Court blocks executive’s move from Blackberry to Apple

| March 28th, 2014 | No Comments »

On March 24, 2014 the Ontario Superior Court of Justice prevented a senior executive at Blackberry from moving to its major competitor, Apple.

In BlackBerry Limited v. Marineau-Mes, 2014 ONSC 1790, the debate centered on an employment contract containing a six-month resignation provision.  Among other things, Marineau-Mes had promised to give Blackberry six months’ advance written notice of his intention to resign.  He did not.

On December 23, 2013, Martineau-Mes gave Blackberry notice of his resignation.  On December 24, 2013 he advised that he would be joining Apple in two months’ time in California.

Blackberry argued Martineau-Mes was contractually obliged to provide six months’ notice.  Martineau-Mes argued that, if anything, Blackberry was limited to damages for replacing him if he failed to give adequate notice, and that he was not required to give notice because:

  1. The contract violated the Employment Standards Act, 2000 (the “ESA”) because it did not provide him with adequate vacation pay;
  2. The contract itself was unenforceable due to a lack of consideration;
  3. The six-month resignation period was tantamount to a non-compete provision and therefore void against public policy; and
  4. Pursuant to the contract, he had “Good Reason” which would allow him to resign without providing six month’s advance notice.

Despite able arguments, the court was not convinced that the termination provision offended the ESA or that Martineau-Mes had not received consideration in exchange for the contract when he took on the role of Executive Vice President.

Further, the court did not agree that the six-month resignation provision was akin to a non-competition clause because, among other things, Martineau-Mes knew that Blackberry needed him to transition his role and that he must remain available to perform his duties during the period of resignation.  Even if the provision were to be found to be a non-compete, the court deemed it reasonable in the circumstances.

Finally, the court was not convinced that Martineau-Mes had “Good Reason” pursuant to the contract to resign without notice.  Even if there was Good Reason, Martineau-Mes could only effect this clause if he gave Blackberry 15 days’ notice and a chance to rectify the breach.  He did not and therefore could not rely on the provision.

Ultimately, the court determined that Blackberry was entitled to a declaration that the contract was binding and that Martineau-Mes was obliged to provide six months prior notice of his resignation.  Effectively, this blocks Martineau-Mes from joining Apple until June 23, 2014.

This is an unusual case as not only is it rare for an employer to pursue an action against a departing employee for failure to provide reasonable notice of resignation, but even rarer still for an employer to seek enforcement of the resignation provision.  If any, an employer will occasionally sue for damages caused by the employee’s failure to provide reasonable notice.  Presumably, Blackberry decided to pursue the action to prevent one of its executives from moving to a competitor for as long as legally possible, but the case does provide an interesting precedent for an employer enforcing a resignation provision.

GM employees win lawsuit

| July 19th, 2013 | No Comments »

GM retirees win lawsuitAbout 3000 retired employees of General Motors Canada have won a class-action lawsuit against their employer, who was found wrong in cutting healthcare and life insurance benefits of the retirees.

Daniel Lublin was asked to appear on CTV News to comment on the recent decision of the Ontario Superior Court. He explained how important is to have proper employment contracts as well as workplace manuals and policies in place.

He says there are ways for employees to protect themselves from these changes even if the employer is going through economic hardship. To learn more, watch Daniel’s interview on CTV News.

 

Employee fired after calling in sick to play in softball tournament

| July 15th, 2013 | No Comments »

A former Telus employee’s termination for lying about being sick and instead taking the day off to play in a softball tournament was recently upheld by the Alberta Court of Queen’s Bench.

Jarrod Underwood was a five-year employee of Telus. He asked to get one of his regularly scheduled shifts off in order to play in a softball tournament, but the request was denied because no other employees were available to take his shift. The morning of the tournament, Mr. Underwood told his manager that he would be missing work due to “unforeseen circumstances.” Knowing about the softball tournament and suspicious of his absence due to his prior request to have the day off, the manager went to the ballpark, where he saw Mr. Underwood pitching in the tournament.

When Mr. Underwood’s manager confronted him about the incident, he admitted to playing softball, but claimed that he missed work due to suffering food poisoning. He insisted that, while he was too sick to work, he was well enough to participate in the softball tournament. As a result of the incident, Telus terminated Mr. Underwood’s employment, claiming that the trust relationship had been irreparably damaged by his dishonesty.

