Terminations during the Probationary Period: Three Common Assumptions

Many employers like to take the first few months of a new employee’s employment to decide whether their new hire is the right addition to the team.   Some like to call it a probation, others, a trial or evaluation period. Irrespective of what it is called I have noticed three recurring assumptions about this initial period that are worthy of attention by both employees and employers.   Employers relying on these assumptions may believe themselves better protected against claims for payment of reasonable notice than may in fact be the case. Employees for their part may assume that they have no recourse following a termination during their probation period which again, may not always hold true.

Assumption #1 – An employer can automatically terminate an employee during the first three (3) months of employment without providing the employee notice or pay in lieu.

The right to terminate without notice during the probation period is not automatic. Although the Employment Standards Act, 2000 (“ESA”) stipulates that an employee who is terminated within the first three (3) months of their employment is not entitled to notice or pay in lieu, a court will not simply infer that the employee has agreed to these terms.   Justice Lederman in Easton v. Wilmslow Properties Corp [2001] O.J. No 447 reasoned:

The existence of a probation period is a question of fact in each case. Since it takes away an employee’s usual rights, a probationary period must be expressly agreed to by the employee. It cannot be implied into the relationship…

Assumption #2 – In the absence of a clear probationary period clause, the amount of notice that a short service employee is entitled to receive is necessarily very minimal.  

Some employees who have had their employment terminated within the probation period (and who did not have enforceable probation clauses in their contracts) have been awarded some relatively lengthy notice periods. To give three examples: In the case of Easton, the plaintiff who was terminated after two weeks was awarded three (3) months’ notice because she had left a reasonably secure job to work for the defendant employer.   Likewise, in the case of Rejdak v.The Flight Network, the employee was awarded four (4) months of notice after eleven (11) weeks of work.   Similarly in Deacon v Moxey, 2013 CanLII 54099 (ON SCSM) the employee was awarded three (3) months of notice after working two (2) weeks.

Assumption #3Extending a probation period provides the employer a longer period within which they can terminate the employee without notice.

While an employer can stipulate a longer probation period (i.e. 6 months) in an employment contract, this does not automatically extend the window that an employer can terminate the employee without notice or pay in lieu. Employers will want to ensure that the probation clause is drafted to ensure that there are no violations of the ESA.

Whether you are an employee or an employer, if you have questions about drafting or the enforcement of a probation clause our employment lawyers would be pleased to assist.

Pregnancy- Related Discrimination

BACKGROUNDhuman rights3

Natalya Golovaneva came to me for guidance two weeks before her hearing before the Human Rights Tribunal of Ontario in July 2015.  She was determined to bring to light what she strongly felt was discrimination in the workplace on account of her pregnancy, which ultimately cost her a job.

She had returned to school for a second career in interior design and was thrilled to land a position at Atkinson Schroeter Design Group Inc. (“AS”), which would help her gain practical credit toward an interior design certification.

Within a few months, she began to experience severe headaches, nausea, and sensitivity to smell, which made her daily commute on the bus quite difficult, along with her attendance at the office.  She quickly learned that she was pregnant and immediately advised her boss, requesting the ability to perform some of her work from home for the short term.  In turn, her boss indicated a willingness to explore that option.

In reality the parties didn’t work out a perfect arrangement. When Natalya arrived at work one morning she was asked to attend off-site. Feeling particularly unwell that day and unsure whether the unfinished site would have washrooms, she asked whether they could send someone else to the site and have her perform work at the office.  She was sent home immediately and told that AS would call when they needed her.

Weeks went by and Natalya finally reached out again to AS, explaining that most of her symptoms had subsided and that she was ready to work.  She was told that there wasn’t work available, but that AS would be in touch.  After more time had passed, she reached out again and was told that they would be able to offer her contract work.  In the interim, Natalya’s professor from Algonquin College had advised her that AS was looking for new candidates for the same role that she held.

humanrightslogo_Goodies_14_LogoVorlagen

22 days after being told to leave, Natalya was back to work, albeit without her regular workstation.  Within two weeks, she was fired for cause, though understood that her performance had been good.

These events were devastating to Natalya, who believed that she was being punished on account of her pregnancy, and who was worried about finding another role while pregnant.

She was dismissed on November 10, 2014 and expected to take pregnancy leave in early April 2015.  Though she looked for another position, she was unsuccessful.  She also had no unemployment insurance or pregnancy or parental leave benefits.

SEX-BASED DISCRIMINATION FOUND

In the decision, Natalya Golovaneva v. Atkinson Schroeter Design Group Inc, 2015 HRTO 1571 (http://canlii.ca/t/glzj7), the Tribunal wrote: “There is sufficient evidence to find, on the balance of probabilities that the applicant was not properly accommodated and that her pregnancy was a factor in her termination” ( para 91).  It further found that, “the reasons given for the applicant’s termination are not clear, cogent, or convincing” (para 101).

