Canada: Focus on Employment, Labour & Pensions - June 2006

Last Updated: June 11 2006

Electronic Evidence: Catch The Rogue Employee

By Adrian Miedema

The explosion of e-mail communication presents risks and opportunities for employers. Electronic files can be a goldmine of evidence against rogue employees – particularly when the employee believes the file to have been permanently deleted.

Deleted Files: The New "Smoking Gun" Evidence?
Just as e-mails and electronic files present risks, they present great opportunities for lawyers and human resources professionals. It is commonly understood that a "deleted" e-mail or file is gone forever. This is not true. By "deleting" a file, one deletes only the file name and path to the file; the contents of the file actually remain. Often it is only when the hard drive or disc fills up, and the computer needs the disc space, that the "deleted file" will be overwritten. Because most people use far less than 100% of their hard drive space, many deleted files are never overwritten.

The "deleted" files may be recovered with the assistance of a forensic information technology professional who can obtain an "image" of the hard drive, which is an exact copy of the drive, including deleted files. The professional can then find and restore deleted documents including e-mails. It is almost always advisable to use an external forensic IT professional because the person who obtains the "image" may be called as a witness in court. Without formal training in forensics, an inhouse technology professional may see his or her evidence destroyed in cross-examination – and may also be accused of bias.

Because most employees believe that "deleted" really means "deleted", they are often very free with what they say in e-mails – some of which are sent and then promptly deleted. As a result, in employment litigation matters, deleted e-mails can often become critical evidence, if not a source of amusement.

Unbeknownst to most people, personal e-mails sent from work using an employee’s web-based e-mail account such as "Hotmail" will often reside on the work computer. An employee, believing that these e-mails could not be seen by the employer, will often be free with what she says in – or what documents she sends along with – such e-mails. Privacy implications and systems use policies should be considered and consulted before using any such "personal" e-mails as evidence.

Recovered e-mails are particularly useful evidence where an employee steals intellectual property or takes steps – while still employed – to compete against the employer. For instance, an employee might send a customer list by e-mail to his personal e-mail address and then delete the e-mail. That e-mail will usually remain on the hard drive and will be "smoking gun" evidence in legal proceedings against the former employee, such as injunction proceedings to prevent the employee from competing or soliciting clients.

But employers must think beyond computers. Other devices such as cell phones, Blackberries and Palm Pilot-type devices all have memory that can be "imaged" and preserved by the forensic IT professional. The employer should take steps to preserve the potential goldmine of electronic evidence on a departed employee’s hard drive. Don’t shut the computer down, but do ensure that it is safeguarded. In particular, where key salespersons or other key employees depart, the employer should consider obtaining a forensic image of the employee’s hard drive. If litigation arises, the employer may then analyze the forensic image and determine whether, for instance, the employee stole customer lists. The forensic image of the hard drive may be stored and used later if necessary.

Similarly, before dismissing a key employee, the employer should secure the employee’s laptop, cell phone, Blackberry or Palm Pilot to ensure that the employee cannot, after the dismissal, permanently delete or "scrub" files from those devices.

Knowledge is Advantage
Since many employees are not familiar with the recovery of "deleted" files, employers who understand these concepts have a real advantage, particularly where emloyees have engaged in nefarious activities. Employers should take steps to preserve "deleted" e-mails and files that may become key evidence in litigation.

First Decision On Psychological Harassment By Québec Tribunal

By Sandrine Thomas

On January 13, 2006, the Labour Relations Commission rendered its fi rst decision since the provisions of Québec’s Labour Standards Act dealing with psychological harassment came into force on June 1, 2004.

The Commission ruled that the plaintiff, a manager in a fast-food restaurant, Subway Sandwiches & Salades, had been the victim of psychological harassment. The psychological harassment involved the manner in which the owner of the establishment had treated her, including reprimands in front of customers, comments on her sexual orientation, and refusal to speak to her.

