We’ve all done it: snuck a peak at our Facebook timeline in between scheduling meetings; paid a phone bill online after a work call with a client; checked out a new lasagna recipe recommended by a co-worker before starting a lunch break.

Computers have become ubiquitous in the workplace and so too has their occasional use for employees’ personal purposes.

Computer Use and Time Theft At Work

For employers, catching a glimpse of Facebook’s telltale blue or personal e-mails on an employee’s office computer during working hours is frustrating. They’re supposed to be working, after all. Surfing the net isn’t what you’re paying them for!

At what point does an employee’s personal internet use during work hours become worthy of reprimand? Can an employee wasting work time browsing the internet for personal interests amount to time theft? The case of Andrews v. Deputy Head offers some sobering insights.

Andrews v. Deputy Head (Citizenship and Immigration Canada)

In this case, Franklin Andrews, a federal bureaucrat with Citizenship and Immigration Canada, drew international attention when his internet surfing at work caused a legal debate about time theft.

In 2009, after 27 years working for the government, Andrews was fired after it was discovered that he had been spending more than half of every working day surfing the internet for news, sports and even a substantial amount of porn.

Andrews appealed his termination to the Public Service Labour Relations Board. He insisted that he hadn’t been given enough work to do and was simply bored. He further pointed out that he had never missed a deadline and regularly received positive feedback about his work.

The lawyer representing the Department of Citizenship and Immigration argued that this egregious wasting of work time – and therefore taxpayer money – was as “fraudulent as falsifying a time card” and should therefore be considered time theft. The lawyer also suggested Andrews should have asked for more work if he wasn’t given enough.

The adjudicator, Kate Rogers, agreed that Andrews was in violation of workplace policies by downloading porn. However, she did not believe that he had committed time theft. She argued that frittering away time on the internet was not an overtly fraudulent act. Moreover, Rogers was astonished that such significant time-wasting had been overlooked for so long. Rogers decided that a long suspension would have been a more appropriate disciplinary action. She ordered that Andrews be reinstated immediately.

Takeaway for Employers

Employers may look at the Andrews case and despair. If the government wasn’t able to fire an employee for spending half of his working hours looking at news, sports and porn, what recourse does the average employer have to deal with improper computer use during working hours?

Cutting off internet access entirely isn’t an option in today’s business environment and blocking specific sites can be difficult to enforce. Furthermore, overbearing policies can create low morale if employees feel that they are not trusted.

Just because an employee’s computer isn’t open to a word document, spreadsheet or an Adobe product, doesn’t necessarily mean that they’re wasting your time. Employees may want to use their lunch or coffee break to browse freely. A quick peak at a photo of their nephew might be just the two-minute distraction an employee needs to reset their focus for the next two hours.

Workplace Policies Are Your Best Defense

Therefore, clear, comprehensive and well-communicated workplace policies are your best defense against improper use of workplace computers.

You’ll be hard-pressed to demonstrate that an employee went ‘too far’ in their personal internet use during work time if you don’t clearly define what appropriate and inappropriate amounts of personal internet us are.

Policies should therefore outline what is a reasonable and unreasonable amount of time to browse the internet for personal purposes and make clear what kind of content is and is not appropriate.

Workplace Policy Experts

KCY at LAW can help you create clear and enforceable workplace policies to protect your business interests while respecting your employees. Call us today on 905-639-0999 or contact us online to book your consultation.

Employers have a duty to accommodate the needs of their employees to ensure they have equal opportunities for, access to, and benefits from employment.

The need for accommodation in the workplace may arise for many reasons. An employee’s pregnancy, disability, health, caregiver responsibilities, or religious beliefs are all things that may require an employer to provide accommodations at one time or another. Accommodation may involve modifying your facilities (i.e. making them wheelchair accessible), policies and procedures, performance goals, or decision-making practices. Employers may also find it necessary to modify an employee’s job duties, training, or hours of work.

Pricinples of Accommodation For Employers – OHRC

The Ontario Human Rights Commission (OHRC) sets out three principles for proper and respectful employment accommodations. According to the OHRC, the best accommodations respect the individual’s dignity, respond to their individual needs, and empower them to fully participate and integrate in the work environment.

1. Dignity

Accommodations must respect the individual’s dignity. Consideration for an individual’s self-respect, self-worth, integrity and empowerment are essential to a dignified accommodation. This means that the accommodation an employer provides must not stigmatize or devalue the individual or their work. Accommodating an employee should not make the employee feel like they are a burden or of lesser value to their employer than any other employee.

This also means that employers should respect the privacy and comfort of the employee seeking accommodation. Disabilities and mental and physical health are often deeply stigmatized and employees have a right to expect privacy in these regards. Except for the circumstances of the most extreme suspicion, employers should not ask an employee seeking an accommodation for documentation or any further ‘proof’ of their need for an accommodation. The employee’s word is, almost always, enough evidence for the need for accommodation.

