Tuesday 23 December 2014

Inducement, Not Length of Service, Drives Long Notice Period

In a recent decision that ought to stand as a cautionary tale for employers when they hire senior employees, the Ontario Superior Court of Justice made clear that efforts to lure an employee away from secure employment elsewhere can prove costly. The case also highlights (once again) the importance of ensuring that termination provisions in employment contracts are carefully drafted.

In Rodgers v. CEVA, the plaintiff was hired by the defendant in 2009 to be its Country Manager, Canada.  At the time, Rodgers was the President of another company in the logistics business, and had been with his employer for over 10 years.  He was approached by a former colleague, who was then working for CEVA, about the possibility of a position with the company, and he expressed an interest in the role.  After 7 interviews, including two in Houston, Texas (the last of which was conducted by the CEO of CEVA), the company made the plaintiff an offer.  He declined it.  In turn, the company presented a more lucrative offer, including a $40,000 signing bonus, higher salary and a number of perks. As a condition of the offer, however, Rodgers was required to acquire a quantity of the company's equity (to ensure that he had "skin in the game"), which cost him approximately $100,000.  Less than three years later, following some difficult economic times for the company, the plaintiff was terminated and offered 2 weeks' termination pay and approximately $5,000 in severance pay.  At the time, he was 55 years old, and was earning an annual salary of $276,000.  He sued for wrongful dismissal.  The employer's only dispute with the plaintiff was on the actual amount of notice to which he should have been entitled.

The employer relied on the termination provision in the contract which provided:
Your employment may also be terminated by our providing you notice, pay in lieu of notice, or a combination of both, at our option, based on your length of service and applicable legal requirements.
The employer argued that the primary consideration in assessing appropriate notice was the plaintiff's length of service (less than 3 years).  However, the Court did not agree.  If the parties intended length of service to have primacy, they could have done so in clear language.  Instead, they had made the calculation dependent on both tenure and "applicable legal requirements".  After considering the fact that the plaintiff was induced (at least mildly) to join CEVA, and then led to believe that he would have long-term, secure employment (based on the requirement to purchase shares in CEVA at a cost equivalent to approximately 4 1/2 months' salary), the Court was of the opinion that the plaintiff should receive notice at the high end of the scale.  The plaintiff did not find another comparable role for almost 10 months, and even then he took a significant reduction in salary.  In the result, the Court awarded the plaintiff damages equivalent to fourteen (14) months' notice.  After a reduction for amounts already paid and the plaintiff's mitigation income, the defendant was ordered to pay the plaintiff $345,000.

The Court's decision illustrates that employers must be cautious when they recruit senior employees who are already gainfully employed.  Efforts must be made to ensure that an offer of employment is not designed to induce the individual to leave other employment, and this should also be acknowledged in the employment agreement. Ensure that recruiters do not make promises or representations about the likelihood of long-term employment, particularly during challenging economic times.  And if the intention is to minimize the organization's exposure in the event of a subsequent termination, care must be taken in crafting termination language that is clear and meets the requirements of the Employment Standards Act (see for example, this post on the topic).  The downside?  Significant liability.

Do you have questions about inducement?  Need help with your termination language?  Contact Lance Ceaser for expert advice.






Friday 12 December 2014

Considerations on Ending the Employment of Senior Workers

With the elimination of mandatory retirement (through amendments to the Human Rights Code in 2006), many older workers have made the choice to remain in the workforce longer.  Obviously, the increase in tenure that this change permits will lead to increased termination costs, as employees with longer service are entitled to heftier periods of reasonable notice at common law.  However, employers also need to be aware of other issues that may arise from employees’ decision to defer retirement and continue working.  When it comes time to end the employment of an older, more senior employee, employers should be aware of some of the risks, as illustrated in three recent decisions from Canadian courts.

The Older Worker's Duty to Mitigate:  Dodge v. Signature Automotive Group Ltd.
The plaintiff was approaching 60 years old when his employment was terminated without cause or notice due to his declining sales of 'add-ons' to new car buyers.  He had worked for the employer car dealership for just over 20 years, and was offered a package equivalent to less than 6 months' pay.   The employer argued that the plaintiff had made inadequate mitigation efforts and that any damages for lack of reasonable notice should be reduced.  In the first six months following his termination, the plaintiff did not even prepare a resume and over the course of the first year post-termination, he only applied for seven (7) positions.  Despite the fact that there were numerous other car dealerships in the area, including some that had advertised job openings, the plaintiff made little effort to contact other potential employers seeking work. 
The Court agreed with the employer that the plaintiff's rather "passive attitude" toward his job search did not reflect a reasonable mitigation effort on his part.  The Court found that the plaintiff would be entitled to 17 months' reasonable notice based on his age, length of service, level of responsibility and the availability of other work in the industry.  However, considering his insufficient mitigation, the Court reduced that figure to 14 months' notice.  In most cases, the reduction for lack of mitigation would have likely been greater than 3 months' notice, but the Court made the following observation:
...  I spoke earlier about the Plaintiff's age. As Brenner J. said, at para. 39 in Carlysle-Smith, above, "[i]f an employee has not taken reasonable steps, but if the court is satisfied that even if such steps were taken that it is unlikely that such alternative employment would have been achieved, then presumably little or no reduction in the notice period would be appropriate." In my view, the fact that Mr. Dodge is 60 means that it was less likely that alternative employment would have been achieved. It is only for that reason that I have not reduced more substantially the applicable notice period.

This case arguably stands for the proposition that although an older worker still bears responsibility to look for other work, lack of mitigation will not have the same adverse consequences as it would for a younger worker because of the likelihood that the terminated employee would not find another position anyway because of his/her age.
Loss of an Unreduced Pension:  Arnone v. Best Theratronics Ltd.
The plaintiff was 53 and had 31 years of service when he was terminated by the employer.  At the date of his dismissal, the plaintiff was less than 17 months from having earned an unreduced pension.  As a result of his termination, and the employer's refusal to bridge his service, he received a reduced pension.  In addition, because the plaintiff was terminated prior to his retirement, he was denied a 'retiring allowance' of 30 weeks' salary that would have otherwise been payable.  The employer offered the plaintiff only the termination pay required under the Canada Labour Code (about 14 1/2 weeks' salary continuance).  The plaintiff brought a motion for summary judgment, seeking payment of 24 months' reasonable notice, the difference between a reduced pension and the unreduced amount (based on actuarial calculations), as well as the retiring allowance.  The employer argued that there was a "genuine issue for trial", including a determination of the nature of his position (supervisory vs. managerial) and whether his mitigation efforts were adequate.
The Court found that the trial record did contain sufficient evidence to permit a fair resolution of the outstanding issues.  With respect to the amount of reasonable notice that the plaintiff was entitled to, the Court stated:
Of particular importance in the circumstances of this case is the fact that the plaintiff was 16.8 months from achieving full pension entitlement. This doesn’t mean that the plaintiff had to retire in 16.8 months but rather that upon the expiration of that period of time he would be entitled to receive an unreduced pension. Time to retirement is an obvious consideration when long-term employees are dismissed due to restructuring. In such circumstances it is also common that the employer does not have an expectation of mitigation because the bridging period ... may be less than the notice period that would otherwise be applicable.
...
There is no reasonable doubt that the plaintiff would be entitled to at least seventeen months’ notice (subject to mitigation considerations) regardless of the subtle distinctions urged by the defendant respecting the character of the plaintiff’s employment.
In the result, the Court awarded the plaintiff pay in lieu of the bridging period of 16.8 months' pay, $65,000 for the value of an actuarially  unreduced pension, 30 weeks' pay as a retiring allowance, pre- and post-judgment interest, and legal costs of almost $53,000.
Where an employer terminates the employment of a long-service employee who would become eligible for an unreduced pension within the reasonable notice period, the employer should seriously consider bridging the employee to retirement age, or risk becoming liable for the loss that flows from providing a reduced pension.
Effect of Employee's Decision to Retire:  Kimball v. Windsor Raceway Inc.
The plaintiff employee had worked for the Raceway for 42 years (with some brief interruptions due to medical leave or layoff), and was 70 years old when his employment was terminated as part of the fall-out from the OLG's decision to remove slot operations from Ontario's horse racing facilities.  Prior to his termination, the plaintiff had expressed an intention to retire, but had extended his retirement date several times.  Most recently, the plaintiff had told the employer that he intended to retire at the end of 2012.  However, his employment was terminated effective August 31, 2012, several months before his retirement was to occur.  The plaintiff brought a motion for summary judgment on his wrongful dismissal claim, arguing that there was "no genuine issue for trial" since there was no argument that his employment was terminated without cause and the employer had conceded that the plaintiff was at least entitled to statutory severance pay under the Employment Standards Act, 2000.  The employer defended the motion, arguing that a trial was necessary to weigh evidence of the plaintiff's potential retirement and how that would affect the reasonable notice to which he might be entitled.
The Court found that the plaintiff had a clear entitlement to his statutory severance, and there was no compelling reason to make him wait until after a trial to receive this money.  The Court therefore granted partial summary judgment in the amount of 26 weeks' pay.  However, with respect to the plaintiff's claim for reasonable notice, the Court held that there was a genuine issue for trial and that further evidence would be necessary to properly adjudicate various aspects of the case, including mitigation and the impact of the plaintiff's likely retirement.  After considering the rationale behind the concept of reasonable notice (i.e., to give the employee a fair opportunity to find other work), the Court observed:
If the dismissed employee has no intention to look for work, but has instead decided to retire, the very purpose for which reasonable notice is required to be given is absent. That is a factor that may well be relevant in assessing what constitutes reasonable notice in this case.

