Social media and performance management

OEMC Municipal Conference
September 14th, 2012

Social Media in Today’s Business – The Good,
The Bad and the Ugly

Performance Management – Developing your
Future Leaders and High Performers
By
Templeman Consulting Group Inc.
&

OEMC - September, 2012

Agenda

• Social Media

• Performance Management

• Updates in Labour and Employment Law

• Q&A

Social Media in Today’s Business –
The Good, The Bad and The Ugly

How to use social media to your advantage while
understanding and minimizing the risks to your
organization

By
Terrence A. F. Whyte, B.A., LL.B., LL.M., CHRP
Partner (TM) & Managing Partner (TCGI)


Social Media

Definition:

Forms of electronic communication (as web sites
for social networking and micro blogging) through
which users create online communities to share
information, ideas, personal messages, and other
content (eg. videos).

-Merrian-Webster Dictionary


Social Media – Interesting Facts

• Nearly 4 in 5 active internet users visit social
networks and blogs

• And spend more time on Facebook than other sites



• 54% of US companies have banned employees
using social networking sites

• 19% only allow access to these sites for business
purposes



• Social mobile apps are up 30% from 2010

• Employee and Employer conduct is subject to
Canada’s privacy, human rights and employment
laws, regardless of whether that conduct takes place
on or offline.


Social Media– The Good

The University of Melbourne released a report that
found social media use by employees leads to a 9%
productivity boost:

“Surfing the net at work for pleasure actually
increases our concentration levels and helps
make a more productive workforce”


Social Media– The Good

And can potentially be a great tool for resolving
problems or questions – large network at your
fingertips

A great research tool re: litigation/arbitration


Social Media – The Good

Free advertising – social media provides a opportunity
to reach an unlimited number of people at no cost to
your organization

Increase recruitment efforts – reach a larger audience
of potential candidates


Social Media – The Bad

Lack of security features – inadvertently downloading
viruses and spyware from social networking sites that
can disable the computer’s security systems and
firewall settings



Wasted time – a 2009 media study showed companies
lost an average of 1.5% total office productivity when
employees can access social media



Recruitment risks - Inadvertently discriminating
against some individuals

Links on blogs and social media – are you
inadvertently endorsing others’ content that could
potentially put your organization at risk? Liability?


Social Media – The Ugly

Privacy concerns:
• sharing confidential company information

• ANYTHING written or shared on a social
networking site is public, and can be very
difficult, if not impossible, to remove all traces
of the information posted


Social Media – The Ugly

• 9% of organizations report to dismissing an
employee for misconduct with respect to social
media

• Adds a new avenue for potential workplace
harassment or threats of violence


Social Media and Recruitment
While there is no legal barrier to an employer
accessing information on a public domain (e.g.
Facebook, LinkedIn, Twitter) there are some legal
concerns to keep in mind:

By conducing searches on social media sites, there is
the possibility of learning potentially discriminatory
information about a candidate



Candidates may disclose information about marital
status, children, religion, disabilities that, by law, must
be ignored in a hiring decision (s. 5 Human Rights
Code prohibited grounds)

If a candidate does not get the job and he/she becomes
aware that the Employer has conducted a social media
search, there is the potential for a human rights
complaint.



Best approach:

If you are going to review a candidate’s information
on social media, have 2 different streams operating
parallel to each other:



Best approach:

1) one person looking online gathering data and

2) reporting to the recruiter/individual responsible for
hiring decisions ONLY the information that is
RELEVANT to the job being applied for.