2. Individualization

Each person’s needs are unique and should be considered as such. Accommodation is not a one-size-fits-all solution. What is helpful to one employee may not work for another. While it is important to have general policies and procedures for accommodations, employers need to have a degree of flexibility.

Sometimes, providing an employee with an accommodation is straightforward: you facilitate a leave of absence or you allow an employee to start and end work half an hour early so they can pick up their child from daycare. However, finding the best accommodation is often a process. Employee’s accommodation needs are sometimes complex and inconsistent, especially when they relate to their physical and mental health. When this is the case, it may take some time, experimentation and flexibility in order to find the most dignified, individualized and empowering accommodation possible. Although it is not the job of the employee requesting accommodation to come up their own accommodation solution, they should be involved in the process. Since they know their needs better than anyone, their input is indispensable when coming up with an appropriate and practical accommodation.

3. Integration and Full Participation

Employees seeking accommodation are not looking for their employer to ‘take it easy’ on them. Rather, they are looking to be a fully contributing member of their team.

Therefore, accommodations should maximize individuals’ ability to fully engage in the workplace. As an employer, one of the best starting points in a conversation with an employee requesting an accommodation is asking how can I help you be successful at work? This question allows the employee to focus on their needs and decide how much they want to disclose about their situation. The success of your employees will be reflected in the success of your business. It is in your interest to accommodate employees’ needs to ensure they can fully participate in – and therefore contribute to – the workplace.

Principles of Accommodations Benefit All

Accommodations often benefit more than the intended party. Many workers will, at one time or another in their careers find themselves in need of an accommodation. Therefore, developing policies that are adaptive and inclusive will allow you to manage your staff in a way that is productive and enables them to be their best selves.

Employees Right To Accommodation In The Workplace

Employees have a right to accommodation in the workplace to the point of undue hardship to their employers. KCY at LAW can advise you of your rights, determine if they are being breached and advocate on your behalf. Call us at 905-639-0999 or contact us online to book your consultation today!

While the terms labour law and employment law are often used interchangeably, they are two distinct areas of Canadian law. To be fair, both labour and employment law are concerned with similar issues regarding the safe and equitable running of the workplace. However, there are some key differences between the two. Below is a brief overview of the two fields of law, labour law and employment law, and some of the differences between them.

What Is Labour Law?

Labour laws deal with collective bargaining, organized labour and unions. They govern the relationship between businesses and unions. In Canada, labour laws regulate the rights and obligations of trade unions and their members and address such issues as labour strikes and union organization disputes.

Unionized workplaces are governed by legislation such as the Ontario Labour Relations Act and the Canada Labour Code.

What Is Employment Law?

In contrast, employment law is concerned with the employer-employee relationship. This means employment law deals with individual employment contracts and the rights of employers and employees as individuals.

Minimum wage, leaves of absence, hours of work, vacation entitlements and notice periods for termination are all governed by employment law. Employment laws also regulate employers’ obligations regarding the health and safety of their employees with regards to everything from physical hazards to discrimination and harassment.

The main piece of employment legislation in Ontario is the Employment Standards Act. This ESA was recently overhauled in 2016 which introduced a raft of new changes to the workplace which employers and employees should be aware. You can read more about the Changing Workplace ESA review here.

Ontario Employment Law Specialists

The law team at KCY at LAW are specialists in Ontario employment law. We provide legal counsel, representation and advocacy with respect to a full range of employment law services for both employers and employees. To book your consultation, call us today on 905-639-0999 or contact us online!

There are many reasons an employer might want to monitor their employees’ workplace computer activities. Naturally, employers do not want their computers used for unlawful purposes or improper conduct such as information theft or harassment.

But what are your rights, as an employer, to monitor your employees’ workplace computer activities?

If you have a reasonable suspicion that the above behaviours are occurring, or if the business handled on workplace computers is of a sensitive nature, you may be able to monitor your employees’ workplace computer habits.

Employees’ Privacy Rights

In Ontario, employees have a general right to privacy in the workplace – including their workplace computer – unless it is explicitly stated otherwise in their employment contract. Because so much meaningful, private and intimate information about an employee is stored and reflected in their computer use, judges have overwhelmingly ruled that employees have a reasonable expectation of privacy when it comes to their workplace computers.

As demonstrated by the Supreme Court of Canada decision in R. v. Cole, it takes truly extreme circumstances to override this right to privacy.

Therefore, computer monitoring should only be employed as a last resort and with the greatest care.

Monitoring An Employee’s Workplace Computer

While there is no formal legislation governing the monitoring of employees’ workplace computers, privacy commissioners and arbitrators have developed various tests to determine if a certain type of employee monitoring is acceptable. Many of these decisions were initially made to address video surveillance but are now being applied to computer monitoring.

