Remote Workers – Accountability

Toronto Labour Lawyer Brian Bell: There are many situations in the workplace where remote workers are cost effective and efficient. Mobile technologies and wireless communications, along with online work applications, make it easy for corporations to support this type of work arrangement.

Working from a remote location allows flexibility to be a great factor, which has pros and cons for both the employer and employee.

For the employee, working remotely can help with such things as travel costs and child care considerations. For the employer, remote work can be a positive recruitment and retention tool. Still, it is worth remembering, that employers should keep an eye on what remote workers are up to. In this case from the US, an employee was caught outsourcing various jobs to China:

While Bob physically reported to the company that hired Verizon to investigate him, he also padded his income as a contract worker for other local firms, for which he also relied on his Chinese outsourcing arrangement.

Setting rules and goals can help keep off-site employees accountable for their work. These provide the criteria for what is expected from the remote worker, and how they will be evaluated. Ongoing communication will allow for clarity on tasks, and keep remote employees in the loop. They will feel informed and still part of ongoing daily activities, thus keeping productivity at a high level.

Attendance of office events in person, especially to celebrate successful team projects, can also help off-site employees stay connected and not feel overlooked.

However you choose to stay in touch with employees, remember that constant feedback allows for a strongly connected workplace, and decreases the chances of miscommunication and trouble down the road.

Brian Bell is a Labour and Employment Lawyer with Pace Law Firm in Toronto.

What Does Workplace Accommodation Mean?

Toronto Employment Lawyer Brian Bell - There are many situations in the workplace where “accommodation” is required.  We are probably most familiar with situations that involve an injured or sick worker, who requires accommodation when easing back into the workplace. According to the rules in Canada, failure to accommodate such a worker would violate that individual’s human rights.

So how far does an employer have to go to show that they accommodated an individual, and what form does this accommodation need to take?


On January 31, 2013, the Federal Court of Canada upheld a finding of the Canadian Human Rights Tribunal.  In this case, the court found that the Canada Border Services Agency (CBSA) discriminated against a female employee on the basis of family status. The CBSA had not accommodated her child care needs.

The issue is that the employer must accommodate until they reach the point of “undue hardship." That can mean different things to different employers.

The employer’s position had been that while they were prepared to accommodate the employee’s needs, they did not feel the employee’s child’s needs were their responsibility.

The request for accommodation centered on this full-time employee being allowed to work fixed daytime shifts.  The practice of the employer for handling such requests was to re-classify the employee as part-time, and cap the total number of hours the employee would work.  The Court determined the employer failed to accommodate and awarded accordingly.

The issue is that the employer must accommodate until they reach the point of “undue hardship." That can mean different things to different employers.  In the case here, it was a large company, so this accommodation would be of minimal impact.  In a smaller company of, around 5 employees who all had the same request, the result would certainly be catastrophic to the business.

Essentially, this latest decision shows that employers must be open minded, creative and compassionate in dealing with family issues and responsibilities. It is quite possible that this decision on child care may be extended to aging parental responsibilities.

Time will tell. For now, employers should be on the look out for any situations where they might be in breach of a duty to accommodate, and seek guidance accordingly.

What Does Mitigating Losses Mean?

Toronto Employment Lawyer Brian Bell: Those who have been terminated from their position on a With or Without Cause basis might be familiar with the term “Mitigate One’s Damages." It's worth going over the rules of mitigation again here.

Mitigation refers to making one’s situation less severe after a breach of contract. For instance, if a building's tenant skips out on their rent, the landlord can't leave the unit vacant for years and go after the tenant for all of that lost rent. The landlord must try to rent the unit to someone else.

An example in the employment realm is a fired employee who mitigates their damages from a Wrongful Termination by finding a new job. A fired employee cannot simply put their feet up and then go after their boss for the wages they're losing. Instead, they have to make a reasonable effort to look for work. By finding a new job, the terminated employee mitigates their losses, and also reduces any damages to which they would be eligible from their former employer.

