Employees’ Wrongful Actions and Employers’ Liability

| December 20th, 2016 | No Comments »

wrongful actionsEmployers may be found liable for the wrongful actions of their employees under certain conditions. The wrong must be tortious – this is a wrongful action that can be brought to civil court – which includes torts such as trespassing, assault, theft, negligence and so forth. There are certain factors established by the courts in determining whether the employer is vicariously liable for the wrongful act(s) of their employee. These factors are analyzed thought the ‘Salmond’ test established by common law.

Salmond Test – Vicarious Liability

The ‘Salmond’ test seeks to establish whether the employer created an opportunity for the employee to commit the wrongful action through the duties required for the position. If the act was related to such duties, then the employer can be found liable. The test seeks to analyze the following:

  • The opportunity the employer gave the employee
  • The extent to which the wrongful act may have furthered the employer’s aims (i.e. making this action more likely to be committed by the employee)
  • The extent to which the wrongful act was related to friction, confrontation or intimacy inherent to the position/business
  • The power conferred on the employee in relation to the victim
  • The vulnerability of the victims in relation to the employee’s power

In general terms, the principle underlying the ‘Salmond’ test is whether the duties required gave an enhanced opportunity for actions of wrongdoing. This can be examined though a combination of the above factors in the ‘Salmond’ test. Employers are encouraged to seek an employment law expert for a full understanding of any situation raising concern. The above is by no means comprehensive.

An example that illustrates the relevant principles is Bazley v. Curry (SCC 1999). This case established that vicarious liability extends to enterprise risk. Simply, this can be viewed as the necessary duties employees are given to conduct business in the specific industry. This means that employers can be found liable for the risks inherent in the job itself, and not just acts that are authorized by the employer.

Bazley v Curry Example

In Bazley v. Curry, the employer was a child care facility. Employees here were caretakers of mentally disabled children. The nature of this business required caregivers to have a relationship of total intervention – bathing, preparing children for bed, and so on. Mr. Curry was the caregiver and Bazley was the child subjected to abuse by Mr. Curry. The employer here was found to be vicariously liable for the wrongdoing. In simple terms, this was because Mr. Curry was put in a position that made the abuse more likely when examining the duties of the job. The focus here is on the enterprise risk.  The nature of the business made these actions by Mr. Curry more likely to occur; the employer was therefore vicariously liable.

Final Thoughts

The courts place an increased responsibility on employers for the actions of their employees for two reasons. The employer has the means to compensate potential victims for the wrongdoing of their employees. Also, the court recognizes the employer’s ability to deter their employees from committing such wrongful acts. This may include performing criminal background tests or placing third-party supervision as deemed necessary for the position and enterprise, as this will mitigate risk and deter employee wrongdoing. It is important for employers to be diligent and take the necessary precautions to prevent wrongful actions by employees.

Holiday Party & Corporate Liability

| November 29th, 2016 | No Comments »

holiday party at workA staff holiday party is a great way of celebrating the holiday season.  It can also be an effective way of showing appreciation to employees.  These events can be lots of fun, but what many employers often forget is that they can attract unwanted liability. 

The most common types of legal issues employers face as a result of staff parties are related to harassment and alcohol consumption.  The following are brief guidelines that employers should carefully consider in order to create a fun-filled holiday celebration, while avoiding legal liability.

Harassment

An employer can be held liable for harassment, including sexual harassment, even if it occurs after hours at a staff social event.  The following are simple things that employers can do to not only help reduce the risk of harassment, but also the risk of liability if harassment does occur: 

  • Develop and circulate an anti-harassment policy that clearly states that it applies to all work functions, including all social events;
  • Members of management should be reminded that they are expected to set an example for other employees during workplace functions;
  • Invitations for a holiday party should include a reminder that the anti-harassment policy extends to the event;
  • Consider inviting non-employees to the event.  The presence of customers, suppliers, or significant others can help reduce the occurrence of harassment or offensive behaviour;
  • Take steps to limit the consumption of alcohol;
  • Anti-harassment training should have fact scenarios that include work social events; and
  • Have an action plan ready in the event of an incident of harassment, and be prepared to implement it. 

