HR Compliance H Does Your Testing Policy Discriminate? 2012

GET THE 10 HR POLICIES EVERY EMPLOYER MUST HAVE: Go to http://hrinsider.ca/articles-insight/10-policies-every-employer-needs
HR
Compliance
Your Plain Language Guide to
Hiring, Firing, Human Rights, Benefits & Privacy
Volume 8 Issue 4
DRUGS & ALCOHOL
Does Your Testing Policy Discriminate?
April 2012
FEATURES
Drugs and Alcohol
THIS STORY WILL HELP YOU
1
Does your testing policy discriminate?
Testing Guidelines (p. 3)
Figure out if your drug and alcohol testing policies violate disability
discrimination laws
AT A GLANCE: Substance Abuse in Canada
(p. 3)
H
uman rights laws ban employers from discriminating on the basis of a disability.
Drug addiction and alcoholism are considered “disabilities” under the law. So testing
employees and job applicants for drugs and alcohol—and punishing them for
testing positive—is potentially a form of disability discrimination. Yet, sometimes
testing is legal. Why is that? And how can you judge if your own testing policy is legal?
Social Media Use Policies
1
Why you need one and how to write a
good one.
Case Guidelines—Firing Employees for
Social Media Abuse (p. 10)
Model Policy (p. 11)
When Drug/Alcohol Testing Is Legal
The reason some drug and alcohol testing policies violate human rights and some policies don’t
has to do with a rule known as the bona fide occupational requirement (BFOR). Although it
CONTINUED ON PAGE 2
REGULARS
Privacy
ELECTRONIC WORKPLACE
HR Month In Review
How to Write an Employee Social Media
Use Policy
Employment Contracts
THIS STORY WILL HELP YOU
Protect your organization against employee blogging, tweeting, Facebook’ing,
YouTub’ing, etc.
77 Excessive social networking at work significantly erodes productivity
77 A video posted on YouTube shows your employees engaging in sexually inappropriate behaviour at work
77 An employee makes disparaging remarks about customers on Facebook
4
Quiz: Security surveillance cameras in
the workplace
5
Key legal changes and cases in each
province, territory and federally
5
Case of the Month: Ontario case
shows limits on enforcing Employment
Manuals
Termination
12
Winners and Losers: Does “I quit”
really mean the employee resigned?
IN FUTURE ISSUES
77 A senior manager tweets that he wants “to f*** that hot new intern”
77 African Canadian employees accuse a co-worker of writing a racist blog
E
mployees may believe that what they say on social networks is private
communication or just griping around the virtual water cooler. But as the above
examples highlight, inappropriate use of social media by employees—in and
outside the workplace—can damage an organization. The key to protecting your
organization: Create and implement a social media policy. Here’s how. See http://hrinsider.ca/
homepage/social-networking-model-policy or page 11 below for a Model Policy you can adapt.
CONTINUED ON PAGE 9
Is Repeated Lateness Grounds for
Termination?
HR Technology: Can It Really Help
Compliance?
How to Prevent Workplace Bullying—
and the Liability It Leads to
10 Immigration Pitfalls HR Must Avoid
HR W Compliance Insider
2
hr compliance insider
Board of Advisors
DO TESTING POLICIES DISCRIMINATE? CONTINUED FROM FRONT
sounds like legal jargon, the BFOR rule is actually rooted in common sense and recognition
that sometimes employers just have to treat disabled individuals differently because they are
disabled.
Hugh A. Christie
Gowling, Lafleur, Henderson, LLP
Toronto, ON
We know, for instance, that blindness is a disability. Yet, we also know that a taxi company
that refuses to hire a blind person as a driver because he’s blind isn’t guilty of discrimination. The
way we reconcile this apparent paradox: Being able to see is a BFOR for a taxi driver position.
Drug and alcohol testing may also be a BFOR because it ensures employees aren’t under the
influence of drugs or alcohol at work.
David S. Cohen, EdD
Strategic Action Group
Toronto, ON
Vicki L. Giles, LLB
McLennan Ross LLP
Edmonton, AB
Is Your Testing Policy Legal?
The operative word is “may.” The problem is that justifying a testing policy as a BFOR is hard.
According to a 1999 Supreme Court of Canada case called The Meiorin case, [1999] 3. S.C.R. 3,
to prove a BFOR, the employer must show that:
Maria McDonald, LLB
Dykeman Dewhurst O'Brien LLP
Toronto, ON
77 It adopted the policy or practice for a purpose related to job performance;
Ken Krohman
McKenzie Fujisawa
Vancouver, BC
77 It did so in the “honest and good faith belief” that the policy or practice is necessary to
fulfill that purpose; and
Greg McGinnis
Heenan Blaikie
Toronto, ON
77 The policy or purpose is, in fact, “reasonably necessary” to accomplish that purpose and
that it couldn’t accommodate the employee without suffering undue hardship.
Robert Smithson
Smithson Law LLP
Kelowna, BC
4 QUESTIONS TO ASK
R. Ross Wace
Wace & Associates
Mississauga, ON
While each employer must consider its own particular circumstances, the court rulings are like
navigational stars that you can use to chart your own course. Boiled down to its essence, you
have a reasonable basis to conclude that your testing policy is a BFOR if you can answer YES to
all 4 of the following questions:
HR
Compliance
™
Your Plain Language Guide to
Hiring, Firing, Human Rights, Payroll & Privacy
Managing editor:
GLENN S. DEMBY
CONTRIBUTING WRITERS:
PAULA SANTONOCITO
SHERYL SMOLKIN
2. Do You Really Believe that Testing Policy Is Necessary for Health and Safety?  YES  NO
You must be able to demonstrate that you honestly believed that drug/alcohol testing was
needed to promote health and safety. This is fairly easy to do if employees perform safetysensitive jobs, like operating heavy equipment or driving, that pose a danger to co-workers or
the public when performed by a person impaired by drugs or alcohol.
PRESIDENT AND CEO: ROB RANSOM
HR Compliance Insider is published by Bongarde Holdings
Inc. and is intended for in-house use only – commercial
reproduction is a violation of our copyright agreement.
3. Is Testing Policy Reasonably Necessary to Accomplish Health and Safety Purpose?
 YES  NO
This publication is designed to provide accurate and
authoritative information on the subject matter covered. It is
sold with the understanding that the publisher is not engaged
in rendering legal, accounting or other professional services.
If legal or other expert assistance is required, the services of
a competent professional should be sought.
R
NEWSLETTE
Printed in Canada.
April 2012 © Bongarde • www.hrinsider.ca
FOUNDATIO
N
AL
EXCELL
ENCE
AWARD
WINNER
RS
Publications Mail #40065442.
