Browsing by Author "Brierton, Thomas D"

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    The Abuse of Criminal Record Checks
    (Legal Resource Centre of Alberta Ltd. (LRC), 2010) Bowal, Peter; Brierton, Thomas D
    In 2007, the City of Ottawa awoke to the value of criminal record checks, at least for its fire department. It required new applicants for firefighter positions to consent, as a precondition of employment, to the City accessing the police department to obtain any criminal records. It also required such written consents from specific employed firefighters on a case-by-case basis justified on reasonable grounds. The firefighter union only objected to the third leg of the policy that compelled consent by firefighters to a criminal record check every three years. The City of Ottawa claimed that this was part of management rights in the collective agreement. The union grieved, saying this was an unjustified invasion of the firefighters' privacy. The arbitrator concluded there was a significant distinction between the initial hire and the ongoing employment relationship. The considerations that apply to an applicant for employment did not apply to the same extent to ongoing employees who have been observed by the employer over time. Firefighters, despite their governing legislation, the arbitrator continued, are "essentially indistinguishable from a myriad of trades persons and professionals whose work would involve the normal attendance at a variety of premises." One cannot conclude that "the duties and responsibilities of firefighters are such as to require or justify such blanket invasion of privacy." He allowed the grievance and struck down the fixed periods of the policy, but left open the practice of the employer obtaining consent where reasonable grounds justify it even without compliance with the process set out in the Privacy Act. The checks may falsely reassure the employer because they may have gaps in them. Many police forces produce a simple letter-like document called a "Police Information Check." The document will only be as good as the identification information offered and the convictions screened. If names or other subject information such as previous locations of residence are inaccurate or incomplete, the report may be useless. The report may not contain information on current charges or convictions from other jurisdictions. Regulatory convictions - such as licence violations - which may be highly relevant to some employers, are generally not listed. Accordingly, a horrendous driving record would escape this level of scrutiny.
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    Little White Lies I Told My Boss
    (Legal Resource Centre of Alberta Ltd. (LRC), 2010) Bowal, Peter; Brierton, Thomas D
    Whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee's dishonesty gave rise to a breakdown in the employment relationship ... just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee's obligations to his or her employer. The law in Canada asks whether the employee was proven dishonest and whether "that dishonesty was of a degree that was incompatible with the employment relationship." To dismiss for dishonesty, employers must assess the context of the dishonesty. Did the employee's dishonesty give rise to a breakdown in the employment relationship? This means that the employer must place the dishonesty in context of the whole job and forego firing the employee unless the dishonesty "violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee's obligations to his or her employer." When the dishonesty approaches a deliberate pattern of fraud, theft, secret commissions, sham, or misappropriation, most employers would reasonably conclude the dishonesty presents cause to fire the employee. Forging a manager's signature may be sufficient cause (Jewitt v. Prism, BCCA, 1981). In McPhillips, an employee billed unauthorized personal items ordered from one of his employer's suppliers to his employer. Upon discovering this, the employer terminated the employee for just cause and the British Columbia Court of Appeal upheld the firing.
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    No Right to Silence During Employer Investigations
    (Legal Resource Centre of Alberta Ltd. (LRC), 2010-07) Bowal, Peter; Brierton, Thomas D
    The article discusses the case of Mark Keating, operational manager of Windsor Jail in Ontario, who was dismissed by his employer due to his failure to co-operate with an investigator for his criminal charge. It states that his employer found him unforthcoming and unco-operative which harmed the reputation of his employers. It also mentions that he was reinstated after being dismissed for three and a half years.
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    Who Owns the Tips?
    (Legal Resource Centre of Alberta Ltd. (LRC), 2011-01) Bowal, Peter; Brierton, Thomas D
    The article offers information on how Canadian legislation deals with tips and gratuities given by the customers to employees especially in the hospitality and food service industries. It states that the country's provincial legislation made it apparent that customer's tips cannot be considered as part of employees' wages. The article also suggests that there must be a specific outline of who owns the tips and how they will be treated during the issuance of employment contract.