Accordingly, the motion for summary judgment on the common law claim was dismissed.  It remains to be seen how much an employee's stated intention to retire may affect his/her entitlement to damages for reasonable notice.
* * *
Do you have questions about an employee's entitlements upon termination?  Need guidance on the challenges of dismissing an older, long-service employee?  Contact Lance Ceaser for assistance.
 

Thursday 11 December 2014

Alberta Human Rights Tribunal Finds School Liable for Harassment of Teacher by Student

While it is obvious that an employer can be held responsible for harassment perpetrated by one employee against another, the law is not well settled on the extent to which liability will attach for the actions of third parties, such as contractors, customers or people who receive services from the organization.  There is precedent for an employer being held responsible for such conduct under the terms of a collective agreement and the Human Rights Code (see for example, Clarendon Foundation v. Ontario Public Service Employees  Union, Local 593 (Mitchell Grievance), (2000), 91 L.A.C. (4th) 105 (Sarra), but few decisions have gone this way.

Employer Liable for Third-Party Harassment

In a recent decision of the Human Rights Tribunals of Alberta, however, has gone further than most.  In Malko-Monterrosa v. Conseil Scolaire Centre-Nord, the complainant was a teacher who was subjected to unwanted, harassing behaviour by a student ("S") over the course of almost two years.  It started with prank phone calls to her home.  The teacher advised the student to stop calling her, and also advised the student's parent (on more than one occasion) about the behaviour and the need for it to stop.  The complainant also brought it to the attention of the school's principal and vice-principal, but they were of the view that the teacher had addressed the situation and only offered to make counselling services available to the student (whose parent advised that she had psychological issues).  Several months later, the teacher again began receiving prank phone calls.  On one occasion, she confronted the caller, who identified herself as a friend of the student, who had provided the teacher's phone number.  The vice-principal of the school spoke to all of the students involved, including S, and they all received suspensions.  The vice-principal also recommended that the teacher change her home telephone number.

The following school year, and over a period of several months, the teacher began receiving harassing and vaguely threatening messages from the student via Facebook and through her work email account.  School administration had discussions with the student and her parent, and kept up regular contact with the teacher to monitor how she was doing.  In January 2009, the teacher received several such messages, and attempted to block the sender by changing her privacy settings and by seeking assistance from Facebook.  After being asked twice, the school's administration had IT block emails to her work email from the sender (who was later conclusively identified as S).  Once it was clear that a number of the offensive messages were coming from an IP address associated with the student, the school administration met to discuss a strategy to protect the teacher.  When S admitted to being the sender of the email messages, she was given a 5-day suspension and a recommendation was made to the school board that S be expelled from the school.  She was also subject to conditions intended to keep her from contacting the complainant directly or indirectly (for example, through the complainant's mother, who was a receptionist at the school S was sent to attend).

Following the student's expulsion, however, the teacher received two more Facebook messages from the student, as well as an offensive, vulgar letter slipped under her classroom door by some other students who were friends with S.  The board was also advised that S had swore at the complainant's mother.  Rather than expelling the student from the second school, however, the board demanded that she provide an apology to the complainant's mother and only issued a 3-day suspension for her breaches of the conditions of her expulsion. Shortly thereafter, the school board learned that S had sent email to two other students alleging that the teacher had sexually assaulted her.  The school contacted police, who investigated and immediately dismissed the allegations as being retaliation.  Despite the teacher's attempts to have the school issue a cease and desist letter to the student, no immediate action was taken and the teacher had to seek a peace bond on her own.  Ultimately, the student transferred out of the school system at the end of the school year.

While there was no question that the school board and its administrators had taken some action to address the harassing behaviour that was directed at the complainant, the Tribunal found that those actions were not effective in creating a workplace free of harassment.  The employer had the authority to sanction S and thereby protect the teacher, but its efforts were "piecemeal", dealing with discrete incidents, and not "coordinated or centralized" in any way to reflect the pattern of escalating harassment.  Too many different administrators were involved, leading to corrective action that was not progressive or meaningful.  When the student had clearly breached the conditions of her expulsion from the school, and should have been facing removal from the school system, the board instead imposed only a suspension.  The Tribunal also observed that it appeared the school board put its concern for the student (who appeared to be emotionally and psychologically "fragile") ahead of its concern for the teacher's safety and well-being.  In the result, the school board (as the employer) was found liable for its failure to address the racial and sexual harassment of the teacher.

What does it mean?

The decision in the Malko-Monterrosa case provides some valuable insights for employers.  When addressing issues of this nature, it's important to assign responsibility for managing the situation to only one or two people within the organization.  This will ensure that responses are coordinated and show an appreciation for the overall pattern of conduct, rather than just the most recent incident.  Complaints about the behaviour of third-parties should be conducted with sensitivity, but with a sense of urgency, and resolution should be offered in a timely manner.  Failure to take the complaint seriously or taking the position that the organization's "hands are tied" will only exacerbate a tense situation.  If the organization doesn't have the 'in-house' resources to investigate or remedy the concern (for example, where forensic IT assistance may be required), look outside the organization to locate the required expertise. 

Ensure that the organization carefully weighs any competing obligations.  Service providers, contractors and other third parties should be made aware from the outset of their duty to treat employees in a respectful way, and that harassment or discrimination will not be tolerated.  Where the employer services a clientele that may be prone to lashing out at staff, ensure that staff know that the employer will take all reasonable measures to protect them from discrimination and harassment.  This may sometimes require the employer to distance itself from the third-party or take serious steps to sanction the behaviour in order to address the employee's concerns.

Do you have concerns with third-party behaviour in the workplace?  Need assistance in investigating or resolving harassment issues?  Contact Lance Ceaser for expert assistance.



 


 
 
 

Monday 8 December 2014

Tales from the Electronic Workplace

Whether it's social media usage or just 'old-fashioned' email, some people still seem to underestimate the impact that misuse can have on their personal and professional lives (as well as the lives of others).  Some recent cases illustrate the point.

Labour Arbitrators Gail Misra and Elaine Newman recently had to deal with grievances brought by firefighters in the City of Toronto who were terminated for posting offensive comments on Twitter, which ultimately came to the attention of and were publicized by the National Post.  The employees had posted or re-tweeted comments or jokes that were disparaging of women, the disabled and visible minority groups. The tweets were discovered by the National Post, which then questioned how inclusive the Toronto Fire Service actually was.  This was particularly problematic for the employer, as it was in the midst of launching a diversity campaign to recruit women and other groups in accordance with the make-up of the community it serves.  The City was of the view that the tweets in question, from individuals who had identified themselves as Toronto firefighters, not only violated the City's policies, but also did harm to the City's reputation.