To find your testing policy “reasonably necessary,” you must conclude that it’s no more
restrictive than it has to be to accomplish the health and safety purpose. This is the hardest part
of the BFOR evaluation. Like the courts, you need to consider 3 sets of factors in evaluating the
reasonable necessity of testing:
E
SH
&
To order a subscription to HR Compliance Insider for
$397/12 months – please call our customer
service center at 1-800-667-9300. Fax
TRONIC PU
EC
BL
EL
I
1-250-493-1970 or visit our website at
www.hrinsider.ca
EDITORI
1. Is the Purpose of the Testing Policy to Promote Health and Safety?  YES  NO
Drug/alcohol testing policies are usually adopted as a safety measure. And protecting health and
safety is generally recognized as a legitimate job-related purpose. By contrast, testing policies
rooted in moral objections to drug/alcohol use are harder to justify—except perhaps for a
religious or educational institution.
a. Type of Employee Tested: The more safety-sensitive the position, the more leeway
employers generally have to perform testing.
CONTINUED ON PAGE 3
HR W Compliance Insider
3
DO TESTING POLICIES DISCRIMINATE? CONTINUED FROM PAGE 2
Example: Random alcohol testing is okay for safety-sensitive
employees at warehouse [Communications, Energy & Paperworkers
Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., [2011] NBCA
58 (CanLII), July7, 2011], but overkill for bank tellers and clerks
[Canadian Human Rights Commission v. Toronto Dominion Bank,
(1998) 229 N.R.].
b. Basis of Testing: Testing can be random or in response to an
incident or other event that gives the employer reasonable cause to
suspect the employee is impaired. Of the 2, random testing is much
more problematic.
4. Does Testing Policy Accommodate the Employee?  YES  NO
For a testing policy to be considered a BFOR, you must also show that
it accommodates the employee to the point of undue hardship. In the
context of drug/alcohol testing, courts demand that testing policies
take into account the individual circumstances of each employee—in
terms both of whether the employee must submit to tests and the
consequences they incur if they fail. Thus, blanket policies, such as
automatic termination for any employee that fails a drug test, is
inconsistent with the duty to accommodate and won’t be considered
a BFOR.
Conclusion
c. What You’re Testing for: Employers have a little more room to
test for alcohol than for drugs. The reason for this is physiological. The
physical effects of drugs tend to linger in the body after the “buzz” is
gone. Thus, the fact that an employee tests positive for drugs doesn’t
automatically prove he was high when he took the test. By contrast,
employees don’t fail alcohol tests unless they’re actually impaired at the
time of testing.
Keep in mind that disability discrimination isn’t the only legal obstacle
you face when seeking to implement drug/alcohol testing. Your testing
policy must also be consistent with the affected employees’:
COURT CASE TESTING GUIDLINES
Drug Testing & Discrimination
DRUGS OR TESTING BASIS
ALCOHOL
TESTING OK—
SAFETY-SENSITIVE?
TESTING OK—
NON-SAFETY-SENSITIVE?
77 Privacy rights—whether under PIPEDA, provincial privacy laws
or “common law,” i.e., case law made by judges; and
77 Collective agreement (or individual employment agreements in a
non-union workplace). 
1.
2.
Drugs
Random
NO
NO
Alcohol
Random
PROBABLY YES
NO
Drugs
Post-incident
PROBABLY NO
NO
Alcohol
Post-incident
YES
PROBABLY NO
b.
Drugs
Just cause
PROBABLY NO
NO
c.
Alcohol
Just cause
YES
PROBABLY NO
90
85
80
75
80%
70
ALCOHOL AND DRUGS
Canadian Usage
3.
4.
a.
AT A GLANCE
Substance Abuse in Canada
Just how bad is Canada’s substance abuse problem?
65
Alcohol: According to the Canadian Centre on Substance Abuse (CCSA),
approximately 80% of Canadians 15 years and older drink. But CCSA and
Centre for Addiction and Mental Health research also suggest that only
12% of Canadians are heavy alcohol users or abusers.
60
55
50
45
40
Drugs: Although findings vary, in the latest research surveys, only about
8% of Canadians admitted to using illicit drugs.
35
30
25
20
15
10
12%
5
0
Drink
Heavy Use/Abuse Alcohol
8%
Employer Response: What is clear is the potential harm that alcohol and
drug abuse can inflict on a workplace not just in terms of safety but also
attendance and productivity. Surprisingly, though, employers don’t seem
all that concerned—especially about employee alcohol consumption. 
Use Illicit Drugs
April 2012 © Bongarde • www.hrinsider.ca
HR W Compliance Insider
4
PRIVACY
test
your
HR I.Q.
Does Video Surveillance for Security Violate Privacy?
SITUATION
Sosumi Motors installs hidden video surveillance cameras in its auto dealership showroom for security purposes. Upon learning that she’s
been caught by the cameras, a customer, Ann Nonamiss, files a lawsuit against Sosumi for breach of privacy. Sosumi acknowledges that it
taped Ann and other customers without their knowledge and consent. But the showroom is in a high-crime neighbourhood and Sosumi
claims the cameras were necessary to prevent violence and ensure compliance with the dealership’s safety obligations under OHS laws.
QUESTION
Did Sosumi violate Ann’s privacy?
A. Yes, because it didn’t notify her that she was being
videotaped.
B. Yes, because it videotaped her without her express consent.
C. No, because the cameras were necessary to ensure security
and compliance with OHS laws.
D. No, because it didn’t use the cameras to collect personal
information about Ann.
ANSWER
A. Sosumi committed a privacy violation by videotaping Ann
without her knowledge.
EXPLANATION
Employers have a duty under OHS laws to maintain security at the
workplace. But using video surveillance cameras for security raises
troublesome questions under privacy laws. This situation, which is based
on a 2011 Office of the Privacy Commissioner of Canada case, illustrates
where the lines between security and privacy are drawn.
A retail facility may use video surveillance cameras as a security
measure, the Commission explained, as long as it respects the privacy
April 2012 © Bongarde • www.hrinsider.ca
rights of customers (and employees) under the federal PIPEDA, Personal
Information Protection and Electronic Documents Act, or its provincial
equivalent (e.g., in Alberta, BC and Québec). First, it must consider
security measures that are less privacy-invasive. If surveillance cameras
are essential, it must give patrons clear notice that they’re being filmed.
By failing to do this, Sosumi violated PIPEDA. (The defendant in the
actual case, Sobeys, resolved the issue by agreeing to post decals on the
storefront in combination with a visible, live monitor screen with a camera
hanging down beside it to alert shoppers to the surveillance.)
WHY WRONG ANSWERS ARE WRONG
B is wrong because Sosumi didn’t need express consent to videotape
Ann or other customers. As long as customers knew they were going to
be filmed beforehand, Sosumi could have treated their decision to enter
the showroom anyway as implied consent.
C is wrong because while security and OHS compliance is a legitimate
goal, Sosumi still must respect the privacy rights of customers (and
employees) by considering less invasive alternatives and notifying the
individuals being filmed.
D is wrong because videotaping is a form of collecting personal
information about an individual and is thus subject to limitations under
PIPEDA and provincial privacy laws. 
