It is hard to lose the game when you make the rules

| March 29th, 2011 | No Comments »

Privacy in the workplace continues to dominate the legal and policy discussions.

Most recently, Jerry Agar of CFRB 1010 and the Toronto Sun, addressed the issue in an editorial. Naturally, he sought the advice of employment lawyer, Daniel A. Lublin, prior to putting pen to paper. Commenting on the recent landmark decision, Mr. Lublin indicated it was a “seismic shift” in workplace privacy rights. Lublin encourages employers to create good information technology policies in the workplace. As he says; “It is hard to lose the game when you make the rules, so set good rules in place.

Computer ruling seen as “seismic shift” in workplace privacy rights

| March 28th, 2011 | 1 Comment »

Speaking with the Globe & Mail about the recent Ontario Court of Appeal decision on privacy rights in the workplace, Daniel Lublin had this to say;

“I would call the court of appeal finding a seismic shift in the way privacy rights are dealt with in the workplace.” “Until now most people generally assumed there was no reasonable expectation of privacy in work computers, and that would extend to work e-mail and Internet use… The court has now resoundingly said that there is a reasonable expectation of privacy in work technology that leaves the office.”

Click here for the full article.

Oil Sands Blogger Fired for Safety Concerns

| October 25th, 2010 | 1 Comment »

The Vancouver Sun reported that Mike Thomas was fired from his position as an electrical apprentice after posting two blog entries that detailed his health concerns in two mining camps in Alberta. 

The tone of Thomas, adhdcanuck’s blog, is one of reserved conviction – a tone that he says would be much harsher, were he “permitted”.  The two entries written described health concerns such as the sanitary condition of washrooms, and the limited food selection that left many nutrients to be desired.  Thomas catalogued his complaints through several pictures and videos of the facilities.

Two days following his October 4th posting, he was terminated over the phone by the contractor he worked for upon the behest of Suncor management.  Like many other companies, Suncor cited policy that prohibited work site photos to protect trade secrets; policy that Thomas claims is a smokescreen to mask unsanitary conditions.   Thomas’s union is pursuing his claim of wrongful dismissal, while he continues to blog and gain support.

When employees complain about working conditions to no avail, they often use social media websites as a sounding board, either for personal release, or as a political podium.  Whether acting in haste, or with tactical precision, employees should be aware of the danger they face. 

It is common for an employee to blog or tweet about a horrible day at work.  What Thomas did was completely different – he posted his company’s name with picture and video as a call to arms, hoping to mount a resistance.  This need not be an issue of free speech, but of common sense.  If you publicly insult your employer, you should expect repercussions.  Employees should be careful what they post, and know that whether it seems fair or not, employers are not hesitating to terminate for blogging.  That being said, employers should still consider lesser punishment than immediate dismissal.  It is a good idea to come up with fair procedures that address defamatory blogging sooner, rather than later.

Theft May Not Result in Dismissal

| October 18th, 2010 | No Comments »

Employers who are quick to dismiss employees for theft may have to think twice.  David Leitner put off his expense reports, and often lost track of his records, submitting them long after expenses were incurred.  When his employer, Wyeth Canada discovered discrepancies in reimbursement receipts, Leitner admitted his use of personal receipts to recover what he was owed.  His termination for just cause was not upheld in the Ontario Superior Court.  This highlights an important distinction for employers – recklessness does not always equate to fraudulence.   

Read more about this case and it’s implications in Daniel Lublin’s column in the Metro news.

Calgary Stock Broker Yields Poor ROI

| September 23rd, 2010 | No Comments »

After almost ten years of fighting, Calgary-based stock broker Kurt Soost is not ready to throw in the towel. 

Soost was wrongfully dismissed from Merril Lynch Canada Inc., for a breach of policy regarding a lack of documentation on some of his private placements.  Initially, the judge ruled that Merril Lynch did not have cause for dismissal.  Soost was awarded 2.2 million dollars, primarily for damage to his reputation and the loss of his clients.  The Court of Appeal later reduced this award to $600,000, finding that Soost did in fact breach company protocol, and lacked the evidence to prove that the employer’s actions amounted to bad faith.

This case highlights a recent trend in employment law that appears to be reversing.  In the past, judges have shown leniency towards employees when employers have acted in a harmful manner.  More recently, in Honda v. Keays [2008], the judge ruled that employees actually have to prove that the loss incurred was a result of the employer’s bad behavior.

The Court of Appeal ruling against Soost illustrates that the test for Keays type damages is more stringent than it has been in the past.  The judge reasoned that allowing inflated awards would create an unfair burden on employers and could result in a “slackers charter”.  Essentially, employers might choose to dismiss employees without cause and pay cash in lieu of notice in order to avoid potentially large punitive fines. 

Soost plans on appealing the decision, but has a long road ahead of him in convincing the Supreme Court of his plea.

Read more about Soost’s case on the Globe and Mail website.