Social Media Policies

45% of businesses do not have social medial and
networking policies in place;

43% have experienced employee misuse of social
networks



Any social media/acceptable use of internet policy
should cover all employees, elected officials,
committee/commission personnel, and any others who
represent the organization



All policies should include at a minimum:

• to whom the policy applies
• definition of what social media is covered
• what is considered acceptable use
• discipline procedures for misuse


Discipline and discharge:

Provided that employees are aware of the policy and it
is consistently enforced, employers may discipline
employees up to and including termination for
inappropriately using social media on company time



Discipline and discharge:

Misuse away from work:

to be disciplinable, the conduct must harm the
employer’s reputation and/or significantly
impair the employment relationship



It is important to note that the use of social media
meant to harass, bully or discriminate another
employee, whether it occurs in the workplace or
outside, can be considered an offence under the
Occupational Health and Safety Act’s Bill 168 –
violence and harassment in the workplace


Employee Monitoring
When considering whether a particular form of
monitoring is reasonable, courts and privacy
regulators will apply the following four-part test:

1. Is the workplace monitoring demonstrably
necessary to meet a specific need?

2. Is the method chosen likely to be effective in
meeting that need?


Employee Monitoring

3. Is the loss of privacy proportional to the benefit
gained?

4. Is there a less intrusive way for the employer to
achieve the same end?


Employee Monitoring

Under the four- part test, an “acceptable use” internet
policy will generally be considered as effective, yet far
less invasive, than monitoring internet activity
through, for instance, a keystroke logger, and will
typically be accepted in the case of an employee
termination stemming from the results of employee
monitoring.

Lougheed Imports v. U.F.C.W.
&
Alberta v. A.U.P.E.
&
Chatham- Kent v. C.A.W.

Recent Social Media Cases


Lougheed Imports Background
The B. C. Labour Relations Board upheld the
termination of two employees who were fired
because of derogatory comments made about
their employer on Facebook. The employees
posted insulting and threatening comments
against their workplace and against
management personnel. They also alleged
dishonest dealings by their employer.


There were 11 postings in a period of a month. Each
employee was “friends” with co- workers, former
employees, and managers of the employer on
Facebook.

The Employer met with the employees and asked them
about the postings. They denied writing them and
claimed that they had left their Facebook accounts
logged on and that anyone could have written them.



The employer found the comments were inappropriate
and insubordinate and created a hostile work
environment for co- workers and supervisors. It also
said they were likely to damage the reputation and
business interests of the Employer, and that the
employees’ wrongdoing was compounded by their
dishonesty about the postings.


Results
The Board found proper cause for dismissal. The
complainants could not have a serious expectation of
privacy when publishing comments on their Facebook
websites. The comments were damaging to the
Employer’s business.

The Board found them to be akin to comments made
in the workplace because Facebook friends included
co-workers, former employees and an existing
manager.


Alberta v A.U.P.E. Background
An employee of Alberta Public Service was
terminated after an investigation into derogatory
postings which she made on her internet blog about
some of her colleagues. The employee kept a personal
blog with open public access. She ridiculed co-
workers online and belittled the administrative
processes of the employer. Aliases were used in place
of actual names, but it was possible to infer to whom
she was referring.


Alberta v A.U.P.E. Background
She used negative terms when referring to her
colleagues, like “Nurse Ratched” and the “lunatic in
charge.” The employee was terminated when the
employer discovered the blog.

The employee’s main defence was that she did not
know that her blog was accessible to the public and
that she did not realize her postings were hurtful or
insubordinate.


Result

The Board found that in expressing contempt for her
managers, ridiculing her co-workers, and denigrating
administrative processes, the employee engaged in
serious misconduct that irreparably severed the
employment relationship, justifying discharge.


Result
Note that in subsequent judicial review of the
arbitrator’s decision, the termination was reversed;
however, the court confirmed that termination based
on the employee’s online actions could have been
justifiable. Reinstatement was ordered because
management failed to comply with the due process for
discipline provided in the collective agreement.


Chatham-Kent v. C.A.W. Background

A personal care giver in a nursing home created a
website where she published text and pictures about
various residents without their consent. The employer
terminated the employee for cause due to breach of
confidentiality and insubordination.


Result

The employee’s claim for unjust dismissal was denied.
The arbitrator found that the employer had just cause
for termination, as the employee made insubordinate
remarks about management on a public blog. Also,
the employee breached her confidentiality agreement.


Result

The employee training manual expressly stated that
information available to the employee during the
course of his or her duty must be kept from social
conversation and remain confidential.