SHOW YOUR LAWYER
PIPEDA Case Summary No. 2011-003, Office of the Privacy Commissioner
of Canada, March 25, 2011
HR
HR
HRW
W
WCompliance
Compliance
ComplianceInsider
Insider
Insider
5
HR Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and arbitration rulings.
CASE OF THE MONTH
Ontario Case Illustrates Pitfalls of Enforcing Employment Manuals
Like most employers, you probably have an Employment Manual or Handbook
that explains the organization’s policies and procedures. You might also ask
employees to sign a form acknowledging that they’ve read, understood and
agreed to abide by the terms of the Manual. But is your Manual really enforceable?
A recent case illustrates why it might not be.
include the layoff procedure. But the designer didn’t get any “consideration,” i.e.,
higher salary or other benefit, for agreeing to the procedure. So the procedure
was still unenforceable, the court concluded. Result: The designer was fired and
didn’t abandon her job.
OVERVIEW
ANALYSIS
What Happened: Because its business is cyclical, a kitchen design firm needs
to be able to lay off and recall employees as jobs come in. So its Employment
Manual includes an elaborate layoff and recall procedure. A designer who gets
laid off is later recalled under the procedure. But she refuses the recall. The firm
claims she abandoned her job; the designer claims she was fired.
Although the case is from Ontario, the principles of McLean apply in all parts of
the country. The 3 important points HR directors need to take from the case:
What the Court Decided: The Ontario Superior Court of Justice says the
designer was wrongfully dismissed and awards her 10 months’ notice.
77 Even putting the Manual provision into the contract may not make it
enforceable if the employee doesn’t get consideration for agreeing to it.
How the Court Justified Its Decision: The layoff and recall procedure was
unenforceable. It was contained in the Manual rather than the designer’s original
contract or written offer of employment, the court explained. The contract didn’t
even mention the procedure and there was no evidence the designer agreed to or
even knew about it when she took the job.
The firm had laid off and recalled the designer once before, the court
acknowledged. And the employment contract she signed after being recalled did
McLean v. Raywal Limited Partnership, [2011] O.J. No. 5601, Dec. 9, 2011
77 Employment Manuals don’t carry the legal weight of a written contract;
77 Having employees sign an acknowledgement isn’t necessarily enough to
make the Manual enforceable; and
3 DO’s & DON’T’s
DO incorporate provisions of your Manual that you deem essential directly into
the employment contract.
DON’T rely on a signed acknowledgement to make a Manual provision
enforceable.
DO provide specific consideration to the employee for agreeing to the term. 
ONTARIO
LAWS & ANNOUNCEMENTS
CASES
Health & Safety
Feb. 1: The MOL began a new
inspection blitz targeting ergonomic
hazards in the construction, health
care, industrial and mining sectors.
Hiring Younger Replacement ≠ Proof of Age Discrimination
The Ontario Human Rights Tribunal dismissed the age discrimination claim of a real estate manager who was laid off as
part of a corporate restructuring. The evidence showed that the manager’s position was eliminated due to its relative lack
of productivity. The only hint of age discrimination was the fact that the manager was replaced by a younger employee; and
this alone wasn’t enough to make out an age discrimination claim [Lunar v. Canadian Real Estate Investment Trust, [2012]
O.H.R.T.D. No. 51, Jan. 6, 2012].
Workers’ Compensation
Jan. 27: Stating the obvious, the
newly published 2010 WSIB Annual
Report calls the $12.36 billion deficit
problem number one. Although most
claims are still being paid within
weeks, the WSIB faces the challenge
of coming up with the money to pay
the more than 160,000 locked-in
claims involving payment of benefits
over decades.
Pensions
Jan. 1: Highlights of Pension Benefits
Guarantee Fund changes that took
effect under erstwhile Bill 120:
77 Minimum $250 assessment
level for each covered plan
77 Increase plan base fee from $1
to $5 per member
77 Increase maximum underfunded
plan fee from $100 to $300 per
member
Flour Mill Did Enough to Accommodate Drug Addicted Employee
The union claimed that a flour mill committed disability discrimination by firing an employee addicted to drugs and alcohol
for being absent without approval and failing to provide adequate medical information. The arbitrator ruled that the mill
did enough to accommodate the employee by granting him repeated leaves of absence for rehab. But in every case, the
employee relapsed. And since there was no evidence to suggest that this time the outcome would be any different, requiring
the mill to make further accommodation would impose undue hardship [Dover Flour Mills v. United Food and Commercial
Workers Canada, Local 175, [2012] CanLII 1234 (ON LA), Jan. 15, 2012].
Remark about Hiring “Young, Dumb and Good Looking” = Discrimination
A 58-year-old district manager making $80,000 per year claimed the company eliminated her position because of her age
and disability. Her allegations: The supervisor told her she had a bad attitude when she took 2 weeks’ sick leave; and while
she was out, the company advised staff that from now on, it would hire only “young, dumb and good looking employees.”
Since the company didn’t show up for the hearing, the Human Rights Tribunal only got one side of the story and had little
difficulty finding the manager had enough evidence to go forward with her case [Vallee v. Fairweather Inc., 2012 HRTO 20,
Jan. 5, 2012].
After 35 Weeks, Layoff becomes Termination. Period.
Under the Ontario ESA (Sec. 56(1)(c)), a layoff becomes permanent termination after 35 weeks. So after 35 weeks without
being recalled, a laid off auto technician sued for termination. The twist: He sued not for ESA notice but damages under
common law, i.e., law made by courts. The employer’s response: The 35-weeks rule only applies to ESA claims. But the
court disagreed. Once a layoff hits 35 weeks, it’s a termination for all purposes—ESA and common law. So the technician
had been laid off and was entitled to 6 months’ common law notice ($9,900) [Elsegod v. Cambridge Spring Service (2001)
Ltd., 2011 ONCA 831 (CanLII), Dec. 23, 2011].
April 2012 © Bongarde • www.hrinsider.com
HR
HRWWCompliance
ComplianceInsider
Insider
6
FEDERAL
LAWS & ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS cont'd.
CPP
Jan. 27: The Office of the Chief Actuary recommended measuring the CPP’s actuarial
obligations according to a partially funded model in which current contributors
are deemed to consent to use of their contributions to pay current beneficiaries’
benefits with the understanding that they’ll get the same treatment when their own
benefits are due in the future. Accounting-wise, the open group approach allows for
factoring future contributions to measure current CPP financial sustainability.
Workplace Safety
Jan.: HRSDC issued revised versions of the following OHS policies in January
2012:
77 Compressed air and fire protection in grain elevators
77 Fall protection systems in mobile elevated platforms
77 Training employees with management or supervisory responsibilities
77 Authority of safety officers to enter defence establishments.
Pensions
Feb. 15: Reminder: Federally regulated defined benefit or combination pension plans
must file the OSFI 575 Solvency Information Return to the Office of Superintendent
of Financial Institutions within 45 days after the plan year for the fiscal year ending
between Oct. 1, 2011 and Sept. 30, 2012, or Feb. 15, 2012, whichever is later. OSFI
uses the information in the 575 to calculate the Estimated Solvency Ratio of the plan
and carry out monitoring of contribution holidays.
