Ted's Blog

University Professor Professing "I am Crazy About You" – Not Considered Sexual Harassment

From Nicole Skuggedal and Katy Allen of Lawson Lundell LLP:

A recent decision of the British Columbia Human Rights Tribunal (the “Tribunal”) held that a professor telling a subordinate employee (the “Complainant”) that “you will have to let me know if this is a misstep but I am crazy about you” (the “Comment”) did not constitute sexual harassment pursuant to the B.C. Human Rights Code.


Behaviour Issues In The Workplace: The Investigation

In the last few years, workplace investigations have become an integral part of the decision making process when an employer is faced with allegations of misconduct on the part of an employee. The employer has a duty of good faith and fair dealing in respect of its employees, particularly when an employee's employment is being terminated. To comply with this duty of good faith and fair dealing, an employer should conduct a workplace investigation when there are allegations of wrongdoing by an employee (or when the employer suspects such wrongdoing even though there has been no actual complaint) as it is incumbent on the employer to ensure that it has full knowledge of the facts relating to the impugned conduct. This duty extends not only to the employee who is alleged to have engaged in some form of improper conduct (the "respondent"), but also to the employee who made the complaint (the "complainant").

The workplace investigation provides a method for the employer to take a balanced approach – recognizing and treating seriously a complaint yet treating the respondent with fairness in dealing with the complaint. It is in the nature of a fact finding procedure which will allow the employer to ultimately determine what, if any, action should be taken with respect to an alleged wrongdoing of an employee.

It is important that an employer take the necessary steps to properly conduct an investigation. Employers that have been found to have conducted a flawed investigation have been subject to damage awards (including punitive and aggravated damages) for various causes of action, including constructive dismissal, breach of the duty of fair dealing, the infliction of mental distress, mental suffering and unlawful detention.

Are You About To Dismiss An Employee? Here Is A Checklist To Review First

The dismissal of an employee is never an easy thing, even at the best of times, and it is always best to have some comfort that you have reviewed and considered all of the issues before you undertake an employee termination.

Below is a checklist that can provide a good starting point for ensuring that relevant matters are considered and for helping generally with the process of an employee termination. The checklist can of course be modified and expanded upon for the employer's particular circumstances.

I Take It Back: Retracting A Resignation

What should you do if an employee asks to rescind his or her resignation?

If you really love that employee, you say "Great! Welcome back." But if this isn't your favourite employee, you may have an obligation to undo the resignation anyway. In order to decide whether or not to allow them to withdraw the resignation, there are a few factors that you should consider.

Legal Myths: Is A Terminated Employee Guaranteed One Month Per Year Of Service?

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Law is full of its share of misconceptions. For instance, many people talk about a "rule of thumb" that provides that a terminated employee is entitled to one month per year of employment. Despite this, Courts across Canada have emphatically rejected the notion that there is rule of thumb for determining appropriate notice periods for employees. Read More...

Legitimate, Long-Term Absences And The Employer's Duty To Accommodate

Employers are sometimes faced with an employee that is absent from the workplace for legitimate reasons for long periods of time. Absences of these kinds can be frustrating and costly to the employer. In these circumstances, employers often ask themselves—at what time, and after how long of an absence, can we legitimately terminate the employment relationship with the absent employee?

There are two factors to consider in determining whether an employee can be legally dismissed for non-culpable absenteeism due to a mental or physical disability. First, the employment contract between the parties must be frustrated. Second, the employer's duty to accommodate the employee must be fulfilled.

"You Compete Me" – Will The Courts Love Your Company’s Restrictive Covenants For Employees As Much As You Do?

An area of law where both employers and employees often struggle to find clarity is the area of restrictive covenants, specifically non-competition and non-solicitation clauses for employees. Part of the reason for frequent confusion is that this area of law – and specifically whether and how a non-competition or non-solicitation clause is enforceable – tends to be very fact-specific. While these types of clauses will tend to have some standard elements, the factual scenarios in which they typically unfold in litigation tend to be somewhat unique from one another. It can therefore be challenging to predict precisely when these clauses will be enforced by the courts. That said, there are some basic aspects of this area of law that merit review, because it is important that employers be mindful of them and consider whether the clauses they are using should be reviewed or updated. Read More...

When Do Reduced Responsibilities Constitute Constructive Dismissal?

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Many employers now have job descriptions for their employees, whether they are in the initial offer letter (for more junior employees) or in a detailed employment agreement (usually reserved for more senior and highly paid employees). Some employers just use titles to denote responsibilities. In between there are employers whose employees, through initiative or necessity, assume duties that had previously been performed by other employees.

