Computer Use and Time Theft At Work

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.

Reprisals Outline and Protections for Employees

Have you ever been afraid to speak up for your employment rights? Maybe you work on a construction site and you feel the work you are being asked to do is too dangerous or doesn’t comply with health and safety standards. What do you do? Naturally, you want to bring these concerns to your employer or boss’s attention, but what happens if you do? What if they don’t care? What if they get upset and cut back your hours or fire you?

Fear not! There are protections against just this sort of reprisal written directly into employment legislation. These protections exist to make sure no employee is intimidated against exercising their legal rights.

Protections for Employees

Most employment protections, such as those in the Employment Standards Act (ESA) and Canada Labour Code, include a prohibition on retaliation against an employee who tries to access their entitlements. Other legislation that provides protection against reprisals include the Human Rights Code, Workplace Safety and Insurance Act and the Occupational Health and Safety Act.

What is a Reprisal?

According to the Ontario Human Rights Commission, a reprisal is “an action, or threat, that is intended as retaliation for claiming or enforcing a right under the Code.”

A reprisal therefore occurs when an employer threatens or takes disciplinary action in response to an employee claiming or trying to claim their employment and/or human rights.

Examples of a reprisal include reduced work hours, unwarranted poor performance reviews, formal reprimands, demotions and even terminations.

Prohibited Grounds for Reprisals

Prohibited Grounds for Reprisals - KCY at LAW Employment LawyersThe main protections for Ontario employees are set out in Section 74 of the ESA. You may not penalize an employee – or threaten to do so in any way – if the employee:

  • Asks you to comply with the ESA
  • Inquires about their rights under the ESA
  • Files a complaint under the ESA
  • Exercises a right under the ESA
  • Provides information to an employment standards officer
  • Participates in a proceeding under the ESA
  • Takes, is eligible to take or plans to take a leave of absence

If you punish or threaten to punish an employee for any of the above actions, you will have to compensate the employee for any loss incurred due to a violation of the ESA.

While employees who have lost or left their jobs because of reprisals may be reinstated, the work relationship has usually been poisoned beyond repair by that point. Therefore, it is often determined that the employee has been terminated and is entitled to appropriate termination pay.

An important thing to note about the laws concerning reprisals is that it does not matter whether or not the complainant’s attempt to enforce his or her right is founded. Regardless of the merits of a person’s claim, an employer cannot reprimand the employee for making the claim.

Mediclean Inc. v. Mendoza

The following case of Mediclean Inc. v. Mendoza is one example of the cost to employers should they punish their employees for exercising their employment rights.

Mendoza was employed as a cleaner with a company called Mediclean. Shortly after she started working for the company, she was assigned to a more difficult work area and promised additional pay as compensation. However, her employer later refused to pay her extra hours or proper overtime pay.

Mendoza went to an employee advocacy centre where a lawyer wrote to Mediclean requesting them to comply with the ESA. Shortly thereafter, Mendoza received a written warning of poor performance and was assigned to be retrained. Mendoza quit and filed a claim under the ESA for her outstanding money. She also insisted that the retraining and performance review had been a reprisal for seeking to recover her ESA entitlements. She further argued that her employer’s actions had amounted to a constructive dismissal.

The Ontario Labour Relations Board agreed with Mendoza that she had been wrongfully penalized for claiming her ESA entitlements. Mendoza was awarded her outstanding wages, in addition to wages for the period of time between the day she quit and the day she found a new job three months later. Additionally, because she was determined to have been dismissed, she was entitled to termination pay.

Reprisal Info for Employees - KCY at LAW Employment Lawyers

Reprisal Info for Employees

Your legal rights and health and safety are paramount. You have every right to assert your legal rights in the workplace without fear of retaliation.

KCY at LAW helps employees stand up for their rights and take action against illegal employment practices. Our professional team will be your advocates and advisors from the moment you step into our office until your final settlement. Call us today to book your consultation! 905-639-0999

Principles of Accommodation in The Workplace

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

Principles of Accommodation for Employers - OHRC - KCY at LAWAccommodations 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.

Employees Right to Accommodation in the Workplace - KCY at LAW

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!

Tattoos and Piercings In The Workplace

Whereas tattoos, Crayola-coloured hair and prolific facial piercings were once an aesthetic reserved for punks, goths and other subculture groups, these body modifications have become commonplace in mainstream Canadian culture. For example, an estimated 38 per cent of millennials have tattoos and the trend towards an inked-up epidermis isn’t showing signs of slowing.