In the first of the grievances to be heard, Arbitrator Misra found that the employer had cause for some form of discipline, but ruled that discharge was too harsh.  It was common ground between the parties that the grievor had made the comments in his off-duty time, but that the grievor would have been aware of the importance of not bringing discredit to the Fire Service.  The Arbitrator found that the tweets were shared with co-workers, and had a connection with the workplace, and that their appearance in the National Post article did have potential ramifications for the City's reputation.  The Arbitrator also rejected the grievor's argument that he was unaware that his tweets were accessible to the public, given that he had an opportunity to review the terms of use for Twitter when he signed up.  Moreover, Twitter was designed to allow individuals to communicate publicly (in 140 characters or less) on timely topics.  The grievor may not have been aware of the Standard Operating Guideline specifically directed to social media use, but he knew that there were stringent expectations of firefighters whenever they were in the 'public eye'.  Accordingly, his inappropriate tweets (about 'swatting' a young woman in the head to "re-set her brain") did amount to cause for discipline.  With respect to two other tweets, however, the employer did not establish that the grievor's use of language had been offensive, within the context that he used the 'objectionable' terms.  Although the grievor did not fully understand why any of his comments on Twitter were inappropriate, he did apologize to the employer and his colleagues for the media storm that he had created.  In the result, the Arbitrator held that the penalty of discharge was excessive, substituting a 3-day unpaid suspension.

On similar facts, however, Arbitrator Newman found that discharge was warranted with respect to the other firefighter (decision not yet reported).  After reviewing the arbitral case law on off-duty conduct, Arbitrator Newman observed that the grievor ought to have known that his behaviour on Twitter was inappropriate.  Not only did it potentially bring discredit to the Toronto Fire Service, but it also violated the employer's anti-discrimination policy. At the hearing, the grievor's testimony suggested that he still lacked any insight into how improper his conduct had been, particularly for a firefighter.  In particular, Arbitrator Newman found that the grievor appeared to be incapable of behaving in a way that "brings honour to the uniform," and that his behaviour would reflect poorly within the community that the Fire Service was obliged to serve.  Given the damage that his actions had done to the employer's reputation, Arbitrator Newman upheld his discharge

In R. v. Dewan, the Ontario Court of Appeal was considering an appeal by the accused on his sentence for criminal mischief and harassment.  The appellant had tried to strike up a relationship with a co-worker which was rejected. The appellant continued to pursue the co-worker, until she advised him that she had contacted the police.  At that point, the appellant sent an email out that purported to come from the co-workers.  In the email (that was sent to 9 other co-workers) "degraded the co-worker professionally, sexually, and physically".  The appellant was also convicted of harassment with respect to similar behaviour toward a woman with whom he'd had a romantic relationship, after relations soured.  The appellant had served the equivalent of 2 months in jail, and was given a suspended sentence and 2 years' probation on the mischief charge, as well as 90 days (to be served intermittently) on the harassment charge.  The Ontario Court of Appeal dismissed his appeal, finding:
Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant’s positive prospects and five months’ time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months’ time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.
These cases demonstrate that context is key in assessing what, if any, disciplinary response is appropriate when an employee engages in off-duty, online conduct that violates workplace rules.  Even pejorative terms in Facebook or Twitter posts should be carefully be reviewed to determine whether they would be offensive to a "reasonable person".  Where an employee's behaviour can be traced to a lack of understanding of the rules or even to the nature of how social media works, employers should be prepared to weigh these factors before doling out punishment.  However, where an employee engages in aggressive behaviour toward a co-worker (such as was the case in R. v. Dewan), whether in person or via email, an employer should take strong action to address the misconduct.  The Court of Appeal's denunciation of the appellant's conduct should serve as strong support for an employer imposing harsh sanctions, including termination.

Do you have questions about implementing social media policy or addressing inappropriate online behaviour?  Contact Lance Ceaser for expert guidance.  

 

 




 

Thursday 4 December 2014

Avoiding Risk at All Stages of the Employment Life-Cycle

As 2014 nears its end, I thought I'd offer some general guidance for employers.

Like pretty much anything else, the employment relationship can be neatly packaged up into three parts: the beginning; the middle; and the end.  Each of these stages of the relationship can be characterized conceptually by a predominant theme.  For purposes of this post, I'll call them "Expectations", "Performance" and "Cessation".  What occurs at the Expectations stage will have the largest impact as it can significantly change how the contract is performed and what happens when it ends.  Likewise, the Performance phase will influence when and how the contract ends.  Once the relationship has reached the Cessation stage, there is little that can be done to alter the outcome, other than to manage risks that have already been created earlier in the employment life-cycle.

So, how do you significantly reduce the risks inherent in the employment relationship?  Let's look at each stage and the critical steps that employers should consider.

Expectations

Prior to and at the time of hiring, employers need to consider how "expectations" are communicated to prospective or new employees.  Clear expectations eliminate misunderstandings and lay the groundwork for a transparent and accountable workplace.  Setting expectations takes some work, but removing ambiguity at the outset of the employment relationship sets the stage for employees to perform their duties and helps manage the risks (and costs) associated with ending employment.
  • Review job descriptions on a regular basis to ensure they accurately reflect the job as it is currently performed.  A role profile that does not align with the role may mislead a new employee as to the expectations for their performance.
  • Where appropriate, develop policies that are clear and unambiguous. Ensure that policies align with actual practices and procedures in the workplace and set reasonable expectations for both parties.  If a policy is difficult to enforce, it is likely to go by the boards.
  • Document variable pay programs, such as annual bonuses or incentives, and make sure that new hires are given an explanation of how they work.
  • Develop a solid, enforceable employment agreement.  Use plain language to spell out the terms covering wages, variable compensation, vacation and benefits entitlements, and the parties' rights and obligations on cessation of the contract.  Carefully review termination language in particular to ensure compliance with employment standards.  Failure to do so could lead to claims for 'reasonable notice' in the courts.
  • Ensure that all required documentation is reviewed with new employees and signed off before they commence employment.  If policies are referenced or incorporated into the employment agreement, ensure that new hires are provided with the policies and acknowledge having read and understood them.
Performance

Once the formalities of hiring are out of the way, the real hard work begins.  While there is much that can be said about how to get the best out of employees while they are working for the organization, I'd like to focus on just a handful of keys that are likely to improve productivity while reducing legal risks.
  • Whenever in doubt, be guided by fairness and reasonableness in administering the relationship.  It's sometimes easy to lose sight of the issue and focus on the employee, but this can prove disastrous. Enforce rules consistently, but with a contextual approach that weighs the circumstances, the history of the particular employee, how past issues were dealt with, and any mitigating or aggravating factors. Be prepared to be flexible in appropriate situations. Failure to insist on fairness can lead to morale issues (such as claims of favoritism or discrimination) and can also undermine the effectiveness of your workplace policies.
  • Provide good supervision. Sounds simple, but it isn't.  It starts with careful selection criteria when hiring or promoting supervisory and managerial staff. I would suggest that it's better to look for leaders rather than technical experts. Yes, experience in the field is important, but it's often hard to make an exceptional 'lone wolf' into a good manager, no matter how accomplished they are. Follow-up on supervisory hiring with training on the basics of managing people (including the basics of human resources and employee relations). Failing to provide solid supervision invariably leads to underperformance that is not managed (and cannot be relied on later as cause for termination) and a failure to keep an eye on the workplace (which often results in complaints of harassment or bullying).
  • Document, document, document. It's trite, but true. Failing to keep notes of conversations and coaching sessions can be costly later when you need to establish a pattern of inappropriate conduct or poor performance that you have tried to address.  Get in the habit of making brief notes to file, showing the date and time of discussions with employees. Ensure that all notes ultimately make it into a file that others can find later. Otherwise, you risk losing evidence that you'll need later when an employee challenges unwelcome discipline. 
  • Make sure that managers actually manage. This means bringing issues to employees' attention when they arise (not months later when patience has worn thin), documenting conversations about the issue, providing timelines for improvement, and following-up in a timely fashion.  Managing performance, behaviour and attendance are tedious and time-consuming processes, but they should be the primary expectation that is placed on supervisors and managers.
Cessation

