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Posts tagged: Nadia Halum

Secretly Recording Conversations at the Workplace: A Slippery Slope

By , August 9, 2018 5:12 pm

Clients often ask me whether a supervisor or manager can record a conversation with a subordinate without the subordinate’s knowledge. As technology has advanced to the point that we all have recording devices in our pockets (i.e. our smartphones), this issue will only become more prevalent in the workplace.

The first question I am usually asked  is “Is it legal?” Although I do not profess to be a criminal lawyer, my understanding is that it is not a crime to secretly record a conversation as long as the individual doing the recording is an “open participant” in that conversation. For example, it is not criminal to place your smartphone on a table and record the conversation you have with an employee, whether or not the employee is aware or consents to the recording. However, if you leave the room and leave your phone behind, and the phone records a conversation between that employee and a third party, then the recording becomes criminal.

In my opinion, the more important question  is “Should I record a conversation with my subordinate?” In other words, although something may be legal, is it appropriate to do in the context of an employment relationship?

With the advent of technology, it’s important for employers to turn their minds to this issue. Should an employer record audio in the workplace to capture employee misconduct or to further document an employee’s discipline? One thing to keep in mind is that secret recordings could capture personal information and infringe on privacy rights, which may lead to a claim for breach of privacy. In 2012, the Ontario Court of Appeal established a new tort of “intrusion upon seclusion” and awarded damages for the breach of privacy in a case where an employee of a major bank accessed the personal financial records of her ex-husband’s new girlfriend on at least 174 occasions. This tort could arise in a situation where an employee’s expectation of privacy is violated by being surreptitiously recorded.

Another problem is that secret recordings can erode the trust that is necessary in the employment relationship and lead to constructive dismissal claims. The case law around constructive dismissal is quite complicated, but generally speaking, a constructive dismissal occurs when an employer makes a significant change to an employee’s employment that shows the employer no longer wants to be bound by the contract. Furthermore, employers are subject to a duty of good faith both during a person’s employment, and at the time of termination. If employees have never been subjected to surveillance, suddenly introducing surveillance could be seen as a significant change that shows the employer is not willing to be bound by the original employment contract. Introducing new surveillance could also be seen as a breach of the duty of good faith. Judges have found that a breach of the duty of good faith can lead to aggravated and punitive damages in addition to wrongful dismissal damages.

On the other side of the coin, if you’re concerned about employees secretly recording conversations, it is best to address this concern proactively by introducing policies about the propriety of secret recordings at the workplace in your employment handbook. In particular, you can include a clause in an employment contract or introduce a policy which prohibits an employee from secretly recording a conversation.

Thus, just because something is legal, does not mean it is advisable. While I do not profess to know the law around recording conversations in the United States, I think we can all agree that even if it is “legal,” no one will be using Michael Cohen as an attorney after finding out he secretly recorded his conversations with Donald Trump. Secretly recording a conversation with your employee could open a can of worms, legal and otherwise; there are definitely more considerations to keep in mind than whether the act itself is criminal. If you are thinking of recording a conversation or introducing video surveillance into the workplace, please contact me at [email protected] or 647-985-9894.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

The Benefits of Failsafe Provisions

By , July 17, 2018 8:53 pm

The Ontario Court of Appeal recently released a decision on the enforceability of termination clauses in employment agreements that contain failsafe provisions.

Background

A “failsafe provision” is a portion of a termination clause that provides that, regardless of what the termination clause provides, an employee who is terminated on a without cause basis will always receive at least the minimum notice of termination, benefit continuation and severance pay the employee is entitled to receive under employment standards legislation.

Amberber v IBM Canada Ltd.

Mr. Amberber’s employment contract contained a termination clause that entitled him to notice of termination equal to the greater of (a) one month’s salary, or (b) one week of your current annual base salary, for each completed six months worked since his start date, up to a maximum of 12 months’ salary. This amount expressly included all payments to which the employee might be entitled under employment standards legislation and at common law. This part of the clause, which the motion judge termed as the “options provision,” was followed by a failsafe provision.

After he was terminated, Mr. Amberber sued IBM Canada Ltd. (“IBM”) for wrongful dismissal and claimed he was entitled to pay in lieu of notice at common law. At the motion, Mr. Amberber advanced three arguments. The motion judge only gave effect to one of the arguments: the termination clause failed to rebut the presumption of common law reasonable notice of termination.