Despite their growing popularity and visibility, many workplaces still prefer that their employees do not have visible tattoos or piercings beyond their ears. But as an increasingly tattooed and pierced generation comes to dominate the workforce, so too do their sensibilities about acceptable presentation and self-expression.

Which raises the question: do employers have the right to discriminate on the basis of body modifications such as tattoos and piercings when hiring employees?

Appearances and Hiring in Canada

Given Canadian culture’s ever-growing tendency towards the celebration of differences, it may surprise you to learn that, when it comes to hiring, employers have every right not to hire someone because they are tattooed or heavily pierced. So long as the tattoos or piercings are not part of an ethnic, religious or tribal custom, the Human Rights Act and the Charter of Rights and Freedoms do not apply to employers’ hiring choices with regards to body modifications.

Tattoos and Piercings In The Workplace in Canada- KCY at LAW

Tattoos and Piercings in the Workplace

Once an employee is hired, employers do not have the same discretion to impose strict rules regarding visible tattoos and piercings.

Employers do have the right to exercise their own discretion when asking their employees to remove piercings or cover up tattoos. However, significantly restrictive rules concerning piercings and tattoos should have a reasonable business purpose. Therefore, employers should ask themselves if their rules relate to the achievement of their company’s purpose.

Recent decisions from Ontario and Quebec judges have begun to clarify the limits of employers’ discretion when setting workplace policies concerning tattoos and piercings.

In 2013, the Ottawa Hospital changed its dress code to require all staff (including those who did not work directly with patients) to cover all “large” tattoos. The new policy also required that staff remove “excessive body piercings.” The Ottawa Hospital argued that patients were less comfortable with tattooed and heavily pierced healthcare workers and that this could lead to stress and negative health outcomes. While the hospital argued that these measures were to ensure better patient health, the arbitrator found that these new regulations were too restrictive. Moreover, the arbitrator could find no evidence to support the supposed link between hospital workers’ body modifications and patients’ health outcomes and was therefore found to be unenforceable.

The Ottawa Hospital decision was consistent with a 2011 arbitrator decision that found an Ontario Provincial Police policy requiring all 9,000 of its police officers to cover visible tattoos was too broad to be enforceable.

Going further back, in 2009, a Quebec judge determined a daycare’s blanket prohibition on visible tattoos to be unreasonable. The judge granted that, while it was fair for the daycare to prohibit visible tattoos with inappropriate images for children, their insistence that an employee with a butterfly on her arm wear long-sleeves in the summer was overreaching.

Tattoo and Piercing Workplace Policies

Tattoo and Piercing Workplace Policies

Employers should consider if having visibly tattooed and/or pierced employees is likely to negatively impact their business interests.

Naturally, an employer does not want their employees’ appearance to be upsetting or off-putting to their clients or customers. It is fair for employers to require employees to cover tattoos that would reasonably be seen as inappropriate such as tattoos that depict hateful messages, or graphic violence or sexuality. Asking an employee to cover offensive tattoos is fine but sweeping prohibitions on tattoos and piercings may be found to be unreasonable if brought to arbitration.

Workplace tattoo and piercing policies should therefore:

  • Be applied consistently across race and gender
  • Never discriminate based on religious or ethnic beliefs
  • Distinguish between employee roles (i.e. those that do and do not interact with customers or clients)

Workplace Dress Code Policies

KCY at LAW has significant experience helping employers craft fair and enforceable workplace policies that will protect your business interests while respecting your employees’ rights to individual expression. To book your consultation, give us a call on +001 905 639 0999 or contact us online today!

Employment Law vs Labour Law: A Brief Explainer

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 Labour Law - Labour Law Canada - KCY at LAW

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.

What Is Employment Law - Employment Law Canada - KCY at LAW

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!

Notice Periods – 5 Questions About Notice of Termination

Things just aren’t working out with that one employee. A slow economy forces you to downsize. There’s a new piece of technology that will do the work of one of your employees twice as fast and for half the price.

Whatever the reason, at one point or another, most employers have found themselves in a position where they need to terminate the employment relationship with one of their employees. Then what?

5 Common Questions About Notice of Termination

Common Questions About Notice of Termination Ontario - KCY at LAWYou know you have obligations to your employee if you are going to terminate them without cause but what are they? How much notice do you owe? How much termination pay must you give?

You can find answers to these, and other questions about termination notice below.

1. Who is Entitled to Notice of Termination?

The first question employers will have to consider is if the employee you plan to terminate is entitled to notice.

Any employee who you have employed for at least three months on an indefinite term contract is entitled to reasonable notice of their termination. The Employment Standards Act (ESA) sets out statutory minimum amounts of notice to which terminated employees are entitled (discussed below).