If the employer has paid proper attention to the details in the first two phases of the employment relationship, the third stage, Cessation, will typically be less risky and costly, and much more manageable.  Still, there are a few things to bear in mind.
  • If the employer will be terminating the employment relationship, be prepared to pay.  It can be very costly to allege 'just cause' for termination.  The courts and tribunals will only find cause in the clearest of cases and on very compelling evidence. If in doubt, terminate on a without cause basis (and move to the bullet point immediately below).
  • If there is a contractual termination provision in the employee's contract, ensure that you understand the employer's obligations and abide by them carefully.  No termination provision?  You'll have to choose between the statutory minimum (which is typically quite meagre), the employee's common law entitlement (typically quite generous) or something in between.  If in doubt, obtain legal advice.
  • Plan and prepare for the termination meeting to ensure that it is conducted in a professional and respectful manner.  Try to avoid ending employment on a Monday morning or a Friday afternoon (except in the most extreme cases), and be conscious of any occasions that could place the employer in a bad light (e.g., try not to terminate the employee on their birthday or in the weeks immediately preceding Christmas).  Hold the meeting somewhere that provides privacy and where other employees won't be alerted to what is going on. Ensure that you consider arrangements to get the employee home in the event that they carpool or won't be in any condition to drive. Avoid escorting the employee through areas where coworkers are present following the meeting.  Failure to abide by these relatively simple rules could lead to a claim for enhanced or added damages in the event the employee later alleges wrongful dismissal.
  • If the employee is looking to end the employment relationship, try to get their resignation notice in writing and verify that they have provided appropriate notice.  Ensure that they are given time to reconsider, particularly if they resign under stressful conditions or following a heated exchange. Whenever possible, conduct an exit interview to assess whether the climate in the workplace may have influenced the decision to leave.  It is valuable to find out whether there are unidentified issues that could lead the departing employee or others to raise concerns with harassment or bullying before you receive a claim.
  • Prior to any employee's departure, make sure that you recover company property.  In particular, smartphones, laptops, VPN tokens and system/application passwords should be obtained to avoid the potential for a disillusioned employee being tempted to take data or engage in other post-termination misdeeds.  Once the employee has departed, ensure that all access is removed and that passwords are changed, as necessary.
While the foregoing guidance is not exhaustive, and is no substitute for legal advice, it does provide an overview of some of the larger risk management issues that employers face.  Being proactive, setting clear expectations, and ensuring that those expectations are routinely met, will go a long way to avoiding or reducing many of those risks.

Does your organization need advice on how to reduce the HR risks it encounters?  Need guidance on a particularly thorny or complicated employment situation?  Contact Lance Ceaser for expert assistance.

Tuesday 2 December 2014

How to Make the Holiday Season Happy (and not get sued or fired in the process)

With the festive season kicking into high gear, you can't avoid crowded mall parking lots, the frantic search for the "perfect" gift, nor those well-worn holiday tunes playing virtually everywhere.  And you also may not be able to avoid the office Christmas party.  Whether you're the host employer or an attendee, there are a number of rules that everyone ought to keep in mind.

Employers

If you'll be hosting a gathering for employees, think about ways to reduce the risks commonly associated with the sometimes dangerous combination of people and alcohol.  Consider some or all of the following:
  • In advance of the party, communicate to employees that drinking and driving and other inappropriate behaviour will not be permitted (albeit in a tactful way).  Encourage them to bring a designated driver and/or let them know that taxis will be made available, free of charge  (both to and from the party venue, if possible).
  • Have your party hosted by a restaurant, hotel or convention centre that has its own trained staff to serve alcohol and monitor consumption.  They'll also have their own insurance.
  • Limit the flow of free drinks.  Offer a limited number of drink tickets per person, and only offer a cash bar thereafter.  Try to watch for 'ticket-hoarding' or sharing of tickets.  If alcohol continues to be served after the meal, ensure that food is also being offered.
  • Ensure that the bar has sufficient non-alcoholic alternatives on hand and that staff bring them to the attention of guests.
  • Give an incentive for designated drivers - provide gift cards or other tokens of appreciation to those who identify as a "DD" upon arrival at the party.
  • Provide taxi/limo chits to your guests - better yet if you can provide two-way transportation both to and from the party.  Once an employee shows up with a vehicle, it may be harder to convince them to go home in a cab.
  • Be watchful - despite all of the steps above, stay on alert to identify any guest who may have over-consumed.  Take whatever measures you can to prevent anyone from driving under the influence.
Employees

Having a few drinks with colleagues can add to the seasonal celebration, but don't lose track of where you are:  an event sponsored by your employer.  Everyone is there to have fun, but make sure you don't have TOO MUCH fun.
  • Plan ahead.  If you know that alcohol will be served and you're uncertain if transportation is being provided, ask the employer.  If all else fails, ensure that you plan a safe ride home for you (and your significant other, if they're invited).  Pre-book a taxi or car service , or find out if someone intends to be a DD and can give you a ride home.
  • Even if the employer is providing an open bar, you are responsible to ensure that you don't become intoxicated.  Be your own liquor control board.  Alcohol may bring out behaviours that you will regret later.
  • Remember that the company's policies regarding personal conduct still apply. Even if the party seems like the perfect opportunity to air your grievances from the preceding year, it's not.  This is a celebratory occasion. Avoid 'talking shop' if you can, and focus on your co-workers' plans for the holidays. 
  • Tread carefully if you're thinking of pursuing an office romance at the company Christmas party.  Alcohol may lead you to misconstrue social cues turning flirtation into something more sinister.  The rules against sexual harassment still apply.
  • Be careful what you post!  It's all-too-tempting to snap pictures of your colleagues after a few drinks and post them to social media, but think about the ramifications - for your co-workers and yourself. People's reputations may be damaged by inappropriate photos on Facebook, and your judgment could be called into question for posting them. Wait until the next day to post items about the party to ensure you don't hurt yourself or others. 
At the end of the day, exercising some common sense and good judgment will go a long way to avoiding what could be a very costly hang-over!

Do you have questions about the risks as an employer in being a 'social host'?  Need guidance on planning for party season?  Contact Lance Ceaser for expert advice.

Friday 28 November 2014

Zero Tolerance ≠ Automatic Suspension for Any Violation of Safety Policy

Employers have very significant duties with respect to protecting the health and safety of their employees, and the potential liability to the employer in the case of an injury or fatality can be overwhelming.  As a result, many employers have adopted 'zero tolerance' policies to ensure that employees work in a safe manner.  But what does 'zero tolerance' really mean, and how enforceable are such policies?

In a recent arbitration decision, Arbitrator Paul Craven had the opportunity to comment on these concepts.  In U.S. Steel - Hamilton v. United Steelworkers, Local 1005, the grievor was by all accounts a good employee with a clean disciplinary record.  As he was leaving the plant one day, he was selected for a random vehicle search.  Plant security found a partial bottle of vodka in the trunk of the car, beneath some camping equipment.  The Company had a 'zero tolerance' policy that prohibited the possession of alcohol on company property, and provided for a 3-day suspension for a first violation.  The employee explained to the employer that he was driving his wife's vehicle that day, and that his daughter had previously used the car for a camping trip, and failed to unload the trunk.  A phone call to his daughter, in the presence of security staff, confirmed this to be the case, and the employer did not disbelieve this explanation. However, relying on the policy, the employee was still given a 3-day suspension, which he grieved.

At arbitration, the parties agreed that the Hamilton steel plant was a "safety-sensitive" environment and that alcohol and drugs should be kept out of the workplace, but the union argued that an unintentional violation of the policy which had no impact for plant safety should not have attracted such a serious form of discipline (the last step in the disciplinary process short of termination). The employer argued that strict and consistent enforcement of the policy was necessary to ensure that employees did not become confused about the rules against alcohol in the workplace.