Nevertheless, it must be noted that the employer was neither present nor represented at the hearing and was therefore unable to put forth its own comments. Furthermore, a motion for review has been prepared in respect of the decision.

(Colette Ganley c. 9123-8014 Québec inc. (Subway Sandwiches & Salades) c. 9155-9047 Québec inc., D.T.E. 2006T-170 (C.R.T.). Review CM-2006-0679.)

Innocent Absenteeism & The Employer's Right To Terminate Employment

By Carman J. Overholt, Q.C.

The law has always recognized the right of an employer to terminate an employment relationship in the labour relations context for what is described as innocent or non-culpable absenteeism. Excessive absenteeism has been recognized as a legitimate and lawful basis for termination of the employment relationship. In the unionized context, Arbitrators have held that employers have the authority to replace an employee who is unable to work for reasons such as permanent disability.

In determining whether innocent absenteeism may be the basis for termination of employment, Arbitrators have considered whether an extended period of absence is excessive in light of the employment record and the circumstances. Second, Arbitrators determine, based upon the evidence, whether the employee is capable of regular attendance in the future. If it is determined that the absence is excessive and that the employee is unlikely to return to work, Arbitrators have upheld the employer’s decision to terminate employment.

Rod MacRae worked for Interfor for approximately 28 years. In 2002, Mr. MacRae was diagnosed with ALS, an extremely serious illness. He was in receipt of long-term disability benefi ts and Canada Pension Plan benefits commencing in October 2001. Interfor’s Squamish Mill was experiencing severe economic problems and as a result, Interfor decided to close the Mill. It never re-opened. Interfor entered into a Voluntary Severance Agreement with the Union representing the employees at the Mill. In order to limit the financial cost of closing the Mill, Interfor terminated the employment of Mr. MacRae and 17 other employees for non-culpable absenteeism just prior to entering into the Agreement with the Union, under which it agreed to pay voluntary severance to the employees at the Mill.

A grievance was fi led by 18 employees of Interfor, including Mr. Mac- Rae, all of whom were dismissed for non-culpable absenteeism 11 days prior to the Voluntary Severance Agreement being entered into with the Union. Arbitrator Stan Lanyon held that Interfor was justified in terminating the employment of the employees in light of the fact that they had been absent for extended periods of time and would not in all likelihood return to work in light of the nature of their disabilities. As a result, the Arbitrator dismissed the grievance.

Mr. MacRae did not accept the Arbitrator’s decision and fi led a complaint with the BC Human Rights Tribunal. The BC Human Rights Tribunal held that the decision to terminate the employment amounted to was discrimination on the basis of physical disability. The Tribunal also held that Interfor had not established a bona fide occupational requirement for the decision to terminate. The timing of the termination demonstrated that the intention of Interfor was to avoid having to pay severance costs to the disabled employees. The Tribunal found that Interfor had not acted in good faith and, in the result, Mr. MacRae was awarded the severance paid to non-disabled employees, which in his case was approximately $64,000. In addition, Mr. MacRae was awarded $12,500 in compensation for injury he suffered to his dignity, feelings and self-respect. Interfor did not appeal the decision of the BC Human Rights Tribunal.

Although in theory dismissal for innocent absenteeism continues to be lawful, a careful assessment of the impact of human rights legislation and the duty to accommodate prior to dismissal is necessary. The specifi c reasons and contributing factors leading to the decision will be subject to scrutiny in the legal proceedings that may arise in these circumstances.

The common law doctrine of "frustration of contract" may be available in the non-union context where the evidence shows that the employee is permanently disabled and will not be able to perform the essential duties of the position in the future. A long period of absence is not sufficient to establish frustration of the employment contract. Although employees have a duty to report to work, an unexplained extended absence will not necessarily establish frustration of contract or abandonment of employment. Evidence establishing that there is no intent or ability to return to work is necessary.