The matter was taken to arbitration, where the arbitrator accepted the employee’s explanation that he was too ill to work that day, but that he was still well enough to play softball due to being able to appropriately manage his illness from the ballpark but not the workplace. The arbitrator ordered Telus to reinstate Mr. Underwood with a 30-day suspension. Telus appealed to the Court of Queen’s Bench, which overturned the arbitrator’s decision. The Court found that Mr. Underwood’s version of events defied “logic and common sense,” and ruled that the arbitrator’s conclusion that the employee was actually sick was unreasonable. Given that the employee had lied to his employer about being sick, the trust relationship was indeed irreparably damaged. The Court thus upheld Mr. Underwood’s termination.

 

This post was guest-authored by Nathan Rayan

Former Tiffany Vice-President caught in $1.3 million jewel heist

| July 3rd, 2013 | No Comments »

Tiffany theft from former employerTiffany’s former Vice-President of Product Development has been accused of stealing more than $1.3 million worth of jewelry from her former employer.

The executive is alleged to have abused her access to valuable jewelry in order to steal, then resell, over $1 million worth of products she represented as her own.  As part of her job she was able to “check out” more than 165 pieces of jewelry including diamond bracelets, platinum hoop earrings, platinum diamond rings and pendants.  But, instead of returning the jewelry, she sold some, if not all, of it to a third party company based in Manhattan.

Further, the executive appears to have made false statements to her employer including that she had only recently checked out the missing jewelry in anticipation of creating a PowerPoint presentation for her supervisor and that the missing jewelry could be found in an envelope in her office.  The employer could not substantiate either the PowerPoint or locate the envelope with the missing jewels.

As the director of the FBI stated “a privileged position in a prestigious company does not insulate a thief from arrest and prosecution”.

In addition to criminal prosecution, theft of this magnitude will usually support a just cause termination.

While this is a US based case, were the activity to occur in Canada a court would likely consider the level of deception involved in achieving the theft, as well as the executive’s position of trust, in addition to the theft itself, in justifying termination for just cause in the circumstances.

Pregnancy rights in the workplace

| July 2nd, 2013 | No Comments »

Pregnancy rights in the workplaceWhat does an employer need to keep in mind when dealing with an employee who announces her pregnancy?  In the Globe and Mail’s latest video of the series Daniel Lublin covers some important tips that every employer should know.

The changing workplace landscape: “precarious” work

| June 24th, 2013 | No Comments »

In a detailed report years in the making and released earlier this year, the Law Commission of Ontario (LCO) confirmed what many have long suspected: the nature of employment is changing dramatically.

The traditional workplace relationship – full-time, stable employment with at least some benefits – is becoming increasingly less common. In its place, more and more employees are engaged in work that the LCO characterizes as “precarious” – low wages, little job security, and few or no benefits.

The LCO is concerned about this trend, as the workers at these sorts of jobs are predictably vulnerable, and precarious work and vulnerable workers present a challenge for society as a whole. Such “precarious work” limits employees’ ability to fully participate in the community, due to a lack of financial resources due to low wages and insufficient time due to often working multiple jobs. This predictably contributes to family stress. According to the LCO, 22 percent of Ontarians work in low-pay, unstable jobs.

Many employers rely on “precarious” workers in order to remain profitable, especially in certain industries that are dominated by small businesses with low profit margins. Given the current state of the economy, this trend is projected to continue for the foreseeable future.

Currently, ignorance of the law by employees and employers alike, as well as intentional breaches of the law by some unscrupulous employers, are major obstacles for employees. The LCO’s report makes numerous recommendations on changes to both employment standards legislation and government enforcement strategies that, it hopes, will restore some balance to workplaces that are increasingly relying on these types of jobs. The LCO hopes that improved communication and increased enforcement will lead to fewer workplace law violations; additionally, the report urges more robust protections for workers engaged in “precarious work” in employment legislation. It remains to be seen to what degree the LCO’s recommendations will be adopted as government policy.

Despite the changing nature of the workplace and the shift away from traditional, full-time employment, the vast majority of Ontario employees – even those doing “precarious work” – are currently protected by the Employment Standards Act and other workplace legislation. Employees would be well served to learn about these rights and protections, to ensure that they are treated fairly. Employers could save themselves future headaches by learning which workplaces laws apply to them and ensuring that they are always in compliance.

Supreme Court rules against random workplace alcohol and drug testing

| June 18th, 2013 | No Comments »

On Friday, the Supreme Court of Canada (SCC) released its eagerly awaited decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., dealing with random alcohol testing in the workplace.

Irving unilaterally implemented a drug and alcohol policy at one of its paper mills, which included a requirement that 10% of staff in safety-sensitive positions be randomly subject to unannounced breathalyzer testing over the course of a year. A positive test would attract significant disciplinary measures, including dismissal for cause.

