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Labour & employment law column by Robert Smithson

Spying Boss Poisons Workplace

 
When it comes to the workplace, it’s fair to say the employer has the authority to take some liberties in monitoring the activities of employees. According to an Ontario judge, surreptitiously spying on a manager isn’t one of them.
 
Colleen Colwell was a commercial manager of the Oxbury shopping mall, working for Cornerstone Properties Inc. Colwell had been employed by Cornerstone for over seven years.
 
She performed her duties out of an office located in the shopping mall and was responsible for the management of mall maintenance staff. There was no issue with her performance of her duties.
 
In August of 2004 she learned that her immediate boss, one Trent Krauel (the Vice President of Finance) had secretly installed a video camera in the ceiling of Colwell’s office. By that point in time, the camera had been in place for approximately 10 months.
 

Are Overtime Class Actions History?

 
In 2007 a group of current and former CIBC employees launched a class action lawsuit claiming over $500 million in damages for unpaid overtime. Two years later, that class action has been rejected by an Ontario court, perhaps signaling the end of such claims.
 
Dara Fresco was the named plaintiff on behalf of over 31,000 current and former front line service workers in over 1,000 retail branches of the Canadian Imperial Bank of Commerce. The action claimed CIBC breached its statutory and contractual obligation to pay the appropriate overtime rates.
 
In brief, the claim alleged that CIBC’s overtime policy purported to excuse it from paying overtime and did not allow for payment of overtime to employees who were routinely required to work extra hours. 
 

Employees Can't Hide on the Internet

 
It seems, from my perspective, to have become fashionable for employees to publish critical comments about their employer (or former employer) on the internet. In many instances, these publications are accomplished using a pseudonym.
 
The nature of the comments can cross the boundary into being legally actionable for, as an example, defamation. What the publishers of these comments don’t seem to understand is that using a pseudonym when violating the rights of others may not protect them from legal liability.
 
As internet networking sites became more prevalent as a forum of social interaction, it was perhaps inevitable that the commentary they contain would stray over into workplace issues. After all, if the internet is now just another venue for “chat”, then why wouldn’t people want to discuss what they like (and more often) dislike about their workplace?
 

Avoiding a Workplace "Tragedy of the Commons"

 
Garrett Hardin’s dilemma of the “tragedy of the commons” states that multiple individuals who act in their own interest will tend to destroy a common resource. Employers should be looking to avoid a workplace version of this “tragedy”.
 
The scenario by which Hardin’s theory is often explained is that of cow herders sharing a common, finite parcel of grazing land. The grazing pasture will support only a limited number of cows.
 
But, human nature being what it is, individual herders will tend to put as many of their own cows as possible into the common grazing pasture. The benefit of taking more than one’s share is enjoyed exclusively by the individual herder while the cost (being the gradual degradation of the grazing land) is spread amongst all the herders.
 
In a nutshell, one or more persons acting selfishly will eventually ruin the resource for everyone.
 

Employees, Contractors, and In-Betweens

 
In the employment world there are employees, contractors, and what I call in-betweens. The category into which an individual falls will have a substantial impact on his or her entitlements upon the termination of the relationship.
 
Reasonable working notice is the basic pre-termination entitlement of most employees. This entitlement is an implied term of the relationship unless it is altered by a binding employment contract. If reasonable working notice is not provided, the employee is entitled to pay in lieu of notice (commonly referred to as severance pay).
 
At the other end of the spectrum live true independent contractors. These individuals are clearly in business for themselves and are not, aside from the service relationship, a part of the principal’s business organization. These individuals typically are not entitled to reasonable working notice of termination of the relationship.
 

Are Courts Cracking Down on Dismissal Damages?

 
In the world of employment law, awards of pay in lieu of notice are the bread and butter of judicial decisions. As those awards relate to shorter service employees, we may be entering an era of rationing.
 
The factors normally considered by a judge in making an award of pay in lieu of reasonable working notice are the employee’s age, length of service, type of position (usually focusing on the managerial versus non-managerial divide), and the availability of similar employment.
 
Quite arguably, the most important factor is the employee’s length of service. Other extenuating circumstances can have a significant effect on the award of damages, but lawyers and judges alike seem to gravitate towards length of service as the governing criterion.
 
Generally, longer serving employees will be rewarded with greater damages in lieu of notice. But over time a trend has developed by which shorter term employees have received disproportionately high damages.

Of Pick-up Hockey and the Workplace

 
The pick-up hockey group strikes me as a quintessentially Canadian phenomenon. It comprises a group of casual players, usually not of extremely high calibre, getting together on a regular basis to play the game they enjoy.
 
Maybe there are pick-up hockey groups in small towns in Russia and Sweden and other countries, too, but I still think of it as a Canadian tradition first. There are probably games happening in every town and city from Victoria to St. John’s as I write this.
 
The key to a pick-up hockey group is that, because there is typically no referee, the game depends upon the commitment of each player to operate within certain unspoken boundaries. There are, I think, four key factors governing the pick-up hockey group and determining whether it will thrive.
 

Managing the Risk of Constructive Dismissal

In this period of economic decline, many employers are faced with the need to restructure their workforce. Unfortunately, imposing unilateral changes upon employees raises the risk of constructive dismissal claims.
 
Cowed by lawyers’ warnings, many employers will shy away from the structural changes needed for business survival. My own view is that business changes can be effectively managed to limit the risk of legal liability.
 
When an employer unilaterally imposes substantive changes to an employment contract, the employee sometimes has the right to treat those changes as a termination. Such a “constructive” dismissal is every bit as real as if the employee were actually informed of the termination, and gives rise to the same right to claim damages in lieu of notice. 
 

Unions Adjusting To New Reality

It appears that the Canadian Auto Workers (CAW) have reached a deal which will provide Chrysler LLC’s survival plan with a chance of success.  The ramifications of this deal will go far beyond the walls of Chrysler’s production facilities.
 
According to published reports, Chrysler needed to reduce its labour costs by $19 per hour. That reduction represents more than the total hourly wage of many Canadians. The fact that there was that much excess to carve off – without touching base wages - says a lot about what got this company in its present financial bind.
 
The cuts are to peripheral benefits to Christmas bonuses, employee car purchase discounts, tuition rebates, hospital coverage, and supplementary unemployment benefits. Paid break times will also be reduced and wages will increase at a slower rate than previously.
 

When Work Really Becomes A Prison

It’s not all that often that something really different happens in the world of wrongful dismissal. But, just when an employment lawyer thinks he’s seen everything, another weird situation pops up.
 
An employee claiming false imprisonment against his former employer would certainly fall within that category. It goes to show just how inventive employers can be in finding new ways to create liability for themselves.
 
Jatinder Kalsi was a long-time employee of Greater Vancouver Associate Stores Ltd., operators of the Canadian Tire store in New Westminster, B.C. He had started at the age of on the store’s clean-up staff then progressed to an automotive apprenticeship and, 16 years later, was a journeyman mechanic.
 
Kalsi was regarded as the “top man” in the Canadian Tire store’s service department. He was considered a good employee, an above average technician, and had never been a problem for his employer.
 

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