Let’s face it, we are all addicted to our phones. Some of us have jobs where our phones are required to be locked up in a locker for the day and we only have access to them on breaks. As a desk worker – who does not have to lock up her phone – I can only imagine the agony! 

Time spent on a personal device can interfere with work and productivity. Ever fall into an Instagram trance and next thing you know 2 hours have passed? Sure, you haven’t…

Personal devices and the persistent distractions of the digital era can be a problem for employers. In certain workplaces, distraction by a digital device can be dangerous or bad for customer relations. I’m sure we’ve all been kept waiting at some point by an employee who was giggling into their phone instead of helping us. 

So, what can employers do?

Personal Device Policies

A policy is an employer’s friend. It will spell out expectations for employees and also give the employer something to rely on if the need to discipline an employee for breaching the policy arises. Employers should ensure that employees are aware of and agree to the policy. Get them to read and sign a declaration that they have read it and will abide by it. 

The content of the policy should be reasonable and realistic. Would you like to be separated from your phone for up to eight hours before you could check it? Didn’t think so. 

Some employees may feel that they need their phones, in case there are emergencies with their kids, for example. Being unduly harsh in your policy will likely only lead employees to not follow it and to general unhappiness. 

If the job involves driving or working with machinery, likely it’s reasonable to require phones to be kept in a locker and only accessed on breaks. 

When Employees Don’t Follow the Policy

Regardless of how reasonable your policy is, it’s likely that keeping personal device use to a reasonable level, that does not interfere with work, will be a struggle for some employees. This was the case for a BC dental assistant who was terminated with cause for excessive texting at work. A with cause termination is a typical “You’re fired!” situation where the employee walks away without any notice pay. 

This particular dental assistant appealed her termination to the BC Director of Employment Standards, who determined that her texting did not constitute cause for termination. Her former employer appealed to the BC Employment Standards Tribunal, who affirmed the decision. 

Cause for termination was not made out and the former employer had to pay the employee notice and a fine for breaching the Employment Standards Act. 

How to Establish Cause for Termination

Cause for termination is a long and bumpy road. To make out cause, the employee’s conduct usually has to be pretty bad as in dishonest or dangerous. Stealing money from the employer or behaving in a dangerous way could constitute cause, but not necessarily. Employers generally have a duty to warn their misbehaving employees that they need to improve or they will be terminated for cause. This is why a policy is important. The policy sets the expectations, it also should warn the employee of the possible consequences of not complying. 

If an employee is breaching the policy, they should be counselled on the fact that they are doing so, possibly disciplined and warned that continuing to breach the policy could result in cause for their termination. This should be done repeatedly to establish a pattern of misconduct. And for the love of all that is relevant in law, please do this in writing. 

Takeaways

All employers have phone addicts on their hands. At least this is an issue they can probably relate to! Employers should establish reasonable policies and enforce them. Employees who refuse to comply with policies regarding texting and personal device use should be spoken to and potentially disciplined, but given an opportunity (or multiple opportunities) to improve. 

If you’ve got a tricky texting situation on your hands – and no we don’t mean what to text to that guy/gal you went out with last night – get in touch!

If you’ve been terminated from your job and spoken to an employment lawyer you’ve probably heard the word “mitigation” thrown around. In this post, we will talk about mitigation, what it is and why it matters to you and your case. 

The Duty to Mitigate

The duty to mitigate is a legal concept that basically means you’ve got to take reasonable steps to stop your own bleeding. What that bleeding looks like will depend on the type of legal case you’re involved in. If you are involved in a personal injury case, mitigation means following doctor’s orders and doing all that you can to recover from your injury. In the context of employment law, the duty to mitigate means trying to get a new job and replace your lost earnings and employment benefits.

What a Notice Period is Really

In most cases, employers can terminate the employment of any employee by providing notice of termination. The amount of notice can be set by the employment contract or it can be set by the common law.  Common law is judge-made law, found in court cases, as opposed to legislature made law, which is found in statutes. 

Most employment cases, where termination is involved, are about figuring out the appropriate amount of common law notice. Your common law notice period is representative of the amount of time a court thinks it ought to take you to find a new job, taking into account things such as your age, the character of the job you left (including your salary, level of seniority and the industry), how long you were at the job you left, and how long it might take you in your current geographic location and circumstances to find a new comparable job. 