There are several principles in mitigating one’s damages:

1. The first and most important principle is that the Plaintiff (employee) must take all reasonable steps to mitigate the loss.

2. The second principle states that the Plaintiff is able to recover for the loss incurred when reasonable steps were taken to avoid the loss.  In other words, if you tried to mitigate your losses through reasonable efforts to find a job, but were unsuccessful, you will not be penalized.

3. The last principle is when the Plaintiff has taken steps to mitigate the loss, and these steps are successful, that the Defendant (employer) is entitled to benefits accruing from the Plaintiff and is therefore only liable for the reduced amount of the loss.

Essentially, the employee is required to mitigate their losses, and make all reasonable efforts to do so. The former employee cannot claim both a payout and find a new job, and thereby be better off than they would have been if they continued to be employed by their former employer.

Note that it remains the Plaintiff’s responsibility to show that they have mitigated their damages by keeping records of their efforts to do so.

Lockout vs. Strike

Toronto Employment Lawyer Brian Bell: We're well into the second month of the NHL lockout, and everyone around the water cooler has an opinion about it. Still, you may be wondering what exactly a lockout is, and how it differs from a strike.

According to the legal interpretation, a lockout is generally defined as an employer’s withholding of work and closing of a business because of a labour dispute. The term is very literal: you're locked out.

A strike is the opposite. When an employer and and a union reach a deadlock, a strike sometimes occurs, whereby the union members withhold their skills and abilities and do not work until some agreement is reached.

A lockout is the option the employer has in dealing with the employee representatives with the intent to put pressure on the employees’ union: if the union members are locked out and can't work, then they aren't being paid, either.

If you consider yourself to be a sports fan, especially a hockey fan, you're probably getting sick of the term "lockout."

If you consider yourself to be a sports fan, especially a hockey fan, you're probably getting sick of the term "lockout." The term has been used in the NFL and the NBA over the last year or so, as well, as these two leagues recently went through their Collective Agreement negotiations process. For the NHL, though, this is their second lockout in the past 7 years.

The use of either a lockout or a strike is intended to force the other party to reach an agreement/renewal of the Collective Agreement. Whatever the case, whether employees choose to strike or the employers choose a lockout, there is a work stoppage.

The ultimate cost of such an action remains to be seen when the product or service is offered once again.  Will the consumer return?  I guess we will have to wait to see if consumers of professional hockey will return, or if they've had enough and will take their entertainment dollar elsewhere.

Maternity/Parental Leave

Toronto Employment Lawyer Brian Bell - It goes without saying that since the 1960’s, the number of women working outside the home has risen drastically.  Along with other issues, the notion of maternity/parental leave has been a constant topic of discussion within the workplace.  However, I am sometimes surprised how some employers still try to circumvent their obligations to new mothers and fathers.

I recently had a client who, upon returning from her authorized maternity leave, was advised that her hours had been reduced by a third; she would now have to work every Sunday, rather than through a rotation, and a previous accommodation due to family responsibilities would no longer be available to her.

Employees should remember that while maternity and parental leave - and yes, parental leave can be taken by men as well - might be a bit disruptive to an employer, it does not allow the employer to significantly alter the terms and conditions of employment with the person on leave.

For up to a year (i.e., 52 weeks) a female employee can take the maternity and parental leave options.  When she returns, she must be given her regular job back with the same responsibilities and same pay and benefits.  The only way this may be changed is if the former job no longer exists. Then the employee must be offered a similar position.

I shake my head when employers fail to comply with the specific guidelines in this matter.  Employers can replace the person who is on maternity/parental leave, but only on a short term or temporary basis. It may be a great opportunity to cross-train employees should the employee on leave decide not to return, but when the employee does return, it is their job again.

Not managing the maternity/parental absence productively can have long-term negative consequences. These include fines, charges for discrimination under the Human Rights Code, and a negative reputation for the company, especially if the situation gets some publicity.

