by Parisa Nikfarjam, Student-at-Law at Borden Ladner Gervais LLP
More than ever, Facebook and other social media networks serve as a means of communication and a source of information. However, two recent decisions show that these networks can also serve as mediums for off-duty misconduct and that their misuse by employees can lead to disciplinary action. A posting on a Facebook page that harms the reputation of an employer may be grounds for discipline. Although the poster may have a perceived sense of privacy, this perception may not justify one’s conduct online.
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By Harvey Mackay
Whether you’re managing a team of employees or you’re on your own, remember that although what you do and how you do it are important, it’s the “why” that provides real motivation to succeed.
An experiment conducted by the University of Pennsylvania’s Wharton School of Business demonstrates the power of “why.” At a university call center where employees phone alumni to solicit contributions to scholarship funds, the staff was randomly divided into three groups: The first group read stories written by former call center employees about the benefits of the job (such as improved communication and sales skills). The second group shared accounts from former students about how their scholarships helped them with their education, careers and lives. The third, a control group, read nothing, just explained the purpose of the call and asked for a contribution.
After a month, the researchers found that the first group and the third group raised roughly the same amount of money from alumni after the experiment began as before. But callers in the second group, who had related the stories about the impact of the scholarships students received from the fund-raising campaign, raised twice as much money from twice as many alumni as they had before.
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By Paul Miller of Boughton Law Corporation
[Ed. note: Although a British Columbia case, it evidences how variable are common law entitlements in Canada.]
Employers seeking advice about what notice period or pay in lieu of notice should be given to an employee who is not being dismissed for cause are often told by their legal advisors that there are four main factors to consider: the character of the employment, the length of service, the age of the employee and the availability of similar employment having regard to the experience, training and qualifications of the employee. This article will focus on the first of these factors.
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By Harvey Mackay
Over the years I’ve asked a lot of people what makes a great salesperson, and the answers are fairly predictable: passion; persistence; personality/likeability; planning; trustworthiness; strong work ethic; drive/initiative; quick learner; goal-oriented; good communications skills; sense of humor; humility; good timing; strong at building relationships; and follow-up (or as I say, the sale begins when the customer says yes).
My own answer is always the same:
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By Kathleen Chevalier
If your company utilizes independent contractors in Ontario, it may now be required to establish a joint health and safety committee. In Ontario (Ministry of Labour) v. United Independent Operators Limited, the Ontario Court of Appeal ruled that independent contractors count as workers “regularly employed” by an employer, and therefore must be included when determining whether an employer is required to establish a joint health and safety committee under the Occupational Health and Safety Act.
In July 2004 an independent contractor, operating as a truck driver for United Independent Operators Limited, suffered a broken pelvis and two broken legs when he was trapped between his truck and that of another United truck driver. As the accident occurred at the worksite of a United customer, the Ministry of Labour conducted an investigation. The Ministry charged United with failure to establish and maintain a joint health and safety committee (JHSC), and issued an order
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By Michael Polychuk of Gowling Lafleur Henderson LLP
In January 2011, the Tax Court of Canada (the “TCC”) released two judgments, Prue v. M.N.R (“Prue”) and Smith v. M.N.R (“Smith”) in which it found that the individuals were operating as independent contractors rather than employees. The court examined the intention of the parties, since in both cases the appellants believed that their status had changed from independent contractor to employee over the course of the relationship.
The key question in determining whether an individual is an employee or independent contractor is whether or not the individual was engaged to provide services as a person in business on his or her own account as set out in Wiebe Door Services Ltd. v. M.N.R. (“Wiebe Door”). That case also provided a list of factors that may apply such as: the level of control, the ownership of the equipment, the degree of financial risk and the opportunity for profit. In 2001, the Supreme Court of Canada stated in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., that
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Fraser Milner Casgrain LLP recently published their Ontario Employment Law Bulletin for March 2011, covering the following topics:
- Active Employee Wins Constructive Dismissal Suit, Gets Damages for Pay Cut
- Backlog Drives Changes to Ontario’s Employment Standards Complaint Process
- Court Overturns Award of Lost Wages until Retirement
- IT Employee’s Security Breach Justified Termination
- Facebook Firing Upheld
- HR Professionals Bill Causes Controversy in Ontario
- Pay Equity Commission Conducting Random, Province‐Wide Compliance Audits
- Occupational Health and Safety Act Amendments Coming
- Canadian Unionization Numbers Increase Slightly
Download a copy here.
By Bull, Housser and Tupper LLP
With this one simple mistake, an employer can lose even the most airtight case
It’s a familiar theme of police television dramas: everyone knows the bad guy committed the crime, but the police don’t do everything by the book and the villain gets away on a “technicality.” The police force winds up looking foolish, the prosecutor chews out the detectives involved, and our heroes have to find another way to bag their criminal.
In much the same way, an employer will lose an arbitration if it is found that it breached the employee’s right to
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by Charles E. Hurdon and Richard J. Charney of Ogilvy Renault LLP
Employers in Ontario may see a reduction in the number of claims filed with the Ministry of Labour (MOL) alleging that they have breached the Employment Standards Act, 2000 (“ESA”). Effective January 19, 2011, new guidelines are in place to address recent ESA amendments that now require employees to contact their employers before filing complaints with the MOL.
The Open for Business Act, which received Royal Assent on October 25, 2010, included procedural amendments to the ESA that impose new obligations on employees before their complaints will be processed and/or pursued by the MOL. Specifically, the new amendments require the employee to demonstrate to the MOL that he or she has:
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by Jacquie El-Chammas of Borden Ladner Gervais LLP
Determining who falls under the legal definition of “manager” involves a complex analysis of facts and can affect the outcome of claims with respect to overtime pay entitlements and the right to file a complaint under the Canada Labour Code1. Recently, in Canadian Imperial Bank of Commerce v. Torre2, the Federal Court held that an employee who was a branch manager was not actually a manager at law, but was an employee under the Canada Labour Code. This conclusion meant that that person could file a complaint under the Canada Labour Code, under which only employees (and not managers) can complain of unjust dismissal.
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by Evan Howard of Ogilvy Renault LLP
Most employers with defined benefit (“DB”) plans are looking to contain their pension costs. Accordingly, many are switching to defined contribution (“DC”) plans in an effort to achieve more predictable funding costs.
However, making such a switch can be complex and does not immediately eliminate the funding obligations associated with the DB pensions already accrued or in pay. As part of switching to a DC formula for future service, employers will need
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by Tina Giesbrecht, Barry B. Sookman, and Erika Ringseis of McCarthy Tétrault LLP
A well-drafted computer-use policy can provide evidence to uphold a termination for cause and can protect an employer from harassment claims, as recent case law illustrates.
The scene is well-known in the workplace: an employee receives an e-mail joke or photo from a colleague down the hall, has a giggle, and forwards the message to other colleagues, friends at other organizations, and relatives who might appreciate the joke. In minutes, a complete cyber network is created, and it has passed along a message.
Sometimes the message is innocuous, e.g., it involves cute images or funny expressions. Other times, it involves racist, sexist or pornographic jokes or images.
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