Can Canadian employers use information from their employees’ Facebook pages in managing the employment relationship? Not an age-old question, but one debated in recent years.

In many provinces, the answer was “yes.” But in other provinces, such as Quebec, some commentators took a more cautious approach. In a recent decision, the appeal division of Quebec’s Workers’ Compensation Board (the Commission des lésions professionnelles) said “yes,” Canadian employers may use information learned from their employees’ Facebook account if there is nothing to suggest that the account’s contents were accessed using fraudulent schemes, subterfuges, or other underhanded means.

Facts

In 2011, a worker hurt her shoulder at work. About six months later, she was diagnosed with adjustment disorder with mixed mood. When she appeared before the Commission, the worker asked that her adjustment disorder and employment injury be declared related. Before starting the hearing, the worker asked that excerpts from her Facebook page that were in the Commission’s file be excluded from evidence.

The worker was active on Facebook throughout her absence from work—often mentioning her mood and her dissatisfaction with the way her compensation file was being handled by the Commission in her posts.

In trying to have the Facebook posts excluded, the worker revealed that:

• She and her husband had a Facebook account for three or four years;
• For two or three years, only their Facebook friends had access to the private contents of their account;
• She and her spouse likely had more than 350 Facebook friends, virtually all of them work colleagues, colleagues of her spouse, members of her family as well as those of her husband’s, and various other people from the worker’s and her spouse’s respective circles;
• The workers’ compensation officer assigned to her case was not one of her Facebook friends and never had been;
• Another workers’ compensation agent that was involved in her case in the spring of 2012 had once been her friend on Facebook as she had been a former work colleague;
• Sometime during the spring of 2012, the worker removed this person’s name from her list of Facebook friends when she learned that she was involved in her case;
• She had never authorized anyone to extract information from her Facebook account;
• She had no idea how the excerpts wound up in the Commission’s records, although she acknowledged that the information may have been communicated by one of her other Facebook friends.

Decision

The Commission dismissed the worker’s objection, citing the principle that all evidence is admissible provided it’s relevant in order to discover the truth. The exception to that rule, according to the Commission, is if rights and freedoms have been violated and the evidence is likely to bring the administration of justice into disrepute.

In this case, nothing suggested that access to the private contents of the worker’s Facebook account resulted from fraudulent schemes, subterfuges, or other underhanded means. The case was very different from Campeau et Services alimentaires Delta Dailyfood Canada Inc. where the employer had created a fake Facebook account in order to become “friends” with the worker. There was no such fraud in this case and, as such, the evidence was admissible.

Lesson for employers

Even in a province like Quebec with many privacy protections, the door has been opened for employers to rely on employees’ Facebook postings so long as there is no fraud or other underhanded schemes. This supports the view long held in other Canadian provinces that information posted on Facebook, other social media sites, and the Internet by employees is “fair game” for employers.

When a long-service costume designer was dismissed following a workplace harassment investigation, a British Colombia arbitrator found the company’s no-hire ban for all future productions to be excessive, since there was a lack of progressive discipline.

Despite finding that the fired employee had engaged in longstanding and widespread harassment of junior employees, the arbitrator in Warner Bros. Television (B.C.) Inc. ruled that even the least remorseful of employees is entitled to an opportunity to change his or her behavior.

Facts

A junior employee made a workplace harassment complaint that the costume designer (the grievor) made several derogatory comments and grabbed her arm hard enough to bruise. Numerous other junior employees subsequently came forward with complaints of derogatory comments and belittling behavior that spanned a period of seven years.

The investigation also reviewed allegations that the grievor had been billing the costume department for personal items. Based on the results of the investigation, the company dismissed the grievor from the production. It also issued a no-hire order. That barred her from working on any of the company’s other productions. The employee filed a grievance, which was arbitrated.

Decision

The arbitrator found that there was insufficient evidence to conclude that the employee had used the property of the production for her own private purposes.

In regards to the harassment complaints, the arbitrator took note of the “tough” workplace environment in the film and television industry. The arbitrator accepted the evidence that the grievor was quick to anger, aggressive, and used profanity in her interactions with coworkers. She often made derogatory, inappropriate, and demeaning remarks to coworkers. He also found that the grievor once grabbed a junior employee’s arm hard enough to bruise.