Most employers appreciate an employee who goes above and beyond — someone who does more than the minimum required by the job description.

But what happens when an employee has responsibilities taken away, whether they were initially assigned or assumed over time?

At what point does a reduction in responsibilities amount to a constructive dismissal?

Actions Speak Louder Than Words: Labour Board Holds That Employers Must Demonstrate By Conduct That They Do Not Condone Employee Misconduct

Generally, the Ontario Employment Standards Act ("ESA") requires employers to provide employees with notice of termination or termination pay in lieu of notice. However, a dismissed employee is disentitled to these minimum notice requirements if the employer can prove, on a balance of probabilities, that the employee is guilty of wilful misconduct that is not trivial and was not condoned by the employer.

While employers often focus on the severity of the employee's misconduct or on whether the employee possessed the requisite intent, Shaker v Leon's Furniture Limited ("Leons") and Cancore Building Services Ltd. v William Merlos & Director of Employment Standards ("Cancore"), two recent decisions of the Ontario Labour Relations Board ("OLRB"), make clear that in order to successfully rely on the disentitlement provision in the ESA, an employer must have cogent evidence that it did not condone the employee's wilful misconduct.

Lessons From The Jian Ghomeshi Case: ‘There Is Nowhere To Hide’

Canadians' heads have gyrated to almost exorcist lengths by the quickly changing fortunes of Jian Ghomeshi. But what lessons can be learned? Read More...

Ghomeshi-gate: A Harassment Policy May Not Be Enough

On October 26, 2014, Jian Ghomeshi was fired from his position as a radio host with the CBC. The CBC alleges that, based on available evidence, it determined that Mr. Ghomeshi's conduct was a fundamental breach of the CBC's standard of acceptable conduct for an employee. Mr. Ghomeshi is being accused of sexual and physical assault. Mr. Ghomeshi has since brought an action against the CBC claiming damages for breach of confidence, defamation, punitive, aggravated, and exemplary damages. The Toronto Star reported:

The woman said she complained about Ghomeshi's behaviour to her union representative, who took the complaint to a Q producer. As the woman recalls, the producer asked her "what she could do to make this a less toxic workplace for herself". No further action was taken by the CBC, and the woman left the broadcaster shortly thereafter.

Both the employee and the employer have taken criticism. The employer likely had a workplace harassment and violence policy, but the existence of a policy has not stopped or been accepted as a full answer to criticism in the press. So what went wrong?

While we may never know what went wrong in this case, the answer in some cases is that employers can fail to adequately consider the feelings of the employee. The purpose behind Bill 168 on workplace harassment and violence is to create a better work environment. What a "better work environment" means comes from the employees themselves. To meet the purpose behind the law, an employer's policy should give employees an effective voice. The employer needs a way to obtain information about the employee's views or feelings and act upon it.

Investigations In The Workplace

Workplace investigations are inevitable for most organizations and employers face significant pressure to conduct them properly. A flawed investigation, besides compromising the information a decision-maker will need, invites a range of risks. From a legal perspective, the courts scrutinize the conduct of an investigation; where an employer has improperly disciplined a worker on unsubstantiated grounds, a finding of wrongful dismissal may follow. Further, as a number of recent cases demonstrate, if a court finds that a poorly conducted investigation contributed to the wrongful dismissal, it may hand down additional sanction in the form of aggravated damages.

What are the characteristics of a proper investigation? The answer depends on the industry, interests, and composition of a company, but what follows are some of the general guidelines all employers should adhere to.

Termination Issues Checklist

The dismissal of an employee is never an easy thing even at the best of times. It is always best to have some comfort that you have reviewed and considered all of the issues before you undertake an employee termination. Below is a checklist which can provide a good starting point to ensure that relevant matters are considered and to assist generally with the process of an employee termination. The checklist can of course be modified and expanded upon for the employer's particular circumstances. Read More...

Alberta Human Rights Tribunal Upholds Employer's Release In Alleged Discrimination Case

In Marquardt v Strathcona County, 2014 AHRC 3, the Alberta Human Rights Commission ("AHRC" or "Tribunal") considered the validity and enforceability of an employment release that was signed by a departing employee.

Marie Marquardt was employed as a bus driver prior to being involved in two motor vehicle accidents in 2011. Following these accidents, Ms. Marquardt took time off work to recover. She was deemed fit to resume work as of June 28, 2011 and returned to work on July 4. On July 11, she left her employment again for medical reasons. She was deemed fit to return to work by August 1, 2011 and returned to work on August 22. Eventually, Ms. Marquardt's employer decided to terminate her employment and presented her with a termination letter, severance payment, and a release. Ms. Marquardt accepted the severance and signed the release. Subsequently, in September of 2012, Ms. Marquardt filed a human rights complaint alleging that she had been discriminated against on the basis of a mental disability.

