Canadian Employment Law Today

Canadian Employment Law Today | 11 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends In the winter of 2016, while Cabrera was on annual winter leave, her mother was diagnosed with cancer. When she returned to work at Dairy Queen, she requested five individual days off during the months of April to July to care for her mother. In early August, she requested a four-week family caregiver leave, but Aprile told her she couldn't afford to lose an employee for the entire month of August — which was the busiest time of year for the store. Aprile proposed a compromise — the store would try to get by without her if she took a two- week leave. A few days after Aprile suggested the compromise of a two-week leave — Aug. 5, 2016 — Cabrera emailed Aprile to tell her she was resigning from her job "based on your reaction on my situation." Cabrera said her last day would be Aug. 13. Cabrera left on Aug. 13, but three weeks later she emailed Aprile apologizing for her behaviour and asking to be returned to her position. She said she didn't want to quit but needed to help her mother. Aprile agreed to give her another chance and rehired her on Sept. 12 with the warning that futher "bad behaviour" and gossip would not be tolerated in the workplace. On Oct. 4, about three weeks after Cabrera was rehired, her manager reported to Aprile that the team leader at the store had quit her job because Cabrera had spread gossip about her in the workplace. is was the last straw for Aprile, and she told the manager to proceed with terminating Cabrera's employment. After Cabrera was terminated, she phoned Aprile to complain that it "wasn't fair" she was let go. Aprile reminded her of the previous warning not to gossip but Cabrera didn't heed it and continued with the inappropriate behaviour. However, Aprile was feeling generous and thought a fresh start could help Cabrera, so she offered a position at one of the other franchise locations in the area that she owned. Cabrera refused the offer and filed an employment standards complaint alleging Claudia Foods had engaged in a reprisal by denying her family caregiver leave. An employment standards officer supported Cabrera's claim and ordered Claudia Foods to pay Cabrera termination pay plus damages for pain and suffering. Claudia Foods applied to the Ontario Labour Relations Board for a review of the officer's order to pay. e board noted that the Ontario Employment Standards Act entitled employees to "a leave of absence without pay to provide care or support to an individual described in subsection (5) if a qualified health practitioner issues a certificate stating that the individual has a serious medical condition." e relevant subsection (5) stipulated that the family member must be "a parent, step-parent or foster parent of the employee or the employee's spouse." e board found that a four-week caregiver leave would have left the store in a tough situation — short-staffed during the busiest time of the year. After Cabrera initially inquired about a leave, Aprile suggested a compromise that tried to accommodate Cabrera's need to care for her mother with the store's need for her to work. However, Cabrera responded to this "dialogue" about a compromise by quitting her job before the employer could give a final answer. In addition, the board noted that, while family caregiver leave is a right under the act, Cabrera didn't live up to her part of legal requirement — providing a medical certificate stating that her mother had a serious medical condition requiring such care. Without proper medical information, the right to family caregiver leave didn't kick in, said the board. e board determined that Claudia Foods did not violate Cabrera's right to family caregiver leave and her termination was not a reprisal for the leave request warranting damages for pain and suffering. However, even though the board didn't deem Cabrera's termination a reprisal, it was still a termination without cause. Aprile offered Cabrera a position at one of her other stores in the Ottawa area, but there was no evidence presented on how close it was to Cabrera's home or the hours of work the other position would entail. As a result, the board wasn't prepared to determine if the offer was for reasonable alternate employment. With no reprisal found, the board overturned the order to compensate Cabrera for pain and suffering from a reprisal under the act, but upheld the order to pay her termination pay. See Claudia Foods Ltd. v. Cabrera, 2018 CarswellOnt 2621 (Ont. Lab. Rel. Bd.). Worker requested 4 weeks' leave during busiest month « from WORKER'S FIRING on page 1 means of achieving the same end before resorting to this type of evidence gathering. In the present instance, an employer would already have pretty strong evidence of the misconduct since the manager personally observed the misconduct and could attest to it. Recording the misconduct in this manner would likely be considered an unnecessary invasion of an employee's privacy, when the employer can already personally attest to the conduct at issue. e use of surveillance in Canada is considered a form of collecting, using, and disclosing the personal information of the individuals under surveillance. is trig- gers a number of obligations on the part of the employer under privacy laws which should be considered in the event that an employer ever finds its actions scrutinized by a Privacy Commissioner. Privacy Com- missioners generally take the position that an organization should have a video sur- veillance policy if it is using this type of surveillance. In fact, this is a key compo- nent of legal compliance with privacy legis- lation and is often the main document that is reviewed by a commissioner when a com- plaint is made about a program. Among other things, it would typically set out the specific purposes of the video surveillance, access restrictions, criteria to be met for camera installation, etc. If the specific form of misconduct raises serious concerns like safety and security, theft, or criminal behavior, then the em- ployer could consider implementing a surveillance policy. However, it is impor- tant to bear in mind that an employer will need to complete its due diligence before doing so. In order to satisfy its obligations under applicable laws and mitigate risks associated with a prospective policy, em- ployers should, as a starting point, consider whether there is a serious, legitimate busi- ness reason for surveillance in the circum- stances. If so, employers could draw from the 10 Privacy Principles articulated in the Personal Information Protection and Elec- tronic Documents Act (Canada) (PIPEDA). Although PIPEDA does not apply to all em- ployers on a wholesale basis, privacy com- missioners generally recommend employ- ers use these 10 principles as a touchstone in developing surveillance policies. Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or lschatz@mltaikins.com. Path of least intrusion into employee privacy preferred « from ASK AN EXPERT on page 2

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