You are here

Labour & employment law column by Robert Smithson


March 25, 2011 will mark 100 years since the infamous Triangle Shirtwaist Factory fire galvanized a movement for social justice. To some, 100 years will seem like a long time but, to others, it may seem like time has barely passed.

It was a Saturday afternoon in New York City, and hundreds of female garment workers prepared to head home at the end of their long workday. One hundred and forty-six of them would not make it out of the workplace alive.


It seems, more and more often, the subject of my articles is related to the impact of technology on the workplace. One aspect that has triggered an ongoing battle – on the privacy front – is technology allowing the employer to track the whereabouts of employees.

People haven’t really embraced the concept that their employer may be able to track their location during the workday. They seem to consider their whereabouts to be personal information and the employer’s use of technology such as a GPS as an invasion of privacy.


In the last week, newspapers have reported the RCMP have launched a crackdown on drivers operating cellular telephones, and that a Toronto bus driver was allegedly caught texting while behind the wheel of a moving bus. Surely, for all employers (and especially those whose employees operate any kind of equipment), the issue of electronic distractions from work duties is significant.


The CBC has reported a Winnipeg waitress named Stephanie Lozinski alleges she was fired from her job as a result of shaving her head. It went on to state that the Manitoba Human Rights Commission has turned down Ms. Lozinski’s resulting human rights complaint.

The CBC’s story contains Ms. Lozinski’s allegations that she was employed as a server at a St. Boniface-area restaurant. She was reported as having, on New Year’s Eve, shaved her head in support of an uncle dying from cancer.


A recent family vacation in Hawaii gave me a reason to think about liability waivers. What I thought was that, no matter how good your company’s liability waiver might be, your employees may be undermining its value.

Properly Implemented Employment Contracts Save Money

January is a great time of year for employers to focus on the basics of the employment relationship. A cornerstone of that relationship is a properly implemented, written employment contract.

One of the key rules about employment contracts is that (to use the legal term) there must be “consideration” flowing to the employee in exchange for accepting the employer’s terms. This consideration must exist in order for the employment contract to be binding on the employee. Typically, the consideration flowing to a new employee is the offer of employment itself.

Office pools easy as long as they’re losing

As some Bell Canada lottery players are discovering, office pools are all fun and games as long as they are losing. It’s when there is suddenly a pot of money at stake that things get complicated.

What’s so personal about employees’ whereabouts?

The advent of personal information legislation across Canada has provided employees with a mechanism to challenge their employer’s monitoring of their activities. In at least one context, however, employers’ use of monitoring technology has been upheld. Employers operating fleets of vehicles surely appreciated the development of global positioning systems (GPS) and mobile data terminals (MDTs). The effective use of such monitoring systems has allowed employers to hone the efficiency of their mobile fleets.

Using facebook for disrespectful, damaging and derogatory purposes

As I wrap up my “Legal Ease” series of articles this week, it seems fitting to address one of the latest emerging problems for employers. Employees’ use of social media websites, such as Facebook, to make negative comments about their employer has become a real headache.
It seems to have become fashionable for employees to publish critical comments about their employer (or former employer) on the internet. The nature of the comments often crosses the boundary into being legally actionable for, as an example, defamation. 
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 mention what they like (and more often) dislike about their workplace?

When Terminating For Cause, Measure Twice And Cut Once

It is a rare employer who is not aware of its employees’ entitlement to reasonable working notice of termination (or pay in lieu thereof). At the same time, it also seems to be a rare employer which has a full grasp of the other costs which can arise upon termination.
That is perhaps because most employees who are terminated (on a without cause basis) are owed little more than some pay in lieu of notice at the time of termination. A smaller category of employees has a range of other entitlements and these can be quite valuable.
The reason for these other entitlements arises out of the law of wrongful dismissal. It requires an employer to provide reasonable working notice of termination and, during that notice period, to maintain all existing terms and conditions of employment.
If the employer decides to terminate abruptly (without working notice), its obligation is to put the employee in the position he or she would have been in had the working notice been given. In many cases, that simply amounts to paying out wages equivalent to what the employee would have earned during the working notice period.


Subscribe to Labour & employment law column by Robert Smithson