Immigration
Jan. 17: The federal government launched a free website to make it easier to
secure recognition of foreign credentials of immigrants. International Qualification
Network is a platform for government agencies and professional organizations to
post information and tools that can be used to speed up recognition of international
credentials.
Payroll—CPP Source Deductions
Jan. 1: Effective today, all payments made from an employer-funded uninsured wage
loss replacement plan are considered remuneration from pensionable employment
and thus subject to CPP contributions. As noted in CRA Interpretation Bulletin
428, a wage loss replacement plan is an arrangement under which an employer
makes up for an employee’s loss of employment as a result of sickness, maternity
or accident. The change, which is retroactive to Jan. 1, 2006, is to include payments
from uninsured wage loss replacement plans as pensionable income.
Payroll—T4 Filings
Jan. 1: New 2012 filing options include up to 50 T4 and T4A slips at a time using the
CRA Web Forms application. You can also use the service to:
77 Create an electronic T4 or T4A
77 Validate data in real time and correct errors the prompts detect before you file
77 Calculate totals for the Summary
77 Print and save T4 and T4A slips
77 Submit encrypted slips or returns securely over the Internet.
Mandatory Retirement
Dec. 15, (2012): Effective that date, employers will no longer be able to
require employees to retire at 65—or any other pre-designated age—even
if it’s the “normal” retirement age for that position, thanks to Bill C-13. Of
course, as in other jurisdictions, age-based mandatory retirement can still
be justified as a bona fide occupational requirement or as part of a bona fide
pension plan.
CASES
Contract Calls Worker Independent But He Really Isn’t
A sales firm clearly wanted its new door-to-door salesman to be an
independent contractor. The contract pushed all the right buttons for
an independent contractor relationship, describing the salesman as “an
independent businessperson” with opportunity for profit and risk of loss, as
well as control over time, place and methods. But in reality, the salesman
worked not as an independent individual but in a team controlled by the
firm. So the tax court said that CRA was right to classify him as an employee
[Intergranuity Mktg. Ltd. v. Canada (Minister of Nat. Revenue), [2012] T.C.J.
No. 2, Jan. 4, 2012].
Supreme Court to Lower Courts: Don’t Overthink Labour Arbitration
Review
Labour arbitrators don’t have to be right. When arbitration rulings get
appealed, the appeals court will uphold the decision as long as it’s reasonable.
In Dec., the Supreme Court of Canada clarified what “reasonableness” means
in a case involving whether casual employment time counted toward vacation
entitlement. The appeals court doesn’t have to go through an elaborate
process of exploring the arbitrator’s reasons, the Court explained. It need
only understand why the arbitrator ruled the way he did and confirm that the
conclusion was “within the range of acceptable outcomes” [Newfoundland
and Labrador Nurses’ Union v. Labrador (Treas. Bd.), [2011] S.C.J. No. 62].
NL
LAWS & ANNOUNCEMENTS
CASES
Workers’ Compensation
Jan. 16: The WHSCC kicked off its 5-year review of the workers’
comp system required under the Workplace Health, Safety
and Compensation Act. During phase 1, the Committee will
look at the law to identify potential areas for improvement and
modernization. In phase 2, public consultations will be held to
discuss how the system is administered and proposed changes.
Court Orders Union to Stop Barricading Plant Entrance
A week after being told by management that their Marystown fish plant was permanently closing,
union employees unlocked the gate without permission and took over the property, ostensibly to
ensure no equipment was removed. The court ruled the union members were trespassing and ordered
them to leave. They also had to remove the rope barrier they had strung to block access to the entry
road even though the barrier was technically not on the plant’s property [55104 Newfoundland &
Labrador Inc. (Ocean Choice Int’l L.P.) v. Stockley, [2012] N.J. No. 9, Jan. 16, 2012].
LAWS & ANNOUNCEMENTS
Government Regulation
Jan. 18: For the second year in a row, the Canadian
Federation of Independent Business issued the Territories
an F grade for red tape in its annual Red Tape Report
Card, published on Jan. 18, 2012. Manitoba and PEI also
received failing grades. BC was the only jurisdiction to
get an A.
Emergency Preparedness
Jan. 20: Yukon Energy released a free booklet to help individuals and businesses
prepare for emergencies that covers:
77 Preparing an emergency supplies kit
77 Risks and potential hazards in Yukon
77 Emergency phone numbers.
YT
NT
LAWS & ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS
Labour Market
Feb.: Work is expected to resume at the Jericho diamond mine,
located 360 km south of Cambridge Bay. The mine has been
closed since 2008. But in a few weeks, 20 to 40 workers will sift
through stockpiled ore looking for diamonds that the previous
owner missed. The hope is to restore Jericho, which is now owned
by Shear Diamonds, to full production in 18 to 24 months.
Health & Safety
Jan. 18: Injury prevention initiatives the Workers’ Comp Board will pursue in 2012:
77 Hazard alert and stepped up inspection of welding operations
77 Zero tolerance campaign for fall protection
77 Soft tissue back injury prevention campaign
77 Work with forestry industry to improve safety programs
77 Step up injury prevention education efforts.
April 2012 © Bongarde • www.hrinsider.com
PE
NU
LAWS & ANNOUNCEMENTS
HR
HR
HRW
W
WCompliance
Compliance
ComplianceInsider
Insider
Insider
7
ALBERTA
LAWS & ANNOUNCEMENTS
CASES
Labour Market
Jan. 27: Although the labour market in Jan.
2012 was relatively flat, Alberta continues to
boast the lowest unemployment rate (4.9%)
and the highest year over year employment
growth (+3.9%, or 80,000 jobs) of any
province. At 5.0%, Saskatchewan has the
second lowest unemployment rate and
Newfoundland has the highest, 13.5%.
Who Should Workers’ Comp Charge for Crane Operator’s Death?
A crane operator was killed trying to lift a communication tower. The question: Against which company’s experience
account should workers’ comp charge the loss—Procrane, the victim’s employer or Westower, the company that
hired Procrane? Both sides were negligent and equally responsible for the accident, said the Appeals Board. Neither
company met CSA crane standards. Westower gave Procrane an inaccurate estimate of the weight to be lifted; and
Procrane didn’t do enough to protect an employee operator. The court found the Board’s ruling reasonable and
upheld allocating the loss to both companies equally [Procrane Inc. (c.o.b. Sterling Crane) v. Alberta (Appeals
Commission, Alberta Workers’ Comp.), [2012] A.J. No. 55, Jan. 16, 2012].
Labour Unions
Jan. 9: Highlights of issues covered in
Alberta Labour Relations Board’s revised
Information Bulletin 14 on Representation
Votes, i.e., votes a union must win before it
can be certified:
77 Timing of the vote
77 The voters’ list
77 Electioneering and scrutineering, i.e.,
appointment of individuals by each side
to keep watch and ensure the vote is fair
77 How the vote is conducted, including
advance polls and mail-in ballots.