Originally, the Union successfully brought a grievance challenging the mandatory random alcohol testing aspect of the policy. The arbitration board weighed Irving’s interest in random alcohol testing as a workplace safety measure against the harm to the employees’ privacy interests, and concluded that the random testing policy was unjustified because of the absence of evidence of an existing problem with alcohol use in the workplace. However, the board’s award was set aside as unreasonable on judicial review, and a further appeal to the New Brunswick Court of Appeal was dismissed. The Union made a final appeal to the Supreme Court of Canada.

The SCC noted that the collective agreement did not authorize random alcohol or drug testing. Thus, the appeal centered on the issue of whether the random testing policy could be justified by the general management rights clause contained in the collective agreement. As a general matter in a unionized workplace, management does have a limited authority to make unilateral rules or policies; however, any rule or policy that is unilaterally imposed by an employer and not subsequently agreed to by the union must be consistent with the collective agreement, and must be reasonable. Reasonableness is determined by balancing competing interests, which in this case were workplace safety and employee privacy.

The SCC stated that an employer could be justified in unilaterally implementing a random alcohol testing policy in circumstances where doing so is proportionate in light of both legitimate safety concerns and privacy interests. The SCC opined that seizing bodily samples, such as breath samples, is highly intrusive, lead to a loss of liberty and personal autonomy, and is thus detrimental to employee privacy. A dangerous workplace alone is not sufficient to ground random alcohol testing; to overcome employees’ reasonable privacy expectations requires compelling facts, such as evidence of a workplace problem with alcohol use. The SCC thus found that Irving had exceeded the scope of its management rights under the collective agreement by unilaterally implementing the random alcohol testing policy, and reinstated the arbitral board’s original decision.

Although this case was ostensibly confined to the unionized employment context, the Court’s ruling regarding the balance between workplace safety and employee privacy, and the need for employers to justify drug and alcohol testing policies on the basis of specific, demonstrated safety risks in the workplace, such as evidence of substance abuse – even in objectively dangerous work environments – will likely extend to non-unionized workplaces. Furthermore, while this case was decided with respect to random alcohol testing, the Court’s reasoning appears to also be consistent with random drug testing.

Which rules apply if working from home?

| March 4th, 2013 | No Comments »

Working from home can be quite confusing when it comes to contracts and one must clarify with his/her employer before any actions are to be taken.  This is especially important if one decides to relocate their residence.  With the wide spread of technology and easier telecommunication methods available all over the world, it is easy for employees to work from anywhere they like.  However, it is up to the employer to agree to that arrangement, regardless of whether the employer might be saving costs by not maintaining a space for the employee at work.

Remote workers may be out of sight, but they are not out of mind for employers.

Just recently Yahoo! Inc. decided on a significant change, recalling all of its employees with work-from-home arrangements to return to the office setting.  Although the employer has a right to determine how its business will be conducted, for employees who have been working from home for many years, mandating immediate change may not apply to them.

As Daniel Lublin, Toronto Employment Lawyer explained in his latest Globe and Mail article Work from Home? The same rules apply, if working remotely has become a key term of an employee’s job, then an employer must provide reasonable notice of its intention to recall the employee, or risk facing a constructive dismissal claim.  If a worker has the right to work from home, an employer cannot simply demand otherwise.

The employer has, on the other hand, the right to demand that working-from–home is not conducted from anywhere in the world; if one decides to relocate to a new city, country, etc.  In most cases the language of the contract would dictate the limits, but where there is no contract, it is possible that an employee working from home could work from anywhere, within reasonable limits.

Despite working remotely, and sometimes not coming into “work” at all, employees in these relationships are still workers under law.  All of the same rights and obligations that they would otherwise have should continue unless – and there is always an exception in workplace law – a contract says otherwise.

The whole article can be read in Daniel’s Globe and Mail column, and to find out more about which rules apply when working from home, it is always best to consult with an employment expert.

 

Forced to use your vacation time?

| February 6th, 2013 | No Comments »

While working hard and trying to keep up with demanding markets, employers might use the opportunity a long weekend brings to shut their doors for an extra day.  It might sound good to an employee who gets a day off without using any vacation time but is this really the case?

You might think that taking vacation is your choice; however, generally it is not.  Employees do not have a right to take vacation whenever they choose.  Although most workplaces co-ordinate time off with their employees, they are not technically required to do so.  In fact, employers are legally allowed to preset vacation periods for their staff.