Even if you don’t look for a new job, a court will look at your particular circumstances and decide how long they think it should have taken you to find a new job. 

Terminated employees cannot be too picky when looking for a new job. The job should be comparable – so this doesn’t mean that a CEO needs to go work at the gas station – but if reasonable offers of employment are made and turned down this will often be seen as a failure of the duty to mitigate. This could even be the case if offers of re-employment are made by the employer who terminated you. 

Gent v. Strone Inc

What does failing to mitigate look like in real life? The Ontario Superior Court decision in Gent v. Strone Inc. gives us a glimpse. Mr. Gent was a 53-year-old employee with 23 years of service to Strone. An economic downturn caused Strone to put Mr. Gent on a temporary layoff. Mr. Gent treated the temporary layoff as a termination and sued Strone for wrongful dismissal. Meanwhile, 3.5 weeks after he had been laid off Strone recalled Mr. Gent to work, offering him re-employment. Treating himself as terminated, Mr. Gent did not go back.   

The judge in this case decided that Mr. Gent’s temporary layoff did constitute a termination and that he was entitled to reasonable notice of termination. However, instead of awarding Mr. Gent 18 months of notice, which was the amount of reasonable notice that the judge deemed appropriate based on the common law factors discussed above, he reduced his award to  3.5 weeks. Mr. Gent could have mitigated his damages by accepting Strone’s offer to return to work after 3.5 weeks. His failure to do so disentitled him to his common law notice.

Takeaways

If you are an employee who has been terminated you have duty to mitigate your damages and look for a job. You should keep a record of your efforts, in case you ever need proof in court. Any reasonable job offer should be carefully considered, even if you don’t really want it or it’s from the employer who just terminated you. Not taking a job a court deems you should have taken could reduce your notice damages. 

Employers should think about mitigation when terminating employees and include clauses in notice package offers that claw back a portion of the notice award if the individual re-employs.  

If you’d like to know more about the duty to mitigate, get in touch! 

We wrote about the Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130 back in January. Check out that post here.  The Dawe case was notable because the judge in that case awarded Mr. Dawe a notice period of 30 months. The judge also made the comment that he would have awarded Mr. Dawe 36 months of notice, but stopped at 30 because that was what Mr. Dawe had asked for in his Statement of Claim. 

30 Months of Notice!!!!

This case caused a stir with employment lawyers because historically 24 months of notice has been the high-water mark. It has been very rare to see a former employee awarded more than 24 months of notice and this would only be the case in “exceptional circumstances.”

Here is that classic nugget verbatim for anyone who is truly curious:

“Although it is true that reasonable notice of employment termination must be determined on a case-specific basis and there is no absolute upper limit or ‘cap’ on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months” Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] 

Dawe Overturned

The employer in Dawe, who had been ordered to pay Mr. Dawe an addition 30 months of his salary, appealed the decision. This gave the Ontario Court of Appeal a chance to weigh in. In June the Court of Appeal overturned the first judge’s award of 30 months, reducing it to 24. 

Justice Trotter, writing for the court, noted that: “There were no exceptional circumstances that warranted a longer notice period.” Bam!

Why Wasn’t Mr. Dawe’s Case Exceptional?

Mr. Dawe was the Senior Vice President of The Equitable Life Insurance Company of Canada. He worked for Equitable Life for 37 years. He was 62 years old when he was terminated. He had planned to work until age 65 – another 30 months. Equitable Life made Mr. Dawe an offer of 24 months notice, which he rejected. 

So why wasn’t Mr. Dawe exceptional?

The first judge made comments about Mr. Dawe’s intention to retire at age 65, and about society’s changing perceptions about retirement. He awarded Mr. Dawe 30 months because of Mr. Dawe’s stated intention to retire at 65. 30 months of reasonable notice put him in the same financial position as if he had worked until just past age 65. 

Justice Trotter, for the Court of Appeal, disagreed with the first judge’s emphasis on Mr. Dawe’s retirement plans, stating that Mr. Dawe’s retirement plans did not determine Equitable Life’s obligations to him. Further Justice Trotter found that it was Mr. Dawe who initially requested an “exit” from Equitable Life and therefore his departure could not properly be seen as a forced retirement or a situation of “exceptional circumstances.”