The motion judge found that although the termination clause was one paragraph, it broke down into two parts. The inclusive payment provision immediately followed the options provision, so the motion judge interpreted that the provision applied to the first part. Because the inclusive payment provision was not repeated at the end of the clause, it was not clear that the inclusive payment provision was meant to apply to the failsafe provision. The motion judge found that the inclusive payment provision could just as easily have been included at the end of the paragraph and could have just as easily been specified to apply to both scenarios.

On appeal, the motion judge’s decision was overturned. The Ontario Court of Appeal found that the motion judge made a fundamental error when she subdivided the termination clause into what she regarded as its constituent parts and interpreted them individually. Rather, the clause must be interpreted as a whole, and when read as a whole, there could be no doubt as to the clause’s meaning. To hold that the inclusive payment provision applies to only one part of the clause but not the other, gave the clause a strained and unreasonable interpretation. The Ontario Court of Appeal reminded judges that the court should not strain to create an ambiguity where none exists.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Due Diligence and Why It’s Important

By , January 15, 2018 11:44 am

Employers have various obligations under the Occupational Health and Safety Act (“the OHSA”), including the very broad, catch-all duty to take every reasonable precaution in the circumstances to protect workers.

When there is a workplace accident, the Ministry of Labour will often charge the employer with violating this general duty. Violations of the OHSA are “strict liability” offences, which means that the Ministry of Labour does not need to prove that the employer intended to violate the OHSA.

An employer’s sole defence is the “due diligence” defence, which is available in two circumstances:

  1. If the accused reasonably believed in a mistaken set of facts which if true, would render the act or omission innocent; or
  2. If the accused took all reasonable steps to avoid the particular event.

In Ontario (Ministry of Labour) v Cobra Float Service Inc., an Ontario court dismissed an OHSA charge by finding that the employer had established the due diligence defence.

Facts

The circumstances around this case arose from a tragic fatality at a construction site, where a curb machine overturned while being off-loaded from a float trailer, crushing a worker who later died from his injuries. The charge against the company alleged that the curb machine was moved in a manner that endangered the worker.

Decision

The court found that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. Although there were no training courses available for the task in question, the worker had previously demonstrated his ability to perform the task. The court found that the employer was entitled to rely on the worker’s experience.

The court noted that the employer could have established a more formalised training protocol within the company but the lack of this formalised protocol did not necessarily mean that the employer was exposing workers to foreseeable risks and dangers. The court cautioned against measuring the practices of smaller companies against those of larger companies, which typically have more resources to devote to formalised training.

With respect to the due diligence defence, the court found that:

  • The company had held regular safety meetings;
  • There were no formal education courses that workers could take on the loading and unloading task;
  • The worker knew or should have known that what he was doing was unsafe;
  • The company encouraged workers to discuss any safety concerns and provided a form for those discussions at regularly scheduled meetings;
  • The worker had successfully moved the curb machine 27 times; and
  • There was no evidence that this was an industry-wide safety issue.

Lessons to be Learned

  1. Because violations of the OHSA are “strict liability” offences, the Ministry of Labour does not need to prove that the employer intended to violate the OHSA.
  2. Evidence regarding a company’s safety practices go a long way to proving that the employer took all reasonable steps to avoid the particular workplace accident (i.e. to make out the due diligence defence).
  3. All employers should prioritize safety, but it is worth noting that what is appropriate for a small to medium size employer may differ than what is appropriate for a larger employer.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Marijuana legalization – How Employers Should Navigate the Hazy Legal Landscape

By , January 11, 2018 10:45 am

The legalization of marijuana is expected to change Ontario’s employment law landscape in 2018. Legislation is expected to be implemented by July 2018.

It is not too early for employers to take proactive steps to address these changes.

Expected changes

Bill C-45, An Act respecting Cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Bill”) passed its second reading on November 27, 2017. Although the bill will legalize cannabis across Canada, the provinces and territories will generally determine how marijuana can be sold and used. The Bill allows the Minister of Labour to make regulations relating to smoking in the workplace.

What employers should do

Employers should review their current workplace policies and if a drug and alcohol policy does not exist, then the employer should consider  adding one before the new cannabis laws take effect. Among other things, the policy should recognise that recreational use of marijuana will be legalized under the Bill requires a different approach than medical use of marijuana which has been legal since 1999.