Dad’s Attack on Foreman Doesn’t Warrant Firing Young Worker
The father of a high school student working at a construction firm via a government work program for young people
went to the site to have a word with the foreman for hollering at his son. The discussion got heated and the father
allegedly kicked the foreman in the head. So the foreman asked the court for an order banning the student from
working at the company. The court refused. Taking away a young person’s employment is serious business and the
student should at least get a chance to defend himself, said the court [Brousseau v. Foley, [2011] A.J. No. 1517, Dec.
23, 2011].
New Workplace Aggravates Employee’s Pre-Existing Asthma
A lead hand acknowledged that he was an asthma sufferer before; but he claimed that after the company relocated,
he was exposed to so much additional dust, forklift exhaust, welding fumes, plasma cutting smoke, spray paint,
canned oil, grease spray and cleaners that his asthma became much worse and left him unable to perform all aspects
of his job. The Workers’ Compensation Appeals Tribunal agreed, ruling that workplace exposure to air contaminants
entitled him to workers’ comp coverage for aggravation of his pre-existing condition [Decision No. 2012-18, [2012]
CanLII 337 (AB WCAC), Jan. 9, 2012].
BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
CASES
Succession Planning
Feb.: A new $121,000 government
program begun this year in partnership
with the BC Construction Association
is designed to help small construction
businesses with succession planning.
The first phase of the program is to
gather information about succession
planning challenges in both construction
and other small business sectors.
Employees Fired While on Long Term Disability Can Sue for Discrimination
A mill sent 7 employees on long-term disability a letter: Give us medical evidence of when you can return and if we don’t
hear back from you in 2 weeks, you’re fired. None responded and so all got fired. The mill had just cause to terminate for
non-culpable absenteeism. But, the arbitrator continued, the employees could sue for disability discrimination since the
mill fired them, at least in part, to avoid paying them severance. The employees were all disabled and had all been deprived
of an employment benefit as a result, the arbitrator reasoned. The BC Court of Appeal upheld the ruling as reasonable
[West Fraser Mills Ltd. (Skeena Sawmill Division) v. United Steelworkers of America, Local I-937, [2012] B.C.J. No. 190,
Feb. 1, 2012].
Jobs
Feb.: BC intends to spend $1.5 million
on the SkillsPlus jobs program in 2012.
Under SkillsPlus, the government
partners with small and mid-sized
businesses (fewer than 500 employees)
to provide jobs and essential skills
training in select industries, including
tourism and hospitality; retail,
wholesale and grocery; health services;
construction; social housing; security;
manufacturing; forestry; and mining.
Calling Supervisor F*** Word Justifies Suspension
A Charge Hand orders a mill employee to take lunch early. The employee refuses. Allegedly, the employee then calls
the Charge Hand a “f***ing goof” and refuses to fix a skew zone. The employee is sent home and suspended 3 days
for insubordination. The union grieves claiming the Charge Hand didn’t have authority to make the employee take an
early lunch break. The arbitrator upholds the suspension, citing the employee’s history of suspensions and disrespect for
supervisors. The Board finds the arbitrator’s ruling reasonable and lets it stand [Chasm Sawmills, A Division of West Fraser
Mills Ltd. (Re), [2012] B.C.L.R.B.D. No. 3, Jan. 4, 2012].
Terminated Employee Repudiates Contract by Not Working Notice Period
After finding a note on his seat notifying him that his employment was terminated, effective in 5 weeks, a bus driver drove
home and never returned. The company claimed that by failing to work the 5-week notice period, the driver repudiated his
employment contract; the driver claimed constructive dismissal, arguing that to keep working under those circumstances
was unreasonable. The court split the baby: Not working the notice period was repudiation, it reasoned. But, 5 weeks’
wasn’t enough notice for the service the driver had put in before the repudiation [Giza v. Sechelt School Bus Service Ltd.,
[2012] B.C.J. No. 37, Jan. 13, 2011].
QUÉBEC
LAWS & ANNOUNCEMENTS
CASES
Labour Standards
Jan. 30: The daily stipend paid to individuals serving on juries is going up from $90 to $103. If the trial drags
on for a long time, the rate bumps up to $160 per day as of the 57th day the jury was formed.
Federal EI Trumps Québec Law on Garnishment
of CSST Benefits
A The EI Commission ordered the CSST to fork
over income replacement, i.e., workers’ comp
benefits of an injured worker who had gotten EI
benefits he didn’t deserve. Sec. 126(4) of the federal
Employment Insurance Act lets the EI Commission
garnish payments of beneficiaries who receive
benefits to which they’re not entitled; but Sec. 144
of the Québec Act respecting industrial accidents
& occupational diseases says income replacement
benefits are exempt from seizure. Where federal and
provincial law conflict, federal law prevails, said the
Supreme Court of Canada. So the worker’s benefits
were subject to EI Commission garnishment [Québec
(Attorney General) v. Canada (HRSD), [2011] S.C.J.
No. 60, Dec. 8, 2011].
QPP Reform
Jan. 1: Bill 39, the QPP reform bill, took effect. Highlights:
77 QPP members age 60 can qualify for benefits and keep working
77 Maximum application period for retroactive payment of retirement pension for person over 65 cut from
60 to 12 months
77 Exclude earnings after contribution period from additional pension of retirement beneficiaries who keep
working and contributing to CPP
77 Person must contribute for at least 4 of previous 6 years to qualify for disability pension starting at age
60
77 Increase orphan’s pensions
77 Years of contribution to plan after payment of retirement pension count toward death benefits
77 Death benefit equal to contributions, up to $2,500, paid to persons that die shortly after arriving on the
labour market, if sum of contributions is at least $500 (effective 2013).
April 2012 © Bongarde • www.hrinsider.com
HR
HRWWCompliance
ComplianceInsider
Insider
8
NB
LAWS & ANNOUNCEMENTS
CASES
Workplace Safety
Feb. 29: The comment period closed on a proposed OHS change that would
let WorkSafeNB impose not just fines but demerits on employers that commit
safety violations. Employers with more than a pre-designated number of
demerits would have to pay additional workers’ comp assessments.
Laid Off Electrician Gets 5 Months’ Notice
A New Brunswick court ruled that an electrician laid off after 7 years’ service was
wrongfully terminated and entitled to 5 months’ notice. The electrician wasted no
time, finding a new job in just 2 weeks—and a higher paying one at that. Although
that gig lasted just 3 months, he managed to land a job at a bakery just 2 days
after qualifying for EI, but at $5 less per hour. So the idea that the electrician
hadn’t done enough to “mitigate” his damages the way the employer claimed was
rubbish, the court concluded [Lyness v. Atlantic Foundation Group Ltd., [2012]
N.B.J. No. 6, Jan. 12, 2012].
Medical Benefits
Jan. 18: The government announced a 100% increase in the co-payment ceiling
for seniors from $250 to $500 per calendar year.