This “pattern of objectionable conduct” was contrary to the company’s workplace harassment policy. Further, the grievor showed no remorse or insight into her behavior.

Despite those factual findings, the arbitrator ruled that the normal requirement of following progressive discipline applied here. He decided that the company wasn’t required to reinstate the grievor to the current production, but the no-hire for all future productions was excessive. The issue of appropriate restrictions for work on future productions was left to the parties to agree upon.

Takeaway for employers

Progressive discipline remains the gold standard for most workplace misconduct. Employers are advised to not only develop and implement robust workplace harassment policies but also to develop and implement effective progressive discipline procedures.

Most occupational health and safety statutes across Canada contain provisions that prohibit employer reprisals for workplace health and safety matters. While the outcome of complaints made by workers regarding employer reprisals is always fact specific, employers had been taking comfort from several recent decisions.

Those decisions suggested that complaints regarding employer reprisals in relation to allegations of workplace harassment couldn’t be sustained under health and safety legislation. However, a recent decision of the Ontario Labour Relations Board in Ashworth v. Boston Pizza, where an employee was terminated after her manager allegedly confronted her in an angry manner, has changed this view.

Facts of the case

According to the employee, the assistant general manager (AGM) of Boston Pizza acted inappropriately when the employee entered the AGM’s office to explain her position concerning an earlier disagreement between them. The AGM demanded that the employee close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face. The employee claimed that she was frightened and asked the manager to be allowed to leave the office, but the manager continued to be abusive.

The employee claimed that she became apprehensive about what the AGM might do and advised the AGM that she was quitting her employment to escape the situation. The employee was then permitted to leave the AGM’s office. The employee told another manager that she had said she was quitting as a means of avoiding the uncomfortable situation. That manager told the employee to go home and that the matter would be looked into. The employee’s employment was subsequently terminated.

Employer’s argument

The employee brought an application before the Ontario Labour Relations Board alleging employer reprisal under section 50 of Ontario’s Occupational Health and Safety Act (OHSA). Boston Pizza filed a motion to dismiss the application.

Boston Pizza took the position that the complaint by the employee didn’t involve any workplace health and safety issues and that, therefore, the employer reprisal provisions of OHSA didn’t apply. The employer’s argument relied on a series of cases including Conforti v. Investia Financial Services Inc.

In the Conforti case, the Board ruled that OHSA requires an employer only to put a workplace harassment policy and program in place and provide a worker with information and instruction, but it doesn’t actually require the employer to prevent harassment. On this basis, the Board in Conforti ruled that the employee’s assertion that she was fired for asking the employer to prevent harassment couldn’t engage OHSA, and this allegation couldn’t form the basis for a reprisal claim.

Board’s decision

In the Ashworth case, the Board wasn’t persuaded that the case should be dismissed without further inquiry. Although the decision doesn’t expressly explain why the Board deviated from its previous decisions on this point, one possible reason may be that, if the allegations are true, the conduct of the manager went beyond the point of harassment.

Specifically, the Board may have considered the manager’s conduct to be tantamount to workplace violence. While OHSA doesn’t require that employers take reasonable steps to prevent workplace harassment, it does require that employers take steps to avoid workplace violence.

Significance of the decision

Many Canadian provinces have enacted specific provisions under their occupational health and safety legislation to address workplace harassment and violence. Since disagreements with management in the workplace can often lead to emotionally charged situations, it’s not surprising that many of those situations can ultimately lead to discipline or even dismissal of workers.

Given the existence of workplace harassment and violence provisions in such legislation, employees in some Canadian provinces may take the view that the discipline or termination constitutes an employer reprisal. The cases that have considered this issue have tended to view such situations as not being covered by health and safety legislation. This recent case suggests that the door may be opening on that view and, if the complaint in the Ashworth case is ultimately accepted, there may be more complaints arising from dismissal or discipline of workers in similar situations.

A recent decision of the British Columbia Court of Appeal, Stanley v. Advertising Directory Solutions, considered the rights of an employee of a U.S. company who was working for a Canadian subsidiary when terminated. The court found she was entitled to notice or pay in lieu of notice upon termination according to Canadian law. This despite a written agreement with the U.S. parent that said she was employed at will.

