By: Cédric P. Lamarche

The upcoming G20 has spurred much talk about the large sums of money that the Canadian government is spending on the event.  Reports indicate that the Harper government plans on spending almost 1-billion for the summit.

Securing Toronto’s downtown core during the short meeting “requires the largest deployment of security personnel for a major event in Canadian history.”  According to the RCMP, the deployment of police, military and private security personnel will cost an estimated $321 million.

Due to the sudden need for security personnel and the hefty amounts invested, many government subsidized security positions have become available.  These positions are very appealing for many who currently work in the private security industry and earn meager wages.  According to newspaper advertisements by a company awarded a federal government contract, security guards hired for the event will earn approximately $20-$24 per hour.  This represents about double the average hourly wage earned by security guards in Ontario.

Some private security firms have expressed concerns regarding the retention of their staff during the summit.  As mass hiring begins, many private security firms are concerned that the attractive salaries will result in a high attrition rate, which may lead to staff shortages.

As attractive as the highly paid work opportunities may appear, security personnel should be very careful before bailing on their current employers.  Employment contracts often contain restrictive covenants (such as non-competition clauses) limiting one’s activities while employed, or following the termination of employment.  The breach of an enforceable restrictive covenant may give rise to legal liability.

The simple fact that an employment contract contains a non-competition clause does not automatically mean that it is enforceable.  Canadian courts will scrutinize these types of clauses very carefully to determine whether or not they should apply.  Restrictive clauses will be enforced if the courts conclude that the restrictions are reasonable to protect the proprietary interests of an employer as well as the interests of an employee to pursue his/her skills and earn a livelihood in a free and open market.  The question is whether a restrictive covenant does more than what is necessary to protect legally recognized interests of employers.

Whether or not a restrictive covenant is enforceable will depend on the circumstances of every case.  Before crossing the street to work for the competition, employees are encouraged to be diligent and have their employment contracts reviewed by employment law experts.

Cédric Lamarche is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

By: Ellen A. S. Low

As temperatures continue to rise, both employers and employees may be wondering about their respective obligations when it comes to working in the heat.

Pursuant to the Occupational Health and Safety Act employers have a duty to take reasonable precautions to protect workers.  This includes an obligation to develop policies and procedures to protect workers in hot environments.

The Workplace Safety and Insurance Board (“WSIB”), Heat Stress Awareness Guide encourages employers to have a “Hot Weather Plan” to prevent preventing heat-related injuries and illnesses in the workplace.  The Hot Weather Plan should include regularly monitoring heat and humidity in the workplace using a thermal hygrometer, and adjusting work schedules to allow for water and rest breaks based on the humidex reading at specific work sites.

The Heat Stress Awareness Guide puts the onus on employers to develop and implement a Hot Weather Plan, but stresses that employees must also be familiar with the symptoms of heat stroke and heat exhaustion.  Both employers and employees should know the risks of working in a hot environment, and what can be done to reduce the potential risk of heat-related illnesses.

One example I’ve seen was a ‘heat plan’ at an automotive manufacturing plant where for each 45 minutes of work in the sun, employees were required to take a 15 minute ‘cooling break’ in a shaded area where water and popsicles were provided.

Violations of the Occupational Health and Safety Act can result in penalties. Employers should ensure they are compliant to avoid potentially hefty fines. Contact our office for more information on how to develop and implement a “Hot Weather Plan” or for further information on other workplace safety obligations.

Whitten & Lublin LLP is a team of legal experts who provide practical advice and advocacy for workplace issues.

By Cédric P. Lamarche

Puisque l’internet permet l’accès à un monde électronique sans frontière, la majorité des employeurs adoptent des règles très rigides en ce qui a trait à la consultation de sites internet lors des heures de travail.  Effectivement, ces règles visent à réduire les activités qui ne se rapportent pas au travail, et plus particulièrement, l’accès au contenu explicite qui se trouve en ligne.  Grâce à des technologies sophistiquées qui permettent la détection et la documentation d’activités électroniques, les employeurs peuvent assurés avec beaucoup plus de facilité l’observation de ces règles.

Dans un article intitulé Surfing porn still popular at work, qui a été publié récemment dans le Globe & Mail, l’auteur discute du fait qu’un nombre très élevé de personnes consultent régulièrement des sites internet pornographiques lors des heures de travail.   Selon l’article, les résultats d’une recherche démontrent que 70% des gens qui accèdent des sites pornographiques le font lors des heures de travail.  À titre d’exemple, l’auteur présente le cas d’un avocat sénior qui fut trouvé à passer jusqu’à huit heures par jour à consulter des sites pornographiques alors qu’il était au travail.