The case centred around the release and two issues: whether the release was valid and enforceable, and whether Ms. Marquardt had presented evidence which could successfully challenge the validity and enforceability of the release.

Workplace Investigations: Key Reasons For Hiring An External Investigator

Various situations arising in the workplace can trigger the need for an investigation – alleged discrimination or harassment, workplace bullying or abuse, inappropriate use of the internet or social media, theft of company property, fraud, policy breaches, statutory violations, allegations of just cause and so forth. Often times, employers try to resolve minor issues informally through discussions with the individuals involved. When the allegations are more serious, employers may rely upon company managers to conduct internal investigations. However, in many situations, having an employer deal directly with the problem is not the best approach – informal discussions can easily breakdown and basic investigative steps may be overlooked by inexperienced mangers, making matters worse.

An invaluable skill for any employer is recognizing when a formal investigation by an external investigator is appropriate. Some of the most important reasons for hiring an external investigator include the following:

New Challenges for Employers under the Temporary Foreign Worker Program

Since we last posted about the Temporary Foreign Worker Program ("TFWP") . . ., the federal government has, in the face of political pressure, introduced significant changes to the program. Employers now face greater challenges and cost in addressing labour shortages through the use of temporary foreign workers ("TFWs"). Read More...

Executive Loses Incentive Comp Upon Resignation – Contract Enforceable, Court Finds No Restraint On Trade

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The Ontario Superior Court of Justice upheld a contract that forced an employee to forfeit restricted shares upon resignation in Levinsky v The Toronto-Dominion Bank. Read More...

"And One More Thing…": Court Finds That Adding To A Person’s Job Duties May Be A Constructive Dismissal

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When one hears "constructive dismissal", one typically thinks of situations such as reducing an employee's salary or benefits or taking away an employee's job responsibilities. In Damaso v. PSI Peripheral Solutions Inc. (PSI) 2013 ONSC 6923, the Ontario Superior Court of Justice expanded this list to include adding to an employee's workload. Read More...

Top Employment Tips For Hiring Employees Abroad

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Just as poutine is unlikely to taste the same in Mexico as in Canada, and just as croissants in Almaty may not be quite like croissants in Paris, employment laws differ around the globe. As a result, companies opening up shop in foreign jurisdictions need to be aware that employment laws and HR practices do not necessarily transfer seamlessly from one location to another. Companies looking to succeed in expanding operations to other locations need to keep this in mind and seek employment law advice specific to each location in which they intend to do business. The following list provides some general guidance on employment issues to keep in mind when growing your business across borders. Read More...

Bring Your Own Device (BYOD) – A Primer

The development of portable technology has dramatically altered the relationship between professional and personal life. On a morning commute to the office, it is not uncommon for an individual to pull out a single smartphone both to read and respond to a client email and confirm dinner plans with a friend over text message. Some individuals on their morning commute pull out a work-issued smartphone and others pull out a personally-purchased device. The focus of this article is on managing the use of personally-purchased devices for professional tasks.

In what follows, we explore the increasingly popular Bring Your Own Device ("BYOD") model that permits employees to use their personally-owned devices to access confidential company systems and information and highlight some key legal issues for employers to consider before implementing a BYOD policy. Specifically, this article addresses ownership of and access to the device, related employment issues, and privacy and data security. The article also considers these issues and proposes solutions for employers to build into their BYOD policies to address the relevant legal concerns. While the BYOD model is attractive, a carefully constructed policy and related management practices are critical to ensuring compliance with data management obligations and to avoid related legal liability.

When Can An Employment Contract Be Set Aside?

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Many employees foolishly decide to save the hour or so in legal fees to have their contracts reviewed, only to then forfeit vastly greater amounts. Employers are no better. Close to half the contracts I encounter are replete with glaring legal errors. Cobbling together disparate precedents without regard to either symmetry or changes in the law is a recipe, in any legal area, for financial purgatory.

So how can employees have contracts set aside?

Another Peril Of The Fixed Term Agreement

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Employers often debate whether to engage people for an indeterminate period, or for a fixed term.

While there may be a superficial attractiveness to fixed term Employment Agreements, they are not without their difficulties. True, as a general proposition, when they come to an end they do so without the requirement of further notice or compensation. Note however the Ontario Court of Appeal decision in Ceccol v. Ontario Gymnastic Federation, 55 OR (3d) 614 for the proposition that a series of fixed term contracts can in some circumstances eventually amount to an “indefinite hiring” subject to termination only upon reasonable notice.

