that her ECE licence had been revoked and that her ECE certificate was dependent on her medical fitness for work. A delegate of the B.C. Director of Em- ployment Standards found that Tune Town didn't establish just cause to terminate Twidale's employment. ere was no mis- conduct and Twidale had no disciplinary history. In addition, there was no evidence Twidale's illness was permanent and she wouldn't be able to return eventually. e delegate also noted that the province's Child Care Licensing Regulation allowed Tune Town to replace an ECE who was ab- sent due to illness, emergency, vacation, or temporary leave with an ECE or ECE assis- tant for up to 30 days. Brisebois didn't inves- tigate this option and he was mistaken when he thought Twidale's ECE certificate was revoked, said the delegate. Twidale's doctor's note indicated she would be unable to work for four weeks. e delegate concluded Twidale was en- titled to compensation for length of service for her dismissal. Brisebois appealed, argu- ing that Tune Town required all employees have "up to date medical notes" to work in a childcare setting and Twidale refused to discuss her medical condition or work with him on a plan for when she returned to work. He also insisted that she no longer met the requirements of the job. e tribunal found the Brisebois' argu- ments were not backed up by evidence. ere was still no evidence of disciplinary or performance issues that would provide just cause for dismissal and the doctor's note itself didn't indicate Twidale was per- manently unfit for work. It was Brisebois who interpreted the note to mean Twidale wouldn't be able to perform the duties of an ECE going forward and he didn't seem to consider that she would be able to come back, said the tribunal. "e tenor of the (termination) letter, written one day after Mr. Brisebois received Ms. Twidale's note, suggests that he was more concerned about his daycare business than Ms. Twidale's wellbeing or the progno- sis for her return to work," said the tribunal. e tribunal agreed with the delegate's finding that the employment contract was not frustrated, as the doctor's note indicat- ed Twidale would be unfit to work for four weeks pending further assessment. Since Brisebois terminated Twidale the day after he received the doctor's note, there was no way he could have properly assessed what he could do to replace her or that she was per- manently disabled, the tribunal said. Brisebois provided evidence that the regulation requires Tune Town to obtain a medical note on potential employees' fitness prior to hiring, but the tribunal found this didn't apply to someone who was already an employee — Twidale had been with Tune Town for three years. e tribunal upheld the delegate's deci- sion and dismissed the appeal, ordering Tune Town to pay Twidale compensation for her service with the company. See Brisebois, Re, 2016 CarswellBC 3295 (B.C. Emp. Stan- dards Trib.).

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