Result

The arbitrator rejected the defence that the blog had
been intended to be private, as instructions on the blog
site made it clear that the blog would be publicly
accessible unless certain privacy settings were
expressly selected.

Performance Management

Developing your Future Leaders and
High Performers


Performance Management System
Success and failure factors

What do you feel are the critical elements needed
for a performance system to be successful?

What contributes to the failure of performance
systems?


Recognition -what it is Not
• It is not the 5 year pin

• It is not the gold watch on your 25th anniversary

• It is not a dinner in your honour on your retirement

these are acknowledgements of an individual’s
length of service to the organization


Recognition
Is performance driven

Is consistent with the individual’s goals

It supports the organization’s goals

It furthers the success of the individual & the
organization


Recognition -Purpose
To recognize exceptional performance against
agreed upon Specific standards
that are Measurable
that are Achievable
that are Realistic
that are Time specific

S.M.A.R.T.


Recognition -Rewards

Monetary

Non-monetary


Recognition -Rewards

In terms of rewards,

most everything we can think of,

in one way or another,

has a price tag attached


How to Reward

Exceptional Performance

&
Manage it for

Future Growth


Manage the Employee’s performance
in such a way that

the achievement

of exceptional performance

is communicated

to the employee


Manage the Employee’s performance
in such a way that

formal & informal rewards
recognizing exceptional performance
are in place
&
communicated to the employee


This process is defined as



The informal and formal process of regularly
planning, monitoring, reviewing, documenting,
discussing and improving employee performance
and results to further the success of the
organization.

The object of performance management is to help
people to do a better job and reward them properly
for doing so.


Performance Management Problems
Perplexing Reality
Poor in Implementation

Periodic HR Event

Unpleasant Necessity

Managers & Employee Avoid


Performance Management Problems
Attainable Goal

Good in Theory & Practice

Continuing Collaborative Process

Value Added

Managers & Employee Embrace


Employee Perceptions

I understand the measures used to evaluate my
performance….. 60% yes

My performance is rated fairly….. 57% yes

My manager clearly communicates goals &
assignments…… 47% yes


Employee Perceptions

My performance reviews are conducted regularly
and on a timely basis….. 42% yes

My reviews are helpful in improving
performance….. 39% yes

My manager gives regular feedback…..
37% yes


Managers’ Most Common Complaints

Employees become defensive when I give them
feedback

I don’t like sitting in judgement of my employees

This takes too much time



It’s just a paper exercise that is not directly related
to the work of my group

It’s just another form that HR insists we complete

The evaluation forms do not relate to the work my
people do



This is just a “once- year” activity
a-

The only thing employees are interested in is the
size of their raise

Employees don’t want to participate in performance
management


“Performance Evaluation” or
“Performance Appraisal”

implies a periodic event not an on-going
process

is a scorecard approach


Performance Appraisal Research
Three critical questions were asked:

1. How satisfied are employees with their
organization’s performance appraisal system?

2. How do they see performance practises changing
the future?

3. What factors cause performance management
systems to succeed or fail?


Research Findings
Regardless of position, both managers and staff see
a lot of room for improvement in performance
management practises

Respondents give the lowest grades to feedback and
coaching

Respondents do not see a clear link between their
performance and their pay


Research Findings

Respondents describe performance management as
a fragmented system that lacks continuity

Little opportunity for employee involvement in the
appraisal process

Performance is not rewarded sufficiently


Research Findings

Appraisals are late and focus on the petty and the
negative

Managers do not follow up with employees after
appraising them

It takes too much time


Performance appraisal is widely considered by
both academics and practising managers as one of
the most valuable human resources tools.

It is a vital component in recruiting and hiring
employees where it is used to validate selection
procedures.


In the staffing arena, transfer, layoff, termination,
and promotion decisions are based on appraisal
results.

In compensation administration, performance
appraisal forms the basis for the administration of
merit pay systems.


Can serve as a motivational device to
communicate performance expectations to
employees and to provide them feedback.

Indispensable in training and development
activities to assess potential and to identify
training needs.