The potential negative results far outweigh any inconvenience it takes to handle maternal/parental leave properly and professionally.

Lying About Office Romance Leads to Termination

Brian Bell

Toronto Employment Lawyer Brian Bell: Since we probably spend at least half of our time with our office colleagues, it shouldn't come as a shock when we hear of an office romance. Just a word of warning to the romantics: be careful. Depending on the circumstances, an office romance can cost you your job.

This example involving a manager named Bryan Reichard, and his subordinate Ms. Thompson, is worth a look.

The company was Kuntz Electroplating Inc., and they were astute enough to recognize that office romances happen.  In an attempt to manage such situations, they developed a non-fraternization policy for staff to follow.

While the company did not forbid office romances outright, they did require an employee to advise upper management if they entered into a romance with another worker. The company wished to be made aware of such relationships for operational and Human Rights reasons, such as possible sexual harassment claims, or accusations of favouritism.

In the Reichard case, the company confronted him with the rumour that he was involved in a romantic relationship with a subordinate. Reichard denied the claim, and continued to deny it on several other occasions. He was married, which likely had something to do with his denials. When he was confronted a final time by his superiors, he finally came clean and said that yes, he was involved with a co-worker. When management suspended him and told him not to come back to the office until further notice, he returned to the office twice, in direct violation of their orders.

The employer ultimately terminated Reichard, and the Court supported the employer’s position.  The Court felt that Reichard's deliberate and continuous lying to the employer amounted to Willful Misconduct, calling into question "the trust, integrity and honesty required of him." Said the court: 

While the married Reichard certainly put himself between a rock and a hard place because of the affair, he compounded his problems significantly by deliberately and continuously lying to Kuntz and then deliberately and willfully disobeying orders from his superior.

This outcome gives both the employee and employer things to consider.  The employer should have a policy about office romances and what conduct is considered acceptable. The employees should be aware of what the policy says, and be prepared to follow that policy.

The Reichard case makes it clear: don't lie about an office romance if you are required to disclose it. The romance itself might not get you fired, but lying about it could.

What To Do When An Employee Says, "I Quit."

Brian Bell

Toronto Employment Lawyer Brian Bell - So, you are a manager of a mid-sized company and it has been one of those days. Everything that could go wrong, has.  Sometime during the day, one of your sales people comes into your office with just another “lame excuse." You challenge what the sales person is saying.  The conversation gets heated, and voices get louder. Within minutes, the sales person states that they do not deserve to be treated like this. They finish by saying, "I quit," and then walk out of the office.

Question: Has this person truly resigned?

I recently encountered a situation similar to the one above.  Employers beware: resignations given in the heat of the moment may not be upheld in a hearing.

Resignations that are upheld are generally supported by a resignation letter. Such a letter will help confirm that an employee gave considerable thought to leaving employment.

In the case I was dealing with, the employee, in the heat of the moment, said he was quitting right then and there.  No resignation letter was provided at the time, nor was one to follow.

When this type of thing happens, the employer should proceed with caution. Before taking the employee's word for it that they have quit, the first thing you should do is give everyone - yourself included - a few days to cool off. Then wait to see if the employee contacts you. In a lot of cases, when the parties calm down, the employee could very well rescind their “resignation,” and they are allowed to do so.

In the case I was involved with, three to four days had passed with no contact from the employee.  I then advised the employer to confirm in writing with the employee that since we had neither received a letter, nor heard from the employee, we were concluding that their oral resignation was valid and all appropriate documents would be forwarded to the former employee as required. That is where the case ended.

It doesn't always work out that way. For a peek at how things can turn out poorly for you if you take an angry conversation as a resignation, you should look at this case from BC. In it, an employee laid his company keys on the table, wished the company luck, and walked. Sounds like a resignation, doesn't it? Not so fast. Read the article and see what the judge decided.

Taking the necessary steps to confirm and reaffirm the actions of the former employee are sure to reduce the risk of problems for the future.