La question suivante devient donc très pertinente pour les employeurs ainsi que les employés : Est-ce qu’un employeur peut congédier un employé, avec motif valable, pour avoir consulté des sites pornographiques au travail ?  À première vue, la réponse à cette question semble évidente.  Toutefois, comme c’est souvent le cas dans le domaine du droit du travail, elle ne l’est pas.

Alors que la consultation de sites pornographiques au travail semble constituer un acte grossier qui pourrait vraisemblablement nuire à la réputation d’un employeur et causer des répercussions sérieuses pour une entreprise, il faut considérer les protections qui sont offertes aux employés par l’entremise du Code des droits de la personne de l’Ontario.  Notamment, le Code protège les employés contre la discrimination fondée sur l’existence présumée ou réelle, actuelle ou antérieure, d’un handicap.  Il reste à savoir qu’est-ce qui peut possiblement être considéré comme étant un handicap.

Est-ce qu’une dépendance à la pornographie peut être considérée comme étant un handicap ?

Si la réponse à cette question est dans l’affirmative, comme c’est le cas pour la dépendance à des substances contrôlées ainsi qu’à l’alcool, un employeur pourrait avoir l’obligation de prendre des mesures d’adaptation envers l’employé souffrant d’un tel handicap.  Ainsi, un employeur qui congédie un employée pour avoir consulté des sites pornographies lors des heures de travail, pourrait faire face à une requête pour discrimination devant le tribunal des droits de la personne s’il peut-être démontré que l’employé souffre ou semble souffrir d’une dépendance à la pornographie.

In a recent article published by the Associated Press, it was reported that employees of a Danish brewery walked-off the job to protest against the imposition of new rules regarding the consumption of alcohol during work hours.

For many years, Carlsberg, a popular brewery established in Denmark, had a corporate policy which permitted its workers to keep coolers filled with the brewer’s product around the workplace.  Employees were permitted to quench their thirst at any time during their work day by cracking open an iced cold beer.  The only restriction:  don’t get drunk.

However, in a move that was not well received by its employees the brewer recently revised its “drink while you work” policy.  Under the new rules, brewery workers will only be permitted to consume alcoholic beverages during their lunch hours.  Interestingly, Carlsberg’s truck drivers were not affected by the new rules; they may continue to bring several brewskies along with them while on deliveries.

As comical and absurd as the Carslberg employees’ protest might seem to most Canadians, this reminds us that employees are entitled to have the fundamental terms of their contracts respected.  Failure by employers to respect the terms of an employment agreement, whether express or implied, may give rise to a constructive dismissal entitling an employee to severance.

If there was a similar case in Canada, the disgruntled employees would have to establish that the old policy was an implied term of their employment contract and constituted a fundamental term.  In other words, the right to drink on the job was a benefit that they specifically relied upon when accepting the position.

Cédric Lamarche is an employment lawyer with the employment law firm Whitten & Lublin LLP.  He can be reached at cedric@whittenlublin.com.

By Cedric Lamarche

Many people in the workforce often wonder what reasonable consequences or “penalties” employers can impose on employees as a result of performance issues or misconduct.  The answer to this question will vary depending on the circumstances of every case.  That said, employees and employers alike should know that Canadian courts have consistently upheld the legal doctrine of progressive discipline.

Progressive discipline, as the name suggests, contemplates the gradual escalation of disciplinary action by an employer.  Pursuant to this concept, employers should avoid jumping the gun in handing down “penalties”.  For example, if an employee violates a safety policy in the workplace by failing to wear the proper safety gear, it would be unreasonable and unfair for the employer to immediately suspend or dismiss the employee for the infraction.  A court would likely view such consequences as being premature.

In instances where an employee’s performance or conduct is at issue, the employer should clearly provide the employee with the following:

• An explanation of the problem;
• The steps that should be taken by the employee to correct the problem;
• Offer assistance to the employee to help correct the problem;
• A timeframe within which the problem is expected to be remedied; and
• The further disciplinary actions that may be imposed if the problem persists.

If followed, this disciplinary model encourages the early detection by management of problems involving employees and the opportunity to address them before they escalate beyond the point of no return.  Further, it allows employees to understand any problems with respect to their conduct or performance and provides them with the opportunity to take the steps required to remedy the situation and maintain their employment.