Arbitrator Craven began his analysis by reviewing the decision in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd. ("KVP"), which describes the test to be applied in assessing employer policies that have not been negotiated with and agreed upon by the union.
  1. It must not be inconsistent with the collective agreement.
  2. It must not be unreasonable.
  3. It must be clear and unequivocal.
  4. It must be brought to the attention of the employee affected before the company can act on it.
  5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
  6. Such rule should have been consistently enforced by the company from the time it was introduced.
Looking solely at the policy, and the company's evidence that it had been consistently enforced (with only one or two anomalous situations), the Arbitrator was of the view that the policy was generally reasonable and that the employer was entitled to rely on it to impose some form of discipline.  However, the Arbitrator then went on to consider whether the level of discipline imposed was appropriate considering the nature of the employee's policy violation.  Arbitrator Craven observed that if 'zero tolerance' means not only discipline for every violation, but the "automatic application of ... a significant penalty" (such as a one-week suspension) in every case, without this being part of the written policy, then the policy would fail the reasonableness test on the 2nd, 3rd and 4th prongs of the KVP test.  In short, if specific violations are to be subject to automatic penalties, those must be set out in the policy itself and brought to employees' attention.  Arbitrator Craven went on to state that 'zero tolerance' in the sense of a set penalty for any violation of the policy has also been held to violate the just cause provisions of a collective agreement (by not considering individual circumstances and by imposing discipline that is not "progressive"), and therefore would fail the test in KVP for that reason.

In looking at how the employer applied the policy to the grievor, the Arbitrator found that the punishment did not fit the crime. The employer had mechanically applied a set penalty without first considering the employee's disciplinary record and his blamelessness in unwittingly violating the policy.  The three-day suspension was found to be too severe, and was to be removed and replaced with a written warning.

The message to unionized employers should be clear.  In the absence of an agreed-upon specific penalty clause in the collective agreement, the employer should not impose automatic disciplinary sanctions for policy violations, even where there is a legitimate and pressing reason for insisting on 'zero tolerance'.  Zero tolerance should only be applied at the stage of determining whether there has been a violation of policy (i.e., an investigation should occur, and measures taken to address every violation).  Once a policy violation is found, the employer must assess the seriousness of the violation, considering the actual or potential harm to the organization, the presence or absence of intent, the employee's disciplinary record, the level of discipline previously applied for similar violations, etc.  Only by performing this analysis before taking corrective action can an employer later justify its actions.

Do you have questions about instituting new policies or the imposition of discipline?  Contact Lance Ceaser for expert advice.





 

 
 

 


 

Thursday 20 November 2014

Employer Condones 'Wilful Misconduct' by Failing to Take Effective Action

Under the Employment Standards Act, 2000 (the "ESA"), employees generally have an entitlement to notice of termination or payment in lieu of notice, unless they fall into one of a handful of exemptions.  One of the exceptions provided under the Regulations to the ESA covers "[a]n employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer."  Because the ESA provides a statutory minimum entitlement, adjudicators apply the exemption from termination notice or pay very strictly.  Employers will often focus on the seriousness of the offence, and struggle to establish the "intent" (i.e., the wilfulness) necessary to bring a "just cause" dismissal within the exemption.

However, as the recent decision in Cancore Building Services Ltd v. Merlos illustrates, employers also need to be aware of the dangers of having condoned an employee's bad behaviour.  In Cancore, the claimant was the supervisor of a window washing crew employed by the janitorial company.  He started with Cancore in 1989, and was promoted to a supervisory position after years of good performance.  However, as early as 1999 or 2000, the company began to have concerns about the claimant's performance as a supervisor, including misstating the hours that his crew worked on time sheets that he submitted.  He was cautioned about this issue at the time, and received repeated notes and warnings from the company regarding deficiencies in his supervision of staff, his work attitude, and his lack of responsiveness to pages.  In 2009, the employer again advised him to only record actual hours worked by his crew on time sheets, and that "padding" time sheets amounted to theft from the company.  Even more openly critical letters were written and given to the claimant in 2009 and 2010, which again highlighted the inaccurate reporting of employee working hours. The 2010 letter to the claimant purported to be a 'final warning' that he had to improve in all areas, but only three (3) weeks later, the employer issued yet another warning about improperly completed time sheets.  No disciplinary measures were ever taken to address his shortcomings.

In July 2012, a student employed on the claimant's crew told the company that he had been paid 8-hours' pay on a day when he did not work 8 hours.  Rather than investigate, by reviewing the time sheet in question or asking the claimant about the allegation, the employer summarily dismissed the supervisor.  In the termination letter, the employer accused the claimant of "time theft", among a number of other things, and stated that his behaviour constituted "willful misconduct" and cause for termination.  The employee filed a claim with the Employment Standards Branch, and an Employment Standards Officer found that he was entitled to termination pay.  The employer sought review of the Order to Pay at the Ontario Labour Relations Board.

The Board started by observing that where an employer tries to rely on an exemption from an entitlement under the ESA, the employer bears the onus of proving that the exemption applies.  The Board found that the employer tried over a period of several years to improve the claimant's performance as a supervisor by "writing him letter after letter on the finer points of supervision", warning him about 'padding' time sheets.  While time theft of the nature alleged was "presumptively" wilful misconduct under the ESA, in the opinion of the Board, the employer did not have any evidence that the claimant had intentionally attempted to obtain wages for himself or his crew for work that they had not performed.  When an opportunity arose for the employer to establish that this was in fact the case, when the student came forward, the employer failed to investigate and just assumed that the allegation was true.  Moreover, despite numerous warnings over a period spanning about 12 years, the employer never imposed any sanctions on the employee.  In the words of the Board:  "That, quite simply, is condonation within the meaning of the Act."  In the result, the application for review was dismissed and the Order to Pay termination pay was upheld.

The decision in Cancore is illustrative of a number of principles and best practices that employers need to embrace.
  • Managers need to be prepared to have difficult conversations with employees, about their performance, but they also have to be equipped to take meaningful action to address shortcomings and misbehaviour.  A written 'scolding' on a periodic basis, if not backed with progressively harsher forms of corrective action, will not suffice.
  • Whenever feasible, investigate concerns about employees when they first arise.  Often where there's smoke there's fire, and it's best to stamp it out before it  becomes a blaze.  Remind senior management that putting in time and effort now could save a lot of aggravation and money down the road.  The longer the employee is allowed to stick around, the greater the risk that it will amount to condonation and the larger his/her entitlement to termination pay (and severance pay, if it applies to the employer).
  • Enact policies and procedures to address the areas of concern.  Ensure that the policy is written in plain language and clear on what is permitted and what is not.  Educate employees on the content of the policy, and that there will be consequences for breaking the rules.
  • Consider whether your existing policies and employment contracts provide the ability to impose disciplinary sanctions on employees, such as suspensions of varying lengths.  If the employer does not have the authority to suspend, doing so could amount to constructive dismissal.  If in doubt, speak to a labour & employment lawyer for guidance.
  • If you find out that an employee has been engaged in a practice that is contrary to policy for an extended period of time without being addressed, set the stage to confront the issue going forward.  Bring the issue to the employee's attention, including the fact that the employer is aware of past violations, and put the employee on notice that the behaviour will be subject to discipline if repeated.  Follow-up and document any repetitions. (Check out the decision in Leon's Furniture Limited for an example of how an employer successfully addressed a pattern of bad behaviour that had persisted for some time.)
Employers need to be aware that their actions (or inaction) can be the biggest impediment to removing unsatisfactory employees.  By ensuring that dismissals for "just cause" also consider the more stringent requirements under the ESA (i.e., serious, intentional misconduct or neglect that has not been tolerated ), employers can avoid issues under the Act as well as at common law.

Do you have questions about the difference between "just cause" and "wilful misconduct"?  Need advice or guidance on an issue related to dismissal?  Contact Lance Ceaser for expert assistance.



 



 

Friday 7 November 2014

ESA Complaint Found to Not Preclude Human Rights Application

While the Human Rights Code does provide a mechanism to prevent the relitigation of claims that may arise under a collective agreement or another statutory regime, it will not apply in all cases to prevent a claimant from making an Application to the Human Rights Tribunal of Ontario (the "Tribunal" or the "HRTO") based on the same or related circumstances.  Section 45.1 of the Code provides:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
The Tribunal's focus in these cases is on determining whether the other proceeding "has appropriately dealt with the substance of the application".  Mere overlap between the factual allegations will not suffice, unless the other matter has resolved the human rights aspects of the claim.