Although the legalization of marijuana is a big change, employers often forget that just because something is legal, does not mean it is permissible at the workplace. For example, alcohol is legal, however, employers are entitled to expect that their employees report to work sober and refrain from drinking alcohol at the workplace. Similarly, simply because recreational marijuana is being legalized does not mean that it is permissible to smoke marijuana at the workplace, or attend the workplace impaired. Employers can set out their expectations regarding impairment and safety at the workplace in workplace policies and procedures.

With respect to medical use of marijuana, employers need to be mindful of their obligations under Ontario’s Human Rights Code, namely, the duty to accommodate employees to the point of  undue hardship, which may include permitting an employee to work while under the influence of marijuana. The duty to accommodate does not eliminate an employer’s right to seek medical proof of prescription and medical documentation supporting the fact that the employee is required to ingest marijuana during working hours, nor does it eliminate an employer’s duty to ensure that the workplace is safe for all employees. Thus, employers must remain prepared to deal with marijuana-related accommodation requests on a case by case basis, taking into consideration the employee’s medical needs and their obligations under health and safety laws.

Lessons to Be Learned

The legalization of marijuana is changing the legal landscape. Due to these changes, we recommend that new policies be drafted to address the anticipated increase in  marijuana use, or that existing policies be amended to ensure they are consistent with the upcoming changes. The MacLeod Law Firm offers a fixed fee service to prepare new drug & alcohol policies, or to revise existing policies.

If you have any questions regarding the effect of the Bill on your workplace, or would like to learn more about the fixed fee service mentioned above, feel free to contact 647-985-9894.

All We Do Is Work

By , October 31, 2017 9:23 am

This blog introduces you to all members of the firm and describes the kinds of cases we handle.

 

MacLeod Law Firm

 

OUR PEOPLE

Nicole Simes has been working with me for more than four years. She represents and advises employers and employees. She spends a lot of her time in court and at administrative tribunals: she is a real litigator! Nicole has a particularly strong background and interest in human rights issues.

Nadia Halum articled with the firm and has been working as an associate for about 1 ½ years. Nadia also represents and advises employers and employees. Nadia is an exceptional legal researcher. She also has considerable experience assisting employers with compliance issues under the Employment Standards Act, the Occupational Health and Safety Act and the Accessibility for Ontarians with Disabilities Act.

Fiona Martyn is currently articling with the firm. She supports Nicole, Nadia and me. This includes legal research, drafting pleadings & facta, and putting together court documents.

Judy Lam is our Office Manager and oversees the non-legal aspects of the firm. She is often the first point of contact with the firm.

OUR CLIENTS

Employers

We mostly advise and represent small and medium sized employers. Many of our clients are owner operators. Most of our clients employ 100 or less employees although we do advise several large employers. Many of our employers do not have a person with a formal human resources designation (i.e. CHRP, CHRL, or CHRE) and for these clients, in addition to providing legal advice we often take on the role of trusted advisor.

When we are first introduced to a new client we make sure the employer has a well drafted employment contract. Then we make sure the client has complied with its obligations under Ontario’s employment laws.  Our blog keeps our clients up to date on most employment law developments. We are a phone call away and often answer questions in real time; that is, when you call with a question we can often answer it immediately on the phone.

Employees

We advise employees in all positions and all industries.

We review 100s of severance packages each year; this usually involves a one-hour meeting where we: review the background to the termination; discuss the client’s legal rights; discuss the client’s options; and, tell the client whether we think the package is fair.

If we cannot negotiate a fair settlement for our client then we commence legal proceedings. These proceedings may be commenced in small claims court, at the Ministry of Labour, at the Ontario Human Rights Tribunal, or in the courts. It is sometimes in our client’s interest to commence two or more legal proceedings.

We also review scores of employment contracts each year. After reviewing the history of contract negotiations, we inform our clients which parts of the contract are a problem and suggest ways to change the contract so it is more employee friendly. If our client is the employer’s clear first choice then we can often help the person secure significant enhancements to the employer’s initial offer.

ALL WE DO IS WORK

The MacLeod Law Firm will continue to restrict its practice to workplace law which includes employment law, labour law (i.e. workplaces that are unionized), and human rights law.

We have three lawyers to assist you with your legal needs. We operate a collaborative law practice which means we often consult with each other to get different perspectives on a case. I also delegate work to Nicole, Nadia and Fiona as appropriate which means our client receive cost effective service.

We understand that every client has a different risk tolerance. We get to know our clients so the advice we provide is consistent with this risk tolerance and makes business sense.

For those readers who have not retained the MacLeod Law Firm in the past and want to know how we can help your organization, please call me at 416 317-9894 at your convenience.

 

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