Employees with fixed-term contracts are not entitled to notice of terminations. However, there are unique complications that come with ending a fixed-term contract before its completion. (You can read more on this topic here)

Employees who are terminated for cause are not entitled to any notice. Their termination is effective immediately.

2. What is Reasonable Notice?

Reasonable notice is intended to give a terminated employee adequate time to find a new, comparable job. Reasonable notice can be given in time or pay in lieu thereof. This means that, if an employee is entitled to one week’s notice, they will either continue working for one week after they have been terminated or be compensated with pay and benefits equivalent to the value of these things had the employee continued to work to the end of the notice period.

3. What are the Minimum Notice Periods?

The ESA sets out the minimum standards for termination notice and pay for all non-federally employed workers. Employees working in federally-regulated industries (such as banking and telecommunications) have their notice periods and severance entitlements set out in the Canada Labour Code.

The table below outlines the statutory minimum notice periods under the ESA.

Length of Employment Minimum Notice Required
Less than 3 months None
3 months to less than one year 1 week
1 year to less than 3 years 2 weeks
3 years to less than 4 years 3 weeks
4 years to less than 5 years 4 weeks
5 years to less than 6 years 5 weeks
6 years to less than 7 years 6 weeks
7 years to less than 8 years 7 weeks
8 years or more 8 weeks

During the statutory notice period, employers may not in any way change the nature of the employee’s work or compensation. This means wages and any other term or condition of employment must remain the same including benefit contributions, bonuses and vacation pay.

Employers should be aware that employees are often entitled to more than these statutory minimums. Common law notice, which is based on factors such as an employee’s position and age, often supplement statutory minimums.

For example, if an employee has been with your company for 10 years and has a relatively senior position, eight weeks’ notice may not be considered reasonable notice.

If you fail to provide an employee with the statutory minimum notice of their termination, the termination becomes a wrongful dismissal and you could be held liable for damages.

4. When does the Notice Period Begin?

Notice periods begin on the day that you give your employee written notice of their termination.

5. How is Termination Pay Paid?

Termination pay is to be delivered in a lump sum payment. It is equal to an employee’s regular wages for a regular work week. Vacation pay and benefit contributions must also be included in this payment.

Termination pay must be paid within seven days of the employee’s termination or on the employee’s next regular pay date, whichever comes later.

Termination of Employment Lawyers - KCY at LAW Burlington

Termination Of Employment Experts

Consulting with an experienced employment lawyer is the best way for employers to ensure that they give their employees appropriate termination notice. Contact KCY at LAW today on 905-639-0999 or online for more info.

Workplace Computer Privacy & Monitoring

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.
Employees Privacy Rights - Employment Lawyer Burlington

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:
Guide to monitoring an employees computer use - KCY at LAW

  • 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.

Your Guide to Hiring Interns

It’s that time of year again. College and university students are heading into the final stretch of their academic year and many are looking for a summer opportunity that will develop their skills and give them work experience in their field.

Why Hire An Intern?

Internships can be a great way for students to get ‘real world’ experience in their fields and make networking connections. Furthermore, internships are now required for the completion of many academic programs.

For employers, taking on an intern can be a rewarding undertaking. It’s an opportunity to get new perspectives and fresh ideas, extra help with a specific project or even find your next great hire.

Fresh from the educational environment, interns are generally on top of the latest trends of thought and technology. Their outsider perspective can help you discover new, practical and efficient ways of approaching your operations. Furthermore, they can be a great way for you to assign a little extra help to an ongoing project, or benefit from an area of expertise that your business does not yet have.

Whatever your reason for hiring an intern, there are some things you need to know to ensure that your internship program is successful and in line with Ontario employment law.

Successful Internship Programs - KCY at LAW Employment Lawyers

Interns Are Not Free Labour

Having an extra brain or set of hands to support your team for free sounds enticing, but remember, interns are not replacements for paid employees. Indeed, there are only six circumstances under which you do not have to pay an intern.

First and foremost, interns are with you to learn. They’re not there to save you a buck or lighten your workload. These are certainly perks that an intern may contribute, but they are not the intern’s reasons for applying to your business. Interns are not employees. Adjust your expectations of them accordingly.

Interns Aren’t Experts

Remember, the main point of an internship from an intern’s perspective is to gain practical work experience. Employers should expect and accept that interns are going to be new to a whole lot of things. So don’t be dismayed if they’re not familiar with the finer points of Dropbox and SharePoint from the get-go. They’ll figure it out, especially if you help.

Interns Need Mentorship

Many students seek internships as part of their educational program or as a chance to apply their knowledge in a ‘real world’ setting. Accordingly, they’re looking for mentorship.

