Time to Look Beyond Overtime — A Survey of Employment Class Actions in Canada
When the first overtime class actions broke onto the Canadian legal scene in 2007, observers wondered whether this signalled a move toward the class action culture to which U.S. employers have grown accustomed. With the expanded right to overtime under the new federal Fair Labour Standards Act — known as the "FairPay Rules" — adopted in 2004, the incidence of overtime class actions has mushroomed in the U.S. To date, attempts to follow this trend in Canada have been met with a lukewarm reaction from the courts. In those cases where overtime class actions have been certified, appeals are pending on the certification decisions, and we have yet to see a case go to trial on the merits.
"Shut Up!" — It’s Not Verbal Abuse
The Ontario Superior Court of Justice overturned a recent arbitral decision that upheld an Employer’s decision to discharge the Grievor, a patient support worker, for verbal abuse. The Grievor had yelled "Shut up!" at a patient. This case poses some important reminders for employers, particularly when relying on a zero-tolerance policy.
Social Media in the Workplace — Recent Case Law Developments
Employee use of the Internet, social media sites such as Facebook and blogging raises new challenges for employers. Increasingly, the line between "work" and "play" is blurred. All Western-based employers will be interested in the following recent cases from Alberta and British Columbia that concern social media.
Social Media in the Workplace: Facebook Profiles Are Not Private
A recent decision from the Commission des lésions professionnelles concludes that the information found on a Facebook account is not private, considering that numerous people may have access to this information. The Landry et Provigo Québec inc.decision was made after an employee filed Facebook pages from her colleagues’ Facebook profiles as evidence supporting her allegation of psychological harassment. The employer objected to this evidence, arguing that it was not a complete representation of all communications exchanged, that it constituted hearsay, and that the production of this evidence breached the Charter of Human Rights and Freedoms because it violated the privacy rights of third parties. The employer argued that the communications exchange on the Facebook page of a third party are of private nature, and that to produce such communications as evidence violated the Charter. Finally, the employer argued that the document did not meet the criteria under Section 2855 of the Civil Code of Québec regarding the production of material things.