Recently, the Tribunal found that a claim of family status discrimination was not precluded by the employee having made a prior claim under the Employment Standards Act, 2000 (the "ESA").  In Bala v. TRQSS, Inc., the employee had advised her employer in January of 2013 that she anticipated having child care issues as her mother was becoming increasingly ill.  Although there was some discussion between employee and employer about the potential for trading shifts with other employees, it does not appear that any arrangements were put in place before the employee went on medical leave from mid-March until the end of April of 2013.  When the employee was supposed to return, she claimed one day of emergency leave to deal with child care, and was then absent for two more days.  The company advised the employee that she needed to attend work the following week or she would be deemed to have abandoned her position.  When she did not come to work for the first three days of the following week she was deemed to have resigned and her employment ended.

The employee made a claim to the Ministry of Labour for termination and severance pay under the ESA, but an Employment Standards Officer ("ESO") denied the claim, finding instead that the employee was disentitled as she had engaged in wilful neglect of duty.  She did not appeal the decision of the ESO to the Ontario Labour Relations Board.  The employee then brought an Application before the HRTO, alleging that she had been discriminated against on the basis of family status.  The employer asked the Tribunal to dismiss the application on the basis that it raised the same factual matters that had been addressed in the ESO's decision.

Following a summary hearing, the Tribunal rejected the employer's request to dismiss the Application.  The Tribunal noted that the remedial provisions of the ESA were not as robust as those found in the Code (at least in relation to orders to pay termination and severance pay), and that the ESO's decision did not reference the Code, the employer's duty to accommodate, whether the attendance policy was discriminatory, or any of the human rights issues that were raised by the Application.  Accordingly, it could not be said that the ESA claim had dealt "appropriately" with the "substance" (i.e., the human rights issues) of the employee's Application, and the matter should be allowed to proceed before the Tribunal.

While the Bala decision is fairly straight-forward on its face, it highlights an issue that employers should address when faced with a "proceeding" by an employee or former employee that may involve human rights issues, but which is not brought through the HRTO process.  Employers should ensure that any human rights claims are fully addressed in the initial proceeding, and dealt with effectively.  If the matter is resolved in a mutually acceptable manner, any settlement documentation should clearly address the fact that the human rights issues have also been fully and finally resolved.  Outside of these situations, arguing that a subsequent HRTO Application should be dismissed will be all but futile, and only serve to delay and drive up the costs of the litigation.

Do you have questions about procedure before the HRTO?  Wonder about the impact of various dispute resolution schemes on a claim?  Contact Lance Ceaser for advice and guidance.


 

Wednesday 5 November 2014

Employer's Knowledge of Disability Not Necessary to Establish Duty to Accommodate Disabled Employee - Or is it?

While the law tends to move incrementally, one decision at a time, slowly establishing "precedents" that later decisions will follow, the outcomes in some cases do not always appear to be consistent.  Not infrequently, a decision may appear to be an outlier, at least until one delves deeper to understand the basis on which the result differs from previous cases. 

In a post on this blog in August (here), I noted that an employer generally does not have an obligation to accommodate an employee until such time as the employee comes forward with a condition that requires accommodation.  In both Bish v. Elk Valley Coal Corporation and Huffman v. Mitchell Plastics, employers were not held responsible for failing to accommodate employees who failed to disclose their "disability". However, it should be noted that in both decisions, the underlying condition related to substance abuse.

In a recent decision of the Alberta Court of Appeal, however, the Court found that an employer's knowledge of the employee's disability was not an essential element of establishing whether there was prima facie discrimination.  In Telecommunications Workers Union v Telus Communications Inc., the employee was employed as a representative in a call centre operated by Telus.  He was a member of a bargaining unit represented by the TWU.  At the time of hiring, the employee had completed a Diversity Form, indicating "yes" to the question of whether he was a "person with a disability".  At no time, however, did Telus follow up with the employee to learn the nature of his condition or whether he required any form of accommodation. The employee was ultimately hired, but began displaying performance issues within the probationary period. On the evidence presented at grievance arbitration, it appears that the employee may have told his supervisors that the performance issues were related to his "condition", but it was not clear whether he expressly mentioned having Asperger's Syndrome.  The grievor was terminated, and the Union took his discharge to arbitration.

At labour arbitration, the Arbitrator determined that the employee did have a disability and that the issues with his performance which resulted in his termination were connected to that disability.  However, the Arbitrator also found that the employee had not provided sufficient information to the employer to trigger the duty to accommodate (or even to compel the employer to look further into his condition), and that the position in question could not be modified in a way that would permit the grievor to meet the requirements of the job.  The Union sought judicial review, but the Arbitrator's decision was upheld by a judge of the Court of Queen's Bench.
On appeal, the Union argued that the Arbitrator and the lower court had both misapplied the test for prima facie discrimination, and had failed to properly consider the test for establishing a bona fide occupational requirement.  The Court of Appeal reviewed the test for a finding of adverse effect discrimination, and found that the employer's knowledge was not a necessary element of that test.  Provided there was a negative consequence for the claimant from an apparently neutral rule, and the employee's disability contributed to that adverse outcome, the claimant has made out adverse effect (or indirect) discrimination.  In the case at bar, the employee's disability was a contributing factor in his inability to meet the employer's performance standards, which led to his discharge, so he had clearly made out a case. 
However, the Court then went on to consider the test for demonstrating a bona fide occupational requirement as set out in PublicService Employee Relations Commission v British Columbia Government and ServiceEmployees’ Union (often cited as “Meiorin”), and found that the employer could not have accommodated the employee in his current or any other position, given the effects of his disability.  Accordingly, although the Court disagreed with the Arbitrator's finding that there was no prima facie discrimination, the Court upheld the ultimate decision to dismiss the grievance.
The Alberta Court of Appeal's finding that an employer need not have actual knowledge of an employee's disability before being obligated to accommodate the employee initially appears to be supported by the decision of the Supreme Court of Canada in Moore v British Columbia (Education).  However, the Moore test for prima facie discrimination does not stand in isolation. One must still consider the test in Meiorin, and other earlier human rights decisions, such as Central Okanagan School District No. 23 v. Renaud.  In the latter case, the SCC commented on the duty on a complainant, whether in a case of direct or adverse effect discrimination.  At p. 994, the Court stated:
The search for accommodation is a multi-party inquiry.  Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.  The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley.  At page 555, McIntyre J. stated:
Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.
To facilitate the search for an accommodation, the complainant must do his or her part as well.  Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation.  Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.
Clearly, unless an employee explicitly draws the employer's attention to the need for accommodation (or even the fact of disability), there cannot be an obligation on the employer to take steps to accommodate the employee.  The employer's knowledge, therefore, is an element of the analysis (albeit not at the stage of establishing prima facie discrimination).
The result in the Telus case does line up with the outcomes in Bish and Huffman, but how the Court got there may have created unnecessary confusion in the law.  By suggesting that an employer's knowledge is not a necessary element of the discrimination and accommodation analysis, the Court may lead employers and HR professionals to believe that they need to ferret out any and all potential disability claims before they surface as human rights complaints.  The law does not go that far.  Employees still have an individual responsibility to be frank about the need for accommodation and to participate in the process.  That has been the law for over 20 years, and the decision in Telus doesn't change that.
Do you have questions about human rights issues or the scope of the employer's duty to accommodate?  Contact Lance Ceaser for expert advice and guidance.
 



 

Friday 31 October 2014

Labour Arbitrators Uphold Discharge of Facebook Bullies


Two recent cases illustrate that labour arbitrators are more than willing to consider misconduct via social media a serious offence.  In both cases labour arbitrators upheld the terminations of employees for incidents of online bullying and harassment.

In CEP, Local 64 and Corner Brook Pulp and Paper Limited, the grievor worked at a pulp and paper operation for almost 13 years.  On one occasion, the grievor was asked to work a casual shift cleaning up pumps on one of the paper machines.  While cleaning the area around the pump with a pressure washer, water from the washer hit the motor and grounded it.  The motor sparked before coming to a halt, and the grievor was frightened by the incident.  She believed that the work was dangerous, although she was assured that it posed no risk of injury.

A couple of days later, the day that an investigatory meeting was scheduled to occur, the grievor posted comments on Facebook abusing certain named managers and threatening violence against management for failing to take safety seriously.  Two of the managers named in her post were concerned enough to contact police, although no charges were laid.  A co-worker mentioned the post to the grievor, and she immediately took it down.  However, by then it had been posted for several hours and would have been visible to a number of other employees who were the grievor’s Facebook “friends”.