MB
LAWS & ANNOUNCEMENTS
CASES
Employment Standards
Jan. 1: Changes to the Employment Standards Code took effect
involving:
77 Slightly altered definition of just cause to terminate
77 Individual flex time agreement
77 Varying hours of work/work break order/ weekly day of rest order
77 Overtime averaging agreements.
No Proof Ex-Manager Stole Accounting Firm’s Clients
The Manitoba Court of Queen’s Bench threw out a case by an accounting firm against an
ex-management employee for allegedly stealing proprietary information and clients. The
firm had no case for breach of fiduciary duty because while he had access to the books,
there was no evidence the manager used the information to poach clients; and the noncompete in his employment contract was ambiguous, overly broad and unenforceable as
a restraint on trade [Duncan v. Sabine Collyer Partners LLP v. Campbell, [2011] M.J. No.
399, Dec. 7, 2011].
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
CASES
Minimum Wage
April 1: A 15¢ inflation increase will push the minimum wage to $10.15 per hour, $9.65 per
hour for inexperienced workers. Annual increases pegged to the consumer price index
will now take place every April in the province.
Employee Who Keeps Working Doesn’t Get Disability
After getting laid off, an automotive technician with Carpal Tunnel
Syndrome claimed long term disability benefits under his group policy.
The insurer found that the technician wasn’t totally disabled under the
policy and denied the claim. The Nova Scotia court upheld the denial
and threw out the technician’s appeal. The fact that the technician
could keep working full time while suffering from CTS showed that the
ailment wasn’t totally disabling [Keddy v. Blue Cross Life Insurance Co.
of Canada, [2012] N.S.J. No. 8, Jan. 3, 2012].
Labour Standards
Jan. 16: The government proposed regulations implementing the Labour Standards Code
protections for foreign workers adopted in May 2011. Issues addressed:
77 Definition of “foreign worker” covered by LSC protections
77 Exceptions to ban on reducing foreign worker’s wages/benefits
77 Licensing requirements for recruiters of foreign workers.
Human Rights
Jan. 1: The Nova Scotia Human Rights Commission began using a new procedure called
a Resolution Conference to speed up the resolution of discrimination claims. The 5 steps:
Step 1: When complaint filed, a date is set for all parties to meet
Step 2: Resolution Conference held at which parties express their views
Step 3: Commission tries to mediate settlement
Step 4: If settlement not reached, Commission reps issue recommendation
Step 5: Commissioners decides whether to dismiss complaint or send it to Board of
Inquiry for further proceedings.
Fired Teacher Claims Principal Defamed Him
After not being renewed for a second semester, a high school substitute
teacher sued the principal for defamation. Being called “unsuitable”
by the principal to his face was bad enough. But what really rankled
the teacher were his remarks to third parties—especially the negative
comments to the vice principal and school board about the substitute’s
suitability as a teacher. The court didn’t buy it. Even if the principal’s
remarks had defamed the teacher’s professional reputation, they
were “privileged”—as a matter of public policy, principals must be
free to discuss teachers’ credentials candidly with their school board
[Robertson v. McCormick, [2012] N.S.J. No. 9, Jan. 5, 2012].
LAWS & ANNOUNCEMENTS
SASKATCHEWAN
Payroll Earnings
Jan. 27: Saskatchewan has passed Newfoundland for second in average weekly earnings in Canada.
At $904.42, weekly earnings in the province for November 2011 are well above the national average
of $883.96 and behind only Alberta, at $1,052.53. Wages in Saskatchewan are also up 5.1% year over
year.
Pensions
Jan.: Key issues addressed in the Pensions Division’s bulletin on pensions unlocking:
77 Lump sums instead of pensions and/or LIRAs for benefit amounts too small to warrant administering
as pensions
77 Unlocking for shortened life expectancy
77 Pre-retirement death benefits paid to surviving spouse
77 Transfer of pension money to RRIF
77 Variable benefits under DC plans
77 Excess member contributions and refunds
77 Use of pension funds to make family maintenance payments.
Workers’ Compensation
Mar 5: Public review of the workers’ comp reform committee’s report ended. Key recommendations of
the Nov. 2011 report:
77 Increase maximum benefit from $55,000 to $59,000
77 Require all employers and self-employed to register with WCB
77 Change assessment formula for self-employed
77 More active WCB monitoring of return-to-work
77 WCB to provide safety prevention training.
April 2012 © Bongarde • www.hrinsider.com
CASES
OK to Fire Courier for Receiving Package
Containing Marijuana
Because it reeked of marijuana, a manager took the liberty
of opening a registered package personally addressed to
a courier. Sure enough, it contained pot and the courier
was fired. The courier denied knowing anything about the
package even though it was mailed by his brother. But the
court ruled that the courier was an independent contractor
and the company had just cause to end his contract.
Tolerating drug use by drivers could lead to criminal
charges and destroy the company’s business, the court
reasoned [Den Hollander v. Tiger Courier Inc., [2012] S.J.
No. 10, Jan. 6, 2012].
LSA Ranching Employee Exemption Doesn’t Cover
Ranch Bookkeeper
A bookkeeper at a cattle ranch sued for overtime, annual
holiday and stat holiday pay under the Labour Standards
Act. The Saskatchewan LSA doesn’t cover employees
“employed primarily in farming [or] ranching.” But the
Labour Standards Branch said the exemption is based
not on the business but the employee’s actual duties. And
since the bookkeeper’s job was administrative rather than
ranching, the exemption didn’t apply. So it ordered the
ranch to pay her $6,280 in unpaid wages. The court found
the ruling correct [Rocking Hills Cattle Co. Ltd. v. Sask. (Dir.
of Labour Standards), [2011] S.J. No. 763, Dec. 6, 2011].
HR W Compliance Insider
9
SOCIAL MEDIA USE POLICY CONTINUED FROM FRONT
The Social Media Policy & Why You Need One
When social networking began to emerge as a workplace problem,
some employers responded by restricting employee internet use and/
or blocking specific internet sites, notes BC employment lawyer Marino
Sveinson. But that proved an exercise in futility, one that undermined
efforts to attract and retain multi-media savvy Gen X’ and Y’ers. The
current norm, says Sveinson: Allow for reasonable personal use of social
media subject to restrictions and the employer’s right to monitor.
Enter the social media policy. Although it’s a fairly new phenomenon,
the social media policy is based on staples of the traditional HR manual,
particularly policies on confidential information, privacy and the duty
of loyalty. The social media policy takes these values and relates
them to social networking activity. It reminds employees that social
networking isn’t private communication and that when they engage in
it, they’re subject to the usual rules of workplace conduct that govern
“offline” behaviour. The message is crucial, says Ontario HR lawyer
Dan Michaluk because “to even the smartest person in the world,
communicating via social media feels like an intimate conversation.”