The court ruled that an agreement with a U.S. parent company won’t permit a Canadian company, which is also the person’s employer, to avoid its obligation to provide reasonable notice or pay in lieu of notice of termination.

The U.S.-based employee, Susan Stanley, was a Canadian citizen. She was employed by Verizon Communications Inc. in its Texas office. She was offered a promotion to a position in Vancouver for Verizon’s Canadian subsidiary, Dominion Directory Company Ltd. At the time of the transfer from the United States to Canada, she agreed to the terms of a letter written on Verizon letterhead. It said that while on assignment in Canada, she would remain an employee of Verizon. Her employment would continue to be “at will.”

Once in Canada and on Dominion’s payroll, Stanley worked hard to further its business interests. She reported to Dominion’s Canada-based president. A few years into her tenure in Canada, Dominion was sold by Verizon to Bain Capital. Her employment was terminated in a meeting attended by both Dominion’s HR manager and, by teleconference, Verizon’s HR manager.

Stanley sued Dominion (but not Verizon) for damages arising out of the termination of her employment. In court, much turned on who was the true employer. The trial judge concluded that Stanley was an employee of Verizon in the United States.

Since Stanley wasn’t employed by Dominion, she wasn’t entitled to notice of termination as she would be under Canadian law. But the British Columbia Court of Appeal considered whether the fact that the employment agreement was formed in Texas but performed in British Columbia meant that the proper law of the contract was that of British Columbia and not that of Texas.

The appeal court ruled that British Columbia law applies. So the Texas employment agreement that purported to find Stanley to be an employee at will was null and void. Her rights under BC’s Employment Standards Act (ESA) couldn’t be waived.

The appeal court also ruled that an employee can have more than one employer. While it may be contended that Stanley was employed by both Verizon and Dominion, it couldn’t be seriously argued that she wasn’t employed by Dominion. Thus British Columbia’s ESA applied to her. The employment-at-will condition was inconsistent with the ESA. The agreement entered into in Texas was thus set aside.

Stanley was entitled to reasonable notice under Canadian common law by her Canadian employer, Dominion. The appeal court sent the matter back to the trial court for its determination of the reasonable notice period. The lessons from this case are as follows:

1. Don’t assume that an employment agreement entered into in the United States is going to apply in total if the employee is transferred to Canada to work for a subsidiary.
2. Employers should carefully review all contracts and agreements to make sure they won’t be ruled void if they run afoul of applicable minimum standards legislation. Very clear language is needed regarding what law will apply and where any dispute is to be litigated.
3. Don’t assume that an employee can have only one employer. In fact, depending on the facts, an employee may have multiple employers, as was the case here. But this result may be avoided by an expertly drafted contract.

Canada’s Temporary Foreign Worker Program (TFWP) has been under fire of late. Temporary foreign workers sued Denny’s. Latin American tunnel diggers brought a human rights complaint against SELI. A British Columbia union complained that miners from China were taking jobs in northern B.C. And the Royal Bank’s decision to contract out received a lot of media attention. The Canadian government has responded by making seven changes to the TFWP.

Changes

1. Effective immediately, cancellation of the “pilot program” that allowed employers to pay temporary foreign workers up to 15 percent less than the region’s median wage in certain circumstances

Commentary: Mischaracterization of the pilot program by critics appears to have led to its cancellation. The pilot program allowed an employer to apply to pay temporary foreign workers up to 15 percent less than the median rate, subject to the requirement that a temporary foreign worker could not be paid less than Canadian workers in equivalent circumstances at the same location. The 15 percent pilot program didn’t allow employers to pay all temporary foreign workers 15 percent less than Canadians. However, the mischaracterization stuck and appears to have made the program politically untenable.

2. Effective immediately, temporary suspension of the Accelerated Labour Market Opinion (A-LMO) process

Commentary: The cancellation of the A-LMO program will be of great concern to employers. Under the A-LMO, employers with good track records under the TFWP were able to get Labour Market Opinions within about one month (minimum two weeks advertising and about two weeks for the processing of the application). Cancellation of the A-LMO program is likely to push processing times back to three or four months or longer. Delay of that magnitude could cause significant harm to Canadian businesses.

3. Increase the government’s authority to suspend and revoke work permits and Labour Market Opinions (LMOs) if the program is being misused

Commentary: With appropriate safeguards, this appears to be a commonsense initiative. One area of concern is the risk of penalizing a worker by revoking his or her work permit where the employer has misused the system.