Interns require more hands-on direction and supervision than regular employees. If you know that you will be too busy to give your intern reasonable hands-on training, or unavailable to regularly check in, offer constructive feedback and answer questions, then an intern might not be a good fit for you.

Mutually Beneficial Internships Take Planning

Before you decide to hire an intern, it is important that you have clear and concrete goals for this temporary work arrangement. What project(s) will you have your work on and how will they align with the intern’s skills and learning goals? What skills will the intern have developed from working with you and what sort of mentorship will they receive?

Finding adequate and meaningful work for interns is a challenge many employers face. Because the work relationship is of a fixed term, employers are sometimes reluctant to invest the training and responsibility necessary for their interns to take on projects beyond the tasks they are directly assigned.

In order to keep your intern busy, you should consider creating a detailed workplan. It is reasonable to expect that your intern will be at least somewhat self-directed, but they will need a decent amount of information up front in order for them to productively fill their time. ‘Busy work’ is of little benefit to anyone. It’s frustrating for employers to have to constantly come up with little tasks, and disappointing to interns who hoped to get meaningful work experiences.

Legal Obligations to Interns

Legal Obligations to Interns

As an employer, it is essential that you be informed of your legal obligations to your interns. You should be familiar with the laws governing internships in order to ensure your program and policies are fair and lawful.

An experienced employment lawyer at KCY at LAW can advise you of these legal obligations and can help you craft policies and procedures that will make your internship program successful and beneficial to all parties. To book your consultation, call 905-639-0999 or contact us online today!

Wrongful Resignation – Understanding Wrongful Resignation

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.

What is wrongful Resignation - KCY at LAW

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

Damages for Wrongful Resignation - KCY at LAWWhen 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.

Fixed Term Contracts

Sometimes, employers find themselves in need of a new employee, but know that they will not need this employee indefinitely. Perhaps they need someone with specialized knowledge to spearhead a project, or maybe they require a little extra help during their busiest season. Whatever the case, one option available to employers to fill these temporary employee needs is to hire someone on a fixed-term contract.

Indefinite vs. Fixed-Term Contracts: What’s the Difference?

What's The Difference Between Indefinite and fixed-term contracts?Indefinite contracts do not set an end date to the employment relationship between employer and employee. Employment is ongoing without a fixed or foreseeable end to the working relationship. Indefinite contracts can be terminated by the employer at any time so long as the employer gives appropriate notice or pay in lieu thereof according to the employee’s contract as well as employment law standards. If you hire an employee on a permanent basis, they have an indefinite contract.

By contrast, fixed-term contracts provide a set duration to the employment relationship between parties. With a fixed-term contract, both the employer and employee know exactly when the employment relationship will end.

Why Choose A Fixed-term Contract?

There are several scenarios that would make a fixed-term contract a practical employment arrangement. For example, an employer may to cover a permanent employee’s parental leave or a sabbatical. They are also a good option to create a temporary position for the purpose of a particular project.

Another advantage of this type of contract is that they minimize employers’ severance obligations to the fixed-term employee. Since the employee already knows the end date of their employment when they sign their contract, there is no need for reasonable notice before their last day of work. They essentially receive their termination notice before they even begin their job.

Fixed-Term Contract Termination Obligations

While avoiding certain termination obligations may be appealing, fixed-term contracts present a challenge to employers should they wish to terminate employment before the fixed-term contract is fulfilled.

Without a termination clause in their fixed-term employee’s contract, employers do not have the right to end the contract early. However, there are several reasons an employer may wish to end a fixed-term employment relationship early. Perhaps the project the employee was working on finished early or funding for the position has run out. Whatever the case, if an employer decides to prematurely terminate a fixed-term employment contract without cause, damages are not the same as common law notice periods. Rather, the employer must pay the employee the balance of their wages for the remainder of the original employment term.

For example, if an employee was given a six-month contract with a salary of $4,000 per month and their employer decides to terminate the employment relationship after five months, the employer would owe the employee that final month’s salary of $4,000.

As you can see, the amount owed to a fixed-term employee who is terminated without cause before the end of their contract can be more that the pay in lieu of notice that they would have received if they had an indefinite contract.

Termination Clauses in Fixed-Term Contracts

In order to terminate a fixed-term employee before their contract’s end date without having to pay them the balance of their contract, employers need to have a termination provision drafted into the employee’s contract.

