A short summary of the case Jones v. Tsige:

Sandra Jones worked for the Bank of Montreal, unknowingly alongside Winnie Tsige, the common law partner of her ex-husband.  It was discovered that over the course of 4 years, Tsige had accessed Jones` financial information at least 174 times.   After suspicions were raised by Jones, Tsige admitted to the wrongdoing and was disciplined with the denial of her bonus and a one week suspension without pay.  Not satisfied that this was a sufficient resolution, Jones successfully challenged a limitation in civil court on the right of an individual to directly sue another for invasion of privacy.  Referencing Professor William L. Prosser’s text “Privacy”, the judge appropriately named the new tort “Intrusion upon Seclusion”.

Who can be guilty of intrusion upon seclusion?

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

An important caveat to the scope provided was that cases need only be considered if the action(s) are both deliberate and significant.  How effective these guidelines will be at deterring frivolous claims waits to be seen.

What does this mean for employers and employees?

It is important to consider both the cause of your privacy concern as well as your desired remedy.  A good starting point is discussing the matter with your manager.  If you are dissatisfied with the process that was followed, it may make more sense to pursue a complaint through the Personal Information Protection and Electronic Documents Act. (PIPEDA) This should give companies greater incentive to ensure that their policies and procedures on privacy are exceptional, as it will be easier to perform damage control sooner rather than later.

With individuals on the hook for up to $20,000, it certainly doesn’t hurt for employers to mitigate potential liabilities and for snooping employees to temper their impulses.

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What is this dramatic shift? The online provision of legal documents and services.  Several companies now offer downloadable templates and tutorials for clients who want to pay less and do more.  The Lawyers Weekly wrote a great article outlining a brief history and some of the key sceptics and defenders of this new era.

Defending the do-it-yourself approach, Jordan Furlong of Lawyers Weekly says “this is a growth industry for the future of the legal marketplace.” – The main demographic to benefit being small businesses and individuals who believe they can’t afford high-priced lawyers.  Warren Smith of The Counsel Network calls this “the Wal-Mart of legal services,” and urges firms to incorporate this approach into their practice or seek strategic alliances.

Not everyone believes this service is all it’s cracked up to be.  Daniel Lublin, Partner of Whitten and Lublin says it’s “a scam”.  As the old adage goes, you get what you pay for.  Cheap legal services can create the illusion of assurance, when in fact, people may be unknowingly missing key parts of the puzzle that could end up costing them dearly.

Since it is still virtually fresh on the market, popularity in online legal services will likely grow, but whether it sticks around will be determined by the reputation it garners.  Competition will increase, and so too will the spectrum of quality in services.   When it comes to anything beyond routine and simple procedures, it’s unlikely, and even dangerous to consider removing legal consultation from the equation.

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According to one passenger, the two Ontario residents were seen fighting with flight attendants, subdued by the crew, and handcuffed to their seats.  The two men pleaded guilty to mischief and have been ordered to pay $72,000 in restitutions.  One of the statements provided by the company was that Research in Motion (RIM) “expects that its employees conduct themselves in a manner reflective of our strong principles and standards of business behavior.”  Although this case seems pretty clear cut, it is worth flagging a few things:

1. Inebriation does not necessitate immediate dismissal.   Be mindful of the possibility that the employee is not merely intoxicated, but an alcoholic – a disability that is covered by human rights legislation.  In such an instance, firing them without a proper investigation could trigger a wrongful dismissal case, based on a failure to accommodate.
2. Handle departing senior executives with care.  Especially in the tech industry, competition can be quick to pick up the scraps, and employees with valuable trade secrets may be less inclined to keep them if they leave embittered.
3. Employees present for the disruption should be offered the resources to deal with any anxiety or emotions stemming from the incident.

Damage control goes beyond appeasing the public.  Amidst considerable pressure to act quickly, ensure that you don’t do so rashly.  If you’re still uncertain, don’t hesitate to reach out for advice from a lawyer.

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The article explores a study published by University of Ottawa professor Tracy Vaillancourt that suggests women in the office act aggressively towards peers they perceive as physically attractive.

The experiment recorded the reactions of women awaiting an interview after they had been approached by an assistant wearing either khakis or a miniskirt.  The study found that 97% of the women involved felt hostile towards the assistant in the miniskirt, whereas they hardly noticed the one in conservative attire.