You-Speak-for-Yourself Caveat, i.e., language requiring that
employees engage in social media use only in a personal capacity,
including:
77 A clearly worded stipulation that employees may not directly
or indirectly represent that they’re speaking on behalf of or
representing the organization while using social media unless
they’re expressly authorized to do so;
77 Banning the use of the organization’s brand names, logos,
trademarks and other intellectual property without express
permission when using social media; and
77 Requiring employees to add a disclaimer clearly stating that
they’re not speaking on the organization’s behalf when saying
something that may even be perceived as an official organization
communication.
Description of Other Impermissible Conduct, i.e., an
explanation of what employees should not do, including engaging in
online communications that:
HOW TO WRITE A GOOD SOCIAL MEDIA POLICY
77 Disparage, defame, cast an embarrassing light on or compromise
the privacy of the organization, management, co-workers,
customers, clients or suppliers;
Although a social media policy can’t be one-size-fits-all, Sveinson lists
key elements a policy should contain, including:
77 Disclose the organization’s business secrets or confidential
information; and
Purpose, i.e., to establish expected standards of conduct for
employee social media use;
77 Discriminate or harass co-workers on in general and on the basis
of gender, race, religion, sexual preference, nationality, disability,
etc.
Rationale, i.e., to protect the organization’s reputation and other
legitimate interests, while still embracing the positive aspects of
employee social media use;
No Privacy Caveat, i.e., a provision:
77 Noting that all computer equipment and systems, including email
and internet, are the employer’s property (assuming, of course,
this is true);
77 Explaining how hard drives, email, etc. are monitored by your IT
department; and
77 Expressly stating that you have access to computer and email
communications and warning employees against having any
expectation of privacy regarding their use of such systems.
Description of Permissible Conduct, i.e., language describing
appropriate employee social media use on and off the worksite and
listing examples, e.g., ground rules for participation in company and
employee Facebook groups;
Consequences of Violations, i.e., a warning that violations can
lead to not only personal liability but also discipline up to and including
termination;
Extension of Restrictions after Employment Ends, i.e., a
provision stating that restrictions in the policy regarding privacy,
confidentiality, non-harassment and non-disparagement remain in
effect even after employment ends, and that legal action may be taken
against ex-employees for social media communications that violate
these restrictions or otherwise harm the organization, its employees
or customers.
HOW TO IMPLEMENT YOUR SOCIAL MEDIA POLICY
The keys to implementation are communication and enforcement.
Communicating Your Policy: Simply including a copy of the social
media policy in your HR manual isn’t enough. Make sure the policy
actually gets into the hands of your employees. Distribute it when you
CONTINUED ON PAGE 10
April 2012 © Bongarde • www.hrinsider.ca
HR W Compliance Insider
10
SOCIAL MEDIA USE POLICY CONTINUED FROM PAGE 9
first draft it and again each time you change it. Give all new employees
a copy of the policy when they’re first hired. Many companies take the
additional step of making employees acknowledge the policy. “A policy
is ineffective unless you can show employees actually knew about it,”
explains Toronto lawyer, Karen Seargent. 3 options:
77 Attach the policy to an email and have employees acknowledge
by return email that they read, understood and agree to obey the
policy;
77 Have employee sign and return a hard copy of the policy attached
to their paycheque; or
77 Deliver the policy to employees face-to-face, either individually
or in a group.
Sveinson favours the in-person group meeting approach because
it enables you to explain the policy and let employees ask questions.
CASES: FIRING EMPLOYEES
SOCIAL MEDIA VIOLATION
WHY TERMINATION UPHELD
Disparagement of Co-Worker: Nurse
made highly unflattering remarks about
supervisor—calling her “Nurse Rached”—
on her personal blog
Blog is not a private communication and
even though nurse didn’t use her name, she
gave enuf info to figure out who she was,
who she worked for and who she was talking
about [R. Grievance, [2008] A.G.A.A. No.
20, April 11, 2008] (but nurse gets damages
for abusive termination procedure)
Viewing Pornography: Supervisor viewed
porn on his work computer
Supervisor had been warned twice [Poliquin
v. Devon Canada Corp., 2009 ABCA 216
(CanLII), June 17, 2009]
Harassment & Intimidation: Probationary
employee sends threatening emails to
colleagues
Termination upheld. Conduct violates
company violence and harassment policy
[Monette v. Parks Canada Agency, 2010
PSLRB 89, Aug. 20, 2010]
Disparagement of Boss, Business: 2 car
dealers make negative comments on
Facebook about boss and the dealership
they work for including “don’t buy from”
them
Labour Board treats Facebook postings as
public communications [Lougheed Imports
Ltd. v United Food & Commercial Workers
Union, Local 1518, 2010 CanLII 62482 (BC
L.R.B.), Oct. 22, 2010]
Excessive Texting for Personal Use:
Probationary employee in Sask.
constantly using personal cell phone to
text during work hours
Conduct violated written policies and
employee received at least 2 warnings [CUPE
Local 726 v. City of Estevan,[2011] CanLII
11357 (SK L.A.), March 8, 2011]
Excessive Texting for Personal Use:
Probationary employee in Sask.
constantly using personal cell phone to
text during work hours
Conduct violated written policies and
employee received at least 2 warnings
[CUPE Local 726 v. City of Estevan,[2011]
CanLII 11357 (SK L.A.), March 8, 2011]
Pornography, Privacy, Ethics: Teacher
found to have naked pictures of his
15-year-old student on hard drive of work
computer
Teacher knew IT department had access
to his hard drive and had no reasonable
expectation of privacy [R. v. Cole, [2011] O.J.
No. 1213, March 22, 2011] (Appeal pending)
Inappropriate Work Conduct Video
Posted on You Tube: Inspired by the
movie Jackass, construction workers bear
their genitals in lunch room and engage
in other idiocy, all of which is captured on
video and posted on YouTube
Termination upheld. Even though it was a
first offence, the conduct was egregious[ In’tl
Union of Elevator Contractors, Local 50 v.
Thyssen Krupp Elevator (Canada) Ltd., [2011]
CanLII 46615 (ON LRB), July 28, 2011]
April 2012 © Bongarde • www.hrinsider.ca
By contrast, email and hard copy attachments are harder to track
and control. You can’t be sure all employees will actually open the
email attachment or read the policy attached to their paycheque, he
explains.
Communication should also continue after initial dissemination. It’s
good practice to remind employees about the social media (and other
key company policies) and let them ask questions about it at regular
intervals. Communications can include intranet postings and even
video. Michaluk cites a YouTube video from the Department of Justice
in Victoria Australia. http://www.youtube.com/watch?v=8iQLkt5CG8I
as the best example of an employer social media policy communication
that he’s ever seen.
Imposing Discipline for Violations: Like any other HR policy, a
social media policy must be backed by discipline. And while it’s a new
area of law, there’s already ample case law to show that social media
use is not regarded as private correspondence and that employees can
be disciplined for harming their organization on a blog, tweet, Facebook
page or other social media communication. Examples of social media
abuses found to constitute just cause for termination:
Conclusion
Terms like blogging, Facebook, tweeting and YouTube didn’t exist when
the basic employee conduct policies were written. But once you get
past the hype, the challenges posed by employee use of social media
are exactly the same as the ones addressed in those crusty “old”
HR policies—issues like organizational reputation, confidentiality,
harassment and discrimination. What the HR director really needs isn’t
a whole new set of rules but a mechanism for translating the old rules
to the new media. Effectively written and implemented, this is precisely
what the social media use policy does. 