4. Add questions to LMO applications to ensure that the TFWP isn’t used to facilitate the outsourcing of Canadian jobs

Commentary: The government has stated that, “[t]hese measures include adding new questions on the LMO application regarding outsourcing and verifying that Canadian employees are not being replaced by foreign workers.” It’s unclear what is intended because the TFWP is based on the premise that an LMO won’t be issued “if there is a qualified Canadian available.”

5. Ensure employers who rely on temporary foreign workers have a firm plan in place to transition to a Canadian workforce over time

Commentary: This appears to be a response to the northern B.C. miners’ situation. The government has stated that all LMO applications will have to include a transition plan. This initiative has the potential of creating additional delay in the preparation and assessment of an application. It’s debatable whether a transition plan would be helpful in all situations: A short-term project is different from work with ongoing labor needs; the need for a highly educated worker with expertise in a specific niche is different from a situation where a Canadian may be “trained up” in a reasonable period of time, etc. This type of across-the-board initiative may generate more work and delay than benefit.

6. Introduce fees for LMOs and increase the fees for work permits

Commentary: We don’t know how much the fees will be or when they will be implemented.

7. Identify English and French as the only languages that can be used as a job requirement

Commentary: This appears to be in response to the allegation that a job posting for the northern miners indicated that Mandarin language skills were required. The government has indicated that exemptions will be granted where the employer can show that the foreign language is a requirement of the job.

What changes mean

What does this all mean for Canadian employers? Immigration Minister Jason Kenney stated in a press conference that one of the objectives of the changes was to make the program more expensive and onerous, to encourage Canadian employers to work harder to hire Canadians. One thing is for sure—the changes will make the process more expensive and more onerous, and probably slower, for Canadian employers. Only time will tell if it will result in Canadian employers finding more qualified Canadians.

Employers in Canada can’t discriminate against employees based on mental disabilities. But the broad interpretation that courts and arbitration boards frequently apply to human rights laws often makes it difficult to know where the boundaries of “mental disability” lie.

In a recent arbitration decision in Ontario, Windsor (City) and WPFFA (Elliot), the arbitrator found that an employee’s mood problems and stress issues weren’t classifiable as mental disorders. He didn’t qualify as having a mental health disability requiring accommodation.

Background

Kim Elliot worked as a firefighter for the city of Windsor for nearly 10 years. The shift schedule for firefighters consisted of rotating, 24-hour shifts. Good attendance by firefighters was vital to the city. Specified numbers of firefighters are required to operate the fire equipment.

In the years leading up to his dismissal, Elliot had been disciplined a number of times for missing scheduled shifts. Discipline was on an escalating scale. Just before his termination, he had been suspended without pay for four shifts. He was warned that any future absences might result in dismissal.

Elliot also took a two-month medical leave for personal reasons largely related to his marriage. He saw a psychologist who described Elliot as having a temporary “Adjustment disorder with related depressed mood & mixed anxiety stemming from a series of difficulties (financial, marital breakdown, job pressures, community difficulties).” This diagnosis was never disclosed to the city.

About a year after his medical leave, Elliot missed five consecutive shifts. The employer terminated him for cause.

Arbitration decision

Relying heavily on Elliot’s psychological treatment, the firefighters’ union grieved Elliot’s dismissal. It alleged that he suffered from a mental disability as defined by the Human Rights Code. His psychologist gave evidence that during times of stress, his thinking “narrowed” and he obsessed about the cause of stress while remaining oblivious to consequences of his actions.

The psychologist labeled Elliot’s problem as “dissociation,” which he distinguished from a diagnosis of “dissociative identity disorder.” He also noted that Elliot had “mood-related problems.”

The arbitrator had to decide whether Elliot’s condition was a “mental disorder” and thus qualified as a mental disability under the code. The arbitrator noted that not all mental disorders are well known or understood. He also noted that certain people respond better to stress than others.

Despite this, the arbitrator found that Elliot had no mental disorder. He based this largely on the lack of diagnosis at the time of termination. He dismissed the union’s arguments based on behavior.