 REMEDY

Notably, at the conclusion of the hearing, AS voluntarily paid Natalya for the time that she would have worked, but for being sent home, and issued her a Record of Employment to assist her in obtaining pregnancy and parental leave benefits.

At the time of dismissal, Natalya had been working for AS for little more than three months.  In keeping with the Tribunal’s aim to make applicants whole, she was awarded:

  • Loss of income from the date of termination (November 10, 2014) to the date of her projected pregnancy leave (April 3, 2015) – nearly five months – in the amount of $14,268.10;
  • Loss of income for a three month period following her pregnancy leave in order to allow her to find alternative employment, in the amount of $8,442.99
  • In the event that her application for Employment Insurance is unsuccessful for her year on leave, the Tribunal will hear further submissions about whether the employer should cover those payments.

Natalya was also awarded $3,500 in general damages for breach of her human rights, as that is the amount that she sought in her application and the Tribunal did not agree to her proposed amendment at hearing to request more due to perceived prejudice to the employer.  Vice Chair Rheaume does note that the award that she sought was “below the range of similar cases which generally fall between $10,000 and $20,000” (para 110) and that her “reasons for determining that this award is appropriate are based entirely on the discrete facts of this case” (para 111).

Ultimately, this was a victory for Natalya who felt it was important to demonstrate what an impact that this has had on her life and to raise awareness for other pregnant women facing sex-based discrimination. It highlights that a short service employee who faces discrimination under the Code can be awarded substantial loss of income damages – eight months in this case, plus a year of paid EI leave.   It also highlights the value in seeking counsel early on when drafting an application; in this case, it resulted in a lower general damage award than the conduct actually attracted.

Remarkably, the Tribunal was incredibly efficient on this file – it went from application to decision in less than a year.

If you’ve faced pregnancy or sex-related discrimination or harassment, we are well placed to assist.

human rights2

The State Has No Place In The Bedroom Of The Nation… But Does Your Employer?

termination

In 1968, former Prime Minister Pierre Elliot Trudeau ushered in significant changes to the Criminal Code, which had until then criminalized homosexuality, with the following well-known pronouncement:

There is no place for the state in the bedroom of the nation. What is done in private between two adults does not concern the Criminal Code.

Although the state may be out of the business of regulating the conduct of its citizens in this private sphere, employers appear to be taking a heightened interest in what is going on in the bedrooms and private lives of their employees.

Consider the recent media storm that surrounded the firing of Jian Ghomeshi, the former CBC Radio Host, after allegations of non-consensual and unorthodox sexual practices came to light.  Or the media attention received by Shawn Simoes, the former Hydro One worker who was terminated  after shouting sexual obscenities at a TV reporter at a Toronto FC soccer game.  In the varied reaction to each of these stories, there was an element of surprise that an individual’s conduct in non-work related contexts was not only of immediate concern to their employers, but directly relevant to their continued employment.

These media stories appear to be reflective of wider trends.  Over the past year, individuals whose names have appeared on the Ashley Madison list, employees who have had intimate photos taken of them and people who engage in “non-mainstream” sexual practices have increasingly been seeking legal advice because their off-duty conduct has come to the attention of their employers and they are concerned that their employment could be terminated as a consequence.

In reviewing employment contracts in my own practice, I have noticed an increased focus on employees’ private lives.  On a number of occasions, clients have asked me to review new employment contacts because what could be described as a “morality clause” caught their attention.  These clauses tend to run along the following lines:

The employee recognizes and agrees that at all times his/her conduct and character, both in and out of the workplace, must be in accord with the high standard of moral and ethical character that all employees at Company X abide by.  Consequently, any acts of questionable moral or ethical character could cause the immediate termination of this agreement.

One of the employees who recently consulted me about such a clause pointed out that it was not so long ago that her same-sex relationship could have been captured by such a clause.  Seen in this light, there is a real possibility that including such a morality clause could have the effect not only of alienating prospective employees, but potentially also of leading to claims of discrimination.