During an investigatory meeting, the grievor acknowledged that she had made and posted the comments, but minimized the degree to which they were intended to be threatening.  She also seemed less than remorseful, and more focused on finding out who had ‘ratted her out’.  The employer discharged the grievor, relying on her Facebook comments and a prior one-day suspension that she received for abusing a supervisor about one year earlier.  Her discharge was grieved.

At arbitration, the grievor testified that she had been diagnosed with anxiety earlier in the year, and had been prescribed anti-depressants.  However, over time she decided to stop taking the medication (although she did not consult a doctor before doing so).  She alleged that, as she weaned herself off the anti-depressants, she had difficulty sleeping, especially following the “safety incident” that had just occurred.  She said in the circumstances, she was “not in her right mind” when she made the post in question.  She acknowledged that the comments were inappropriate and could be taken as threatening, and offered an apology to the company and the managers she had named.

The Arbitrator reviewed the evidence and found that the so-called safety incident did not constitute provocation, nor was the grievor justified in being frustrated with how the matter was being investigated by the employer.  The Arbitrator carefully analyzed the content of the grievor’s post and found that it contained seriously offensive and threatening statements.  The Arbitrator also reviewed the arbitral cases involving the appropriate penalty for abusive and threatening Facebook posts.  While many were distinguishable, the precedents did establish that a single inappropriate post, if egregious enough, could constitute just cause for discharge.  Moreover, even in those cases where adjudicators had found that dismissal was inappropriate, the claimants often weren’t reinstated due to the damage to the employment relationship.

In considering mitigating factors, the Arbitrator did not accept the grievor’s medical explanation for her behaviour.  While the Arbitrator believed that she may have been having difficulty sleeping, it appeared that she was able to perform her job and the post was logically constructed, suggesting that she was not “crazy and delusional”, as she alleged.  Her 13 years’ service was a consideration, but given the severity of the posting, her disciplinary record, and the lack of any indication that the employment relationship could be repaired, the employer was found to have just cause to discharge the grievor.

In United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc., another employee was terminated because of a Facebook posting.  After a dispute about how a co-worker was performing her job as signalperson, a crane operator went home and posted disparaging comments about the co-worker on Facebook.  Although he did not name her, the co-worker was identifiable to other employees by the manner in which the grievor described her.  A second employee chimed in suggesting that the grievor should commit a physically aggressive act to the co-worker, to which the grievor responded by suggesting that a “violent and humiliating sex act be inflicted upon” the co-worker (to quote the Arbitrator’s description of the comments which were omitted from the decision).  The co-worker was alerted to the comments by another employee, and approached Industrial Relations the following morning.

It was notable that the grievor’s last comment was posted two hours after the first.  After he was called to a meeting with Industrial Relations the next day, but before the meeting, he deleted the post.  Because the grievor was not utilizing any privacy settings, the post was open to anyone who came upon his Facebook page. 

In the investigative meeting, the grievor acknowledged his wrongdoing, and offered to apologize to the co-worker.  Management advised him that this would not be a good idea as the co-worker was still very upset.  The grievor expressed concern that he didn’t want to lose his job.  He was not asked about any events that preceded or may have influenced his behaviour, and the employer ultimately concluded that this act of harassment was inconsistent with continued employment.  The grievor was discharged, and the matter proceeded to arbitration.  The other employee who commented on his post received a 10-day suspension.

The Union argued that the employer was not compliant with the Occupational Health and Safety Act in that its policy was not recently updated and available to employees in a conspicuous location, and therefore could not rely on its Bill 168 obligations to discharge the grievor.  It further argued that the grievor was truly remorseful and was a good candidate for rehabilitation, despite some past discipline.  The Union also argued that the employer did not consider the safety issue that had arisen between the grievor and his co-worker on the evening preceding the offensive posts when it decided to terminate his employment. 

Arbitrator Trachuk considered the evidence and rejected the Union’s position, finding that the largest aggravating factor in the case was the “vicious and humiliating” nature of the comments that were made.  Moreover, the Union’s argument that the employer should have considered the dispute between the employees before deciding to discharge the grievor was misguided:  even if the grievor was frustrated with the way the employer responded to the issue, that could not in any way explain or excuse his behaviour.

With respect to the fact that the harassment policy was ‘inaccessible’, the Arbitrator did express mild concern that it should be more readily available.  However, she observed that the grievor had received training, and went on to state:
… Furthermore, sexual harassment has not just become unlawful or unacceptable with the inclusion of Bill 168 in OHSA. It has been in the Human Rights Code for many years. I did not hear from the grievor but it would be highly unreasonable for him to claim that he did not know that publicizing such comments about a co-worker was harassment and contrary to the company’s policies.

Although the employer’s policy did not mention social media activity, the grievor would have known that he was making public statements about a co-worker to other co-workers, and that the types of statements he was making could attract discipline.

With respect to the employer’s decision to terminate rather than imposing further progressive discipline, the Arbitrator found:
… progressive discipline is not appropriate in every case. Some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men “joke” about the sexual violence they should inflict on a woman she can reasonably be concerned that they may actually hurt her.

In the result, the Arbitrator concluded that the grievor's 3 1/2 years' service did not deserve significant weight, and that discharge was the appropriate penalty in the circumstances.

 While it is not expressly stated in either decision, it appears that labour arbitrators are reaching the point where harassment, whether in person or through social media platforms, is viewed as an offence akin to theft:  an employer hardly needs to have a policy in order for employees to understand that abusive and intimidating behaviour directed at co-workers and managers will not be tolerated.  While employers still have obligations under the Occupational Health and Safety Act to ensure that employees do not engage in harassment or threats of violence, these decisions give some comfort that severe penalties can be imposed where this behaviour occurs.  As these two grievors learned, discharge is a likely outcome in the absence of very compelling mitigating factors. 

 Do you have questions about workplace harassment and how to address it?  Need assistance with appropriate policies or investigations?  Contact Lance Ceaser for assistance.

 

Thursday 30 October 2014

Legal Strategy as PR Strategy - Jian Ghomeshi's Dubious Lawsuit

As of this morning, the number of women making allegations of sexual violence against Jian Ghomeshi has grown to eight, with at least one person, actress and RCAF Captain Lucy DeCoutere, coming out of anonymity.  While I am a strong believer in the presumption of innocence, there is no question that this story has ceased to be about whether Jian Ghomeshi was fired for liking kinky sex (the way he has framed it in his Facebook post on Sunday), and is now about the emerging portrait of someone serially engaging in violence against women.  No charges have been laid, as of yet, but it stretches the imagination to believe that eight different women have all concocted similar stories in a malicious attempt to scupper Mr. Ghomeshi's career.  Whether or not he may face criminal prosecution remains to be seen.
 
And it is in this changing light that one begins to wonder if Mr. Ghomeshi's legal strategy isn't all part of the PR strategy that was implemented with his careful casting of the "truth" on Facebook.  Obviously, he has received advice from his "high-stakes" handlers at Navigator to get "out in front of the story" by formulating and offering a friendlier version of events.  But the lustre is coming off that narrative with each passing day and the mounting number of alleged victims.  So, what about this lawsuit that he started?  He wouldn't have sued the CBC if he and his legal team didn't think he had a case, right? 
 
Sadly, people assume that the mere commencement of an action in the courts must signal that the defendant has "done something wrong".  The fact is anyone can "sue" (start an action against) anyone else at any given time without ever having to establish that their claims have any merit.  Although bringing a matter to litigation is generally quite costly, it is a relatively simple and inexpensive process to start a legal claim.  And you can rest assured that it does have the impact of suggesting to the broader world that you have been wronged.  But what leads me to believe that Mr. Ghomeshi's lawsuit is more a PR than a legal play?
 
Let me start by saying that Dentons is a well-respected law firm.  I suspect their lawyers are smart, efficient, careful, and they know what they're doing.  But in this case they have brought a claim that has very limited chances of success.  Ever since the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, it has been the law of the land that matters arising out of an employment relationship that is governed by a collective agreement generally must be brought through the grievance and arbitration procedures, not the courts.  All such disputes fall within the exclusive jurisdiction of a labour arbitrator.  The decision in Weber was most recently upheld and applied in Ontario in George v. Anishinabek (Police Service).
 