Takeaways

The Court of Appeal’s decision in Dawe affirms the cap of 24 months of notice for long-serving, high-earning employees who are nearing retirement. Equitable Life was right to offer Mr. Dawe 24 months of notice right off the bat. This decision also confirms that an employer does not have an obligation to employ anyone on a contract of indefinite duration until they choose to retire. An employer’s obligation, absent contractual terms dictating otherwise, is to provide reasonable notice of termination to employees which, in all but very rare cases, will be at most 24 months. 

If you are a long-serving employee who has been terminated or if you’re an employer looking at the potential liability of exiting a long-serving worker who is nearing 65, get in touch!

We are super excited to announce that once again, we have been named Legal Influencers for Employment Law in the Lexology Content Marketing Awards for Q2 of 2019! We won this award in Q4 of 2018 – check out our post on that here – and are stoked that our blogging success is having staying power. I mean it’s 2019, what’s cooler than being named an #influencer?! 

This particular award recognized our blog for consistently providing useful and insightful legal analysis. Aw, thanks! 

Lexology considers the number of reads and something called the LexScore (engagement with the blog) to determine winners – so it’s legit.  

We are a small but mighty firm and are thrilled to be competing with the big dogs! The only other employment law winner from Canada was Borden Ladner Gervais LLP. Congrats to our pals at BLG! 

Now to our thank you speech…

Our blog is a cornerstone of our practice and we have fun writing it each week. It allows us to be creative and talk about employment law issues in an approachable and, we hope, useful way. Employment law really does apply to most people at some point in their lives and we are delighted that one of the ways we can reach lots of people is working!

Thank you to Lexology and thank you to our readers! It’s all your reads and shares that won us this award! We will keep it up if you will!

A labour arbitration decision out of Nova Scotia has got us thinking about what will qualify as addiction and justify accommodation in the work setting.  In Unifor, Local 2215 v IMP Group Ltd (Aerospace Division) (AB Grievance), [2019] NSLAA No 4, Arbitrator Richardson determined that an employee’s on the job masturbation was not justified by his reported sex addiction and upheld the employer’s decision to terminate.  

Sex Addiction

The employee in question carried out his offending behaviour in a four-stall bathroom, and though he was courteous to the extent that he did not engage in the behaviour if someone was in the stall directly beside him, he was commonly overheard by his co-workers. 

The employer’s anti-harassment policy prohibited offensive, embarrassing or humiliating behaviour and the employer had spoken to the employee about his bathroom activities two years prior to terminating his employment. 

The union argued, on behalf of the employee, that his behaviour was a result of his sex addiction (a disability) and therefore he should not be subject to discipline for his disability-related behaviour. The employee stated that his addiction did not impact or interfere with his work and the employer agreed that there was no issue with the employee’s work. 

It was notable in this case that sex addiction is not a condition recognized by the Diagnostic and Statistical Manual (“DSM”). The employee also did not present any evidence that his behaviour was uncontrollable or that it was interfering with his work or home life – the way that we might expect an addiction would.  The sex addiction, if the employee truly did have one, was not “disabling.”

Phone Addiction

While there is currently no reported case law on accommodating “phone addiction” in the workplace, we think it’s coming. Phone addiction, a fun chronicle of which was reported by the New York Times this February, is also not in the DSM but probably feels pretty real to most of us! 

We foresee a time when an employee, prohibited from gazing at their personal device all day, claims phone addiction and brings in a doctor’s note. Maybe it’s already happening! 

What’s an employer to do? Accommodate up to the point of undue hardship – this standard will most likely apply even if the addiction seems slightly off the beaten path.

General Tips for Accommodating Addictions 

Employers need to accommodate their employees with disabilities up to the point of undue hardship. The frequent bathroom visitor’s case failed, in part, because he could not establish that his sex addiction was a disability. Had he been able to do so, he might have gotten his job back. 

Once an employer is wise to a disability or addiction issue they need to take proactive steps to help rehabilitate the employee. This could include paying for counselling or time off for rehab. And yes, you can definitely go to rehab for phone addiction! 

The threshold of undue hardship does not mean that an employer can fulfil their duty to accommodate without hardship. There will be a hardship! Larger employers will be expected to tolerate more of that hardship than smaller employers. 