HR & THE BOTTOM LINE
The Costs of ‘Unwellness’
$2,656:
1:
36:
Source: Ceridian, “The Case for Workplace Wellness”
CONTINUED ON PAGE 11
HR W Compliance Insider
11
SOCIAL MEDIA USE POLICY CONTINUED FROM PAGE 10
MODEL SOCIAL MEDIA USE POLICIES
The HR Insider website includes an excellent example of a social media policy you can adapt for your organization. http://hrinsider.ca/
homepage/social-networking-model-policy. Here’s another good model, which comes from the retailer Best Buy:
Best Buy Social Media Policy*
Be smart. Be respectful. Be human.
Guidelines for functioning in an electronic world are the same as the values, ethics and confidentiality policies employees are expected to
live every day, whether you’re Twittering, talking with customers or chatting over the neighbor’s fence.
What You Should Do:
Disclose your affiliation: If you talk about work-related matters that are within your area of job responsibility, you must disclose your
affiliation with Best Buy.
State that it’s YOUR opinion: When commenting on the business, unless you’re authorized to speak on behalf of Best Buy, you must state
that the views expressed are your own. Hourly employees should not speak on behalf of Best Buy when they are off the clock.
Protect yourself: Be careful about what personal information you share about yourself and others online.
Act responsibly and ethically: When participating in online communities, do not misrepresent yourself. If you are not a vice president, don’t
say you are.
Honor our differences: Live the values. Best Buy will not discrimination (including age, sex, race, color, creed, religion, ethnicity, sexual
orientation, gender identity, national origin, citizenship, disability or marital status or any other legally protected basis under federal,
provincial, state or local laws, regulations or ordinances).
Offers and Contests: Follow the normal legal review process. If you are in the store, offers must be approved through the retail marketing
toolkit.
What You Should Never Disclose
The numbers: Non-public financial or operational information. This includes strategies, forecasts and most anything with a dollar-figure
attached to it. If it’s not already public information, it’s not your job to make it so.
Promotions: Internal communication regarding drive times, promotional activities or inventory allocations. Including: advance ads, drive
time playbooks, holiday strategies and Retail Insider editions.
Personal information: Never share personal information regarding other employees or customers. See the Customer Information Policies
for more information.
Legal information: Anything to do with a legal issue, legal case or attorneys.
Anything that belongs to someone else: Let them post their own stuff; you stick to posting your own creations. This includes illegal music
sharing, copyrighted publications and all logos or other images that are trademarked by Best Buy.
Confidential information: Do not publish, post or release information that is considered confidential or top secret. Basically, if you find
yourself wondering if you can talk about something you learned at work—don’t. Follow Best Buy’s policies and live the company’s values
and philosophies. They’re there for a reason.
Just in case you are forgetful or ignore the guidelines above, here’s what could happen. You could:
• Get fired (and it’s embarrassing to lose your job for something that’s so easily avoided)
• Get Best Buy into legal trouble with customers or investors
• Cost us the ability to get and keep customers
April 2012 © Bongarde • www.hrinsider.ca
HR W Compliance Insider
12
TERMINATION
winners & losers
Does Saying “I Quit” Really Mean Employee Resigned?
Many an employee has uttered the words “I quit,” only to have a change of heart later. Do you have to take those employees back? At
stake is more than pride. Employees who voluntarily quit don’t get termination notice; but if “I quit” is just blowing off steam, not letting
the employee back means that you’re the one who terminated the employment relationship and puts wrongful termination and termination
notice back in play. The basic rule: To constitute resignation, employees must give “clear and unequivocal” of their intent to resign. As the
following cases illustrate, sometimes saying “I quit” isn’t clear enough to meet that standard.
“I QUIT” ≠ RESIGNATION
“I QUIT” = RESIGNATION
FACTS
FACTS
After 7 months of stewing about his salary, a winery employee gets
into a shouting match with his boss and slams his work keys down
on the desk. “Good luck making wine,” he snarls as he leaves the
building. Shortly thereafter, he gets an email from the company
accepting his “resignation” and giving him 4 weeks to clear out. The
employee claims he was fired and sues for wrongful dismissal.
A video technician unhappy with his Christmas bonus and workload
gets a phone call from his boss criticizing him for a mistake. The
technician grows increasingly testy and hangs up on the boss. He
then hands in his keys, walks out in the middle of a shift and doesn’t
show up for work the next day. After an apology, the technician is
told that the company has accepted his “resignation.” He denies
resigning and sues for wrongful dismissal.
DECISION
The BC Supreme Court agrees and awards the employee 8 months’
notice.
EXPLANATION
DECISION
The Ontario Superior Court of Justice rules that the technician
resigned and wasn’t fired.
Although immature and in poor judgment, the employee’s behaviour
wasn’t an unequivocal statement of resignation. The employee was
high strung and had “quit” in a snit before, in each case returning
to work after calming down. But this time the company took
him at his word and accepted his “resignation” before he could
change his mind. And while the employee’s histrionics left room
for interpretation as to true intentions, the email giving him 4
weeks to clear out was crystal clear that the winery considered the
employment at an end. 
The technician denied telling the boss that he was quitting and
attributed the entire episode to blowing off steam. But the court
didn’t believe him. Before storming out of the office, the technician
stopped to say good bye to colleagues and let them know that he
“finally did it, I quit.” And leaving in the middle of the shift when there
was nobody to fill in and not showing up for work the next day were
the actions of an individual determined to quit, said the court. 
Haftbaradaran v. St. Hubertus Estate Winery Ltd., [2011] B.C.J. No.
1983, Oct. 21, 2011
Gebreselassie v. VCR Active Media Ltd., [2007] O.J. No. 4165, Oct.
24, 2007
EXPLANATION
HR Compliance Insider Preferred Subscriber Offer
Yes, please enter my new one-year subscription to HR Compliance Insider at the special rate of just $397 plus shipping and handling. The Insider
gives me plain language, “how-to” help to comply with HR laws and avoid liability. If not completely satisfied, I may cancel and receive a full refund
on the unused balance of my subscription.
Discount Code 2380
Name ____________________________________ Title___________________________ Company_________________________________
Address ______________________________________ City_____________________________ State/Province ________________________ Zip/Postal Code________________ Email________________________________________ Phone___________________________________
Mail to: Bongarde, #102-501 Main Street, Penticton, B.C. V2A 9A6 or Bongarde, Box 428-103 Eastside Oroville Rd., Oroville, WA 98844
Phone: 1-800-667-9300 Fax: 1-888-493-1970
April 2012 © Bongarde • www.hrinsider.ca