The same difficulty arises where the parties, through inadvertence, continue the employment relationship beyond the end of the fixed term. Again, the contract then becomes indefinite subject to the common law entitlement to reasonable notice as well as all of the protections of the Employment Standards Act.

Employers should also be aware that if they have a change of heart in the middle of a fixed term arrangement, they may have far less flexibility than would have been the case with an indefinite arrangement subject to an enforceable contractual termination. Absent such contractual termination provision, the employee is entitled to receive the compensation and benefits which would have accrued to the end of the fixed term.

A recent decision from the Alberta Court of Appeal serves as a reminder of the inflexibility of fixed term arrangements.

10 Questions to Ask in a Job Interview

The following is a reprint of an article written by Jeremy Anderberg. It appears in the Art of Manliness web site.

When it comes to job interviews, we often see it as a one-way street, with the interviewer holding all the cards. In reality, though, it’s a two-way interaction. You are also interviewing them to see if their company is the right fit for you. Sure, sometimes desperation means you don’t have that luxury, but hopefully at some point you’ll have options and you’ll get to choose the company that’s best for you. A large part of determining that is the questions you ask at the end of the interview.

Beyond that, asking questions shows your interest in the job and the company. Q&A often only consists of a few minutes at the end of an hour-long interview, but it’s the final impression you’ll make, and according to one-third of HR managers, it can make or break your chances of getting the gig. When they inevitably ask you if you have questions, not having any indicates that you don’t really care about the position and are seemingly only going through the motions of an interview; conversely, asking good, incisive questions shows you’re knowledgeable about the field and sincerely curious about the job.

The goal with your own questions is to just get a better picture of the company as a whole and your potential role in it. You don’t want to get too detailed — save that for the follow-up interview, or when they offer you the job. For instance, you don’t want to ask about salary or benefits right off the bat; that will make it seem like you’re only interested in money, and not the position.

Elsewhere online, you can find lengthy lists of 30-50 questions to ask at the end of an interview. That’s far too many, however, and makes you pick and choose out of your head based on the scenario. In this post, we’ll give you just a few options from a few different categories that we think are the most important. You want to have at least 3 questions to ask, so come prepared with at least 6 just in case some get answered in the course of the interview.

Want To Quit Your Job? Five Things You Should Know About Your Legal Obligations

Plenty has been written about legal obligations and mistaken beliefs when it comes to employees being fired. But, while it is seldom discussed, there is almost as much law affecting an employee's decision to quit, whether it's because they read the writing on the wall or just got a better offer. Read More...

Termination Provisions In Employment Contracts Are Not Always Enforceable

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The recent decision in Miller v. A.B.M. Canada Inc. provides a useful lesson on the extent to which one can rely on the termination provisions in an employment contract. Read More...

Keep Your Facebook Comments To Yourself…Or Better Yet, Don’t Put Them Out There At All!

In USWA, Loc. 9548 and Tenaris Algoma Tubes Inc., the most serious aggravating factor . . . is the nature of the comments. They were vicious and humiliating. The company has characterized the posts as threatening. It would certainly be reasonable for a woman reading such an interchange between male co-workers to feel threatened. The grievor suggested that X should be sexually assaulted. He must have anticipated that she would see the posts or hear about them because his Facebook 'friends' included co-workers. He also, apparently, had not used any privacy settings since Mr. Kmpotich and Ms. Amato could read them. He did not delete his comments as soon as he made them but left them up for 10 hours. Read More...

How A Corporate Reorganization Can End Up Being A Constructive Dismissal Lawsuit

With Damocles' sword of constructive dismissal lawsuits looming over employers who wish to reassign staff, even a minor misstep can prove costly. Read More...

E-Cigarettes: A Hazy Status In The Workplace

Electronic cigarettes with nicotine ("e-cigarettes") and cartridges of nicotine solutions are widely available to consumers despite Health Canada's warning that their importation, advertisement and sale are prohibited without authorization. There remains confusion over the legalities of their use, especially in public places and workplace settings. Read More...

Avoiding Blurred Lines Between Temporary Workers And Employees

Where agency workers are brought in for temporary assignments, a question may arise in unionized workplaces whether the temporary workers are employees of the company, or rather employees of the employment agency. If the agency workers are found to be employees of the company that has brought in the temporary workers, then the workers may be found within the scope of the applicable collective agreement between the company and the union. Read More...