Generally speaking, in order to monitor an employee’s workplace computer use:

• There must be a legitimate concern that an offence is being committed and that computer monitoring will be an effective approach to solving this problem.
• Except for rare circumstances, it is necessary to alert employees to surveillance practices and obtain their consent. Individuals should know who is watching and why.
• Surveillance should be as limited as possible. General surveillance for an indefinite time is rarely acceptable.
• Surveillance should be conducted with a specific purpose and only used for said purpose.

Workplace Computer Surveillance

There are many tools available to employers who wish to monitor their employees’ computer habits. There is software that can monitor and analyze online searches, emails and web browsing. There are tools that can track keystrokes and take time-lapsed desktop screenshots.

But be weary, none of these methods distinguish between an employee’s private and business use of their computer and even accidentally recording employee’s banking transactions or personal emails is going to get you in hot water.

Workplace Policies and Practices For Computer Use

Clear and comprehensive workplace policies should be your first defence against employee misconduct on workplace computers.

Most importantly, your policies must balance your need for information with your employees’ right to privacy. Accordingly, your policies concerning computer use and monitoring should be necessary to meet a legitimate business need.

Overly invasive monitoring policies can be costly. As mentioned before, judges do not take kindly to unnecessarily invasive surveillance. Undue monitoring can quickly amount to constructive dismissal or worse.

Workplace Computer Privacy Conclusions

Workplace computer privacy remains an evolving legal area. Employers should consult with an employment lawyer before monitoring their employees in any way to avoid legal risks.

KCY at LAW will give you the security of mind that your workplace computer privacy policies will support your business interests while protecting you against legal action. To book your consultation, call 905-639-0999 or contact us online.

That’s enough. I’m walking out that door right now and never coming back.

The above thoughts have likely crossed the minds of many a frustrated employee. Indeed, in the moments when you’ve had it up to here with your job, there’s something very tempting and liberating about the thought of swift and unceremonious departure.

But take it from the experts at KCY at LAW’s employment law firm, you’d be well-advised to take a deep breath in these moments of anger before taking any rash actions.

What is a Wrongful Resignation?

If you haven’t heard of a wrongful resignation, don’t worry, you’re probably familiar with its sister concept: wrongful dismissal. When terminating an employee without cause, employers have a duty to provide reasonable notice or pay in lieu thereof. Failure to provide an employee with either leads to what is called a unlawful wrongful dismissal. A wrongful resignation is essentially the same thing as a wrongful dismissal, except that it is the employee who has failed to provide the employer with reasonable notice of their intention to quit their position.

The issue of wrongful resignation doesn’t come up that often since employers don’t usually suffer much loss, if any, for losing an employee without notice.

Employee’s Reasonable Notice Obligations

Formally, there is no specific legal requirement under the Employment Standards Act or any other employment legislation for an employee to give two weeks or any other prescribed amount of notice of their intention to resign from their job. However, employees are required to give reasonable notice and it is also possible for them to have a contractual obligation to provide a certain amount of notice of their departure.

Even if an employee does not have a contractual obligation to give reasonable notice of their resignation, they may still be liable for damages should their unexpected departure cause a significant loss to their employer.

Wrongful Resignation or Not?

When deciding whether an employee’s departure was a wrongful resignation, the courts will consider what the reasonable notice should have been based on how long it would take the employer to find a replacement for the resigning employee. The employee’s position, length of service and the amount of time it would take to replace them will all be considered in this decision.

For example, it is much easier for a restaurant owner to find a replacement dishwasher than it would be for a tech company to replace a senior program developer who had been at the company for several years.

Determining Damages for Wrongful Resignation

When determining the damages owed to an employer by an employee that has wrongfully resigned, the courts may consider:

• Advertising costs for the vacant position
• Placement agency fees
• Overtime costs to other employees who must cover the resigned employee’s shifts or duties
• Business losses

These damages would all be offset by the money a business saves by not having to pay the former employee during what would have been the reasonable notice period.

The Cost of Wrongful Resignation – Gagnon & Associates Inc. et. Al. v Jesso et. Al.

The costs to employees who wrongfully resign are well illustrated in the case of Gagnon & Associates Inc. et. Al. v Jesso et. Al..

Gagnon & Associates hired Mr. Jesso in 1996 for their shipping department. However, Mr. Jesso quickly worked his way into a sales role and by 2006 was the company’s top sales associate. Alone, Mr. Jesso accounted for 30% of Gagnon & Associates’ total sales. In 2006, while still employed with Gagnon & Associates, Mr. Jesso found employment with a competitor and tendered his resignation, effective immediately, to begin working for the other business.