Although this flurry of “off-duty conduct” cases may be prompting some employers to think it is necessary to include a morality clause in their standard employment contracts, the case law has, in fact, long-recognized that employers are entitled to terminate an employee for off duty conduct provided they can demonstrate that at least one of the following circumstances applies:  that the employee’s conduct harmed the employer’s reputation or product; that the impugned conduct rendered the employee unable to perform his/her duties satisfactorily; that the employee’s conduct interfered with the employer’s ability to properly carry out its function or efficiently manage its operations and/or workforce; that the employee’s behaviour lead to the refusal, reluctance or inability of other employees to work with him/her; or that the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees.  These circumstances are set out in the 1967 Ontario decision of Re Millhaven Fibres and Oil, Chemical and Atomic Workers I.U. Loc 9-670, which has been followed in a number of recent “off-duty” conduct cases, including the recent decision in Canadian Union of Public Employees, Local 4400 v Toronto District School Board, 2015 CanLII 24478 (ON LA, http://canlii.ca/t/ghh50).In order to determine whether any of these circumstances apply, it will always be necessary to examine the particular facts and context at issue.

Whether you are an employee or employer, the Employment, Labour and Human Rights lawyers at Mann Lawyers would be pleased to speak to you about any off-duty conduct issue that you might have.

 

 

 

 

 

Three new job-protected Leaves of Absence take effect October 29, 2014

Today, three new job protected leaves of absence come into effect under the Employment Standards Act: (1) Family Caregiver Leave, (2) Critically Ill Child Care Leave, and (3) Crime-Related Child Death and Disappearance Leave.

We have been actively following the progress of Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013, since March 2013 when I wrote about what job protections are available when a family member gets sick and you need to take leave from work, and again when I wrote in September 2013 about how the Bill passed second reading.

What you need to know about the 3 new leaves:

The new leaves of absence allows caregivers to focus their attention on what matters most: providing care and support to their loved ones without the fear of losing their job.

The existing Family Medical Leave

The act builds on the existing Family Medical Leave under the ESA: if a family member is terminally ill, an employee is entitled to 8 weeks of job-protected unpaid leave. An employee who takes Family Medical Leave is also eligible to apply for up to 6 weeks of Compassionate Care Benefits under the Federal Employment Insurance Act.

What has been added to the existing Family Medical Leave policy?

The new leaves of absence add additional unpaid job-protected leave for caregivers by offering:

  • Family Caregiver Leave: up to 8 weeks of unpaid, job-protected leave for employees to provide care and support to a family member with a serious medical condition.
  • Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  • Crime-Related Child Death and Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child that has died as a result of a crime.

What this means for Employers:

Employers need to ensure that contracts with employees and workplace policies are updated to reflect the new changes.

What this means for Employees:

If you provide care and support to a family member with a serious medical condition or a critically ill child, or are the parents of a missing child or a child that has died as a result of a crime, the new leaves of absence apply to you. If your employer has not helped you understand the new policies and how they effect you, you should seek legal advice to make sure that your employer is complying with the new policy.

Holiday Party Survival Guide for Employees and Employers

T’is the season of office holiday parties! Office parties can be a great opportunity for employees to get to know one another socially and for employers to thank their employees for their contribution to the business. Or… they can be disastrous.

A review of some recent court decisions highlights that holiday party festivities can sometimes lead to unintended consequences.. Here are a few tips and key cases that can help employers limit their legal liability surrounding holiday party problems, and how employees can keep behavior in check:

TIPS FOR OFFICE HOLIDAY PARTY SURVIVAL

Employers

  • Try to avoid offering an open bar to your employees; they generally result in excessive drinking.
  • Ensure that there is plenty of food and water being served throughout the night.
  • Provide your employees with alternative transportation home from the office party, such as taxi chits.
  • Try to host your event off-site, such as a restaurant or conference space. The staff at the venue will be trained on how to handle drunken patrons and can manage water and food distribution adequately.
  • If possible, also try to provide employees with alternative accommodations if they have to travel far. Hotels typically offer blocks of rooms at discounted prices for events taking place in their facilities.
  • Make sure that whoever is serving alcohol at the party is licensed to serve.

Employees

  • Don’t drink so much that you lose your ability to make smart decisions while in the company of colleagues and employers.
  • Know that you are still expected to adhere to office policies, even at after-hours functions.
  • Try to keep your stories and jokes office-appropriate; avoid using foul language and making dirty or off-colour jokes.
  • Make sure that what you wear is still moderately office-appropriate.
  • Try not to gossip or speak negatively about your job or your colleagues.

RECENT CASE LAW EXAMPLES

Unwanted Closeness on the Dance Floor

In 2013, a complainant in British Columbia alleged that during two consecutive staff Christmas parties, she was assaulted on the dance floor by work colleagues who sought to include her in some rather up-close and personal dancing. This incident was among a few that she raised in support of her claim for harassment in the work place. [Kaferv. Sleep Country (BCHRT 137)]

Physically Threatening and Making Sexually Inappropriate Comments to Colleagues

In 2011, an employee (the plaintiff) got intoxicated at his office holiday party and proceeded to physically threaten his colleagues. The following Monday, he was fired due to his behavior at the party. He claimed that he was wrongfully dismissed from his employment following that fateful holiday party because the employer knew he was an alcoholic, which is a disability recognized under the Human Rights Code.  The Human Rights Tribunal decided that there was insufficient evidence that the employer did know that he was an alcoholic and so denied the claim.

