Halifax e-paper,  The Chronicle Herald reports that Blackberry developer Research in Motion (RIM) is being sued by a former employee who was fired for cause over the theft of overtime hours that he worked from home.

Darren Lapierre claims it was all an administrative error.  He was called into a meeting with team leader Joey Duguay who “informed the plaintiff that between August 2010 and November 2010, the plaintiff was paid for 40 hours of overtime that he did not actually work.”

Lapierre requested proof via email, but was told that “he had the confirmation emails”.  He was later accused of theft by manager Craig Sampson, who asserted that Lapierre signed up for shifts that he didn’t work.  Even though Lapierre offered to pay back the overtime hours, he was terminated for cause three days later, meaning that he wouldn’t receive severance or the bonus owed to him.  Lapierre is now suing for damages to his reputation, intentional infliction of mental suffering and all out-of-pocket expenses.

Daniel Lublin recently wrote in the Metro about a similar case in which an employee suspected of theft was fired because of questionable expense reports.  This case can be seen as analogous insofar that the actions of Leitner and Lapierre would be better described as reckless rather than fraudulent.

Human resources staff should be aware of potential errors in judgement when conducting terminations.  Courts have stringent criteria when evaluating just cause and will likely side with the employee if lesser actions could have been taken.

On Saturday, January 8, the Careers section of the Globe and Mail published an article on employment contracts and the law of hiring, featuring Daniel Lublin of Whitten & Lublin LLP.  The article contends that most ordinary employees are better served by negotiating employment contacts or rejecting them altogether.  The full article can be read here.

According to an article in the National Post, Brett Favre and the New York Jets are being sued by two former massage therapists in a workplace lawsuit claiming they lost their jobs after complaining about sexually suggestive text messages from Favre.

The women allege that Favre proposed off work meetings with them in sexually suggestive ways.  When they declined his advances, they were effectively blackballed from working for the team and its players, they claim.

In Canada, employees can make legal claims against employers for reprisal, constructive dismissal, harassment and discrimination when there is a loss of work due to rejecting the sexual advances of another employee or supervisor.  These claims can be brought at provincial human rights tribunals or through the courts.

In order to prevent exposure from these claims, employers should consider the following advice:

- implement clear policies on sexual harassment and consistently enforce them.

- conduct investigations by a third party or neutral investigator as soon as allegations of harassment occur.  Do not jump to conclusions without first providing the alleged harasser an opportunity to respond.  The point of the investigation is to find the truth not to condemn one side or the other.

- Conduct annual training with managers and supervisors on addressing allegations of workplace harassment and how to apply appropriate policies in place.

- Consult an employment lawyer right away.  If there are holes in your case, don’t learn of them when you first read an ex-employee’s lawsuit.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  He can be reached at dan@toronto-employmentlawyer.com.  Daniel acts for employers and employees in all workplace law matters.

When a government employee uses his workplace email address to send and receive personal emails completely unrelated to his work, are those emails subject to disclosure to members of the public who request them under freedom of information legisation?  According to the Ontario Divisional Court, the answer is no.

In a recent privacy based ruling, that applies to all municipally regulated employees, the Court determined that emails unrelated to government business cannot be subject to disclosure to other members of the public.

The fact that emails are stored on the government’s computers does not mean that the emails should be considered public, according to the court.    

“It can be confidently predicted that any government employee work works in an office setting will have stored, somewhere in that office, documents that have nothing whatsoever to do with his or her job, but which are purely personal in nature”

Ontari0′s privacy commissioner is seeking leave to appeal the ruling to the Ontario Court of Appeal, arguing that the legislation requires the government to disclose all information in its “control”. Until the Court of Appeal hears the case, government employees can rest assured that they cannot be compelled to disclose personal emails unrelated to their work, however damaging or harmful the information.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.

By: Ellen A. S. Low

In 2007, the Harper government hired Christiane Ouimet as a federal integrity commissioner.  Ouimet’s job was to field complaints, and to protect whistleblowers in the federal public service.  However, it appears that instead of protecting these employees, Ouimet may have become their worst enemy.

As discussed in a series of recent news articles (here here & here), Ouimet recently resigned in the face of multiple allegations of workplace bullying.  She allegedly swore, berated and belittled staff on a consistent basis.

In one extreme example Ms. Ouimet is said to have retaliated against an employee she suspected of making a complaint against her by amassing 6 binders of personal information about him then systematically disclosing that information to his previous employer, senior government officials, and a private-sector security consultant.

Her behaviour and retaliatory attitude apparently contributed to a 50% turn-over rate in her department as well as a number of early retirements. Average turnover rates vary by industry, but are usually only between 20 to 30%.

Ms. Ouimet may embody what not to do as an employer in the face of a complaint.  When an employer receives a complaint about workplace bullying and harassment, there is an implied duty not only to investigate the allegation, but to ensure that there is a complaint mechanism in place, that the investigation is prompt, the complaint treated seriously, and that the complainant should be kept in the loop about the investigation process. Employers who are unsure of how to conduct an investigation ought to contact a qualified employment lawyer for guidance on the process; A botched investigation could be the difference between a successful for-cause termination and a wrongful dismissal claim.