However, as Daniel Lublin, Toronto Employment Lawyer explained in his latest Globe and Mail article, Don’t I get to choose when to take my vacation?, the company cannot force you to take a vacation day before a statutory holiday simply because it made the decision to close the workplace for a day.  An employee has a right to take his/her vacation in a two-week period or two separate one-week periods.  Vacation time can only be separated into periods shorter than one or two weeks with an employee’s consent.

These rules are generally the same across Canada, except in federally regulated workplaces (banks, telecommunications companies, radio and television and transportation) where vacation time can be given less than a week at a time.

To find out more about your vacation rights, you might consider contacting an employment expert who would be able to provide advice specific to your situation.

 

Is A Workplace Computer Private?

| January 29th, 2013 | No Comments »

Most businesses, and many employees, regularly use computers in the workplace. Often, employers assume that since they own the computer, they own all the information on it.  When it comes to information put on a workplace computer by an employee, however, the answer may not be so simple.  There were two significant decisions on computer privacy in 2012. Although neither case was an employment law decision, they both have important implications for computers in the workplace.

The first case is R. v. Cole. Mr. Cole was a high school teacher who used a laptop issued by the school board.  When a technician for the board ran a routine check, he found that there were photographs of a naked student on Mr. Cole’s computer. The board seized the computer and searched it, then called the police and gave them the laptop, as well as discs with Mr. Cole’s internet browsing history. A long legal battle ensued over whether the police should have obtained a search warrant for the computer. In the end, the Supreme Court of Canada ruled that Mr. Cole had a reasonable expectation of privacy in the computer and the police should have obtained a search warrant.

R. v. Cole was a criminal law case, and the Supreme Court in its decision said it would “leave for another day the finer points of an employer’s right to monitor computers issued to employees”. Nonetheless, the Court’s comments provide some important insights.  The Supreme Court looked closely at the workplace policies and practices at the board, which the Court said diminished Mr. Cole’s expectation of privacy, including:

  • the board’s computer policy was up-to-date, and asserted ownership of both the hardware and the information on the computer and network;
  • the board reminded the employees every year of the policy; and
  • the policy provided that email could be monitored and that “users should NOT  assume that files stored on network servers or hard drives of individual computers will be private.”

Even with all of these helpful factors, the Supreme Court still concluded that the police should have obtained a search warrant. But that wasn’t the school board’s problem. The Supreme Court did not have any issue with the board’s search of the computer. As the employer, the board was within its legal rights to review the contents of the computer’s drive.

In a criminal case, the available remedy for an unreasonable search is to throw out the evidence. That doesn’t normally happen in employment law cases. What is the consequence of an unreasonable search? There are a few possibilities. One possibility is a claim for constructive dismissal.  If the employer destroys the employee’s trust, the employee can quit and demand a severance package. The second possible remedy for an employee comes from another case last year.

The second important computer privacy case from 2012 was Tsige v. Jones. In this case, a bank employee, Winnie Tsige, snooped the bank records of Sandra Jones, one of the bank’s customers. Ms. Tsige was in a relationship with Ms. Jones’ former common law husband. She wanted to know if Ms. Jones’ ex-husband – now Ms. Tsige’s partner – was really paying child support to Ms. Jones like he said he was. So, she looked at Ms. Jones’ bank account 174 times over 4 years. When Ms. Jones found out, she was understandably upset. Although the bank suspended Ms. Tsige for a week, that didn’t do anything to help Ms. Jones. She sued for damages.

The Ontario Court of Appeal ultimately decided to recognize a new cause of action for cases like this, called “intrusion upon seclusion”. The Court identified three required elements for this new claim: (1) the defendant’s conduct must be intentional (which includes recklessness); (2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and (3) a reasonable person must regard the invasion as highly offensive, causing distress, humiliation or anguish. The Court specifically stated that no loss of money was necessary. The Court suggested that ordinarily damages would not exceed $20,000 in such cases, and it awarded Ms. Jones $10,000.

In the wake of R. v. Cole and Tsige v. Jones, employees – and recently terminated employees – have already begun to assert that employer searches of their workplace computers are an “intrusion upon seclusion”. How can an employer monitor and search the computers that it puts in the hands of its employees? The key is to manage expectations. Employers can minimize their employees’ expectation of privacy in their workplace computers by considering the follow

  • Adopt a proper computer use policy, outlining what employees are allowed to do and the monitoring and searching the employer may do;
  • Ensure the policy is signed by the employees and they are regularly reminded of it; and
  • Implement the policy and follow through so that the reality of how employees use their computers and how the employer monitors that use matches the policy.