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“Oh, what a tangled web we weave when first we practice to deceive.”

Employer avoids liability for harassing texts sent by rogue employee

In an interesting decision, the Human Rights Tribunal of Ontario has ruled that an employer is not liable for discriminatory and harassing texts sent by a rogue employee to another of its workers.

In Baker v. Twiggs Coffee Roaster, Tamra Baker commenced a human rights application against her former employer, Twiggs Coffee Roaster, alleging that her pregnancy was a factor in the decision to terminate her employment. In support of her application, Baker relied on a series of text messages that she received from her friend and coworker, Cara VanDerMark in which VanDerMark advised Baker that the owner of the coffee shop had found out that Baker was pregnant and didn’t believe that she could do her job as she became “bigger”. Of course, this was all news to the coffee shop’s owner, who had instructed VanDerMark to call Baker and let her know that she was not needed for her scheduled shift; the owner intended to terminate Baker’s employment later that day for performance reasons.

Following a two-day hearing, the Tribunal ruled that there was no evidence to suggest that the employer knew that Baker was pregnant at the time that her employment was terminated. As a result, there was no breach of the Human Rights Code. Based on the evidence, the Tribunal concluded that VanDerMark had mistakenly thought that it would be less upsetting to her friend to think that her employment was terminated because of her pregnancy instead of her job performance, so she lied.

However, because VanDerMark’s text message could arguably constitute sexual harassment, the Tribunal considered whether the employer should be held vicariously liable for her behaviour. Ultimately the Tribunal recognized that under the Human Rights Code, a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment unless the employer was aware of the behaviour and failed to take reasonable steps to correct it. Given that the employer was unaware of the co-worker’s texts, it could not be vicariously liable for these actions.

This case is a good reminder for everyone – employers and employees – to think before they click send on any text or e-mail message. As this case demonstrates, trouble may be only one click away!

Baker v. Twiggs Coffee Roaster, 2014 HRTO 460 (http://www.canlii.org/en/on/onhrt/doc/2014/2014hrto460/2014hrto460.pdf).

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“Oh, what a tangled web we weave when first we practice to deceive.”

SCC Rules on Random Alcohol Testing at Pulp and Paper Mill

On June 14, 2013, the Supreme Court of Canada released its highly anticipated decision in Communications, Energy and Paperworkers Union of Canada, Local 30, v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (http://www.canlii.org/en/ca/scc/doc/2013/2013scc34/2013scc34.pdf). In its decision, the Supreme Court of Canada signaled for the first time that employers in safety-sensitive work environments may be justified in implementing random alcohol testing when there is a safety risk in the workplace due to alcohol, such as evidence of a general problem with substance abuse in the workplace.

Facts:

In 2006, Irving Pulp and Paper (“Irving”) adopted a new policy on alcohol and drug use at its kraft paper mill in Saint John, New Brunswick. The mill is acknowledged to be a dangerous workplace with malfunctions carrying the potential for “catastrophic failures”. As part of the new workplace policy, Irving instituted a random alcohol testing program whereby 10% of the employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. In the 15 years which preceded the introduction of this policy, there were only eight documented incidents of alcohol consumption or impairment at the mill. Moreover, there were no accidents, injuries or near misses connected to alcohol.

On March 13, 2006, mill employee Perley Day, was randomly selected to submit to a breathalyzer test. As Mr. Day does not consume alcohol, his test returned a blood alcohol level of zero. Shortly thereafter, the Union filed a policy grievance alleging that the random alcohol testing component of the new alcohol and drug policy was unreasonable; the Union did not challenge the other aspects of the policy.

The arbitration board found that although random alcohol testing may be reasonable in some circumstances, there was not sufficient evidence in this case of an existing problem with alcohol use in the workplace. On judicial review, the Court of Queen’s Bench of New Brunswick set aside the arbitration decision. The New Brunswick Court of Appeal dismissed the appeal.

The SCC’s Decision:

While there was no debate about the safety-sensitive nature of the workplace, the majority held that the dangerousness of a workplace is only the beginning of the inquiry, “[w]hat has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.” That said, Justice Abella, on behalf of the majority, went on to say that “[t]his is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.” Considering the particular facts before them in this case, the Court found that random alcohol testing was not justified in the context of the Irving paper mill in Saint John, New Brunswick.

The three judges in dissent noted that an employer should not be required to wait for a serious incident of loss to take proactive steps to mitigate risk.

Barbara B. Johnston and April Kosten represented the Construction Owners Association of Alberta, Construction Labour Relations – An Alberta Association and Enform at the Supreme Court of Canada. Please feel free to contact Barbara or April directly if you would like to discuss the implications of this decision.

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SCC Rules on Random Alcohol Testing at Pulp and Paper Mill

Ontario’s Pay Equity Commission Publishes Interpretative Guide to Pay Equity Act

Ontario’s Pay Equity Commission recently published an interpretative guide designed to help employers understand their obligations under the Pay Equity Act. Introduced in 1987, the Pay Equity Act’s stated purpose is “…to redress systemic gender discrimination in compensation for work performed by employees in female job classes.” It applies to all private sector employers in Ontario that have ten or more employees and all public sector employers.