Despite the assumption that performance
appraisal is valuable, not a lot of time is devoted
to it:
an average of 8 hours per employee per year
for appraising executives and managers

6 hours on professionals

fewer than 4 hours on non- managerial,
nonprofessional staff


These figures include all of the appraisers’
activities in observing and documenting
performance, completing the evaluation form, and
conducting the appraisal discussion


Why No Time is Spent

Managers are
not commonly held accountable
for how well they conduct
performance appraisals
on their employees


Improving Appraisal Effectiveness

Get employees more involved in the design,
development, and administration of the
performance appraisal system

Participation creates ego involvement and a sense
of commitment to the process



Invest more heavily in training
raters to use the system

Train managers to
observe and document performance
and to communicate information effectively
and deliver performance feedback



Create an environment in which performance
information is viewed as a resource that
managers can use to develop their employees

Top managers must create a climate in which
accurate and timely performance appraisal is
expected of all managers, is taken seriously, and
is rewarded



Make a performance appraisal a shared
responsibility of the ratee, not just the rater

This fundamental philosophical shift takes the
burden to “be nice” from the managers and frees
them to be honest



As part of this philosophy, employees must be
trained to use feedback from the appraisal
process to manage their own careers


Use multiple perspectives (multiple raters),
including peer evaluation, to reduce the reliance
on a single source

This reduces sampling error by increasing the
number of observations and makes raters more
comfortable, since they are no longer solely
responsible for what happens to the person as a
result of the rating


Conclusion ...

performance appraisal is here to stay

overwhelming majority of organizations use the
approach

little discussion of abolishing it


Conclusion ...

there is widespread dissatisfaction with almost
everything concerned with performance
appraisals


Conclusion ...

neither appraisers nor those being appraised
feel entirely comfortable with the process


David W. Ewing
on Performance Appraisals:

“Performance appraisal has come a long way
(over the previous 25 years) since its origin as a
simple, principally one-way communication
between a boss and his subordinate….


David W. Ewing

“Judging from the articles in this series, the
technique still has a way to go before most
managers will be satisfied with it….”


David W. Ewing

“…It seems safe to conclude, however, that
performance appraisal is not a passing fad.
Any technique that can stimulate the kinds of
experiment and inquiry described in this series
should be around for many years to come.”


James L. Hayes

“There are some ideas in management whose time
comes and goes and comes again, depending on
circumstances of economy or fashion….


James L. Hayes

“I have in mind such things as direct costing, the most
profitable means of inventory valuation, and the eternal
shift between centralization and decentralization….


James L. Hayes

“There are other ideas whose time is ever present and
whose demands for effective practice are immutable.
Of these perhaps the most pertinent for all managers
anywhere in no matter what type of operation - …


James L. Hayes

“whether in the public or private sector, whether in a
market or socialist economy -is the need for
effective performance appraisal.”


Performance Management Defined:

The informal and formal process of regularly
planning, monitoring, reviewing, documenting,
discussing and improving employee performance
and results to further the success of the
organization.


Objective of Performance Management

To help people to do a better job and reward
them properly for doing so.

it is not to have beautifully completed forms.

objectives lead to content.


Performance Standards

Have an impact on the success of the job

Differentiate between successful and
unsuccessful job performers

Be at least partially within the control of the
person being judged



Be based on observations which are documented
and job related

Communicate job performance expectation to
employees and provide feedback



Recognize the realities of the work to be
performed (particularly important for
managerial/supervisory positions)



Recognize the importance of the organization
culture -that is, what is regarded as “successful”
behaviour within the organization


Purposes of Performance Appraisal

Identify training needs

Help determine performance based
rewards/punishments

Help make employee re- organization decisions,
particularly with regard to promotions, transfers,
succession and work force planning



Set work objectives

Help employees with counselling and
career planning

Help with legal purposes
(termination, discipline)



Review and update job descriptions

Validate HR practices (e.g. selection decisions,
promotion decisions and training programs)



Offers both managers and employees an opportunity to:

Identify mutually acceptable goals

Develop action plans most likely to achieve
those goals, and

Review performance on an ongoing basis


Summary

Make sure that all your employees always know
how well they are performing

Make sure they know that you are aware of their
performance

There should be no secrets and everyone should
know where he or she stands


Summary

For employees to improve poor work, they have
to know clearly what the poor work is

For employees to continue doing good work,
they have to know clearly what that good work
is


Performance Problems

Represents the difference between the performance a
manager WANTS or EXPECTS from an employee

and

the performance they actually GET from the employee


Performance Problems

Arises any time an employee does something the
manager feels they shouldn' t do or is not doing
something the manager feels they should do

Some are extremely serious and others are
so small they not be worth solving


Performance problems will arise

If an employee does not recognize that a problem
exists, then that employee will have no reason to
change his/her behaviour

If an employee lacks the necessary knowledge and
skills, he/she will be unable to perform effectively



If an employee does not have the equipment
needed to do a job, receives conflicting
instructions, or if a bad environment or poor
working conditions interferes with doing the job,
that employee will be unable to do the job
properly



If an employee determines that it actually
doesn't
matter if the job is done correctly or not, or if
the
consequences of doing a job properly or quickly
are unpleasant, ultimately, they will stop doing it
correctly



If an employee does not know exactly how well or
how poorly he/she is doing, there is no way
his/her
performance can be improved


Covers the following basic steps:

Setting appropriate job performance standards
and ensuring that employees are aware of
them

Observing and identifying an employee's work
behaviour, its outcomes and achievements as
compared against agreed behaviours, goals
and standards


Evaluating job performance by using some method of
assessment

Evaluating and developing -that is, channelling the
assessment results for the use of both the employee and
the organization:

this includes discussing the results with the
employee (providing feedback) and may lead to
training and development activities



It is the process
that judges the performance
not the person


Performance Standards should:

Have an impact on the success on the job

Differentiate between successful
and unsuccessful job performers



Be at least partially within the control
of the person being judged

Be based on observations
which are documented and job related



Communicate job performance expectation to
employees and provide feedback



Recognize the realities of the work to be
performed (particularly important for
managerial/supervisory positions)



Recognize the importance of the organization
culture - that is, what is regarded as "successful"
behaviour within the organization


Performance Appraisal should:

Identify training needs

Help determine performance based
rewards/punishments



Help make employee re-organization decisions,
particularly with regard to promotions,
transfers, succession, and work force planning

Set work objectives



Help employees with counselling
and career planning

Help with legal purposes
(terminations, discipline)



Review and update job descriptions

Validate HR practices (eg. selection decisions,
promotion decisions and training programs)


“There’s a world of difference between a strong ego
which is essential and a large ego -which can be
destructive. The guy with a strong ego knows his own
strength. He is confident... But the guy with a large
ego is always looking for recognition. He constantly
needs to be patted on the back.”
Lee Iacocca

“It’s a bad plan that can’t be changed.”
Publilius Syrus


“Choose respect & responsibility”-anonymous

“We become just by performing just actions,
temperate by performing temperate actions, brave
by performing brave actions.” -Aristotle

“To rule is easy; to govern, difficult.” -Goethe

“Feel the fear do it anyway.” -Tamara Mellon,
President Jimmy Choo Shoes


“Leaders are people who do the right thing;
managers are people who do things right.
Both roles are crucial, but they differ profoundly.
I often observe people in top positions doing the
wrong thing well.”

Warren Bennis in Why Leaders Can’t Lead (1989)


“Accept the risk of leadership” -anonymous

“The measure of success is not whether you have a
tough problem to deal with, but whether it is the
same problem you had last year”

John Foster Dulles (1888-1959)

Current Issues in Labour and
Employment Law
By

Accessibility for Ontarians With
Disabilities Act, 2005

An Update


AOD Act, 2005
Purpose:
To make Ontario fully accessible for persons with
disabilities by 2025

Gradual establishment and implementation of
accessibility standards for the following areas:
customer service, transportation, information and
communications, the built environment, and
employment


