Do Age-Based Early Retirement Programs Violate Human Rights Code?

May 10, 2010 - by: Northern Exposure 0 COMMENTS

By Ralph Nero and Ida Martin

Are pension plans that provide age-based early retirement programs discriminatory? In a decision that may be important across Canada, the Ontario Human Rights Tribunal has recently answered no.

In Kovacs v. Arcelor Mittal Montreal, Kovacs argued that he had been discriminated against on the basis of his age by not being able to participate in the early retirement program being offered by the employer, Arcelor.

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Prehiring Credit Checks Restricted in Alberta

May 03, 2010 - by: Lorene Novakowski 0 COMMENTS

By Lorene Novakowski

Employers are often tasked with creating systems to reduce employee theft or fraud. Such systems can include many things including credit checks on potential employees. Recently, Mark’s Work Wearhouse in Alberta was stunned to learn that such credit checks weren’t permissible in the circumstances — even when a number of other measures had failed. As such, it agreed to stop conducting prehiring credit checks.

Facts
Faced with in-store theft or fraud, Canadian national retail chain Mark’s Work Wearhouse instituted a series of measures to deter employees. When other measures weren’t successful, it started collecting credit check information on its applicants.

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Shocking Arbitration Decision in Ontario

April 27, 2010 - by: Donna Gallant 0 COMMENTS

By Donna Gallant

The latest price tag for terminating an employee based on inadequate investigation and preconceived notions of guilt is $500,000. In a searing decision, an Ontario arbitrator found that the Greater Toronto Airports Authority (GTAA) failed to take reasonable steps to ascertain the truth about an employee’s medical condition before it fired her for alleged sick leave fraud.

According to the arbitrator, the GTAA’s high-handed and capricious conduct amounted to a breach of trust and the GTAA was held accountable for the devastating effects the termination had on the grievor’s mental and financial wellbeing.

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Happy Headhunting for Employers

April 26, 2010 - by: Gulu Punia 0 COMMENTS

By Gulu Punia

Successful headhunting can add significant value. But employers must be careful that they don’t become the hunted. As with any hunt, there are risks that may not be obvious. In the employment context, a Canadian employer may be on the hook for extended severance or risk an action from the previous employer for inducing a breach of the employment contract. The good news is that reasonable precautions can minimize these risks and result in happy hunting.

Recognition of previous service
One of the biggest risks for Canadian employers comes from an employee who’s recruited from secure employment. Such an employee may claim that previous service must be recognized by the new employer. This is particularly troublesome when the recruit is fired.

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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.

Facts
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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