The judgment suggested, however, that if an employee is a known alcoholic and acts inappropriately at an office party, an employer may find themselves being sued for discrimination if they fire the employee over their drunken conduct at the party.  [Huffman v. Mitchell Plastics (a division of Ultra Manufacturing Ltd.), 2011 HRTO 1745]

Drinking and Driving

The risk to employers who have employees drive home after drinking at the holiday party can be significant.  A court in BC ruled that the employer (Nike) was liable for the injuries suffered by their employee after he drove his car into a ditch and suffered significant injuries.  The plaintiff argued that Nike was responsible because they had served the plaintiff and his colleagues alcohol, did not monitor his consumption and then allowed the employee to drive home when he was impaired.  Jacobsen v. Nike Canada Ltd., 1996 CanLII 3429 (BC SC)

Loss of Benefits

In another unusual case, one woman’s dance moves at the staff holiday party led her employer (who was obviously unmoved by the holiday spirit) to claim that she should have her Wage Loss Benefits discontinued after she was seen on the dance floor bending her knees. It was therefore claimed she was able to return to work.  [WCAT-2008-01181 (Re), 2008 25463 (BC WCAT)]

How enforceable are non-competition and non-solicitation agreements in employment contracts?

Non-competition and non-solicitation agreements can put employees in a real bind. But are they enforceable?

Non-competition and non-solicitation agreements can put employees in a real bind. 

It is common for clients to seek advice about the legality of non-competition and non-solicitation clauses (sometimes referred to as “restrictive covenants”) in their employment contracts.   For someone who has recently lost their job, the idea of having to sit on the bench for months or face risking a law suit can present a serious dilemma.

On the other hand, employers often share key confidential information with their employees and trust them with their clients, product and know-how, so if the employment relationship is terminated, they understandably want to put conditions in the employment contract in an attempt to bring a reasonable level of protection to their commercial interests.

So what is the difference between a non-competition agreement and a non-solicitation agreement? Are these agreements actually enforceable? What if the agreement has to do with the sale of a business?

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The Difference Between Non-Competition and Non-Solicitation:
Non-Competition:

A clause in an agreement stating that the employee agrees not to work for or start a business that is similar to their employers.

Example Situation: if a hairstylist worked for a salon for a number of years and learned all the tricks of the trade, then left the salon to open up her own salon down the street.

Non-Solicitation:

A clause in an agreement stating that the employee agrees not to approach employees of the company and encourage them to leave the employer for new job opportunities, or approach clients of the company for their business.

Example Situation: if that same hairstylist opens her new salon, tries to persuade her old co-workers to start working for her, and contacts clients of her old salon to convince them to bring their business to her new salon.

Are Non-Competition and Non-Solicitation Clauses Enforceable?
  • Generally, non-competition clauses in regular employment relationships are difficult to enforce in Ontario.  Employers and employees alike may be better served by giving serious consideration to whether such a clause should even be included in an employment contract at all.
  • However, non-solicitation clauses may be enforceable, but need to be clear, unambiguous, and reasonable in light of the employee’s position, knowledge and responsibilities.
  • From the commercial perspective, non-competition clauses that are included in employment contracts made in the context of the sale of a business will be presumably enforceable (more on this later).

As a general rule, the courts in Canada have considered clauses which restrict a former employee from working in their chosen field as contrary to public policy. The reason is that stopping someone from competing interferes with individual liberty and restricts open competition. Consequently, non-competition clauses included in regular employment contracts are difficult to enforce.

What a court is more likely to do in regular employment situations is to enforce a non-solicitation agreement, which is designed to prevent a former employee from contacting the company’s clients and employees for a defined period of time after the employment.

What makes a Non-Competition or Non-Solicitation Agreement Enforceable?

Whether it is a non-competition clause or a non-solicitation clause, one of the key questions a court will try to answer before determining if it is enforceable is “how reasonable is the restriction?”  Three main questions that factor into determining how reasonable the agreement is include[1]:

1.      What is the geographic scope?   

Anywhere in the world” is too broad, and is less likely to be considered a reasonable geographic scope than one with a limited radius.