However, employers should note that a simple termination provision for a certain number of week’s notice will override the balance owed if a contract is terminated early. Such was the outcome of Thompson v. Cardel Homes Limited Partnership. In this case, Cardel Homes had hired Mr. Thompson as a senior executive on a two-year contract that was subsequently extended for another year. The contract contained a detailed termination clause that guaranteed Mr. Thompson a 12-month severance payment in the event of an early termination. One month before the end of the contract, Mr. Thompson was informed that his contract would not be renewed again and was told that he didn’t need to come in for the final month of his contract and that he should pack his things. At trial, the judge ruled that, in being told to pack his things and not return to work before the end of his contract, Mr. Thompson had been constructively dismissed and was therefore entitled to the full 12 months of severance as was outlined in his employment contract, not the one-month balance remaining in his contract.

Fixed Term Contracts Info for Employers

Fixed Term Contracts Takeaways for Employers

Before hiring someone on a fixed-term basis, employers should seriously consider why it is that they do not want to hire this person on a permanent basis and have a clear sense of how long the employment relationship will last. Otherwise, the fixed-term contracts employers present to employees need to have clear, unequivocal language concerning severance entitlements in the event of early termination.

KCY at LAW can draft you fair and enforceable fixed-term employment contracts to protect your interests and serve your needs. Call us today on 905-639-0999 or contact us online to book your consultation.

Employment Equity Guide – 1995 Employment Equity Act

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 Obligations Under the Employment Equity Act 1995Employer’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 Employment Lawyers

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.

Fiduciary Obligations & Relationships – Employees Fiduciary Duty

Fiduciary.

Now there’s a ten-dollar word for you. Fiduciary describes a relationship of trust and confidence wherein the fiduciary must act in a manner that looks after the best interests of a beneficiary.

Fiduciary obligations are intended to protect the more vulnerable party in relationships involving a high degree of confidentiality and trust. Common examples of fiduciary relationships include doctor-patient, lawyer-client, employer-employee.

What Is Fiduciary Obligation?

Fiduciary relationships – and therefore obligations – arise when one party has the power or position to use information that could negatively impact the other party’s interests. For example, a doctor would have a fiduciary duty not to refer a patient to a business or product in which the doctor has a vested interest unless this is truly in the patient’s very best interest.

Breach of this duty is considered a serious violation of the law and any losses incurred by the beneficiary must therefore be compensated.

What is Fiduciary Obligation

Lac Minerals Ltd. v International Corona Resource

In the 1989 case of Lac Minerals Ltd. v International Corona Resources, the Supreme Court of Canada established a three-point test for determining if you are in a fiduciary relationship:

  1. The fiduciary has scope for the exercise of some discretion or power.
  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interest.
  3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Fiduciary Obligations Between Employers and Employees

Fiduciary obligations are meant to prevent conflicts of interest in employer-employee relationships. Both employers and employees can have this obligation towards the other.

Fiduciary obligations are implied, if not explicitly written, in employment contracts. They are often written into contracts as restrictive covenants that prohibit former employees from competing with their former employer.

The issue of fiduciary obligations often comes up after an employee has left a company or organization.

GasTOPS Ltd. v Forsyth – Example of Fiduciary Duty

The 2012 case of GasTOPS Ltd. v Forsyth provides an excellent example of the fiduciary duty employees owe to their former employers.

After all resigning from GasTOPS Ltd. – an industry leader of engine condition-based maintenance – with minimal notice, four employees formed their own competing company MxI.

These MxI founders had been the core programs designers of GasTOPS’ technology products and were part of the company’s senior management. At the time they set up MxI, they were fully aware of GasTOPS range of products, business plan and proposals to potential customers.

Within months of founding MxI, several other GasTOPS employees left to join the business, suggesting that the defendants had planned their exit from GasTOPS and establishment of a competing software development company for some time.

The trial judge determined that the defendants knew that their departure would leave GasTOPS unable to fulfil its existing contracts or pursue new ones. Furthermore, he determined that MxI pursued nearly all of GasTOPS current and potential customers using private business and technological information to which they were privy as GasTOPS employees.

GasTOPS was awarded over $20 million for MxI’s breach of its fiduciary obligation.

Employee Fiduciary Obligations - KCY at LAW - Employment Lawyers

Key Takeaways – Fiduciary Obligations

Restrictive covenants and fiduciary obligations aren’t meant to prevent employees from starting new or competing businesses altogether. Indeed, courts do not look generously upon overreaching restrictive covenants as they can inhibit fair and open competition. However, former employees must take care when founding a business in direct competition with their former employer.

If you wish to discuss your fiduciary obligations with an experienced employment lawyer and understand what they mean for your business, contact KCY at LAW today online or call us on (905) 639-0999.