The Ontario Human Rights Tribunal provides plenty for free guidance on the employer’s duty to accommodate addictions – check it out here. 

Dealing with an addiction or disability issue in the workplace is very tricky. Surprise surprise, we suggest you get legal advice.  If you need some guidance in this area, our team would be happy to help.

As our population becomes more technology dependent and urbanized, we are increasingly adopting more sedentary lifestyles than our ancestors.  One of the consequences of using our bodies less and our brains more is a host of negative health outcomes, including musculoskeletal issues from being hunched over screens for most of our waking lives. 

Thankfully, a new generation of entrepreneurial chiropractors and physiotherapists have sprung up across our cities to help teach us to sit up straight and activate our glutes. But as with most small businesses in Ontario, there are unique employment law issues facing chiropractors and physiotherapists which they should be aware of.

Contractors or Employees?

For clinic owners, how do you want to organize your staff, including other practitioners?  If they are employees, you have full control over how they perform their tasks, and you can compel them to attend staff meetings, wear uniforms and generally treat patients in line with your specific protocols.  But the corollary is that employees have a host of entitlements under employment law legislation and at common law, especially when you want to end the relationship.  

If your practitioners are contractors however, they don’t have access to any of the statutory entitlements afforded to employees, such as vacation pay, overtime and termination pay.  All of your respective obligations to each other will be that which you negotiate in a contract. On the other hand, you will have minimal authority to control how your contractors perform their job when they perform it, and they will be free to treat other patients outside of the clinic.  

If there is ever a dispute about whether someone is an employee or contractor, our courts care more about what the relationship looks like in practice than what you actually call it.  

There is also an emerging category of dependent contractor which courts will recognize when a contractor is exclusive and financially dependent on your clinic. This characterization may arise if the practitioner does not do work outside of your clinic. If a contractor is characterized as a dependent contractor, they could have significant termination entitlements under the common law, even if they are not your employees.  It is important to address these factors at the outset of the relationship with well-written contracts. 

Restrictive Covenants

Whether a clinic has employees or contractors, often times your most valuable proprietary interests are your patients and referral partnerships.  No clinic wants to have a practitioner leave to a competitor with half of the clinic’s book of business and exclusive referral partners.

For the practitioner, however, they do generally have the right to earn a livelihood and patients ultimately can determine where to take their business in a free market.

There is a compromise to be drawn between protecting a clinic’s business and allowing a departing practitioner to earn a livelihood.  This should be negotiated up front with well-written contracts and Non-Solicitation or Non-Compete provisions.  

Whether you are a clinic owner deciding how to organize your workforce and protect your book of business, or a practitioner looking to join a new clinic, we would be delighted to assist you. 

While we like to help businesses set up their employment relationships from day one, more often than not we come in to help a little later. In many typical workplaces, some employees have written contracts or offer letters, of varying levels of quality, and some don’t have any sort of written contract at all. 

Why Have a Written Contract?

Employment relationships are governed by certain terms regardless of whether or not there is a written contract. When there is nothing in writing, the employer does not get to pick these terms, or make them explicit to the employee. They just come from the common law. 

The most litigated implicit term of employment is the employee’s right to reasonable notice of termination. Where there is no written contract the employee is entitled to reasonable notice of termination under the common law. This amount is roughly determined based on how long it would take the employee to find a comparable position considering their age, their length of service, the character of their employment and the availability of similar employment, taking into account the employee’s training and qualifications. When the contract is not in writing, there is uncertainty about what constitutes a “reasonable” amount of notice and it might be a lot, up to 24 months in extreme cases. 

A written contract allows an employer to set out how much notice the employee will be provided should they be terminated without cause. The amount of notice needs to be at least Employment Standards Act minimums and there are specific nuances that make the way this section of the contract is drafted important (get a lawyer!).  A written contract can limit the employer’s notice exposure and provide both parties with certainty. 

Transitioning Existing Employees to Written Contracts

Transitioning existing employees to new contracts, whether they be in writing for the first time or new written contracts with proper drafting, is tricky. In order for a contract to be valid, “consideration” must be given to the employee in exchange for their agreement to the terms. At the start of the employment relationship consideration is the job itself. This is why is it SUPER IMPORTANT to make sure new employees sign their contract BEFORE they start work.  