Interestingly, while a non-competition agreement must be geographically limited, a non-solicitation agreement may not need to be geographically limited to be valid. Due to new technological developments and social media, customers are no longer limited geographically, and the Supreme Court of Canada has recently concluded that geographical limitations in non-solicitation agreements have generally become obsolete.[2]

2.      How long is the restriction meant to last? 

It would not be reasonable to prevent a former employee from competing indefinitely. There needs to be an end date for when the agreement expires. Each situation will be different, but generally the shorter the restriction period, the more likely it will be to resist scrutiny. Six months will seem more reasonable than five years.

3.      What is the scope of the prohibited activity?   

Is the person restricted from working for a specific list of competitors, or does the clause try to stop the employee from working for “any businesses competitive with the employer or that of any of its subsidiaries and affiliates”? This might be too broad to be considered reasonable. The purpose of allowing restrictive covenants is to protect legitimate business interests only.

What about Non-Competition and Non-Solicitation Agreements involving the Sale of a Business?
Commercial Context vs. Employment Context

The law differentiates between how enforceable these agreements are within a general employment context (the relationship between an employer and employee), and the commercial context (one that arises in connection with the sale of a business).  This distinction was emphasized in the Supreme Court of Canada case: Payette v. Guay. Payette was concerned about the how enforceable the a non-compete clause was in the sale of a business.  Justice Wagner wrote that:

The criteria for analyzing restrictive covenants to be reasonable will be much broader in the commercial context than in the context of employment.  I am therefore of the opinion that, in the commercial context, a restrictive covenant is lawful unless it can be established on a balance of probabilities that its scope is unreasonable.   (emphasis added)

In other words, restrictive covenants born in the commercial context will be presumed to be enforceable.  This stands in direct contrast to the standard employment context we have been talking about, which places the onus of demonstrating that the restriction is reasonable on the party who is trying to have the agreement enforced (usually the employer).


[1] Elsley v. J.G. Collins Ins. Agencies Ltd., [1978] 2 S.C.R. 916

[2] Payette v. Guay inc., 2013 SCC 45

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Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Working in Retail? Ontario is trying to protect your employment rights.

Ontario helping protect retail workers' rights

Ontario helping protect retail workers’ rights

The Ontario Ministry of Labour posted a bulletin on October 16, 2013 about how Ontario is trying to protect the rights of retail workers by promoting safety and fairness at the workplace. You can read about it here:

NEWS

Ontario is taking action to protect retail workers’ rights and promote fairness in the workplace by launching a province-wide employment standards retail inspection blitz this fall.

Ministry of Labour inspectors are visiting retailers — such as grocery stores, gas stations and shopping malls — between October and December to make sure workplace rights are being protected in areas including public holiday pay, overtime pay, hours of work, and vacation pay.

The Ontario government has also invested an additional $3 million this year to double the number of inspectors and double the number of businesses inspected to make sure workers safe and are treated fairly.

Protecting workers on the job and ensuring all workers are treated fairly through the Employment Standards Program and Safe At Work Ontario strategy is part of the government’s economic plan to invest in people. The province’s economic plan also includes investing in infrastructure and supporting a dynamic and innovative business climate.

QUOTES

“The retail sector is a vital engine of Ontario’s economy that creates jobs, and promotes investment and economic growth. To ensure that growth, we are standing up for workers to make sure their rights are protected – no matter where they work, no matter their line of work.”
Yasir Naqvi, Minister of Labour

QUICK FACTS

  • The inspections are part of a risk-based strategy that focus on sectors that employ vulnerable workers, have a prior history of employment standards violations and represent a significant part of the workforce in Ontario.
  • Since 2004, Ontario’s Employment Standards Program has recovered more than $100 million in wages and other monies owed to employees through inspections, claims and collections.
  • Since 2008, Ministry of Labour inspectors have conducted more than 345,000 field visits, and 58 health and safety and employment standards inspection blitzes.

LEARN MORE

Learn more about the ministry’s proactive inspections.

Watch a video on what to expect during an employment standards inspection.

Find out more about the resources available to employers and employees to help them understand the ESA.

Ontario Providing More Support for Families

Back in March, 2013, I wrote about what job protections are available when a family member gets sick and you need to take leave from work.

Currently, if a family member is terminally ill, an employee is entitled to 8 weeks of job-protected unpaid leave.  This is called “Family Medical Leave”.  An employee who takes Family Medical Leave is also eligible to apply for up to 6 weeks of Compassionate Care Benefits under the Federal Employment Insurance Act.

As I had written, the Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers, attempting to create “Family Caregiver Leave” and allow an employee up to 8 weeks of unpaid leave to care for a family member who has a serious medical condition.

Below is a news release from the Ministry of Labour from September 25, 2013 saying that the Bill has passed a second reading:

Family Caregivers Bill Passes Second Reading

Today, Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013, passed second reading after debate in the Ontario legislature.  If passed, the bill would allow caregivers to focus their attention on what matters most — providing care and support to their loved ones — without the fear of losing their job.