Realistically, employers may not be able to fully control how guests behave at social events.  However, they can certainly avoid being held responsible for another guest’s conduct if they take proactive steps to help prevent the conduct, and if they take appropriate and swift action in response to inappropriate conduct.

Alcohol Consumption

The consumption of alcohol at a work function can lead to undesirable conduct by guests.  One of the main concerns employers should have is being held liable for injuries or damages caused by an intoxicated guest.

A social host is not typically liable for injuries/damages resulting from a guest who has consumed alcohol at the host’s residence.  However, employers are not ordinary social hosts.  The case law in Canada suggests that employers who host staff holiday party owe a duty of care to their employees which is closer to that of a commercial host.  Consequently, an employer who hosts a party has a greater duty to protect intoxicated individuals and the public than a social host. 

To help reduce the risk of liability arising from an intoxicated guest’s actions, employers should be following these simple tips:

  • Only serve a reasonable amount of alcohol to every guest.   Effective methods include the issuance of a set amount of drink tickets per guest, and limiting the period during which alcohol is served;
  • Do not provide open access to alcohol; 
  • Hire certified, licensed and insured professionals to look after the distribution of alcohol;
  • Serve food at the event;
  • Prevent “binge drinking” by discouraging/prohibiting drinking games;
  • Offer a selection of non-alcoholic beverages;
  • Hold the event off-site at a licensed and insured establishment;
  • Appoint members of management to monitor alcohol intake by guests, warn people against driving intoxicated, and to arrange taxis for intoxicated guests;
  • Provide paid transportation to and from the event for all guests; Invitations to the event should include a statement discouraging drinking and driving and excessive alcohol consumption.  Similar announcements should be made regularly throughout the event;
  • Do not conduct any business at the event; and
  • Avoid drinking with employees at other sites after the conclusion of the social event.

If an employer wishes to throw a staff party without having to worry about liability, it should refrain from cutting corners at the organizational stage.  Careful and thoughtful preparation is the key to a successful and liability-free event.

The Laws Regarding Employee Monitoring Software

| July 28th, 2016 | No Comments »

facebook at workEmployee monitoring software serves one primary purpose: to make sure employees are doing what they are supposed to.  It can be installed on computers and other devices and can track an incredible amount of information.

For example, while some software simply tracks when employees log on / off their devices or what websites they visit, other software can go much farther.  For example, some can track every keystroke made by an employee.  That can include keystrokes in personal, web-based emails that employees thought would remain private.  Other software includes the ability to replay each word typed and every move of a cursor.

However, just because the software makes these things possible, does not mean that employers should be using them.  In many cases, they should not.  For example, its use may breach an employee’s reasonable expectation of privacy.  This will depend on whether the company specifically prohibits the use of company devices for personal matters, how invasive the software, whether the software is used secretly or with the employee’s knowledge and consent, and many other factors.

Even if it doesn’t breach an employee’s expectations, using monitoring software may breach privacy legislation.  PIPEDA – the Personal Information Protection and Electronic Documents Act – and various provincial acts limit how many private organizations in Canada may collect, use and disclose personal information.  In most cases, organizations would need an individual’s consent before even collecting that information, much less using it.  As a result, keystroke monitoring that happens to catch an employee typing an email about a personal matter – such as a personal medical issue or their financial circumstances – may result in an inadvertent breach of the legislation.

In other words, employers should think carefully about whether they need to use monitoring software and, if so, how to ensure that they only use it with the proper controls, policies and consents in place.

For their part, however, employees also need to beware – many people work in environments where there is no reasonable expectation of privacy or where the information being collected is not ‘personal’ and could, if discovered, put their job at risk.