Progressive discipline implements a process which helps to prevent the premature imposition of disciplinary action by management.  If respected, it decreases the chances of successful wrongful dismissal lawsuits against employers.  If not respected, it provides employees with recourse against their employers.

Cedric P. Lamarche is a lawyer with Whitten & Lublin LLP, an employment law office assisting both employers and employees on various workplace legal matters.

By: Brian Norris

The recent and very public locker room gun-pulling incident between NBA players Gilbert Arenas and Javaris Crittenton has highlighted the importance for employers to create and enforce policy on workplace safety.

As many sports fans know, Arenas and Crittenton have now been suspended by the league for the remainder of the 2009-2010 season for brandishing guns in the Washington Wizard’s locker room. Some may interpret the NBA’s actions as “making an example” of the payers. Others, such as myself, see it as the league legitimizing and enforcing it’s policy outlined in the collective bargaining agreement; An agreement produced by the collective efforts of the NBA owners and the Players’ Union.

As previously mentioned by Daniel Lublin, if an employer wants to lean to it’s policies in support of a lawsuit, it is important for them to circulate and enforce clearly worded company policy.

With the introduction of Bill 168 in Canada, the issue of workplace safety regarding violence has been a hot topic as of late. The incident between Arenas and Crittenton and the manner in which the NBA dealt with it is a good example for all employers to take notice of.

Brian Norris is the Office Manger of Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees.

By Brian Norris

After being notified that her long-term sick leave benefits were being discontinued, Nathalie Blanchard might be reconsidering her use of the networking site, Facebook. In a recent CBC news piece, Ms. Blanchard claimed her insurer asserted she was "available to work, because of Facebook". 

Issues arose when Blanchard, off work after being diagnosed with depression, published photos on her Facebook page showing her having a good time at several events including a Chippendales bar show, her birthday party, and vacationing on a sunny beach.

As always, employees need to take notice of this example and previous ones and reconsider the what they publish on the social networking sites.

Brian Norris is the office manager at Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees on a wide range of workplace law matters.

Ray Agosta literally took company policy into his own hands. Captured on security cameras and spotted by a loss prevention officer, Agosta was caught taking five items to his car he had not checked out of the store. However, when Agosta’s story for taking the items didn’t check out either, the cost to Agosta was more than just the bill for the food; he paid by losing his job.

Agosta, a manager at a Toronto area Longo’s grocery store, was caught taking a few small items out of the store he had not paid for. When questioned, he argued the items were samples, given to him by their supplier. But even when taking samples from the store, company policy required all employees to seek permission from the store manager. After an investigation, Longo’s fired Agosta. Agosta responded by suing Longo’s for wrongful dismissal.

At trial, Longo’s relied on its policy for removing items from the store, stating that employees caught taking items without permission "will be subject to disciplinary action which may or may not include termination, arrest and prosecution." Further, it argued that even though the amounts that Agosta took ere minimal, like yogurt and cream cheese, loss prevention is taken very seriously in the grocery business and Agosta had known and adhered to its policies before. For his part, Agosta argued that he had always asked for, and was consistently given approval to remove items from the store in the past.

Loss prevention in supermarkets is centered around Supermarket Shrink. It deals with the loss of profits due to several factors including shoplifting, goods expiring, and employee theft. In a survey approved by the American National Grocers Association, it was reported that employee theft was the largest category of shrink, making it a major theft prevention policy factor. 

Recently, an Ontario judge sided with Longo’s and found that Agosta knew, understood and consistently followed the policy to get a manager’s consent before taking any items from the store. The fact that Agosta had always been given permission to take items in the past didn’t eliminate his responsibility to seek consent every time he considered taking a product from the store.

Justice Moore J. found that Agosta’s termination was justified, agreeing with Longo’s argument that Agosta could no longer be trusted.

Company policies can sway the outcome of a trial. In this case, the judge relied on five factors that companies must generally establish in order for a breach of a company policy to justify an employee’s immediate dismissal:

1. the rules must be distributed;
2. the rules must be known by the employees;
3. the rules must be clear and understandable;
4. the rules must be consistently enforced; and
5. employees must be warned that they will be terminated if a rule is breached

As the case of Ray Agosta shows us, breaching policy can have serious consequences when the policy is properly applied.

For Agosta, it cost him his job.

Click here for the original article from Metro News

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com