The act would build on the existing Family Medical Leave by creating three new job-protected leaves:

  • Family Caregiver Leave: up to eight weeks of unpaid, job-protected leave for employees to provide care and support to a family member with a serious medical condition.
  • Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  • Crime-Related Child Death and Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child that has died as a result of a crime.

Bill 21 has now been referred to the Standing Committee on General Government and public hearings are expected the week of December 4, 2013.

Allowing caregivers to focus on what matters most is part of the Ontario government’s plan to protect workers and strengthen their rights while helping people in their everyday lives.

Quick Facts

  • The proposed legislation would create leaves separate from the current Family Medical Leave.
  • A doctor’s note would be required to qualify for Family Caregiver Leave and Critically Ill Child Care Leave.
  • The Critically Ill Child Care Leave and Crime-Related Child Death and Disappearance Leave are necessary to give families access to new Federal benefits.

Quotes

Yasir Naqvi

Our government is committed to passing these leaves because what Ontarians need most when caring for seriously ill or injured family members is the time to be with their loved ones. These Leaves to Help Families would strengthen job security and is the right thing to do for Ontario families.”

Yasir Naqvi

Minister of Labour

Double-check your emails before pushing “Send”! You might have an employment issue on your hands…

Send

Whether we like it or not, most of us find ourselves spending a significant part of our work week receiving and responding to e-mails.  It might be to set up an appointment with a client, ordering stock from a supplier, or even sharing a joke with a colleague.   However, sometimes in an attempt to be efficient in the midst of this digital mayhem, we make the mistake of hitting the ‘reply-all’ or ‘send’ button too quickly and this can have real consequences.  In Maria Fernandes’ case, it lead to an action against her employer for wrongful dismissal.

In March 2011, the Director of Operations of Marketforce Communications Inc. inadvertently copied Ms. Fernandes on an email that was intended to be read only by the company’s lawyers.   The contents of that email contained references to the termination of Maria’s employment.  Realizing what had transpired, the Director tried to quickly recall the email by sending out three recall notices.   She then sent an email directly to Maria demanding her to delete the message without reading it as the email was privileged and confidential.  However, Ms. Fernandes did read the email and provided a copy to her lawyer.  Upon returning from vacation, Ms. Fernandes told Marketforce that she interpreted the email as constructive dismissal and commenced a wrongful dismissal action.

Although the outcome of this case has yet to be determined, Marketforce brought a motion for a declaration that the email is protected by solicitor-client privilege so that Ms. Fernandes should not be able rely on it.  The court agreed that the email was part of privileged solicitor-client communication and that the disclosure itself does not waive privilege.  Even so, the judge ruled that excluding the email would be unfair to both Ms. Fernandes and the trial judge who would hear this case at trial.   Without this evidence, the trial judge would not have a complete picture as to what really transpired and it would be difficult for Ms. Fernandes to show how the email affected her state of mind and to show that she had acted reasonably in the situation.

While we will have to wait to find out whether Ms. Ferndandes was right in her interpretation of this email as a constructive dismissal, there are a couple overarching lessons that we can learn.  First, situations like Ms. Fernandes’ are very easy to avoid by simply paying attention to whom the email is being sent to.  Second, in some situations, in the interest of justice the courts are inclined to allow parties to rely on privileged information, even where the sending party has taken all reasonable steps to preserve the integrity of the privileged communication.  The ultimate message here?  Watch who you’re sending your emails to, otherwise they could be used against you!

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Thanks to Mehran Wancho (summer student at Mann & Partners, LLP) for contributing this article.

Can you get fired for NOT taking your breaks?

Can you get fired for not taking your coffee break?

Can you get fired for not taking your coffee break?

Ah…the age old question, how do you impress your boss?  To achieve this end, many people are inclined to work through their breaks and even lunch hours to show how effective and hard working they are.   However, it seems that going that extra mile may be a thing of the past.  Employers growing concerns surrounding overtime pay may be enough to get you fired for not taking your breaks in some workplaces.  Don’t believe it? Just ask Andrea Shettleworth.

Shettleworth was an employee with Banana Republic for nine years and by all accounts, she was an exceptionally talented sales associate.  She even won a trip to San Francisco for having sold more than $900,000 of merchandise in 2009.  However, in June 2010, she was disciplined by Banana Republic for taking sales away from others and working off the clock (i.e. working through her breaks).  Shettleworth was given a final written warning which stated “you will go on break when instructed to do so.  You will stay off the sales floor when not working on the clock or shopping for yourself”.