Justice Goodman of the Ontario Superior Court of Justice considered the issue of transitioning an existing employee to a new contract in Lancia v. Park Dentistry, 2018 ONSC 751. In this case, the employer, Park Dentistry, gave the employee in question a new contract. Here’s what they did right:

  • Provided the employee with 18 months of working notice, if she chose not to sign the contract – This means that they let her know about the new terms of her employment, but if she didn’t want to accept them, then the old terms of her employment would continue for 18 months and then her job would end. This was sufficient reasonable notice. 
  • Provided the employee with $2,000 as “consideration” for signing the new employment agreement – Even though the new terms of the employment reduced the employee’s annual income by $4,000, $2,000 was sufficient consideration for the new terms of the contract. On this subject, Justice Goodman said, “Indeed, it is trite law that courts will not inquire into the adequacy of consideration – a “peppercorn” will do.” 
  • Provided the employee with ample time to seek legal advice – The employee could have decided to sign the contract at any point during the 18-month working notice period. This gave her lots of time to seek legal advice if she chose to.
  • Ensured the employee signed the contract – While this may seem hardly worth mentioning, lots of employers fail to follow through on this crucial step. 

If you’re an employer thinking that maybe it’s time to check out your employment contracts situation, get in touch. It’s important that your contracts are properly drafted and that you take the right steps in rolling them out to existing employees to ensure that they will be enforceable down the line. 

With the huge response to the Raptors parade this week we thought it a good time to revisit the issue of unauthorized employee absences. Many employers allowed their employees the day off to go celebrate, but there were also reports showing some employees, who did not get the day off, wearing fake noses and disguises to the parade so that they would not be identified by employers should they happen to get on TV. We discussed this topic way back in 2015 when the Blue Jays and Blue-Flu were causing a bit of a dip in employee productivity. Be it baseball, the World Cup (go Canada’s Women’s Soccer team! #CANWNT) or Raptors fever, employers need to be prepared to manage their sport fan employees!

Managing Fandom in the Office

Sports are a unifying and community-building force. Where possible, it can really boost morale and give an employer popularity points if you can give employees the day off to attend a huge parade or organize a viewing party in the office for a special game. If this isn’t feasible from a business perspective then employees who truly cannot miss a game or celebration could be welcome to use their vacation days to attend. Leniency regarding last minute requests may or may not be appreciated, but denials due to a lack of compliance with the vacation policy requiring you ask for all your days at the start of the year, for example, will lead to bitter employees who may just call in sick anyway!

Providing employees with personal or flex days can be a good way to meet this type of last-minute day off need, without too much hand-wringing or disruption. It should be expected that employees have other things come up in their lives that occasionally require time away from work.

Employees Faking Sick

Employees have a duty of honesty to their employers and also a duty to come to work and do their job. If you have reason to suspect that your employee is not actually sick you can ask for a doctor’s note. While there may be some lingering confusion about whether or not you can ask for one of these, thanks to Premier Ford you now can! Catch up on all things Personal Emergency/Sick Leave here.

If the employee cannot produce a note, or if you happen to see them on TV looking quite well, then this may warrant discipline (in writing please!). If you have an employee who is frequently “sick” on Fridays or Mondays you’ll want to consistently require doctor’s notes and where they cannot justify their absence, counselling and discipline (again in writing) about the need to attend work etc.

Managing absenteeism, that is not sports related, can be tricky because attendance issues are often connected to human rights concerns.  

If you need help managing absent or sports-crazed employees get in touch!

A news story caught our attention recently. The University of Quebec in the Outaouais (UQO) commissioned an instructional video for university employees instructing them on how to dress for work and then emailed it out to staff.

The four-minute video, hosted by a Gatineau based fashion stylist, provided such tips as don’t dress like you’re on vacation and “do not be in seduction style.” The stylist also advised that staff should not wear worn-out clothes or “cheap accessories.”

While we specialize in Ontario and not Quebec law, this piece certainly caused us to raise our eyebrows. Backlash from the professors at UQO has also seemingly caused the video to be taken down.  UQO says that the video was intended to provide “inspiration” and now say that “people are free to wear what they want.”

Can you tell your employees how to dress?