A Reminder On The Duty To Bargain In Good Faith

In a recent decision, the Supreme Court of Canada reminds employers and unions of the importance of the duty to bargain in good faith. In Canadian Artists' Representation v National Gallery of Canada, the Supreme Court of Canada upheld the Canadian Artists and Producers Professional Relations Tribunal (the Tribunal) finding that a complete change in a position, after years of bargaining, constituted bad faith. Read More...

Laid Off From Your Job? Don’t Take It Personally

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If your employment was unexpectedly terminated today, it's important to remember it's not personal, and there is no need to despair or panic.

You are not alone. A very large number of Canadian employees have been dismissed during their careers, many more than once. As result, there is no longer the stigma associated with dismissal (or suing of employers) that existed when I began to practise law.

Post-termination Evidence Of Dishonesty Substantiates Just Cause

A recent decision in British Columbia (Campbell v Harrigan Rentals and Equipment Ltd.) has found post-termination evidence of just cause for dishonesty discovered in an investigation of an employee that occurred following his termination. Read More...

Employee Must Work Through Notice Of Resignation

Employment contracts contain mutual notice requirements on the termination or resignation of employment. The terms of notice and severance are a key component of the hiring negotiations, i.e. one month per year of service or a variation on that theme. What is seldom addressed, even by lawyers, is the notice that is required from the departing employee to the corporate or institutional employer prior to resignation. Read More...

Avoid These Pitfalls When Writing A Reference For A Dismissed Employee

Many employers worry that if they fail to provide a dismissed employee with a deserved reference, additional damages could follow. That concern is not without warrant, but careful thought should go into writing that reference. Read More...

Setting The Record Straight On Common HR Follies

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As in life, the practitioners in the field of human resources too often blindly follow the folly of others, to the point it becomes collective wisdom. The assurance of the crowd creates its own certitude. Yet, a Monty Python skit I recall, hit the nail on the head. In it, a drill sergeant was calling out orders to the troops. While almost all of the soldiers were marching in unison, one aberrant marched to his own drum. Finally, the sergeant erupted, yelling: "He is the only one doing it right."

Following are some common human resource practices that have little rational foundation:

What Employers Can Do About Employees’ Inappropriate Social Media Activities

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Employers have the right to manage employee conduct that affects the workplace, including the use of social media. This includes the right to make policies and set expectations, and discipline employees for breaching these expectations.

Imagine one of your employees posts one of the following on his or her personal social media account:

  • mocking and disparaging statements about supervisors and the company;
  • derogatory and racist comments about co-workers;
  • information about material company activities before they are formally announced;
  • invitations to drug dealers to come to the workplace to make a sale;
  • interesting aspects of confidential company projects; or "personal details about other individuals in the office.

These examples are all from real cases. The workplace is such a significant part of our daily lives that employees will often post about it on their personal social media accounts. As an employer, what can you do when the post is inappropriate?

Fixed-Term Employment Contracts: Are They Worth The Risk?

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Employers often hire employees pursuant to fixed-term contracts in order to avoid common law reasonable notice obligations and other perceived liabilities. However, this practice can unnecessarily expose employers to more costly legal liabilities that can be avoided through the use of indefinite-term contracts containing early termination provisions setting out minimal notice of termination. Read More...

Are Your Independent Contractors "Dependent"?

The following article was written by Michael D. A. Ford, Q.C. of Davis LLP. Read More...

How to Deal with a Job You Don’t Like

The following article appears in the Art of Manliness website. Read More...

"You Can’t Have Your Cake and Eat It (Part 2)": An Update On Mitigation and Employment Contracts

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This following is a reprint of an article by Martin J. Thompson and Kyle Lambert of McMillan LLP.Steve Brown of Crowe Soberman LLP. Read More...

Top Ten Must-Haves For Employment Agreements

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Employment agreements are now an essential tool for employers. A written employment agreement allows the employer and the employee to negotiate terms at a time when they are most optimistic about their relationship and, therefore, more likely to be fair with one another. The written agreement will provide answers to questions that often plague employment relationships. However, badly written employment agreements can cause more harm than good. To keep you focused on your agreements, here are the Top Ten items you must have. Read More...

OODA Loop: The Best Business Tool You've Never Heard Of

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The following article appears on the Me2 Solutions web site. I do not know anything about Me2 Solutions, but they provide an excellent overview of the OODA Loop. It may seem like a long read, but its usefulness in business, and even litigation, will quickly become evident. Read More...

How to Quit a Job (Without Burning Bridges)

I have drawn the following article by Brett and Kate McKay from Money and Career on the Art of Manliness web site. Though their comments on legal matters such as notice periods will not be accurate from jurisdiction to jurisdiction, on the whole, it gives very good advice. Read More...