The termination of the employment relationship because of absence or what is viewed as excessive absenteeism may result in a human rights proceeding and wrongful dismissal litigation in the non-union context. Aggravated and punitive damages have been awarded by the Courts as a result of the breach of human rights legislation by employers in similar circumstances. For these reasons, the termination of the employment relationship as a result of absenteeism and disability requires a careful consideration of the evidence and the factors influencing the decision to terminate employment including the question of whether the employee will return to work. Consideration of other factors such as severance expense may in fact result in a contravention of human rights legislation.

(MacRae v. International Forest Products Ltd. [2005] B.C.H.R.T.D. No. 462)

The Dangers Of Not Hiring "Overqualified" Candidates

By Kristin Taylor and Christina Hall

The Canadian Human Rights Tribunal has released a decision that should cause employers to pause before excluding from consideration job applicants whose credentials exceed job requirements. As the demographics of Canada’s workforce change, it is important for employers to take note and not make the same mistake as the Mackenzie Valley Land and Water Board.

This Board advertised to hire four regulatory officers. Requirements included either an undergraduate degree in certain science or environmental programs with two years related experience or a diploma in environmental management with three years experience. Dr. Gian S. Sangha applied for the position. Dr. Sangha held a B.Sc. in Agriculture from Punjab University in India, as well as a M.Sc. in Landscape Planning and a Ph.D in Environmental Science from the Technical University of Berlin. He was fluent in four languages and had written two books and numerous research papers. When he arrived in Canada from India, he applied for jobs in environmental sciences to gain Canadian experience in order to obtain a permanent position in his field.

The Board received 38 applications and established an interview committee of three to determine which applicants to interview. Of the 38 applicants, it chose 12 to interview. The committee screened out all of the applicants with a post-graduate degree, except for Dr. Sangha, who they decided to consider for another, unadvertised position. After being interviewed, Dr. Sangha was not offered a job. He complained to the Canadian Human Rights Commission, alleging discrimination on the basis of race, national or ethnic origin, colour, religion and age. The Commission referred the complaint to the Canadian Human Rights Tribunal for a hearing.

The Commission and Dr. Sangha argued that the Board’s decision not to hire "overqualified" job applicants had an adverse effect on visible minority groups because the assumptions it made about the group were not necessarily valid. The Board argued that there were valid reasons why Dr. Sangha was not offered a position. Specifically, the Board led evidence that staff turnover had been an issue and that the proposed assignment would involve relocation expenses and ongoing training. For these reasons, the Board wanted some assurance that the employees it hired would stay for a time so that its money would not be wasted. Its concern was that overqualified candidates would become bored and and leave.

The Tribunal found that there was a correlation between visible minority immigrant status and overqualified status, such that Dr. Sangha had been a victim of discrimination on the basis of national or ethnic origin. According to the Tribunal, the experience of applying for a job for which one is overqualified or working in such a job, is disproportionately an immigrant experience. When an employer adopts a rule against hiring over-qualified candidates, it has a discriminatory effect on immigrant candidates who have already been excluded from suitable jobs due to lack of recognition of their qualifications. The rule affects immigrant candidates differently from others to whom it might also apply.

The Tribunal ordered that, in the future, the Board must cease applying any policy or practice that would automatically disqualify a candidate on the basis s/he is overqualified for the job. It also awarded Dr. Sangha $9,500 for pain and suffering. The Tribunal denied Dr. Sangha’s request for compensation for three years’ salary at $55,000 per year - his potential earnings had he been hired - and for an order that the Board hire him at the next available opportunity. The Tribunal stated that in order to obtain these remedies Dr. Sangha had to establish that there was not just a ‘mere possibility’ of him being hired for the job but a ‘serious one’. It agreed with the Board that the qualifications of the other candidates chosen for the position were more congruent with the position than those of Dr. Sangha.

In light of the Tribunal’s suggestion that, in the right circumstances, an award for compensation could be appropriate, employers should be wary of the liability they may face for refusing to hire a visible minority applicant solely on the basis of overqualification.

(Sangha v. Mackenzie Valley Land and Water Board, [2006] CHRT 9 (Can. Hum. Rts. Trib).)