In addition to setting out the requirements for achieving and maintaining pay equity, the Guide also highlights the pay equity office’s pro-active monitoring program which it has undertaken in recent years to ensure that employers are complying with their statutory obligations.

To access the Guide online, please visit: http://www.payequity.gov.on.ca/en/resources/guide/ope/index.php

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Ontario’s Pay Equity Commission Publishes Interpretative Guide to Pay Equity Act

Reviewing Ontario’s Workplace Violence and Harassment Law

In this article, Andy Pushalik reviews employer’s duties as they relate to workplace violence and harassment in Ontario.

On June 15, 2010, Ontario’s Workplace Violence and Harassment law came into effect. With this implementation deadline looming, employers rushed to take the necessary steps to ensure their compliance.

Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited.

To read the full article as published in Legal Alert, Vol. 31, No. 2, May 2012, click here.

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Reviewing Ontario’s Workplace Violence and Harassment Law

The Sweet Smell of Human Rights: Tribunal finds Employee Not Discriminated Against Due to Scent Sensitivities

The Human Rights Tribunal of Ontario has ruled that an employee with a hypersensitivity to certain scents did not experience discrimination in employment as a result of her employer’s inability to snuff out all smells in the workplace.

Susan Kovios has a scent and fragrance sensitivity. By all accounts it is severe. On January 14th, 2010, Kovios commenced employment with call center operator, Inteleservices Canada Inc. On January 18th, Kovios left Inteleservices’ office for good after experiencing severe reactions to the perfumes and colognes worn by her colleagues. In the human rights application that followed, Kovios alleged that Inteleservices had failed to accommodate her disability by failing to enforce its fragrance-free policy.

While it was unclear from the medical evidence whether Kovios’ scent sensitivity constituted a disability under the Human Rights Code, noting that Inteleservices was prepared to treat it as such, the Tribunal proceeded on the assumption that Kovios did in fact have a disability within the meaning of the Code. That said, given Kovios’ hypersensitivity, the Tribunal held that a more rigid enforcement of Inteleservices’ fragrance-free policy would have made little difference in the circumstances. In the Tribunal’s view, Kovios ”…required not only an environment free of noticeable scents, but an environment free of scents that were not detectable to others but affected her because of her ‘hypersensitivity.’”

In any event, apart from the strict enforcement of its fragrance-free policy, Kovios never explained to Inteleservices what accommodation she was seeking. As a result, the issue of whether Inteleservices had met its duty to accommodate was never engaged. On that basis, the Tribunal determined that Kovios had not been discriminated against. 

Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570.

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The Sweet Smell of Human Rights: Tribunal finds Employee Not Discriminated Against Due to Scent Sensitivities

Arbitrator Reinstates Sleepy Security Guard

An employer’s ambiguous disciplinary policy and lenient past disciplinary practice has caused it to lose an otherwise strong just cause dismissal case.

After several security lapses at its Port Huron uranium conversion facility, Cameco Corp. conducted a “security readiness test and audit” of its night shift on April 17, 2011. At approximately 3:30 AM two managers from Cameco’s Security Department breached the facility’s security perimeter. Although the breach set off an alarm and was captured by monitors in the main gate house, the would-be intruders were not intercepted. Instead, the managers were able to travel unimpeded to the main gate house where upon arriving, they discovered the Grievor, a plant guard and supervisor, and one of his subordinates fast asleep.

Both employees were fully reclined and had their feet up on the desk. The Grievor had also removed his safety boots.  It was subsequently acknowledged that the Grievor had watched a movie while on shift and that contrary to company policy, he had filled out his shift log at the beginning rather than the end of his shift. As a result, the Grievor’s log was not an accurate reflection of the assignments or events that had actually happened during his shift.

Given the Grievor’s multiple infractions of company policy and the significant safety risk posed by his dereliction of duty, Cameco terminated his employment, claiming just cause.

At the arbitration hearing that followed, the union denied that the Grievor had intended to fall asleep.  Alternatively, the union argued that the Grievor was ill and that he had only taken off his safety boots because his feet were sore.   The union further argued that Cameco should be prevented from relying on the Grievor’s movie watching and poor log keeping since Cameco had not instituted a clear policy on either of these matters nor had it consistently enforced any sort of rule regarding such conduct. However, most importantly, the union argued that because Cameco’s disciplinary policy listed “sleeping on the job” as misconduct which warrants only a verbal or written warning, it could not depart from its own policy and institute a punishment that was more severe.