In short, although Elliot hadn’t behaved in a manner like most other firefighters (or most other employees) and although a psychologist placed him on the “psychotic” end of a neurotic-psychotic spectrum in dealing with his anger and stress, these were particular behaviors and not a substitute for a diagnosis of a mental disorder. The termination was therefore justified.

Lesson for employers

This case clarifies what qualifies as a mental disability under the code. Despite the presence of behaviors that could indicate mental health issues, the arbitrator relied on a lack of official diagnosis to uphold termination. The case illustrates that not all employees who miss work because of stress have a mental disorder. Nor does poor anger-management and stress-management equate, without more, to a mental disability.

It should also be noted that the arbitrator placed some weight on the timing with which the mental disorder argument was brought. The union first raised the issue after termination. There had previously been multiple disciplinary proceedings. This case suggests that in instances where a chronically absent employee alleges discrimination resulting from a mental disorder, decision makers will be less likely to give credence to such claims if the employee failed to raise disability concerns before termination.

Human Rights Tribunals across Canada are constantly expanding the interpretation of prohibited grounds. Ontario has recently joined Manitoba and the Northwest Territories and gone one step further by recognizing gender identity as a prohibited ground.

Ontario’s Bill 33, An Act to amend the Human Rights Code with respect to gender identity and gender expression, which came into force on June 19, 2012, now protects both gender identity and gender expression. Vanderputten v. Seydaco Packaging Corp. is the first decision of the Human Rights Tribunal of Ontario interpreting how gender identity and gender expression are treated in the workplace.

Facts

An employee of Seydaco Packaging Corp. was transitioning from living as a man to living as a woman. The employee also was commencing the process for sex reassignment through the Center for Addiction and Mental Health.

The employee filed a human rights application against Seydaco Packaging alleging that workplace harassment and a gender-related incident with a coworker were the reasons why she was fired.

At the hearing, the evidence showed that the employee had received considerable discipline in the past for incidents relating to displays of anger in the workplace and interpersonal conflict with coworkers. But the employee wasn’t solely at fault. She said she was subject to verbal and physical harassment from her coworkers in the form of swearing, name calling, and pushing.

Further, Seydaco Packaging required the employee to use the men’s change room at work until it “received sufficient medical evidence that the [employee] was now a woman.” The employee asked to change her shift times so that she could avoid changing with the men, but Seydaco Packaging denied her request.

The employee also said that on the day she was fired, her manager called her derogatory names based on gender. The manager asserted that the employee was displaying aggression and “throwing skids around.” In response, Seydaco Packaging fired her for insubordination.

Decision

The vice chair of the Human Rights Tribunal of Ontario decided that the employee had been subject to discrimination under the Ontario Human Rights Code and that the following factors created a poisoned work environment for the employee:

(a) Harassing comments about the employee’s gender identity;

(b) The employer’s insistence that she be treated as a man in all respects until her surgery was complete; and

(c) The employer’s failure to investigate or provide a reasonable response to her allegations that she was being harassed because of her sex and gender identity.

The vice chair made the following important comments:

“Insisting that the [employee] be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the [employee’s] needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity.”

The vice chair awarded the employee eight months’ pay in lieu of notice (based on her total seven years’ service, with a brief gap) and $22,000 in general damages. Although the employer was responsible for $21,000 of the general damages, the manager was responsible for $1,000 of those damages.

Takeaway for employers

By awarding $22,000 in general damages, the Human Rights Tribunal of Ontario has sent a message about how severe this situation was. As a result of this award, Canadian employers cannot afford to ignore issues of gender identity and gender expression, even in provinces in which such grounds are not specifically enumerated in human rights legislation. Indeed, there is legislation working its way through Parliament to amend the federal Human Rights Act to include gender identity as a prohibited ground. The chances that other provinces will follow suit is high.

Not ignoring these issues is no easy task, particularly since the issues of gender identity and gender expression and how they affect the workplace remain little understood. Canadian employers would be advised to educate themselves and their staff when faced with these situations. Employers will want to prevent incidents of harassment and a poisoned work environment from developing.

Every job has its own peculiarities. What might be a minor shortcoming in one type of employment could be catastrophic in another. This is especially true when the breach touches on the very heart of the duties assigned to an employee. This, at least, is what an employee learned in a recent Quebec case: Mardik v. Nova Bus. (2013 QCCS 1152; decision available in French only).