Cross-Border Immigration Issues Of Note

By Tony Schweitzer and Tanya Shloznikov

Globalization entails intra-company transfers, international business meetings and international assignment issues. This column, by our immigration experts, summarizes "hot" issues in immigration law affecting employers.

Business Visitor Issues
An employer must provide sufficient documentation to its employees who travel frequently between the United States and Canada for presentation to border officials. The border officials usually make their decisions instantaneously and the lack of supporting documentation may be interpreted in an unfavourable way as a credibility issue. Supporting documentation or a letter from an employer should contain contact phone information for verification purposes. Frequent travellers may fall within the business visitor category or require a work visa under the immigration legislation.

The business visitor category is among the most elusive non-immigrant classifications.
Frequent business travellers may find themselves subjected to increased scrutiny at the port of entry. To minimize difficulties for business visitors and to minimize risk of being denied entry, it is important for business travellers to understand what types of activities are permissible for business visitors and how best to demonstrate their entitlement to the status of a business visitor.

To avoid difficulties at the border, a business visitor should carry a pocket letter of support from the employer outlining the purpose for entering Canada to be presented to an officer if requested. The letter of support should establish that a business visitor will not be engaged in activities that could be considered work and will not be entering the Canadian labour market.

Employers should be cautioned that immigration officials may prefer to communicate directly with the applicant or employer instead of an authorized representative or legal counsel to verify the information provided.

Work Visa Issues
In Canada, work under the current legislation is defined as "an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market". As a result of this broad definition of work, it is not always easy to determine if certain activities would be permitted under the business visitor category or would require a work visa.

Employers in particular should be cautioned when reassigning a foreign worker to perform specific duties within the organization. It is a contravention of the Immigration and Refugee Protection Act to "employ a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed." It is critical that employers who intend to assign foreign workers to different duties or positions within the organization obtain legal advice prior to doing so, and take active steps to file the appropriate documentation.

Although citizens of the United States and many other visa exempt countries may apply for a work permit at a Canadian port of entry, employers should be cautioned that, no matter how straightforward the application is, if the applicant is nervous at the thought of having to rationalize his/her entry to an immigration officer and it is apparent that the applicant cannot clearly express his/her expertise, then a port of entry application should be avoided at all cost.

Applicants, employers and any other persons who are a party to an application should be particularly careful to ensure that no misrepresentation is made to the authorities. Potential liability is very real under the new Immigration and Refugee Protection Act legislation and may result in an employee being barred from entering Canada for two years.

The broad definition of misrepresentation encompasses almost any form of misrepresentation or withholding of information by anyone, including an applicant, employer or third party representative. Those who grossly exaggerate the qualifications of applicants, or misrepresent their circumstances, proposed activities, employment offered or financial records expose themselves to liability and serious penalties.

Inadmissibility Issues
A foreign national travelling to Canada may be considered inadmissible for certain health related reasons and/or past criminal convictions or arrests.

Under the new provisions relating to misrepresentation, an individual has a positive duty to disclose criminal charges, convictions or even arrests. As a result of enhanced information on C. P. I. C. (Canadian Police Information Computer system), an officer is able to view all United States individual state criminal and FBI information. C.P.I.C. does not yet contain access to Interpol records. Although C.P.I.C. may disclose that an individual was charged or convicted of an offence (or just fingerprinted) it does not always state the disposition of the offence.

Prior to travelling to Canada, employees must be asked whether they have been charged or convicted of any criminal activity or even just arrested. It is important to provide examples of offences as many individuals do not realize that offences such as DUI are criminal and not just a misdemeanour. It is advisable to make an application to the Canadian consulate in advance where there might be a criminal issue.

This newsletter is designed to supply brief details of recent legislative or other initiatives of interest and some commentary. The summaries and comments provided are, of necessity, brief and should not be relied upon as legal advice. We encourage you to contact any of the lawyers listed for further details or advice in the context of a particular situation. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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