Despite recognizing the importance of maintaining the facility’s security, the arbitrator nonetheless ordered the Grievor’s reinstatement (albeit to a lower level position and according to the terms of a “last chance” agreement). The arbitrator agreed with the union that Cameco had effectively condoned the Grievor’s conduct with respect to the movie watching and log keeping and therefore could not now rely on either of those matters in support of its decision to terminate the Grievor’s employment. The arbitrator ruled that the “Grievor’s falling asleep and apparent ‘nesting’, given his duties and the potential catastrophic consequences of his failure to attend diligently to them, is on the legal standard, just cause for termination”.  However, the ambiguity in Cameco’s disciplinary policy and its apparent past practice of issuing warnings to employees who had previously been found sleeping meant that the employer did not have just cause.

Cameco Corporation v United Steelworkers, Local 8562 -  http://www.canlii.org/en/on/onla/doc/2012/2012canlii2594/2012canlii2594.pdf

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Arbitrator Reinstates Sleepy Security Guard

Employee Fails to Mitigate Damages by Turning Down Employer’s Replacement Job Offer

An Ontario Judge has confirmed that an employee’s duty to mitigate may well include taking a job that is offered by the dismissing employer.

In June 2008, Aleem Ghanny was told by his employer that his employment as the Service Manager of a local Toyota dealership would terminate at the end of the month. However, at the same time, Ghanny was told that he would be relocated to a related dealership where he would continue as Parts and Service Manager and receive an identical compensation package. Despite the employer’s assurances that Ghanny’s seniority would be transferred to the new dealership which was located only a few blocks away from his current workplace, Ghanny rejected his employer’s replacement job offer and commenced a claim for wrongful dismissal.

Holding that Ghanny had acted unreasonably in rejecting his employer’s offer, the Judge dismissed Ghanny’s claim. Viewed objectively, there was no difference between the two positions nor was there any indication that the working conditions at the new dealership were demeaning or that Ghanny’s relationship with the owner or other employees had become difficult or acrimonious. Further, while Ghanny had expressed some concern over the future of the new dealership, the Judge noted such concerns were unfounded – “Even if the replacement job had only lasted nine months… that was still nine months of reasonably required mitigation.”

Ghanny v. 498326 Ontario Limited: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc3276/2012onsc3276.pdf

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Employee Fails to Mitigate Damages by Turning Down Employer’s Replacement Job Offer

My Friends are Your Friends? U.S. Court Rules that an Employer’s MySpace “Friends” List Can be a Trade Secret

In a decision that may one day be cited by Canadian courts on the extent of an employer’s rights over its social media properties, the United States District Court for Colorado has ruled that an employer’s MySpace Profile and “Friends” list can qualify as trade secrets.

In Christou et al. v. Beatport LLC et al., Regas Christou sued former employee turned rival nightclub owner, Bradley Roulier, for, amongst other things, theft of trade secrets. In particular, Christou alleged that Roulier had misappropriated the login information for the MySpace profiles of Christou’s nightclubs as well as their corresponding MySpace “Friends” lists.

Following a motion brought by Roulier to dismiss Christou’s trade secrets claim, the Court ruled that Christou had alleged sufficient facts to allow the claim to proceed. In so doing, the Court accepted Christou’s argument that the “Friends” list was more than a list of names; rather it was closer to a database of contact information:

“The names themselves, readily available to the public, are not the important factor. The ancillary information connected to those names cannot be obtained from public directories and is not readily ascertainable from outside sources, and thus this militates in favor of trade secret classification.”

In addition, having secured the MySpace profiles of his various nightclubs through web profile logins and passwords and expended some amount of money, time and resources into developing the list of “Friends”, Christou further bolstered the viability of his trade secret claim at this early stage in proceedings.

While this case dealt only with MySpace and therefore did not address other commonly used social media websites such as LinkedIn or Facebook, it nonetheless demonstrates the steps that employers should take to protect the social media accounts that have been registered on behalf of the company. In those circumstances, employers should be careful to limit access to the company’s social media profiles to only those employees who are responsible for establishing and advancing the company’s on-line presence. There is no reason for every employee to have access to the company’s on-line accounts. In addition, employers should also amend their policies and contracts to clearly indicate that the ownership of the contacts listed on these social media accounts rests with the employer.

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My Friends are Your Friends? U.S. Court Rules that an Employer’s MySpace “Friends” List Can be a Trade Secret

HR Professionals Bill Passes Second Reading

Ontario’s human resources professionals are one step closer to belonging to a true professional regulatory organization.

On March 1, 2012, Bill 28, The Registered Human Resources Professionals Association Act, 2012, passed second reading and was referred to the Standing Committee on General Government. The proposed legislation, which originally died on the order paper but was re-introduced following the election, has the support of all three political parties. If passed, the new law will give the Human Resources Professionals Association of Ontario (the “HRPA“) new investigation and disciplinary powers and will allow the HRPA to set membership qualification requirements. In addition, the legislation will also give the HRPA the authority to make by-laws establishing practice standards as well as guidelines for continuing education and other matters.

To read the bill, please visit: http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session1/b028.pdf

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HR Professionals Bill Passes Second Reading