Facts

In May 2007, Michael Mardik was hired as a tender administrator by Nova-Bus, a subsidiary of Volvo Canada. His role essentially consisted of responding to invitations to tender in the U.S. market. He began his career on a positive note and was given a wage increase in February 2008. The following autumn, Nova-Bus noted some carelessness and explained that more was expected of him. Over time, however, the quality of his work became of increasing concern to the employer.

On December 17, 2008, Mardik was working on a tender for a major project with a potential U.S. customer, valued at $15 million. The tender had to be delivered by the end of the day, and time was of the essence. The entire department was aware of this important bid. Two colleagues offered to help, but he declined their offer.

The end-of-day deadline was absolute because of the courier service’s delivery lead time. Mardik could have the tender ready to send off at 5 p.m., or he could bring it to the airport himself by 7 p.m. Unfortunately, he failed to meet either of those deadlines. Instead he finished the work the following morning. In order for the tender to arrive at its destination on time, another employee had to fly with the documents to Texas and deliver them in person.

Despite all this, the employer waited more than three weeks before acting on this incident. It dismissed Mardik for cause on the grounds that there was a breach of trust resulting from nonchalance toward his responsibilities. The incident marked a culminating point in these events.

Decision

The court had to decide whether the employer was entitled to conclude that Mardik’s conduct in mid-December could be considered sufficiently serious to terminate his employment without notice. This is a condition that is enshrined in article 2094 of the Civil Code of Québec as justification for unilaterally terminating an employment agreement without prior notice.

In this case, the nature of Mardik’s work was to prepare and submit tenders in accordance with invitations identified in the U.S. market. It goes without saying that delivering a tender in time to meet the requirements of the tendering process was a crucial component of the job. By failing to respect the fundamental element of his work, he had irreparably damaged his employer’s trust.

The court ruled that the employee had planned his work negligently and wound up being unable to meet a deadline he had been aware of for quite some time. What’s more, before these events took place, the employer had been meeting with the employee regularly for more than a month, trying to get him to remedy the carelessness he was showing in his work.

It was clear to the court that under the circumstances, the employee wasn’t entitled to any pay in lieu of notice.

The employer also sought to recover the additional costs it had to incur in order to deliver the tender to Texas. The court was of the opinion that the employee’s negligence was the main cause of this expense. However, in the absence of any specific evidence on what those costs were, the court limited itself to granting a lump sum of $500, payable to the company.

Lessons to be learned

When an employee has no acceptable explanation for a serious error committed in what is an essential duty, an employer may have sufficient grounds to terminate the employment without notice or indemnity. However, every case must be evaluated on its own merits to determine whether the nature of the error in the context of the employee’s duties and responsibilities will justify the termination.

The CEOs at top tech companies have received attention over their policies allowing employees to work from home. While some companies insist that working from home motivates people to work responsibly, quickly, and with high quality, others prefer their employees to work in the office.

The reality is that each company is unique, and the decision to continue or cancel alternate work arrangements depends on a number of considerations. A necessary and critical consideration in making this decision is the employer’s legal obligation to continue such arrangements.

Necessary consideration

With the exception of an employer’s duty to accommodate under human rights legislation, Canadian employers aren’t required to allow employees to work from home. However, once an arrangement to do so is in place, legal issues arise that may hinder an employer’s ability to recall its employees back to the workplace.

Human rights

If an employee’s request to work from home is related to a human rights need — such as to accommodate a disability or unique childcare obligations — an employer may be forced to accommodate this request. For example, an Ontario human rights tribunal recently said that it was discriminatory to deny an employee’s request to work from home to care for his ailing parent.

However, the obligation to allow an employee to work from home, even in human rights situations, isn’t indefinite. The obligation exists for the duration of the need and so long as it doesn’t constitute undue hardship on the employer’s part. So in accommodation situations, the employer can consider recalling an employee back to the workplace only when the employee’s need to work from home is no longer present or circumstances change that the arrangement becomes an undue hardship.

Other situations

When human rights needs aren’t at play, employers still don’t have free rein. Before recalling employees back to the workplace and ending work-from-home arrangements, an employer must consider its rights and obligations under the employment contract.