All this begs the question, can you tell your employees how to dress? Or provide them with helpful accessorizing tips? Obviously, some jobs come with uniforms or safety equipment that is crucial to doing the job. In these instances, the dress is a job requirement. The law is pretty clear that where a uniform is required, it is a human rights violation to require that male and female employees wear different uniforms.

The Ontario Human Rights Commission advises as follows with respect to gender-specific dress codes:

  • Female employees should not be expected to meet more difficult requirements than male employees;
  • Female employees should not be expected to dress in a sexual way in order to attract clients; and
  • Employers should be able to prove that any sex-based differences with respect to dress codes are legitimately linked to the requirements of the job – if they are not, they are likely discriminatory.

Many employers in the service industry require female employees to wear tiny skirts and plunging necklines. If the employer refuses to allow a female employee to wear the male uniform or vice versa, they would likely be found to be in violation of the Ontario Human Rights Code.

While the issues with the UQO video were different, something like this still has the potential to be discriminatory. While an employer can have a dress code, care needs to be taken that the dress code is justified and that it does not specifically target one gender. The UQO video seemed to speak to women and to place responsibility on women to control any sexual messages they may be sending out. This borders on the troubling and inappropriate “she was asking for it with that outfit” type of justification for sexual violence.

TakeawaysDress codes need to be reasonable and uniformly applied. If, as an employer, you’re going to list a bunch of things you don’t want to see in the workplace, they should not all target women. For example, in addition to strapless tops, open-toed shoes, and short skirts, maybe throw in cut-off shorts, muscle tanks and t-shirts with logos. In general, you want to treat your employees with respect and avoid being overly paternalistic or controlling about things that may not actually matter to your business.

If you have questions about dress codes or a specific situation you’d like to discuss, get in touch!

At SpringLaw we work with a lot of tech companies and start-ups who are all about agility. These employers often include language in their contracts that speaks to being flexible with duties and rolling with the punches as the company scales. How flexible can employers expect their employees to be when it comes to having their roles and duties changed? And how important are these promises of agility in the employment contract? How much can an employer require an employee to change hats before risking a constructive dismissal claim? A case out of Nova Scotia sheds some light on these questions.

What is a Constructive Dismissal?

A constructive dismissal occurs when the employer alters the terms of the employee’s employment in a sufficiently drastic way that a reasonable person in the same situation would consider the contract to have been breached AND that a reasonable person would conclude that the employer no longer intends to be bound by the contract.

Classic examples of constructive dismissals include lowering an employee’s pay or changing their pay structure, requiring them to move to another city to keep their job, demoting an employee or creating or allowing a harassing or poisoned work environment.

The question of flexibility arises when an employer assigns an employee more or different duties.

Whalley v. Cape Breton Regional Municipality

Mr. Whalley held the position of Economic Development Manager for the Municipality of Cape Breton. His offer letter contained a general description of his job – “manages the implementation of economic plans, programs, and services for the municipality.” Once he was hired he was provided with an equally general job description, stating that he was responsible for the development of “an internal strategy that will enable the municipality to play a lead role in creating a self-sustaining, competitive economy in this region.”

For the majority of his career in this role – 15 years – Mr. Whalley ended up focusing his time on the development of the Port of Sydney. In 2015, after he began to voice concerns about ethical issues related to a leasing deal at the Port, Mr. Whalley was informed that the Port of Sydney project would be reassigned.

Mr. Whalley did something that few employees whose duties are changed actually do – he immediately resigned and sued the Municipality for constructive dismissal.

Job Descriptions are not Frozen in Time

Mr. Whalley was not successful in his claim. The court found that he was not constructively dismissed but left his job of his own accord.

Justice Murray commented that there was no express or implied term of Mr. Whalley’s employment that required him to work on a particular file and that it was not reasonable of him to refuse to continue to work once the Port file was reassigned.  Mr. Whalley’s duties were very broad and open to reasonable variation and not “frozen” at the time they were prepared.

Takeaways

Employers who expect their employees to be flexible should establish this expectation at the beginning of the employment relationship with language in the employment contract. While it is unlikely that a court will ever condone significant compensation changes as permissible based on language about agility, this decision suggests that employers should feel confident in changing up an employee’s duties where language is general and reflective of flexibility.