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Random drug and alcohol testing regime rejected as unreasonable invasion of privacy

Topics: - Drugs & Alcohol - Privacy
Jurisdiction: - British Columbia
Sector: - Mining

The recent arbitration award Teck Coal Ltd. (Fording River and Elkview Operations) v. United Steelworkers, Locals 7884 And 9346, 2018 CanLII 2386 again clarifies the relatively high hurdle employers must meet to impose random drug and alcohol screening in safety sensitive workplaces. 

The arbitrator affirmed the general arbitral consensus that employers must establish a workplace safety problem that is sufficient to warrant the intrusion of random testing, but that in doing so an employer may use evidence relating to workers falling outside of the bargaining unit, including workers represented by other unions at other worksites and also third party contractors.

In this case the arbitrator rejected the employer’s reliance on theoretical safety risks, and found the safety benefits were not proportional to the significant harms to employee privacy.  read more »

Punitive damages awarded against employee for theft

Topics: - Punitive Damages - Theft
Jurisdiction: - British Columbia
Sector: - Construction

In the recent case of Premium Weatherstripping Inc. v. Ghassemi, 2017 BCSC 2191, the court awarded damages against a shareholding General Manager and an employee who
conspired together to fraudulently remove products for resale.

The judgment included an award of punitive damages in the amount of $30,000 jointly and severally against the defendants. Unsurprisingly, the court dismissed the employee's wrongful dismissal counterclaim. 

SCC affirms employees can file discrimination complaints against workers from other companies

Jurisdiction: - British Columbia
Sector: - Construction

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada affirmed that workers have the ability to file complaints of discrimination against individuals employed by other companies. 

In some industries it is common to have employees from multiple different contractors working on the same site. The effect of the SCC's ruling is to extend the obligations under the Human Rights Code to all fellow workers even where they are employed by other companies. 

Secret recordings of employer found to constitute misconduct

Jurisdiction: - Manitoba
Sector: - Agriculture

IHart v. Parrish& Heimbecker, Limited, 2017 MBQB 68, the Manitoba Court of Queen's Bench considered whether an employee's secret recordings of meetings with management constituted misconduct. The court found they were, and framed the recordings as a breach of the employee's duty of confidentiality and privacy obligations. 

Most plaintiff lawyers will agree that secret recordings of meetings are a common occurrence. While there are decisions dealing with the admissiblity of secret recordings for evidentiary purposes, there has been little guidance on the potential use of such recordings by the Employer to establish discipline, including perhaps after-acquired cause.

Finding of negligence upheld for pre-hiring misrepresentations

Jurisdiction: - British Columbia
Sector: - High Tech

The B.C. Court of Appeal recently upheld one of the infrequent successful employment law tort claims in Feldstein v. 364 Northern Development Corp., [2017] BCCA174. The plaintiff, who suffers from cystic fibrosis, alleged the employer advised him in the pre-hiring phase that "proof of good health" for the purpose of his LTD coverage required only that he make it through the three-month waiting period prior to the plan coming into effect. However, when he required access to his benefits he was denied full coverage on the basis he had a pre-existing condition. 

The employer argued at trial that the representation was not made, the test for negligence was not met, and also that it was entitled to rely on an "entire agreement" clause in the contract. The trial judge rejected these arguments, and awarded the plaintiff over $83,000 in lost benefit payments, and $10,000 in aggravated damages. 

The Court of Appeal refused to interfere with the trial judge's findings concerning the negligence claim. It further found the entire agreement clause was not drafted in such a way as to protect the employer from the specific misrepresenation it made.   read more »

"Swipe card" records inadmissible to prove time theft

Jurisdiction: - British Columbia
Sector: - Manufacturing;

In the recent arbitration decision Zellstoff Celgar Ltd. v. Public and Private Workers of Canada, Local 1, [2017] B.C.C.A.A.A. No. 53, an arbitrator excluded evidence obtained in breach of PIPA but allowed the employee's admission against interest procured after being presented with the excluded evidence. 

The employer terminated the grievor for time theft after learning his time cards did not align with the 'swipe card' records showing when the grievor entered and exited the building. The arbitrator accepted the union's argument that employees were not notified the swipe card records would be collected and used by the employer, and therefore the data was collected contrary to PIPA and should not be admitted. 

However, the arbitrator accepted the grievor's admission of time card discrepancies was admissible, despite the confession having been procured after being confronted with the swipe card records.   read more »

BC to reinstate Human Rights Commission

Jurisdiction: - British Columbia

The new Provincial government announced its intention to reinstate the Human Rights Commission, fifteen years after it was eliminated in favour of a direct-access model. In addition to creating an agency that will proactively address human rights issues, it may also see the reintroduction of a more robust complaint screening method whereby complaints are investigated prior to adjudication. 

BC Human Rights Tribunal reviews social media request for legal advice to determine if communication privileged

Jurisdiction: - British Columbia

In Hov v. School District No. 43 and another, 2017 BCHRT 162, the complainant sought disclosure of a conversation conducted via Facebook Messenger by an individually named respondent, in which the respondent sought, and seemingly obtained, legal advice from an Ontario lawyer.

The respondents claimed solicitor-client privilege over the communications but the Tribunal ordered the conversations to be disclosed directly to the Tribunal so they could assess if the documents should be protected by privilege. The Tribunal's rationale was that there was an insufficient description of the communications and they were unable to determine if they should be protected. 

Interestingly, the lawyer affirmed by affidavit that he was was providing legal advice within the communications. Query whether providing details of the communications between a lawyer and their client would undermine the underlying claim to privilege.