Shettleworth refused to sign the final written warning and contacted the Senior Vice President of Banana Republic.  She complained that she was being discriminated against on the basis of her race due to the excessive monitoring of her behavior.  Shettlworth filed an Application with the Human Rights Tribunal of Ontario in July 2010.  In September 2010, Banana Republic placed Shettleworth on a paid suspension in the course of an investigation into her conduct at work including working off the clock.   Store videotapes revealed that, on one occasion, Shettleworth worked off the clock for 10 minutes without permission while her manager was on break.  She was terminated on September 21, 2010 for having violated the terms of her final written warning.

Ultimately, the Tribunal sided with the employer and held that Shettleworth was terminated for failure to comply with the terms of her final warning.  The Tribunal also felt that Banana Republic had valid reasons to strictly enforce the ‘no working off the clock’ rule as employees not following the policy could make the company responsible for overtime pay or put them in breach of the Employment Standards Act.  Notably, the employer’s concerns were justified given that the Ministry of Labour’s decisions regularly find employers liable for overtime even after employees have been directed not to work those hours.  From our perspective, given the history, performance and strong record, this employer took an unnecessarily heavy handed approach and Shettleworth’s termination was unduly harsh.  Given her solid sales record, there were better ways for Banana Republic to have addressed their concern – perhaps pay her overtime!

The take-away here is that in a world where employers are becoming increasingly concerned with the cost of doing business, not all employers will admire their employees for going that extra mile.  As evidenced by Andrea Shettleworth’s case, working off the clock may even provide a ground to terminate the employee in certain workplaces.

The full decision can be found here.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Thanks to Mehran Wancho (summer student at Mann & Partners, LLP) for contributing this article.

Lawyers “Feed the Hungry” Program- Why We Support The Ottawa Mission

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Today, myself and most of the staff here at Mann & Partners, LLP are volunteering our time to serve dinner at the Ottawa Mission as participants in the Ottawa Lawyers Feed the Hungry Program.  Various law firms in the Ottawa area rotate to provide meal service once a month, providing over 5,000 meals a year. We are so fortunate to have such an incredible program in Ottawa.

Working in Employment Litigation, I see the devastating effects that unemployment can have on a family. I am proud to support the Ottawa Mission, which assists those who are homeless by offering a variety of services, from providing food and shelter to addictions counseling and medical care, to education support and job training for those looking for help finding employment. There are a number of other incredible, free programs in the city who suffer from lack of employment, such as the Causway Work Centre, Young Parent Employment Program, Ottawa Works ServicesOttawa Employment Services Centre, Ottawa Community Coalition for Literacy and more.

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The Mission Blog explains the support services that they provide for those looking to get back into the workforce:

Most of the people who come to The Ottawa Mission have no desire to spend time at a homeless shelter.  They are just like you and me – they have families, and have had homes and jobs in the past.  The difference is that circumstances in their lives have left many of them sick and hurting − without a home, without work, without hope.   Their priority is to get their life back on track – and that means getting the help they need and, when they are able, finding a job.

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The Ottawa Mission has a number of programs to support people who are homeless or at risk of homelessness who want to rejoin the workforce.  Our Client Services Centre offers phone and computer access and workshops on resume writing.  The Stepping Stones Learning Centre has a full-time teacher who helps people upgrade their education – working on-line to achieve a high school diploma, or accessing college and university courses.  Our 5-month Food Services Training Program gives people the opportunity to gain valuable skills working with professional staff in our kitchen. Many graduates have gone on to pursue careers in the food services industry.

The latest program to be introduced at The Mission is the Custodial Skills Training Program.  Developed in 2012 in partnership with the City of Ottawa and the Ottawa Catholic School Board, this 8-week program includes classroom and on-the-job training. The first class wrapped up in March, and we are pleased to announce that 13 of the 15 students are now employed.

The success of the first Custodial Training Program session speaks for itself.  It has given thirteen people renewed hope – and a chance at a better life.

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To learn more about the Ottawa Mission’s Education, Job Training and Client Services, visit: http://ottawamission.com/how-we-help/education-job-training-client-services/

To make a donation now, visit: https://ottawamission.com/make-donation/

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Job Protection when Family Members are Sick or Terminally Ill

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Have you ever wondered what would happen to your job if a family member got sick and needed you to care for them?

What Protections Are Available Now if a Family Member Gets Sick: Family Medical Leave?

Currently, if a family member is terminally ill an employee, whether full time, part time or under a term contract is entitled, under section 49.1 of the Employment Standards Act, 2000  (“ESA”) to eight weeks of job-protected unpaid leave.  This is called Family Medical Leave.   In order to qualify an employee needs to provide a doctor’s letter which provides that there is a significant risk of death to a family member occurring within a period of 26 weeks.  An employee who takes Family Medical Leave is also eligible to apply for up to six weeks of Compassionate Care Benefits under the Federal Employment Insurance (EI) Act.