And the decision in Weber is not limited to claims of unjust discipline or discharge.  It relates to any claim related to the employment and which can be said to fall within the 'four corners' of the collective agreement between union and employer. One of the earlier cases to consider Weber was the decision of the Ontario Superior Court of Justice in Ruscetta v. Graham.  In that case, an employee sued the CBC and its disability claims manager for their role in the denial of his claim for workers’ compensation benefits.  The disability claims manager had stated in correspondence to the Workers' Compensation Board (now the WSIB) that the employee was a “problem employee”, which was then picked up by the carrier of the CBC’s Long-Term Disability benefits (which were also denied).  The employee sued, alleging that the employer had made negligent misstatements and or defamatory comments, but also pursued a grievance with respect to the denial of LTD benefits.  On the basis of Weber, the Court found that the essential character of the dispute did arise out of the collective bargaining relationship and that the dispute was therefore within the exclusive jurisdiction of a labour arbitrator.  At paragraph 9 of the decision, the Court stated:

In short, [the] defamation complained of arises out of a communication from an employee of the CBC whose precise job was to communicate with the WCB regarding the claims of employees who are bound by the collective agreement and that communication was about the plaintiff solely in his capacity as an employee. As the collective agreement does govern issues such as injuries and LTD benefits, and the dispute arises in an employee-employer context, this court lacks jurisdiction to hear the matter.
 The motion to dismiss the action was granted.
 
With very few exceptions, defendants have been successful in arguing this jurisdictional issue to have actions in the courts dismissed.  Here are but a few examples:
 
Giorno v. Pappas – An employee brought a defamation action based on a memorandum that was circulated by another employee criticizing her work performance.  The plaintiff was a member of the bargaining unit represented by OPSEU, and also filed a grievance related to the issue, which was settled.  The Court determined that the subject matter of the action fell within the collective agreement and was subject to the exclusive jurisdiction of a labour arbitrator appointed under the agreement.  Therefore, the Court granted the defendants' motion to dismiss, which decision was upheld by the Court of Appeal.
 
Bujold v. Taylor – An employee brought a defamation action against his former supervisor on the basis that the supervisor leaked information provided by the employee to the effect that several named co-workers were using alcohol and drugs on the job.  The Court found that, as a unionized employee, the plaintiff was required to bring his dispute forward through the grievance and arbitration procedure, especially since part of his claim related to “loss of income” and was tantamount to a constructive dismissal claim.  The Court granted the defendants' motion to dismiss the action.

Soulos v. Leitch – The owner of a construction company brought defamation claims against members of the union, claiming that they had made untrue and disparaging comments about the company’s practices, and that the union had failed to live up to certain representations it made to the employer.  The Court granted the defendants' motion to dismiss the action as the allegations should have been addressed through the grievance and arbitration procedures under the Provincial collective agreement between the company and the union.

Byrne v. Ontario – An OPP Constable brought a claim for harassment, intimidation, and other tortious conduct against a number of fellow officers and management based on issues arising in the course of his employment, including the issuance of discipline and the imposition of performance management measures.  The Court found that grievance arbitration and/or the legislated scheme for disciplinary matters (under the Police Services Act) provided the exclusive means by which such disputes should be adjudicated.  Accordingly, the Court granted the motion to dismiss.

Walters v. Toronto Transit Commission – A bus driver brought a claim for malicious prosecution after the TTC instigated charges under the Highway Traffic Act following an accident the driver had in the course of his duties.  The Court found that framing the dispute as “malicious prosecution” did not take it outside the bounds of the collective agreement.  The employee had the ability to challenge any discipline that was imposed or otherwise grieve the issue of the TTC pursuing charges, and the issue should be dealt with through labour arbitration.  The Court granted the defendants' motion to dismiss the action.

Paonessa v. Lifemark Health Management Inc. – An employee who was terminated due to physical inability to perform the essential functions of his job brought a claim against the company that performed the Functional Abilities Evaluation that found him unfit.  The plaintiff's discharge was grieved and arbitrated, resulting in a settlement.  He was ultimately terminated a second time, due to an alleged breach of the settlement, and that termination was also grieved and the grievance settled.  The Court granted the defendants' motion to dismiss the action on the basis that the issue arose under the collective agreement and the arbitration process provided an “adequate remedy” to the plaintiff.
However, it must be noted that the defendant does not always succeed.  In one of the earliest post-Weber decisions, the Ontario Court of Appeal found that certain claims by a unionized employee could be brought in the courts.  In Piko v. Hudson's Bay Company, the employee had been found to have committed fraud, and her employer initiated criminal charges.  The Crown eventually withdrew the charges.  The employee brought a grievance challenging her discharge as being without just cause, but she also commenced a claim for malicious prosecution against the employer.  The Hudson's Bay Company brought a motion to dismiss the action on the basis that the subject matter of the dispute arose under a collective agreement and should be dealt with through arbitration.  The motions judge agreed, and dismissed the action.  However, Piko appealed.  At the Ontario Court of Appeal, the Court had to consider the impact of Weber, and observed:
Nonetheless, Weber also recognizes that the collective agreement does not govern every dispute between an employer and an employee. Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes.
The Court considered the relevant provisions of the collective agreement, and found that the essential character of the dispute did not relate to the agreement because of the employer's actions:
But her claim that the Bay maliciously prosecuted her in the criminal courts lies outside the scope of the collective agreement. The Bay itself went outside the collective bargaining regime when it resorted to the criminal process. Once it took its dispute with Piko to the criminal courts, the dispute was no longer just a labour relations dispute. Having gone outside the collective bargaining regime, the Bay cannot turn around and take refuge in the collective agreement when it is sued for maliciously instituting criminal proceedings against Piko.

In the result, the Court of Appeal allowed Piko to pursue her tort claims against her former employer.

Although relatively rare, the Piko decision has been relied on in other similar cases.  See for example, O’Loan v. Risinger, in which the actions of the defendants were found to be "personal" and unrelated to the plaintiff's employment, even though they all worked together in the same workplace.

So, does Mr. Ghomeshi's team really think it can shoe-horn its case into the exception created by Piko?  Can it point to some way in which the CBC has stepped "outside the collective bargaining regime" and brought itself under the 'general law' applied by the courts?  On the pleadings, there doesn't appear to be a suggestion that the CBC went beyond its responsibility and authority as Mr. Ghomeshi's employer in obtaining and acting on the personal information he provided.  The CBC had to make an assessment of whether the allegations, which had been bubbling for months, represented a real risk of damage to the broadcaster's reputation and brand.  As an employee, and one who was a very public face of the CBC, Mr. Ghomeshi had a responsibility to not engage in conduct (whether in the workplace or outside of it) that could damage his employer's business interests.  In short, the alleged tortious conduct is all part and parcel of the CBC managing the employment relationship with one of its "stars".  This undoubtedly would fall within the CBC's management rights under its collective agreement, including its authority to impose discipline for misconduct.  The fact that Mr. Ghomeshi has stated an intention to challenge his dismissal under the collective agreement bolsters this conclusion.  Characterizing the disclosure of personal information as being an incident of "common interest privilege" is just one way of reframing a very common workplace issue as a legal one - the situation is no different than a million other cases where an employee advises his/her employer of work-related issues before they come to the employer's attention in an effort to mitigate the negative consequences.  If "privilege" attached to these types of disclosures, employers would never be able to rely on statements made by an employee in the course of an investigation into alleged bad behaviour.  I doubt very much the courts want to set that precedent.

In short, I don't see how Piko could apply to this fact pattern, and I anticipate that the CBC will make the argument that it does not, in an effort to have the action dismissed.  Mr. Ghomeshi's legal team undoubtedly knows this, too.  That being said, it's entirely possible that commencing the court action really was part of the PR strategy to start with, and has already served its desired purpose.

Do you have questions about a legal dispute arising in the workplace?  Want to know whether it belongs in the courts?  If you have any questions about workplace law, don't hesitate to contact Lance Ceaser for assistance.