Hello Lynn,

Myself and other former employees are hoping to commence a class action wrongful dismissal suit against our former employer. One of the former employees still has the company laptop, but he never signed anything, nothing in the contract making any reference to company property.

4121207_sI am not suggesting that he should keep it, but the company failed to pay him all his pay due to him and issue him an ROE (Record of Employment).

In Canada the ESA (Employment Standards Act) stipulates that an employee must receive any money (pay) due as well as an ROE within 48 hours of the last day worked.

My question is can he hang on to the laptop until they comply with the ESA and give him his correct pay and Record of Employment.

Reader from Canada

While I am not familiar with the ins and outs of Canada employment law, I do believe I can address the question raised from this reader – bear in mind I am working from an U.S.A. perspective though conceptually my opinions are probably sound.

When an employee is terminated from any company, there is an expectation that all company property will be returned. If it is not, the company has the right to withhold monies for the company property from the employee’s last paycheck or to seek legal action for retrieval.

I am not sure how your friend was let go – sometimes we are brutal in how we do things here in the U.S. One colleague was met at the airport before boarding a flight by his boss and was fired on the spot. They took his phone, laptop and keys to his company car and told him to figure out how to get back home.

He was in sales and the company’s intent was to confiscate all customer information and ensure that it did not go with him.

In our court system sometimes the burden of proof can be argued on what would a reasonable person do or think. In the event there was no paper trail or documentation about the company laptop, would the average person believe it belonged to the company or to themselves? I think you know the answer to that question.

So, if the ex-employee continues to hang onto the computer, can the company now imply that the ex-employee is trying to steal company property or worse yet – customer or confidential information? How could that affect the company’s strategic position in the marketplace? The web now becomes much more complex.

The fact is your friend will not win by holding the computer hostage; perhaps the company has grounds for not making final payment and filing the ROE because his firing is more complicated with company property outstanding. No one else has this problem in your group and my hunch is that no one else has company property.

When pursuing a wrongful termination class action case, it is imperative that you and your colleagues do everything squeaky clean. Don’t give the company any ammunition. If he is calling his character into question, it will affect the rest of the group’s credibility.

Finally, I did find a website that indicated a ROE does not have to be given to the employee, it can be sent directly to Service Canada. That may solve the ROE issue, but it does not address the last pay being held back.