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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What Happens When Child Care and Work Conflict – More Guidance for Employers

February 08, 2010 - by: Northern Exposure 1 COMMENTS

By Ralph Nero and Ida Martin

As we reported last week, decision makers across Canada are struggling with the meaning of discrimination on the basis of family status. Last week we looked at a Human Rights Tribunal decision out of British Columbia. This week we look at a recent Ontario arbitration decision, Re Power Stream Inc. and International Brotherhood of Electrical Workers, Local 636 (Bender et al.). Like the British Columbia case, the arbitrator ruled that not all conflicts between family and work lead to a duty to accommodate on the part of the employer.

The employer in the Ontario case is an electricity distribution company. Under a previous collective agreement, employees had the option of working five eight-hour shifts per week or four 10-hour shifts per week. The 10-hour shift commenced one hour earlier and ended one hour later than the eight-hour shift. While most employees chose the 10-hour shifts, the four grievors chose the eight-hour shifts. That schedule allowed them to more easily fulfill their family responsibilities: read more…

To What Extent Must Employees’ Family Obligations Be Accommodated?

February 01, 2010 - by: Dominique Launay 1 COMMENTS

By Dominique Launay

Your employee is a single parent. He has to drop his children off at school each morning. They can’t be dropped off earlier than 9 a.m. He has to be back at the school by 5 p.m. to pick them up from their after-school care. He has no family to assist him. Is he covered by the family-status protections in some provinces’ human rights legislation? Do you have to accommodate him?

Increasingly, tribunals are being required to examine this issue: What is an employer’s accommodation obligation where an employee’s needs relating to his family status conflict with employment requirements?

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When Must Individual Contractors Receive Reasonable Notice?

January 25, 2010 - by: Donna Gallant 0 COMMENTS

By Donna Gallant

A recent appeal court decision demonstrates once again that defining work relationships is far from an exact science. Somewhere on the spectrum between employees and independent contractors, we have seen the emergence of “dependent contractors.” What hasn’t been entirely clear is how one determines “dependent contractor” status.  Nor what that status means in terms of the worker’s entitlements on termination.

The Ontario Court of Appeal in McKee v. Reid’s Heritage Homes Ltd. attempts to shed some light on these issues. The decision may have broad ramifications across Canada.

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