 

Author: Stephen Wolpert, Whitten & Lublin

Pokémon GO vs. Work FLOW

| July 26th, 2016 | No Comments »

 

no pokemon at work

In case you have been living under a rock for the past month the Pokémon GO game craze has hit Canada.   Players catch, trade and battle Pokémon that pop into existence alongside real-world physical objects when viewed through a smartphone.  A large element of the game requires players to travel to various locations to engage Pokémon.

In less than one month Pokémon GO is reported as being on more than 6 percent of Android devices in Canada, it is the most downloaded app in the history of the App Store and in the past weeks it has had more active users than twitter with more engagement than Facebook.

The game’s level of engagement means a number of people are playing it during their working hours and productivity is likely impacted.  After all, employees have been reported to have left the workplace on unscheduled, unapproved and extended breaks to catch or train Pokémon.  The result at this time seems to be a number of amusing signs posted in workplace but the concern should be greater and knowledge around the topic of time wasting should be understood and properly monitored.

Generally, an employee found playing games on company time does not justify a termination for cause.   Stated differently, catching Pokémon during working hours is unlikely to justify a dismissal without proper notice or payment in lieu of notice.  A termination with cause is regarded as the capital punishment of employment law and time wasting of this sort is not enough to justify it.

Despite the above, various factors could influence a judge to uphold a just cause dismissal.  For example, a disciplinary record tied to time wasting / time theft; game playing while driving or using company equipment (putting the safety of others at risk), an employee’s senior level, game play on a company issued devices, frequent game play, attempts to conceal or deny the misconduct and/or an intentional violation of a company cell phone, hours of work, internet or distracted driving policies may justify a with cause termination.

pokemon go work

Employees should be mindful that even though it is unlikely that their employer can justify a termination for cause on account of Pokémon GO game play they are certainly not free from serious consequences.  Most of Canada’s non-union employers can still impose other discipline and certainly terminate without cause.  Stated differently, employees can be fired for playing the game so long as an employer provides notice of that termination or makes payment in lieu of notice.  If a valid termination clause is in the employment contract the employer might only need needs to provide a few weeks’ notice before the employee becomes a full-time Pokémon GO hunter and Employment Insurance collector.

It will not be long before Pokémon GO results in reported dismissals but don’t let the excitement cloud your reality.  If you have any questions on this topic or other areas of employment law consider contacting our team to assess you situation.  If you are looking for well thought out options our team is well equipped to “catch ‘em all”.

 

 

Your Rights When You Face Termination Without Cause

| January 5th, 2016 | No Comments »

A terminated employee is typically entitled to fair severance, unless he or she did something so serious to warrant losing it (called “termination for cause”).

An employee’s actual entitlement is determined by first looking at whatever deal they might have made with their company.  Such a deal – called a “termination clause” – is usually found in an “employment agreement” or in a similar but less formal document signed by both sides.  Very commonly, these arrangements are set by the company itself and are most beneficial to it.  Therefore, it’s important to try to negotiate early on before signing anything, with the assistance of a trained lawyer.

Courts will only allow arrangements that provide for at least the minimum amount(s) required by the government.  Because these arrangements are usually company-friendly, it is necessary to speak to an employment lawyer to determine if there is a legal basis to get a better severance deal than what it appears to say in the agreement.  Our firm regularly finds ways to get much better deals for terminated employees in circumstances that allow for it.  One example is where an employee is hired to do one job, is promoted several times, and then is terminated years later.  The termination section in the employment agreement that was initially signed likely won’t be accepted by the courts in that situation, since the employee is serving a totally different role by that point.

That decision could be the difference between a severance of several thousand dollars… or tens of thousands of dollars.

From an employer’s standpoint, because fair severance can become very costly, the safest thing to do is have an employment lawyer draft an agreement with a legally enforceable termination clause.  Too often, we see companies pulling agreements off the Internet, or using non-specialized lawyers to put them together.  This is a problem, because very often the law has changed, or a non-expert misses something of significance.  The agreements can go a step further to address other issues of importance to the business, such as post-employment obligations, confidentiality, and so forth.

