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By MacLeod Law Firm, May 13, 2013 10:22 am

This is an excerpt from an interview Doug conducted with AdvocateDaily.com

While some believe limiting a person’s right to comment on an employer in their private time amounts to a violation of freedom of expression, one negative Tweet or Facebook post by an employee can tarnish a company’s brand or reputation, says Toronto employment lawyer Doug MacLeod.

A recent Ottawa Citizen article highlights the code of conduct reportedly in place at Statistics Canada, which includes the expectation that employees will refrain from making personal remarks about the organization or the government on social media, even if the comments are made during their personal time. The code of conduct also contains policies relating to dress and personal hygiene, and is similar to codes being established at other federal departments and agencies, according to reports.

“I don’t think an employee should be able to disparage their employer in social media. It is biting the hand that feeds you. Many organizations spend a lot of money building a brand or a good reputation,” says MacLeod.

When it comes to codes of conduct in general, MacLeod says their contents depend on the nature of the organization and the interests it needs to protect – essentially, there is no ‘one-size-fits-all’ code of conduct

“A code of conduct is a generic term and normally includes policies that are important to a particular employer. It can include a dress code, a social media policy, a conflict of interest policy, etc.” says MacLeod. Professional athletes, for example, often have morals clauses in their contracts, while some codes of conduct contain a conflict of interest policy, which MacLeod says is important if an employee can receive ‘gifts’ from customers.

From an employer’s perspective, MacLeod says a code of conduct should explain that a violation of the code can result in discipline up to and including termination.

“The courts will generally decide whether the violation amounts to just cause for termination. In one case, a trial judge found that an employee who accepted $1,000 from a supplier had violated a conflict of interest policy in a code of conduct but concluded that the misconduct did not amount to just cause. On appeal, the Court of Appeal overturned the trial judge and concluded that the employer did have just cause to terminate the employee,” he says.

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By MacLeod Law Firm, May 7, 2013 7:35 am

The truth about workplace investigations is that the cost of inadequately or completely failing to investigate workplace issues has risen dramatically in recent years. This failure to comply has serious consequences as evidenced by the following three workplace complaints that should be investigated.

1. Human Rights Complaints

Failure to investigate a human rights violation could cost an employer $7,500 (or more) in damages regardless of whether there was a violation. Although the Ontario Human Rights Code (the Code) does not require that an employer investigate an alleged violation of the Code, adjudicators appointed under the Code have imposed this duty on employers. To avoid this kind of damage award, investigators should be trained in human rights and in workplace investigation.

2. Wrongful Dismissal Actions

If an employer believes it has just cause to terminate an employee but its internal investigation is flawed, the courts can and have ordered the employer to pay punitive damages to the terminated employee. This can be very costly. For this reason, we recommend an employer complete a full investigation before the termination, although it is not require. And, in some instances of misconduct an employer may need to hire a third party such as a forensic accountant or an IT specialist to conduct the investigation.

3. Workplace Harassment and Violence Complaints

A violation of the Ontario Occupational Health & Safety Act (OHSA) can result in a fine of up to $ 500 000. Under the OHSA an employer is required to investigate allegations of workplace harassment and workplace violence. Investigators assigned to these kinds of complaints should receive occupational health & safety training and workplace investigation training.

Complex legal issues can arise out of workplace investigations. Here are two such issues:

1. Who should perform workplace investigations; an in-house investigator, lawyer, or professional workplace investigator?

Some issues to be investigated are straightforward and an employee can conduct the investigation. But, sometimes the issue(s) to be investigated is very complex, sensitive or highly politicized and it is necessary to hire an outside workplace investigator.

According to workplace investigator Monica Jeffrey (monica@workplace-investigation.ca), one reason to hire an impartial investigator is to eliminate actual or perceived internal bias. This is particularly true when the allegations involve a supervisor, manager, partner and/or a business owner.  An investigation conducted by a third party, neutral investigator will often go a long way in satisfying an employee’s expectation that his/her complaint is being considered in a fair and equitable manner.

2. Can an investigator’s notes be used against the employer in subsequent legal proceedings?

This is a very tricky legal issue and the answer is sometimes “yes”. In a recent arbitration case, the employer hired an investigator to conduct an investigation and the arbitrator found that the investigator’s report was not protected by solicitor-client privilege even though the investigator was a lawyer. If legal proceedings are expected and an outside investigator is to be hired, it is important that all communication flows through the employer’s lawyer to ensure solicitor/client privilege.

Today, conducting adequate workplace investigations is crucial in a number of situations. Increasingly the investigation process is being subject to judicial scrutiny and courts are starting to order employers to pay damages for failing to investigate certain workplace complaints, or for conducting faulty investigations.

If you have any questions about workplace investigations or how to conduct a workplace investigation, please contact the MacLeod Law Firm at 1 (888) 640-1728 or at inquiry@macleodlawfirm.ca. To subscribe to our blog for employers, click here

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By MacLeod Law Firm, January 31, 2013 7:55 am

In my experience, most organizations do not explicitly address the office romance in their human resource policies. This issue can be addressed in an organization’s anti-discrimination policy or a sexual harassment policy but most don’t. Failure to do so can lead to significant legal liability.

What is an organization’s potential liability in connection with an office romance?