AOD Act, 2005
These standards are being given force of law by
being adopted as binding regulations

The goal of this legislation is voluntary compliance

The AODA envisions an enforcement process
involving compliance reporting, inspectors,
director’s orders, and the oversight of a tribunal


Non-Compliance

Employers who do not comply with the standards
could be subject to administrative penalties and be
found guilty of an offence with fines of up to
$100,000 for each day or part of a day that the
offence continues to occur


Non-Compliance

A person who is found guilty of an offence could
face a fine of up to $50,000 per day. Because of
this, employers would do well to begin preparing
their policies and procedures earlier, rather than
later


The Employment Standard
Part III of the Integrated Accessibility Standards
regulation sets out the Employment Standard under
the AODA

This standard sets out specific requirements for the
recruitment, retention and accommodation of people
with disabilities

The Employment Standard applies to all employers
with at least one employee in Ontario


Important Milestones – Jan. 1st, 2012

By this date every employer was to have provide
individualized workplace emergency response
information to employees who have a disability, if
the disability is such that the individualized
information is necessary, as soon as practicable after
becoming aware of the need for accommodation


Important Milestones – Jan. 1st, 2012

The information provided to the employee must be
reviewed when the employee moves within the
organization, when the employee’s overall
accommodations are reviewed and when the
employer reviews its general emergency response
policies


Other Important Dates
The other requirements of the Employment
Standard are staged, depending on the size and type
of organization

For designated public sector organizations with 50
or more employees, the deadline for compliance is
Jan. 1, 2014

For designated public sector organizations with
more than 1 but fewer than 50 employees, the
deadline is Jan. 1, 2015


Other Employment Standards
Requirements Under the AODA
Other Employment Standards relate to:

1. Providing information regarding accommodation
policies during the recruitment process

2. Informing employees of policies used to support
employees with disabilities



3. Providing information to employees in accessible
formats or using communication supports

4. Developing a written process for the development
of documented individual accommodation plans
for employees with disabilities



5. Developing a return to work process for
employees who have been absent from work due
to a disability and require disability-related
accommodations in order to return to work

6. Taking into account the accessibility needs of
employees with disabilities when using
performance management process in respect of



employees with disabilities as well as any
individual accommodation plans, when providing
career development and advancement to

employees with disabilities when redeploying

Bill 168 – Amendments to the Occupational
Health and Safety Act – Workplace Violence
and Harassment
Are You In Compliance?


Bill 168 – Are You In Compliance?

• On June 15th, 2010, Bill 168 came into effect,
amending the Occupational Health and Safety Act
to deal with workplace violence and harassment.


Employer Requirements

• Develop written policies with respect to workplace
violence and harassment and to post these policies
in a conspicuous area



• Develop programs to implement these policies,
including:
-measures and procedures to control risks
-measures and procedures for immediate assistance
in the event of workplace violence/harassment
-measures and procedures to report incidents
-employer investigation procedure



• Assess the risks of workplace violence and
harassment and report the results of these
assessments to the joint health and safety committee



• Conduct training with all staff with respect to these
policies and procedures



• Review Workplace Violence and Harassment
policies annually



• Designate a person in the workplace to act as the
workplace co- ordinator with respect to workplace
violence and harassment.

Bill 160 – Amendments to the Occupational
Health and Safety Act


Bill 160
Bill 160 was enacted in response to the final report
of an Expert Panel on Occupational Health and
Safety, which was released in December 2010 after
a comprehensive review of Ontario’s workplace
health and safety system

Bill 160 received Royal Assent on June 1, 2011, and
many of its provisions came into force on that day


The Chief Prevention Officer
Bill 160 enacted on of the priorities identified in the
report by establishing the position of Chief
Prevention Officer

As of August 2011 Ontario has appointed its first
Chief Prevention Officer


The Chief Prevention Officer
The Chief Prevention Officer is responsible for:

1. Establishing standards relating to workplace health
and safety training programs

2. Establishing effective delivery of injury prevention
programs and services

3. Monitoring compliance with standards set by the
Minister of Labour


Other Changes in Bill 160
Bill 160 also implemented other changes to
Ontario’s workplace health and safety system:

1. It establishes the Ministry of Labour as the lead for
injury and illness prevention



2. It creates a Prevention Council, with
representatives from unions, employers, non-
unionized employees, the Workplace Safety and
Insurance Board, and safety experts, to advise the
Chief Prevention Officer on the prevention of
workplace injuries and occupational diseases



4. It regulates changes proposed by the Minister of
Labour to the funding and delivery of services for
the prevention of workplace injuries and
occupational disease

5. It sets out the consequences of non-compliance
with the Act or non- cooperation with the Chief
Prevention Officer’s inquiries

GasTOPS v. Forsyth
&
Bowes v. Goss Power Products
Recent Court of Appeal Cases Dealing
With Reasonable Notice for Employers and
Employees and Mitigation


GasTOPS Background
Four senior employees in the aviation industry gave
two weeks’ notice of resignation before starting a
competing firm.

They recruited GasTOPS employees to join this
new firm.


GasTOPS Background

Upon giving their notice, two employees were told
to leave the workplace immediately.

GasTOPS claimed the employees failed to give
reasonable notice of their intention to resign.


Decision
The trial judge found in favor of GasTOPS and
stated that the employees knew they had given
inadequate notice and did so with the intent of
destroying the company. The court held that the
employees ought to have provided the company 10
to 12 months’ notice and awarded GasTOPS close
to $20 million in damanges

In its 2012 decision, the Court of Appeal upheld the
trial judge’s decision.


Result

Because the parties did not appeal the length of
notice awarded, the judgment does not address the
appropriateness of the length of notice required;
however, it serves as confirmation of the common
law requirement to give reasonable notice of
resignation.


Result

Failure to do so is a breach of contract. Length of
notice required depends on the employee’s duties,
the expected length of time required to train a
replacement employee, custom in the industry, and
the timing of the resignation in relation to the
employer’s peak period(s).


Result

Note that there is still a duty to mitigate on the
employer, in that a reasonable effort must be made
to replace the employee in a timely fashion.


Goss Power Products Background
• Bowes started his employment with Goss in 2007
and signed an employment agreement

• The agreement provided for various levels of salary
in lieu of notice in the case of a termination without
cause

• Bowes was terminated in April, 2011 and in
accordance with the agreement was entitled to 6
months salary


Goss Power Products Background
• On April 25th, 2011 ( 2 weeks after his termination)
Bowes started a new job

• Goss, on learning of this, said he was only entitled
to the ESA minimum of 3 weeks because he had a
duty to mitigate his damages and that he had
mitigate his losses successfully


Result
• In overturning the trial judge’s decision and
deciding in favour of Bowes that he did not have a
duty to mitigate, in its 2012 decision the Ontario
Court of Appeal held that by contracting for a fixed
sum the parties have contracted out of the Bardal
“reasonable notice” or damages in lieu approach

• By specifying an amount the stipulated quantum is
either liquidated damages or a contractual sum


Result
• And mitigation is a live issue in law only where
damages are at large, i.e. damages in lieu of
reasonable notice

• The Court held that unless mitigation is specifically
accounted for in the contract, mitigation is not
applicable if the damages are either liquidated or a
contractual sum


Result

• The Court concluded by saying that if parties who
enter into an employment agreement specifying a
fixed amount of damages intend for mitigation to
apply upon termination without cause, they must
express such an intention in clear and specific
language in the contract

Bill C- Amendments to the Ontario
279
Human Rights Code

Gender Expression and Gender Identity


Bill C-279
At the Federal level, Bill C- passed second reading
279
in Parliament on June 6th, 2012.

The Bill amends the Canadian Human Rights Act to
add “gender identity” to the list of prohibited grounds
of discrimination.


Bill C-279

It also alters the Criminal Code, adding gender
expression and identity as distinguishing
characteristics protected under hate propaganda laws,
and making discrimination against transsexuals an
aggravating factor in sentencing.

OEMC Municipal Conference
September 14th, 2012

By


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