Busy year on legal front

Privacy, ‘corporate killing’ and bullying dominate

On the employment law front, 2004 was a particularly interesting year. The new federal privacy law came into force, and British Columbia and Alberta passed similar legislation. It didn’t take long for the first employment-related privacy complaints to be filed.

Bill C-45, also known as the “corporate killing” law, became the law of the land, allowing criminal charges to be filed against co-workers, supervisors and executives in occupational health and safety accidents.

Quebec passed a new law pushing workplace bullying into the spotlight and the province expects more than 2,000 complaints in the first year. The psychological harassment law gives the province the power to order fines, punitive damages and the re-instatement of employees.

Compassionate care leave legislation rolled across the country, as many jurisdictions put in laws that allowed employees to take unpaid job-protected leave to care for a dying family member. Mandatory retirement was also a hot issue.

There were a number of what can only be described as outrageous human rights cases, showing that not every employer has yet made the leap into the 20th century, let alone the new millennium, when it comes to proper behaviour.

Here’s a look at some of the more interesting employment law cases from the past year:

Adjudicators can award damages without re-instatement

Gannon v. Canada (Attorney General), 2004 FC 1532 (Fed. T.D.).This Federal Court of Canada case upheld the right of adjudicators to award damages in lieu of returning an employee to the job, even if the adjudicator rules dismissal was too severe a penalty.

Carl Gannon, an HR advisor in the human resources division at a naval base in Halifax, was fired for unethical behaviour. He had been suspended for forging a signature on a letter written on Department of Defence letterhead that inaccurately stated his salary for the purposes of a child support hearing. Less than two weeks after that suspension, he submitted a falsified resume to another government department indicating he had obtained a degree from Halifax’s Dalhousie University with a specialization in HR management. He hadn’t.

Later Gannon recommended a former lover for a position, but did not tell anyone he had been in a relationship with her that resulted in a child or that there were outstanding child-care issues between them. The woman was hired and Gannon began intimidating her, telling her that he controlled her employment and that if she revealed their prior relationship, she would lose her job.

The court ruled the adjudicator was right in awarding damages and not returning him to his job, even though she felt dismissal was too severe a penalty. Gannon’s superiors had lost trust in him, and the court said that because the employment relationship was so fundamentally breached by the employee’s conduct, it could not reinstate him.

Looking for a job means more than just surfing the web

This case, involving a worker who was put on probation and won a constructive dismissal suit, is of interest not just because of the main part of the case, but because of commentary by the court that surfing online for a job doesn’t cut it when it comes to mitigating damages.

The court awarded Neil Chambers, a manager with the high-tech firm, 11 months’ notice because of the probation he was placed on and the conditions the employer attached to it, including a statement that he could be fired at any time during the probation if his sales did not meet a certain target, was a fundamental change from his former employment status.

But it then clawed the award back from 11 months to eight months because Chambers was too reliant on using the Internet as a means of searching for alternate employment during the notice period.

“Although the emerging use of the Internet as a vehicle in searching for employment opportunities and contacting potential employers has become more common, I am not satisfied it is the only avenue to be pursued,” said Justice David MacAdam of the Nova Scotia Supreme Court. Chambers v. Axia Netmedia Corp., 2004 CarswellNS 33, 30 C.C.E.L. (3d) 243 (N.S. S.C.).

RCMP punished for turning a blind eye to intimidation

This case from the Newfoundland and Labrador Supreme Court dealt with a Royal Canadian Mounted Police jail guard who blew the whistle on an officer who was allegedly drunk while on duty.

The RCMP received complaints from the public about this officer’s conduct, and during an investigation talked to Bruce Rees, a jail guard, to gather information. Rees gave information that incriminated the officer. The officer was later exonerated, and when he returned to duty made life miserable for Rees. The court said the RCMP should have known that putting this officer back to work with Rees would cause problems. Further, the RCMP let the situation fester for almost five years between 1993 and 1998. By that time Rees was wasted, damaged and changed profoundly, according to medical evidence.

It ordered the RCMP to pay Rees nearly $500,000 in back pay and future pay, and tacked on an additional $20,000 for his spouse for her pain and suffering. It was critical of the RCMP’s defence tactic, which insinuated that Rees viewed the lawsuit as a cash cow. Because there was no doubt Rees had been injured, and no doubt as to what the cause of that damage was, the RCMP must have known that vigorously defending this case would cause Rees further harm, the court said. Rees v. Royal Canadian Mounted Police, 2004 CarswellNfld 208 (Nfld. S.C.).

Ontario construction supervisor charged under ‘corporate killing’ law

A 68-year-old construction supervisor in Ontario was the first person in the country charged under the new corporate killing law that came into force on March 31, 2004.

The bill amended the Criminal Code to allow criminal charges to be brought against co-workers, supervisors, executives and employers when a worker is killed or injured on the job.

Domenico Fantini, of Newmarket, Ont., was arrested by York Regional Police in August and charged with criminal negligence causing death. Fantini was supervising two workers repairing a drainage problem with the foundation of a house in April when the trench they were working on collapsed. One of the workers, a 38-year-old Toronto man, was killed.

Blogging about the workplace

Blogs entered the employment law headlines a couple of times in 2004. Blogs, short for web logs, are online diaries. Two high-profile cases emerged where employees badmouthed their employers in online diaries and paid the price for it.

Matthew Brown, a Starbucks employee in Toronto, started a blog to keep in touch with friends and family. He used it to vent some of his frustrations, including complaining about his workplace. When a manager refused to let him go home because he was sick, he wrote about it in his blog and publicly criticized the manager. When Starbucks found out about it, it terminated his employment.

Another example came from the north when Peggy Chomondeley, a tourism and marketing officer at the Nunavut Tourism agency, was fired for postings on her blog. She posted photos of abandoned machinery and rusting cans in the snow outside Iqaluit and gave a negative review of a local restaurant.

Privacy complaints

Near the end of 2004 a couple of rulings by the Privacy Commissioner of Canada hit the news. In the first ruling, the assistant privacy commissioner slammed the use of cameras by a high-tech firm to monitor its staff.

Cameras were set up in two locations — one pointed at the sales and marketing staff and one pointed toward the technical support employees. Both the audio and video content of the cameras could be monitored remotely over the Internet. The company said it installed the cameras to ensure security and to manage employee productivity.

But the assistant privacy commissioner dismissed the security argument because the cameras were only trained on work areas and did not monitor entrances and exits. Nor did the employee productivity argument hold water, the assistant privacy commissioner said, because the employer had a variety of other methods to monitor productivity, including supervised telephone calls, progressive discipline and performance reviews.

The second case involved the use of voice recognition software. In that case, the employer adopted a technology that uses the voice print of workers to control access to various applications. The computer would capture the employee’s voice and then restrict access based on the voice pattern. In essence, the voice recognition software replaced passwords.

The employer said the voice recognition was the best way to protect its data, which included vast databases of private customer information. Because the purpose was to safeguard personal information of customers, the privacy commissioner said it was a reasonable use of the technology. Although the voice print was an encroachment upon employee privacy rights, it did not reveal much about the individuals and could not be used for spying or other nefarious purposes.

Compiled from Canadian Employment Law Today, a national bi-weekly newsletter that focuses on employment law issues. For more information visit www.carswell.com or call (800) 387-5164. With files from Stuart Rudner, a lawyer with the law firm of Miller Thomson in Toronto.

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