Author: Daniel Chodos, Whitten & Lublin

What is Wrongful Dismissal and Are You a Victim?

| November 20th, 2015 | 1 Comment »

A dismissal is wrongful if an employee has been terminated without adequate notice or fair payment in lieu of that notice. It is implied that a dismissed employee is entitled to “reasonable notice” of their eventual last day of work or the compensation they would have been entitled to over that period.

The focus of the wrongful dismissal case is the determination of the “reasonable notice” period. Our Court of Appeal has made clear that “determining the period of reasonable notice is an art not a science”. Courts consider a number of factors including, but not limited to, age, salary, tenure, educational background, recruitment to the job, specialty and whether similar positions are available in the marketplace at the time of termination. Payment in lieu of reasonable notice is what we commonly refer to as severance.

Be advised, reasonable notice is not always due to employees. An employer does not need to provide reasonable notice if they have clearly and legally limited notice. Moreover, employers do not need to provide any severance if they have “just cause” for dismissing an employee. For an employer to have just cause the employee must have committed a terrible act that strikes at the core of the employment relationship. Stated differently, to deprive a terminated employee of any severance they must have engaged in something as egregious as theft, serious dishonesty or harassment.

Rest assured, just cause is a very difficult for an employer to prove and employment contracts of even the largest and most sophisticated employers have been found inadequate in their attempts to limit notice.

Consider consulting the lawyers at Whitten and Lublin for an expert assessment of your wrongful dismissal case and severance entitlement.

Author: Paul Macchione, Whitten & Lublin

Q&A: Unjust Performance Review?

| May 19th, 2015 | No Comments »

QUESTION 

This concerns an unjust annual performance appraisal that will affect my salary. My manager is expecting me to sign or to contest, the bogus appraisal this week. Should I do that? What options do I have?

ANSWER

You are not required to sign an unjust performance review that you find to be “bogus”.  If you disagree with the fact and content of the review, you should contest it immediately.  Otherwise, it will go undisputed in your file and your employer could use it against you to allege cause for your dismissal.  Terminating your employment for cause would dis-entitle you from severance.

In your rebuttal, you should include the following:

  • Your version of the story;
  • Any mitigating circumstances;
  • Whether there are any inconsistencies between the negative appraisal and your previous reviews or achievements;
  • Whether your performance standards were unreasonable;
  • Whether you lacked the support needed to meet your performance standards;
  • Whether your deficiencies were communicated to you before the appraisal;
  • Whether there were any inequities in the evaluation process;
  • Whether there were any inconsistencies between the appraisal process and company policies; and
  • Your need for time to improve.

You should also make sure to:

  • Challenge the forthcoming reduction in salary;
  • Document your disagreement in writing; and
  • Request that your rebuttal be placed in your file.

Applying these guidelines will allow you to build your own documentary campaign against cause for your dismissal.  If you think your employer is building a case against you, consult with an employment lawyer today.

Employees’ beware- Off-duty conduct can impact your work

| November 4th, 2014 | 1 Comment »

An employee’s conduct at work and out of work can eventually lead to potential discipline or termination by their employer.  The role of the media is now, more than ever impacting the employment environment and working relationship. We are living in an era where the pictures that you post online or the life you led years ago, can come back to haunt you.  The media scrutiny surrounding Jian Gomeshi, Donald Sterling and Ray Rice are all fine examples.  Their personal lives have affected their working relationship and eventually led to termination or discipline.

In his most recent article, Daniel Lublin, Toronto Employment lawyer explains how no one is exempt from termination based on their out of work conduct. Indeed, only a small percentage of people with positions of trust can be terminated or disciplined without severance.  The others must be paid severance. The allegations made against well-known people and those of trust make headlines simply because their actions affect their employers’ brand. Those who do not affect their employers’ brand but whose behavior out of work is shameful can be disciplined or terminated with cause and is usually upheld in Court.