In the meanwhile, Ms. Ouimet has been banished to the dog house.  She took early retirement this fall following the release of Auditor-General Sheila Fraser’s scathing report on her behaviour.

See the story of Whitten & Lublin in the Financial Post – National Post

The flood gates have opened for lawsuits with the announcement of what is being called the first clear case of a Facebook firing in Canada. 

The Montreal Gazette reported that two car detailers in Pit Meadows, BC were recently fired for derogatory comments they posted on Facebook.  After the unionization of the store in August, the store manager of West Coast Mazda, decided to start tracking online comments made by employees.    Although the timing of the firing seems suspicious, given its close proximity to the unionizing, the BC Labour Relations Board rejected the union’s notion that the workers were fired because of anti-union sentiments by management.  Mazda Manager John Clysedale was pleased with the decision, and explained that management is in the process of creating a new policy that covers what is and isn’t acceptable Facebooking.

This case is particularly interesting because the manager was “friends” with the two employees on Facebook, and received their status updates on his Blackberry.   The Board found that certain comments made by the car detailers amounted to insubordination, and created a hostile work environment.  There have been many cases of employees being fired for defamatory blogging, and even “tweeting”, so it was only a matter of time before Facebook found its way into the courts.  Cases like the Alberta Oil Sands Blogger underscore the much needed mindfulness that employees should have when sharing their work life with the online community.  The new insight that this case provides is that the list of offences an employee can commit from home will continue to grow with the increasing popularity of social media. 

In Daniel Lublin’s article, “Facebook postings can come back to haunt employees” , he explains that, “many employees too easily confuse freedom of speech with freedom from workplace consequences.”  If you have ever used Facebook to talk about work, it is worth giving the article a read, as it provides helpful guidelines that could save your job.

The next time you have an argument at work, and pull out your phone on the transit ride home, think twice before adding your boss to Facebook.

Jaws dropped around Toronto when the public learned that thirteen departing city councillors will receive 1.2 million dollars in severance packages.

Following Rob Ford’s recent victory, six city councillors voluntarily resigned their seats, and five were given no choice.  An article in the Toronto Star  explains that the bylaw concerning severance entitles politicians to a months pay for every year of service, up to a maximum of 12 months pay.  It makes no distinction between councillors that voluntarily leave, and ones that are defeated.

Roughly $820,000 of the 1.2 million is going towards politicians leaving voluntarily. Given how closely public officials are scrutinized for the manner in which taxpayer money is spent, two questions come to mind:

1. Should politicians be compensated if they are defeated in an election?
2. Should politicians be compensated for leaving voluntarily?

It is important to put this issue in context. CEO’s can potentially receive millions in severance for considerably less time than the maximum payout of $99,619 councillors receive for 12 years.  Councillors may not leave by choice, but it would be difficult to argue that a change in public opinion is the same as just cause for dismissal. 

Typically, when an employee quits his job, he is happy to receive a firm handshake or a pat on the back.  Overwhelming public opinion on this issue has been that politicians should receive the same; whether or not the outcry has been enough to make a difference in future severance cheques awaits to be seen.

A recent case from British Columbia illustrates the importance of employers keeping their private opinions about employees to themselves.

Jackie Dawydiuk worked as a clerk for the Insurance Corporation of British Columbia (ICBC).   After being recently promoted, she was surprised when ICBC eliminated her position and instead, offered her a job as regional manager.  She took too long to decide, and lost both the promotion and her job.

She successfully sued ICBC for wrongful dismissal, namely because of a report that surfaced, written by her supervisor Richard Rees.  It became clear to the courts that Rees’s bias towards Dawydiuk had played a key role in her firing. 

This case illustrates how sensitive courts are becoming to situations that can damage an employees credibility.  Dawydiuk didn’t need to prove that Rees acted in bad faith, only that he was careless in his communication of what was deemed to be an ill-formed opinion of her. 

Daniel Lublin offers the following tip in his weekly Metro article - “think twice before speaking ill of your colleagues”.

The University of Windsor’s Law Department may make legal history if the Human Rights Tribunal of Ontario (HRTO) decides to flex its muscles and appoint Emily Carasco as the new Dean of the Faculty of Law, following what she claims was an unfair hiring process.

After being one of two candidates shortlisted for the position, Carasco was passed up following a rumour started by a colleague that she had plagiarized part of a textbook.  Carasco asked the HRTO to put a freeze on the hiring process until her case had been resolved, since a newly appointed Dean would hold the position for a 5 year term.  She was told not to worry – if her case was successful, the Tribunal could give her the job, regardless.

What does this mean?  Daniel Lublin explains that, “This case serves as a warning to employers to ensure their hiring processes are free of discrimination.”  If unsuccessful applicants feel they have been discriminated upon, but want the job bad enough, they may still get it. 

Read more details about this case in Daniel Lublin’s weekly Metro column, “Employers must ensure hiring practices are fair”.