Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 7 More Cases curing other employment, and an unpaid signing bonus. In addition, Nutting applied for summary judgment in his favour, while FTIC cross-applied for summary judgment to dismiss Nutting's claim. e court found that the language of the employment contract was unambiguous and clearly limited Nutting to the minimum no- tice required by the Employment Standards Code. It noted that termination clauses were permitted to do away with "the presumption of reasonable notice" under the common law, as long as they didn't violate the mini- mum notice periods stipulated in legislation and clearly stated that was the intention. e court referred to previous decisions where it had been established that employ- ment contracts could limit notice to the em- ployment standards minimums for dismiss- al without cause. e test for enforcing such clauses was whether they "expressly or im- plied specify 'some other period of notice.'" e court pointed to examples of ambigu- ous wording that wouldn't exclude common law notice entitlement — such as using the words "in accordance with" the minimum requirements. is allowed payment of leg- islative minimums, but providing common law notice could also be "in accordance" with legislation, so such a phrase was "essentially meaningless," said the court. Since the language in Nutting's employ- ment contract with FTIC specifically limited his entitlement to the notice of termination or pay in lieu with benefits along with sever- ance pay "prescribed by applicable employ- ment standards legislation," there was no doubt as to the intention, said the court. In addition, the wording specifically referred to the section of the code that itself "prescribes certain minimum notice requirements." e court also found that Nutting's con- tract went to further lengths to ensure the clarity of its termination clause by including a statement that the provision of legislative notice, benefits and severance pay mini- mums constituted "full and final satisfaction of all rights or entitlements" related to the termination of his employment. As for Nutting's claim for additional dam- ages for emotional distress and other ex- penses, he didn't provide any evidence sup- porting it. As a result, the court summarily dismissed the entirety of Nutting's claim. "(FTIC) has demonstrated that the agree- ment contains a valid clause concerning no- tice of termination which meets the legal test for enforceability in that it: provides a pre- scribed period of notice which does not vio- late the minimums imposed by statute; and expressly provides the parties' intention that the prescribed notice would oust any other notice requirement that may have otherwise been implied," said the court. See Nutting v. Franklin Templeton Investments Corp., 2016 CarswellAlta 2279 (Alta. Q.B.). 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 Contract limited notice to that prescribed by code « from CLEAR on page 1 The contract went to further lengths to ensure clarity, stating the termination clause was full and final satisfaction of rights.

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