Vaillancourt believes that this hostility is hardwired in women as an evolutionary competition for a mate.  Whitten, an expert on workplace bullying, believes that these reactions can be explained in a different way.  He says, “It’s not a conflict for a mate. The proverbial mate is the job”.  Particularly when opportunities are scarce, competition for advancement can cause hostility.  Two solutions Whitten suggests are sensitivity training and a comprehensive dress code.

Whether it’s competition for a mate driving this hostility or competition for advancement, there are some clear lessons for employees.  Be ready for potentially negative responses to provocative clothing, and mindful of the impact it can have on relationships with colleagues.

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The accident, which occurred in August of this year, caused the TTC to reevaluate their policy for drug and alcohol testing.  When words like “mandatory” were brought up, the TTC union and members of public raised the issue of employee privacy.  Whitten picks up from there in describing the risks and rewards of different policy options for HR managers.

Firstly, breathalyzer tests are less invasive of an employee’s privacy and less likely to be opposed. Why? Because the breathalyzer measures an employee’s impairment at the time of the test, whereas other tests can show drug use from weeks prior and are less accurate in determining impairment.

Policies that call for the immediate dismissal of employees who fail drug tests are generally rejected by courts, as addiction is a form of disability that employers have a duty to accommodate for.

Ultimately, Whitten says that the best measure is to abide by the “Golden Rule” – treat employees with the same dignity and respect that you would expect in similar circumstances.  For example, if an employee is in a position in which sobriety is required to uphold public safety, consider transferring them elsewhere while they seek help.  Compassion can go a long way in creating a positive corporate culture, and it will also go a long way in court, should your actions ever be challenged.

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In this case, the employee was a barista at Sodexo, and was allegedly told via email:

You have been a wonderful contribution to the Sodexo team unfortunately due to your involvement in Occupy Calgary we do have to let you go.

Though he was present at the protest, the employee was curious as to how his employer found out.  Would it have mattered if Sodexo was misinformed?

It’s important to distinguish between what is legal and what is moral in circumstances like these.  Although Canadian employment law often affords employees the benefit of the doubt, employers still maintain the right to conduct business as they see fit, provided that they do so without discriminating.  When it comes to freedom of expression, employers can make “immoral” dismissals provided:

• They give appropriate notice;
• Provide pay in lieu of notice;
• Or provide valid rationale to substantiate a dismissal for cause, which would forfeit the prior entitlements.

Picture and video phones, instant messaging, social media – it’s easier than ever for your employer to get a lead on your activity off the clock.  Does this accountability make us more responsible individuals, or bind our expressions to our employer’s discretion?

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Last week in the Metro, employment lawyer Daniel Lublin tells the tale of a recently dismissed employee whose phone call to the Ministry of Labour ended up being anything but free.   

Intent on taking action against her former employer, a woman called the Ministry for information and was encouraged to proceed.  Without questioning the process, she filed her claim, and later found out that it had prohibited her from suing for further damages in court.

There is a disparity between what employees can claim through statutory minimums and common law notice.  Advice from the Ministry is free- and for most people, an easy first point of contact.  But as Lublin points out, people “are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion.”   

Don’t settle for less than you deserve.  If you believe you have a strong case and plan on proceeding, contact an employment lawyer.  

You can read the full article in Metro News at the link below: 

A Ministry Makes the Wrong Move

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Thomas McNeely was a senior executive at Herbal Magic, when a group of investors approached him about making a bid on the company.  Intent on becoming the next CEO, McNeely was actively involved in the negotiations, but reluctant to front any capital.  Eventually, he was persuaded by promises that he would be a long-term senior executive.   

The changeover occurred and McNeely was the new CEO for 7 months before being fired and removed from the board.  Believing that he was owed something more because of the promises made, he sued.  

Unfortunately for McNeely, the only thing relevant to verbal agreements in his contract was an “entire agreement” clause that nullified anything said that was not included in the contract.  Even though the defendant admitted to having made the statements, the judge ruled against McNeely.

While there are some cases in which broken promises can lead an employer into muddy waters (such as in the case of job inducement), it is best to err on the side of caution: ask for things in writing; review and negotiate employment contracts; and if it still doesn’t feel right, consult an employment lawyer.

The original article, written by employment lawyer Daniel Lublin can be found on the Metro News website *here*

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