To read more on this subject and for a more comprehensive overview, read Daniel Lublin’s full article Lines blurred between employees’ work and private life and his column in the Globe and Mail.

Solutions for your employment issues

| July 10th, 2014 | No Comments »

Daniel Lublin, Employment Lawyer has recently written a couple of articles in his Globe and Mail column, where he answered a couple of readers’ questions regarding their employment issues. Here is what Daniel Lublin explains:

What can be done in case a client is threatening an employee and does the employer have an obligation to protect that employee?

  • An employer has an obligation to provide a safe workplace and to protect employees from workplace violence and harassment which includes threats from members of public. If employee’s safety is in jeopardy at work, he/she can leave the workplace and may even be entitled to damages.

What are the options in case unpaid vacation wages are not provided and employer decided to close down?

  • The employer cannot refuse to pay even if facing grim financial circumstances. Complain can be made to provincial Ministry of Labour or one can pursue in court, depending on the amount owed.

In case of a medical leave how long can my employer hold my job, and when I return can they refuse me?

  • The reinstatement after a long-term illness or disability is protected by human rights legislation; however there are two exceptions in which case the best is to consult with an expert.

What options would long term employee have in case employer decided to restructure and change employee’s responsibilities? Would he need to accept these changes?

  • The best option would be to meet with an expert to determine whether or not there are reasonable or unreasonable circumstances which would constitute constructive dismissal.

What can the Ministry of Labour do in a situation where the employer is creating a hostile work environment?

  • The ministry will only get involved to determine whether the employer has a workplace harassment policy in place in accordance with the Occupational Health and Safety Act. Employees may have recourse under the Ontario Human Rights Code if the harassment relates to a prohibited ground of discrimination or the civil courts if the conduct makes employment intolerable.

To read more of Daniel Lublin’s articles and find more information about your rights refer to the following articles: My employer isn’t protecting me, Will I get my job back after a long illness, and Our boss harasses us. What can we do?

Failure to investigate alleged misconduct can be costly

| April 2nd, 2014 | 1 Comment »

It is not uncommon for employers to fire first and ask questions later, especially in instances of alleged employee misconduct. Stelcrete Industries Ltd., a rebar assembly plant in Welland, Ontario learned that impulsive actions can be costly.

Stelcrete Industries Ltd. chose to stay open on Family Day and told Ludchen, the plant supervisor, to post a written announcement of their substitute day off. An undercover investigator posing as a Stelcrete employee informed management that although she did not witness the occurrence she was told that the supervisor “freaked out,” threw a garbage can and then made a discriminatory remark about the ethnicity of the company’s owners when he was told to post the announcement. Satisfied that Ludchen was guilty of misconduct the company immediately fired him.

At a recent trial to determine whether the supervisor was wrongfully dismissed, Ontario Superior Court Justice Joseph Henderson ruled in favour of the former supervisor because Stelcrete was unable to connect the man’s alleged comments back to him. The undercover investigator’s testimony about what others told her was hearsay, and none of the other employees who testified corroborated the alleged remarks.

What Daniel Lublin, employment and labour lawyer at Whitten Lublin PC advises is that, “When dealing with alleged employee misconduct, the onus is squarely on the employer to prove that the punishment fits the crime.”

Without first investigating the situation, or at least confronting the employee with its accusations, Stelcrete was unable to provide the evidence required to convince the judge that the company acted correctly. As a result, the former supervisor was awarded his legal costs, 12 months’ pay and damages in lieu of his benefits and a bonus he ordinarily received.

In his Globe and Mail article, Don’t fire first and ask questions later Lublin summarizes Ludchen v. Stelcrete Industries Ltd., 2013, and offers employers advice on how to proceed with investigating allegations of misconduct before dismissing an employee.