Employee Fired for Disseminating Inappropriate E-mail at Work

April 19, 2010 - by: Alix Herber 1 COMMENTS

By Alix Herber

While many employees are allowed to access and use the Internet and e-mail on company computers for “limited” personal use, it’s not uncommon for them to misuse this privilege. In Poliquin v. Devon Canada Corporation, the Alberta Court of Appeal was asked whether an employee could be fired for cause because he used his employer’s computer and Internet access to view and disseminate pornographic and racist materials in violation of the employer’s code of conduct. According to the Alberta Court of Appeal, the answer was yes.

Poliquin worked for Devon Canada for 26 years supervising between 20 and 25 employees. When he was fired for using the company’s computer to view and transmit pornographic and racist materials, he sued Devon Canada.

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Religious Accommodation Versus Gender Equality

April 12, 2010 - by: Dominique Launay 0 COMMENTS

By Dominique Launay

In the province of Quebec, a woman was asked to leave two different French classes in Montreal. The woman, a recent immigrant from Egypt, refused to remove her face cover. After being allowed to sit at the front of the class (so all men were behind her) and make presentations with her back to the class, she asked the three men in the class to move away from her and refused to sit around a U-table with them to converse in French. The case made headlines in Canada and illustrated the tension between gender equality and religious rights.

Human rights decisions
That tension flared into more debate in Quebec with two new rulings by Quebec’s Human Rights Commission.

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Working Notice: Is It Right for You?

April 05, 2010 - by: Hadiya Roderique 0 COMMENTS

By Hadiya Roderique

Despite signs of a recovering economy, Canadian employers are still looking for ways to downsize operations and minimize human resources expenses. One cost-effective manner is to give working notice when terminating an employee.

What is working notice?
Working notice is an alternative to paying out a lump sum upon dismissal. The employee is given advance notice of his or her final date of employment and continues to work until the date of termination. Working notice allows employers to maximize productivity and value while significantly reducing the cost of termination.

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Did Employer’s Overtime Policy Create Unworkable ‘Catch-22’?

March 29, 2010 - by: Northern Exposure 0 COMMENTS

By Lorene Novakowski and Derek Knoechel

As was noted in an earlier article here, the Ontario Superior Court of Justice recently certified a class action against the Bank of Nova Scotia (BNS). That lawsuit claims $300 million in unpaid overtime involving approximately 5,300 BNS sales staff: Fulawka v. Bank of Nova Scotia (Fulawka). Certification means the claims meet the requirements to use the class-action process. What does this decision mean for other similar claims?

A similar previous case, brought against another large bank, CIBC, had not met the certification requirements. It was ruled that that claim lacked the essential element of “commonality” in the situations of the employees in the proposed class: Fresco v. CIBC (CIBC). The breaches alleged in CIBC lacked the “systemic” nature required to justify certification.

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Obtaining a Work Permit in Canada: The Simplified Process

March 22, 2010 - by: Northern Exposure 1 COMMENTS

By Ingrid Anton and Isabelle Dongier

In our January 4 article, we discussed the usual process for getting a work permit for a foreign employee entering Canada: obtaining a Labour Market Opinion (LMO). The LMO process can be complex, lengthy, and very demanding for employers. Fortunately, several exemptions exist that can provide you with a much faster, simpler process. Let’s have a look at the most common of these LMO exemptions.

Intra-company transfers
This exemption is for workers who are being transferred to a Canadian parent, subsidiary, branch, or affiliate of their American or other foreign employer. Two types of workers are covered by this exemption: executives/senior managers and employees who possess specialized knowledge.

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Overtime Class Action Claims: The Second Wave?

March 15, 2010 - by: Sara Parchello 0 COMMENTS

By Sara Parchello

Overtime class actions in Canada aren’t dead. If you thought that last year’s court decision refusing to certify the class action against one of Canada’s largest banks, CIBC, meant the death of such lawsuits in Canada, think again.

These lawsuits — in which one or several employees act as a “representative plaintiff” to start a large claim against their employer on behalf of other similarly situated employees — are still showing up, claiming that overtime was worked but never paid. Several recent legal developments in this area, both in Canada and in the United States, should give Canadian employers renewed cause for concern.

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Notice Periods for Older Employees – 69-Year-Old Gets 24 Months

March 08, 2010 - by: Dominique Launay 2 COMMENTS

By Dominique Launay

In Quebec, an employer may fire an employee with “reasonable notice” of termination or pay in lieu of notice unless there’s a contract dealing with termination or there’s “just cause” for dismissal (and save for specific statutory regimes). Like the rest of Canada, reasonable notice is determined on a case-by-case basis taking into account factors such as the position, age, and length of service of the employee.

The purpose of a notice period is to compensate an employee while looking for comparable employment. With mandatory retirement not allowed in many provinces, courts are being asked to determine the reasonable notice period for older employees more often. The Superior Court of Quebec recently dealt with this issue in McBrearty v. Cerescorp Company, 2009 QCCS 3134 (CanLII), where a 69-year-old employee was fired after 39 years of service.

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Junior Employees Owe Duty of Good Faith, Too

March 01, 2010 - by: Northern Exposure 0 COMMENTS

By Stephen Acker and Ariel Thomas

Canadian employment law imposes a number of legal duties on employers and employees. One of the key duties is the duty of good faith. The duty of good faith requires employers and employees to act in each other’s best interests. It begins when employment does and can last until after the employment relationship has ended.

There is little dispute that senior employees owe a duty of good faith to their employers. But what about junior employees – do they owe their employers the same duty? Some junior employees may be surprised to learn that they too may owe the same duty of loyalty to their employers depending on their relationship and position.

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How Canadian Arbitrators View Video Surveillance

February 22, 2010 - by: Derek Knoechel 1 COMMENTS

By Derek Knoechel

Canadian arbitrators have been dealing with the issue of how to deal with video surveillance of employees for over two decades. Early decisions dealt with off-site surveillance of employees suspected of faking or exaggerating illnesses. But countless battles have since been waged over the use of video surveillance cameras in and around the workplace. When can such equipment be used in the workplace? When can the resulting evidence be relied upon?

Video cameras in the workplace

There have been numerous skirmishes over the use of security cameras covering entrances and exits to the worksite and other nonworking areas. The use of hidden cameras at the worksite as part of an investigation also has been the subject of much controversy. By far the most fever-pitched battles have been over the surveillance of production work, monitoring employees for disciplinary reasons, or conducting surveillance of social or sensitive areas of the workplace.

In each instance, the employer’s property rights and right to manage the workplace has been weighed against employees’ privacy interests. Those privacy interests find some support in privacy legislation and Canada’s Charter of Rights and Freedoms, where applicable. There has been considerable debate, particularly in Ontario, regarding whether there exists a freestanding legal right of privacy in unionized workplaces. Despite this debate, in English Canada a general consensus has begun to emerge among arbitrators that more intrusive methods of employee monitoring such as video surveillance will be permitted only if it’s justified and reasonable in the circumstances.

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Vancouver 2010: Are You Prepared?

February 15, 2010 - by: Northern Exposure 0 COMMENTS

By Katie Clayton and Farrah Sunderani

With the Vancouver 2010 Olympic and Paralympic Winter Games having just begun, there will be several implications on the workplace. Past Olympic cities have reported high levels of absenteeism – both approved and unapproved – for employees wishing to attend the events, partake in the activities, or volunteer.

Employers outside Vancouver may face similar challenges – where employees call in “sick” in order to tune in to their favorite event. And then there are the transit disruptions in Vancouver itself. How will employers manage them while meeting client expectations and maintaining productivity? All of this while at the same time supporting the Olympic Spirit!

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