Law Times

Law Times • November 17, 2008 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On LABOUR & EMPLOYMENT LAW Four major cases put legal brains to test SCC 'shocked' employment community BY JUDY VAN RHIJN For Law Times t's been a big year for employment law at the Supreme Court of Canada. Four major cases have been putting legal brains to the test, resulting in clarification and controversy for employers with respect to their duty to accommodate disability, and for employees in their duty of good faith and duty to mitigate damages. If there has been a theme for 2008, Jeffrey I Goodman of Heenan Blaikie LLP's Toronto office says that it has been very conservative decisions in favour of employers. "This Su- preme Court has shocked the employment community. Before this year, people saw it as a left-leaning court that savoured employees. This is not the Supreme Court that many people thought it was." In looking at the individual cases, his other comment is that "extreme facts lead to extreme law." All of the decisions have out- comes applicable to a very narrow fact situ- ation and it is impossible to foresee whether the jurisprudence they have generated will be relevant in less extreme situations. First off the roster was Evans v. Teamsters Local Union No. 31, on May 1. This case came out of Whitehorse where Evans, a busi- ness agent with the union for 23 years, was dismissed without notice. He did not find other employment and after unsuccessful ne- gotiations the union offered, or demanded, that he return to work for a 24-month notice period. Evans demanded that certain condi- tions be met first, including that his wife got a particular position in the union, and the union refused to agree. The trial judge in the Yukon Territory Supreme Court found that Evans had been wrongfully dismissed and the union had not proven that he had failed to mitigate his damages. The Court of Appeal set aside the damages of over $100,000 and found that he had not acted reasonably with respect to the job offer, and this constituted a failure to mitigate. The majority of the Supreme Court agreed, applying an objective stan- dard but adding: "It is extremely impor- tant that the non-tangible elements of the situation — including work atmosphere, stigma, and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation." Goodman says although there has been authority for the proposition that an em- ployee may be required to return to the same job to mitigate his or her damages, this is the first case where the employer has demonstrated that it was unreasonable to refuse to do so. "It is easy for an employee had to admit that there was no humiliation. These are extraordinarily narrow circum- stances." Goodman believes that on a going- forward basis, counsel will have difficulty finding another case that will satisfy all the factors which the Supreme Court confirmed as relevant. "This was the per- fect storm-type case — the perfect facts to say you have to return." Next to hit the news was Honda Canada Stacey Ball says a recent B.C. decision 'reconfirms a number of employment law tenets.' where there have been changes made to the employment situation to make a viable argument that there is humiliation or the relationship has been destroyed. Evans was asked to return to his exact same job and Inc. v. Keays. On June 27, the Supreme Court knocked down what had been the largest punitive damages award ever in employment law, finding that while Honda had wrong- fully dismissed Kevin Keays, it had not acted with malicious intent requiring correction by punitive damages. Goodman believes that the lower court's calculation of damages was premised on the concept of a conspiracy by Honda to get rid of Keays by refusing to recognize his medical notes and forcing him to go to the doctor. "The Supreme Court said, 'No.' When the absences exceeded the number predicted by the leading expert and the family doctor's notes had become vague and self-reporting in nature, the employer had a right to chal- lenge the notes. Ultimately that lead to his termination and didn't give rise to damages See Court, page 12 New technology means new privacy issues BY JUDY VAN RHIJN For Law Times I price f the burden of protecting cus- tomer and employee informa- tion wasn't enough, an added for embracing the wired world is being paid in the scourge of identity theft, time theft, cy- ber-bullying, pornography, and libel issues that are afflicting the workplace. How the employer's interests interact with privacy laws is still developing as more techno- logical troubles emerge. Colleen Dunlop, of Emond Harnden LLP in Ottawa, spends much of her time addressing the challenges that employers face in their clash with computers and the internet. "As wonderful as they are, everything has a negative side, and there are a whole list of head- aches for employers," she says. At the top of Dunlop's list is time theft by employees. "Em- ployees are wasting 1.6 billion hours a year in what we call cyber- slacking — surfing the net, play- ing games, chatting to friends, and misusing e-mail. Employers need to have some policies in place set- ting out when, how, and what the employee can access through the company computer or even lap- top." Dunlop advises that it is ac- ceptable to say "no personal use" via a policy of zero tolerance. "Most employers allow some per- sonal use but in breaks and lunch periods. Certainly if individuals abuse that concession the employ- er is perfectly within their rights to suspend personal use altogether." Dunlop believes the employer should make employees aware of what the company's policy is, and that it will be enforced with spot audits. "Monitoring software can tell you exactly where they went, the time they went there, and what information they saw. You can pull up reports that show that people have spent hours and hours not doing work. It's compelling evidence." Of course, privacy is the buzz- word these days, but Dunlop says employees should have no expec- tation of privacy when using work computers, even when they have permission for some private use. "It is reasonably settled law that there is no expectation of privacy and there is a good reason for this. It is the employer's responsibil- ity to provide a harassment-free workplace. If someone is sending coloured jokes or other inappro- priate e-mails outside the com- pany, or if a co-worker walks by and sees pictures of naked women being downloaded, that can create a poisoned work environment," she says. Dunlop does caution employ- ers to warn employees that they will be monitoring e-mails sent during work time. "Under the Criminal Code it is an offence to intercept private communica- tions. You have to give individuals notice that you are using monitor- ing software." Cyber-bullying co-workers is another misuse of company com- puters, along with cyber-venting, that is, when an employee ex- presses negative remarks about their employment online. "The employer needs to know its rights and obligations to choose the ap- propriate corrective action," says Dunlop. She refers to two recent cases where an arbitrator has upheld the employer's right to engage employees in such cases. In EV Logistics v. Retail Wholesale Union, Local 580, the grievor was termi- nated for posting racist remarks referencing the employer on his personal computer. The board gave him a six-month suspension because there was a nexus between the activity and the employer and a legitimate business interest being affected. An Ontario case of cyber-vent- ing is Chatham-Kent (Municipal- ity) v. National Automobile, Aero- space, Transportation and General Workers Union of Canada, Local 127 in which a personal caregiver at an old age home created a per- sonal web site and posted deroga- tory comments about colleagues and residents. The arbitrator up- held her termination because the entries were damaging to the rep- utation of the employer, breached the confidentiality of the patients of the facility, and was so insub- ordinate to management that the employment relationship had ir- retrievably broken down. Although in these cases the in- ternet acted as a weapon against the employer, Dunlop reminds her clients that it can also be used as a tool. She counsels them to scan social networking sites as a source of information to check See It's a, page 12 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM PAGE 9

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