Ten days of unpaid job protected personal emergency leave is also available under section 50 of the ESA to employees because of personal illness, injury or medical illness of the employee or their family (broadly defined) but this is only available to employees who work in an organization with 50 employees or more.  While some employers have paid benefit plans for sickness, bereavement and other leaves of absence, this is not required by the ESA.

The New Protections are being proposed:  Leaves to Help Families – Bill 21

The Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers.  (An earlier version of this Bill was previously introduced as Bill 30 but did not pass third reading before the former government was prorogued).

The amendment to s. 49.3 of the ESA would create family caregiver leave and allow an employee up to eight weeks of unpaid leave to care for a family member who has a serious medical condition. To qualify a medical certificate would still be required but it would only need to confirm that the medical condition was serious.

Other amendments include those to sections 49.4 and 49.5 which create critically ill child care leave and crime-related child death or disappearance leave respectively.

It is not yet clear whether people who take advantage of these new forms of leave would be entitled to Employment Insurance benefits.  In the event that EI is not available it raises the question: how many people would be able to afford to take advantage of 8 weeks unpaid leave?

As it stands, Bill 21 will require that people who take this leave would have to take the leave a week at a time.  This has been the source of some debate in the legislative assembly.

From an employer’s perspective this kind of leave may present its own set of challenges, particularly for smaller and medium sized businesses who may find the impact of an employee’s eight week absence significant, both economically and practically. Family Caregiver Leave may prove to be particularly challenging for employers because employees will be able to take up to 8 weeks leave for each person who qualifies as a family member under the ESA.  The definition of family member includes spouses, parents, children, siblings, grandparents and grandchildren, dependent relatives and other prescribed people.

Bill 21 which amends the Employment Standards Act is currently in its second reading.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Privacy Protection in Workplace

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Privacy in the workplace requires a balance between employer and employee rights. A recent decision of the Ontario Court of Appeal has expanded privacy protections in the workplace by creating a new privacy tort. The decision has far reaching implications for privacy in the workplace. At paragraphs 67-68 of the decision, Justice Sharpe commented:

For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially….It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form.

The case involved two employees, Sandra Jones and Winnie Tsige, who both worked for the Bank of Montreal at separate branches. Jones also did her primary banking at the Bank of Montreal (BMO). Tsige became involved in a relationship with Jones’ former husband. Over a four year period, Tsige accessed Jones’ personal banking information approximately 174 times, which included banking details, her date of birth, marital status and address. Tsige did not publish, distribute or record any of the information. Jones became suspicious and complained to BMO. Jones claimed damages of $70,000 against Tsige arising from an invasion of privacy and breach of fiduciary duty. The case was dismissed by a motion judge because the law in Ontario had not explicitly recognized a free standing cause of action for “breach of privacy”.

In reversing the motion judge’s decision, the Ontario Court of Appeal acknowledged that the law had to evolve and expand because Jones was without a proper remedy against a co-worker who had invaded her privacy. At paragraph 69, Justice Sharpe said:

While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

The Court considered legislation such as the Protection of Electronic Documents Act, 2000, (“PIPEDA”) which applies to federal organizations. This legislation offered no remedy to Jones because a complaint would need to be made against BMO, not Tsige. The legislation provided no recourse to recover damages for the harm caused by the invasion of privacy.

The Court considered legislation in other provinces, such as British Columbia and Manitoba, who have specifically created a tort of invasion of privacy through privacy statutes. Other jurisdictions, including most American states, have already recognized a right of action for invasion of privacy.

The law in Ontario failed to provide any real remedy for Jones. The Court of Appeal was convinced that the time had come for Ontario’s common law to evolve and established a new right of action called “Intrusion upon Seclusion” for deliberate and significant invasions of personal privacy. The Court defined the cause of action as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the invasion would be highly offensive to a reasonable person.

In determining the amount of damages, the Court of Appeal set a maximum amount of $20,000.000 in damages for cases where no actual financial loss was suffered, as was the case here. The Court considered factors such as the nature of the wrongful acts, the effect of the wrong on the Plaintiff, including embarrassment or distress, and conduct of the Defendant, including any apology that was offered. In this case, given the deliberate and repeated actions of Tsige, along with the fact that Tsige apologized and made genuine attempts to make amends, the Court awarded Jones $10,000.00.

This case will have far reaching implications on the workplace. Employers will need to carefully control access to personal information that is collected about employees and should impose strict controls on the use and access of that personal information. Employees now have the legal right to pursue damages against each other in cases where there has been a deliberate and improper use of another’s personal information.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.