A wrongful dismissal action and/or a human rights complaint can arise out of an office romance. If the employer fires an employee for retaliating against a co-worker for ending an office romance then the employee can bring a wrongful dismissal action. If an employee is penalized for ending an office romance then she can file a human rights complaint.

An example of wrongful dismissal exposure

Here are some facts in connection with a wrongful dismissal case that arose out of one office romance that ended badly:

A lawyer with one of Ontario’s cities and the Mayor’s executive assistant had a consensual office romance. She ended it; he was not amused. Thereafter, he harassed her at work and at home.  At one point, he advised the Mayor to terminate her employment.  The court concluded the City had just cause to terminate the lawyer’s employment. The City had a sexual harassment policy and a policy against  harassment and discrimination, however, neither policy required an employee to disclose an office romance.

An example of human rights exposure

I was retained by a board of director a number of years ago.  The organization’s senior manager had a romantic relationship with a subordinate. Another employee claimed this relationship constituted a violation of the Ontario Human Rights Code because the relationship – which was known to a number of staff -  including alleged benefits to the subordinate was causing a “hostile work environment.” When confronted with the allegations the senior manager, a lawyer, admitted to the relationship but claimed he had no legal obligation to disclose it.

Should employees be required to disclose office romances?

When drafting an anti-discrimination policy or a sexual harassment policy, I think an employer should consider whether or not an employee should be required to disclose a romantic relationship and if so, in what circumstances and when this disclosure needs to be made.

Doug MacLeod is an employment lawyer who has been representing Ontario  employees and employers for over 20 years ( www.macleodlawfirm.ca ).  He can be reached at  inquiry@dougmacleod.com or at 1-888-640-1728.

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By MacLeod Law Firm, January 21, 2013 2:37 pm

“Just cause” is a legal term that means a non-union employer is justified in terminating an employee without ANY notice of termination at common law.

The courts decide whether or not just cause exists unless the employee has agree that certain misconduct constitutes just cause in an employment contract.

The onus is on an employer to prove it had just cause in terminating the employee.

What must an employer prove?

When deciding whether “just cause” exists, the Ontario Court of Appeal has stated:

” …the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the
 employment relationship.”

Three examples where an Employer has proven Just Cause

1. Driving an employer’s vehicle while drunk. After 32 years of service, an employee was returning to the workplace from a customer visit.  While driving, the employee was responsible for a serious accident which destroyed the vehicle and left him with life threatening injuries. Although finding just cause, the court stated: “ Normally, a single and isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record.” And, “Intoxication at work does not automatically justify termination.”

2. Falsifying and submitting medical benefits claims forms,  lying to the employer’s group insurer, and failing to forthrightly admit this misconduct when asked during an employer investigation. At the time of her termination, this first level manager had been employed with the employer for 19 years.

3. Engaging in personal and sexual harassment of a co-worker. The employee, a lawyer with 13 years service and no prior discipline, persisted in pushing a romantic relationship with a female co-worker after she repeatedly told him that she was not interested. Harassment included the employee communicating with the co-worker’s colleagues and superiors and his attempt to have her employment terminated.

To discuss what kind of evidence is needed to prove just cause in a particular case, please email us at inquiry@dougmacleod.com or call us at 1-888-640-1728.

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By MacLeod Law Firm, January 8, 2013 8:46 am

Wrongful Dismissal Update: What is Reasonable Notice of Termination?

In Ontario, an employer generally may terminate an employee at any time by providing the employee with reasonable notice of termination. Or the employer may opt to pay the compensation the employee would have earned during this notice period and remove the employee from the workplace immediately.

There are important exceptions to this general rule which are beyond the scope of this blog. One exception is if an employee has signed an employment contract that contains a termination clause.

When determining the appropriate reasonable notice period in a particular case the courts do not adopt a formula; however the courts do consider a number of factors in every case.

The Four Bardal factors

In determining what constitutes “reasonable notice” of termination, the courts have followed the principles laid out by the Ontario Court of Appeal in a 1960 case called Bardal; namely:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the (i) character of the employment, (ii) the length of service of the servant, (iii) the age of the servant and the (iv) availability of similar employment, having regard to the experience, training and qualifications of the servant.

In the last 52 years, the courts have been asked to apply the Bardal factors in thousands of wrongful dismissal actions. As a result, there have been two significant developments in connection with two of these factors.

The Character of Employment factor

In 2011, the Court of Appeal stated that the “character of employment” factor is now largely irrelevant except for a small class of very senior employees.

The Length of Service factor

In 1999, the Ontario Court of Appeal concluded that an employee is NOT entitled to one-month notice of termination for each year of service.

In 2011, this court stated that an employee is NOT limited to 24 months notice of termination.

Lessons to be learned:

1. Although the factors a court will consider when determining reasonable notice have not changed for over 50 years, the courts have interpreted these factors differently over the years.

2. With the elimination of mandatory retirement in Ontario, employers will be forced to start terminating long-service employees as part of corporate down-sizing. Current wrongful dismissal law suggests that a reasonable notice period for these employees is increasing – particularly unskilled employees.

3. It is in an employer’s self-interest to help terminated employees find alternative employment as soon as possible because the courts will deduct income earned during the reasonable notice period from wrongful dismissal damages otherwise payable. This may involve providing former employees with positive references, retraining, and/or outplacement counseling.

If you have any questions about wrongful dismissal law in Ontario please call us at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca. You can follow us on twitter or subscribe to our employment law blog