The contract may explicitly permit the employee to work from home, or, if the employee has been working at home for many years, the arrangement may no longer be considered temporary and may instead have become an implied term of the employment relationship. An employer in this situation should provide reasonable notice of its decision to end the arrangement. Otherwise, the employee could have a claim for constructive dismissal and be entitled to reasonable notice damages.

Unionized work environments

In a unionized environment, an employer must determine its obligations under the collective agreement before recalling employees back to the workplace. In addition, an employer must consider the collective agreement in light of its current and past practices.

For example, if the collective agreement required employees to obtain prior approval before working from home, an employer can’t suddenly change its practice of not requiring this prior approval if it has consistently disregarded this prerequisite in the past. If an employer wishes to enforce a provision that it hasn’t enforced for some time, at the next bargaining round it must place the union on notice that it intends to enforce the provision.

Recommendations for employers

If a Canadian employer wants to maintain its right to recall employees back to work and cancel work-from-home arrangements, it should take the following steps:

• Document all work-from-home or other alternate work arrangements.
• Include a provision in the employment or work-from-home contract that provides the employer with the discretion to cancel alternate work arrangements.
• Set out geographic limits in the employment contract defining where the employees’ homes can be located (e.g., within a certain distance from the head office).
• Provide employees with sufficient notice of any change in alternate work arrangements.
• In a unionized work environment, include a provision in the collective agreement that permits the employer to cancel alternate work arrangements at its discretion.

Keeping these steps in mind, employers across Canada should be able to give themselves the flexibility to end employees’ flexible work arrangements.

Immigration Canada announced a new policy on December 15, 2012, that allows for bridging work permits. Foreign nationals who are currently working in Canada and have applied for permanent residence (under certain programs) can now apply for such a permit. This will allow them to stay and work until their permanent residence application is finalized.

This new policy eases the process of extending work permits in these situations. Before, the temporary files and the permanent files of the applicant weren’t linked. As previously discussed (see “Obtaining a work permit in Canada: The Labour Market Opinion process” of January 4, 2010, and “Advertising Requirements Before Hiring Foreign Worker” of May 31, 2010), if the person had a work permit based on a Labour Market Opinion (LMO), in order to renew or extend the permit, the employer had to redo the whole procedure for obtaining a new LMO if the current work permit was about to expire.

That meant that the employer had to prove that it had conducted recruitment efforts complying with the rules established by Human Resources and Skilled Development Canada. The employer needed to show that it wasn’t possible to find a Canadian or a permanent resident to fill the position and therefore it was authorized to hire the foreign national. If, afterward, the person applied for permanent residence and this application was approved in principle but not yet finalized, the employer still had to redo the LMO process.

Immigration Canada finally realized that it didn’t make much sense to impose another burdensome LMO process, especially when it was clear that the person would likely become a permanent resident in the next few weeks or months.

Starting December 15, 2012, it became possible for those foreign workers currently in Canada who have submitted an application for permanent residence (either under the Federal Skilled Worker Program, the Canadian Experience Class, the Provincial Nominee Program, or the Federal Skilled Trades Program) to apply for a bridging open work permit. An open work permit allows employees to continue working for the same employer or to freely change employers.

Besides being currently in Canada and having valid status on a work permit, in order to be eligible for a bridging work permit, it is necessary:

• To apply within four months before the expiration of the current work permit; and

• To have received a positive eligibility decision on the permanent residence application.

The meaning of “positive eligibility decision” is understood differently depending on the program under which the permanent residence application is made. In some of the programs it suffices to have received an acknowledgment of receipt of the application from Immigration Canada.

The open work permit that is issued in these cases is valid for one year. If for any reason the permanent residence application hasn’t been finalized within that year, it’s possible to request a subsequent open work permit.

This policy doesn’t apply in the province of Quebec, which has its own equivalent rules issued six months earlier. More precisely, on June 1, 2012, a similar policy was issued for those who had already been selected by the province of Quebec as permanent residents (received a Quebec Selection Certificate).

The basic difference between the Quebec and federal programs is that the work permit issued to Quebec applicants is not “open,” meaning it’s necessary that the person has received a job offer from an employer based in the province of Quebec. Also, in Quebec, the duration of the work permit isn’t necessarily one year but coincides with the length of the job offer.

Canadian Immigration rules change at a fast pace. Seldom do the rules get simpler. When changes simplify things for foreign workers currently in Canada, we certainly have reasons to celebrate.