Gagnon & Associates subsequently lost clients to this competitor and had a hard time finding an equally experienced sales associate. At trial, Gagnon & Associates argued that Mr. Jesso’s abrupt resignation did not give them adequate time to transition the position and had cost the company significant sales.

Mr. Jesso insisted he wasn’t a manager and didn’t have any fiduciary obligations to the company and therefore hadn’t owed any notice. Agreeing with Gagnon & Associates, the judge determined that reasonable notice would have been two months because of Mr. Jesso’s long tenure with the company and his invaluable sales expertise. Mr. Jesso was ordered to pay Gagnon & Associates $35,164.

Wrongful Resignation Takeaway for Employees

Before resigning without notice, employees – especially those in senior or specialized positions – should first consult with an employment lawyer to determine any obligations, contractual or otherwise, they may owe to their employer. KCY at LAW will make sure that you know your resignation rights and obligations to guarantee you a smooth and successful employment transition. Call us today on 905-639-0999 or contact us online to book your consultation.

What is Employment Equity

The term employment equity was first introduced in 1984 by Supreme Court of Canada Justice Rosalie Abella in her Royal Commission Report. This report noted that certain groups of people – women, Aboriginal Peoples, visible minorities and persons with disabilities – faced systemic discrimination that kept them from accessing well-paying jobs. The report acknowledged that discrimination was rarely intentional, but that it was nonetheless woven into the very fabric of most businesses’ employment policies and practices.

The report did not place blame on any individuals. Rather, it argued that many common and seemingly neutral employer practices around hiring, retaining and promoting employees unintentionally disadvantaged the above-noted groups of people.

Therefore, the commission prescribed a systemic solution of employment equity to remedy the disadvantages faced by these groups of people. Justice Abella explained that employment equity is an ongoing process. It requires that we identify and eliminate barriers to people’s full participation in the workplace by enacting positive policies to facilitate their inclusion so that all areas of the workforce reflect broader social demographics.

Why Employment Equity?

History has shown that, without government oversight and legislation, businesses and organizations are not good at ensuring employment equity on their own. Before employment equity laws were passed, few companies voluntarily evaluated and changed their hiring and employment practices to ensure equitable opportunity for marginalized groups.

Employment Equity Act

Following the recommendations of the Abella Report, the purpose of the 1995 Employment Equity Act is “to achieve equality in the workplace” to ensure that no one is denied employment opportunities for reasons other than their ability to fulfil their role’s job requirements. But the Act is about more than meritocracy. It’s about correcting the systemic conditions that disadvantage women, Aboriginal Peoples, visible minorities and persons with disabilities.

The Employment Equity Act recognizes that what is fair is not necessarily that which is equal. The Act acknowledges the need to take special measures to remedy past inequities and accommodate differences in order to make the workplace just and accessible to all.

Employer Obligations under the Employment Equity Act

Employer’s obligations under the Employment Equity Act are twofold:

1. Identify and eliminate employment barriers in their employment and workplace policies and practices.
2. Institute positive policies and practices and make reasonable accommodations to ensure designated groups achieve representation across all sectors of their business proportional to these groups’ representation in the overall workforce.

To start, employers need to determine the degree to which women, Aboriginal Peoples, visible minorities, and persons with disabilities are underrepresented in all occupational areas of their workforce. For example, since women make up 50% of the population, they should make up roughly 50% of management, 50% of HR, and 50% of sales roles. It is not enough to say that half of your employees are female if none of these female employees are in management positions.

Next, employers shall review their policies and practices to identify potential barriers to employment and opportunity (such as promotion) to these groups. For example, a potential barrier to a person with a disability may be the accessibility of your offices or policies prohibiting working off-site.

The Myth of Quotas – Employment Equity

When talking about employment equity, the topic of quotas or affirmative action are often brought forth to suggest that employment equity privileges one group of people by taking away opportunities from another group.

This is not the case. Employment equity does not involve hiring quotas or affirmative action.

Employment equity is about correcting injustices and creating a level playing field, not favouring one group over another. It simply requires employers to look at their workforce and set goals to make it match the overall composition of the broader workforce over time.

Furthermore, employment equity does not require employers to hire unqualified individuals. Employment equity does not hinder employers from setting bona fide qualifications for the job. Employers do not have to hire or promote anyone beyond their demonstrated job abilities. Finally, while employers are expected to make reasonable accommodations to facilitate the full participation of all people in their business, they do not have to incur undue hardship that would negatively impact their operations or business in order to do so.

Employment Equity Legal Experts

KCY at LAW has the expertise to help you take advantage of the diverse talent that is a feature of the equitable workplace. We can help you identify barriers to meeting your equity goals and craft policies and procedures that will help transition your workplace into one that is equitable without compromising its success. Contact our employment law team now by calling (905) 639-0999 or contact us online for more info.