Tuesday 27 May 2014

When Must an Employer Accommodate Parental Obligations? - The Test Has Changed

The legal landscape continues to evolve with respect to how an employer should respond when confronted with an employee's request to accommodate parental obligations.  Until recently, many employers were following the guidance of the B.C. Court of Appeal in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society (“Campbell River”), which found that an employer need only accommodate an employee “when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee” (para. 39).  However, two recent decisions of the Federal Court of Appeal (A-G of Canada v. Johnstone (“Johnstone”), and Canadian National Railway Company v. Seeley (“Seeley”)) provide a different, less restrictive test.

In Johnstone and Seeley, the complainants were both federal employees (one with the Canadian Border Services Agency ("CBSA"), and the other employed by the Canadian National Railway ("CNR")) who sought and were denied accommodation for their childcare needs after returning from pregnancy leave.  While CNR had argued that it had offered accommodation to the point of undue hardship (by extending the date for Ms. Seeley to return to work after being recalled to the Vancouver terminal), the CBSA had simply refused Ms. Johnstone’s proposed accommodation on the basis that it had no legal obligation to accommodate her parental obligations (relying on the test in Campbell River).  Both complainants were successful at the Canadian Human Rights Tribunal and on judicial review to the Federal Court.  At the Federal Court of Appeal, argument centred on exactly what was protected by “family status”, and what test should be applied in determining whether the employer had discriminated against an employee on this ground.

The Federal Court of Appeal upheld the decisions below (which had rejected the Campbell River test for prima facie discrimination), finding that there was no principled basis for imposing stricter conditions on a claimant seeking protection due to their family status than would apply under any other protected ground.  In the Court’s opinion, the test in Campbell River effectively narrowed “family status” to the point where very few individuals could ever make out a prima facie case.  This was not consistent with the remedial purpose of human rights legislation, which is to be interpreted broadly and generously to ensure that rights do not become illusory.  At the same time, however, the Court was prepared to take a more contextual approach to the issue of proving family status discrimination.  Matters of personal choice, such as children’s extracurricular activities, would not be counted among parental obligations requiring accommodation. At paragraph 71, the Court stated:
The childcare obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.
However, the Court was not prepared to only protect employees from “serious interference” with “substantial” parental duties.
Instead, the Federal Court of Appeal established the following test for a claimant to establish a prima facie case of discrimination on the basis of family status:
(i)                  that a child is under his or her care and supervision;

(ii)                that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

(iii)               that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

(iv)              that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
If the employee can establish these four factors, then it falls to the employer to establish that it made all reasonable efforts and is unable to accommodate the employee’s needs without incurring “undue hardship” (on the basis of the so-called Meiorin test).
While the decisions in Johnstone and Seeley do move away from the narrow test applied by the B.C. Court of Appeal in Campbell River (and followed by many labour arbitrators and tribunals), the Federal Court of Appeal has steered a course that appears to balance legitimate parental duties against the employee’s responsibility to pursue available alternatives before requesting modification of workplace rules or policies.  Only where this balancing favours the family obligation is the employer’s duty engaged.
This decision emanates from the federal jurisdiction, so it remains to be seen whether it will be applied to claims under the Ontario Human Rights Code.  However, given the confusion in the case law from various boards, tribunals and courts across the country, there seems a strong likelihood that it could become the governing approach on this issue.  Only time will tell.
Do you have family status issues in your workplace?  Need advice and guidance?  Feel free to contact Lance Ceaser for assistance.

Tuesday 20 May 2014

WSIAT Strikes Down Exclusion of Non-Traumatic Stress Claims Based on Charter Violation

In an April 29, 2014 decision, running to 79 pages long, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard a constitutional challenge of subsections 13(4) and (5) of the Workplace Safety and Insurance Act.  Under those provisions, employees can only claim compensation for mental stress if it arises as “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”.  The claimant was a nurse who claimed that she had suffered from a mental disability following years of abusive and humiliating behaviour by a doctor at the hospital where she worked.  By virtue of the exclusionary language (and the Workplace Safety and Insurance Board’s Policy 15-03-02 (“Traumatic Mental Stress”), her claim was dismissed.  As a result, the employee brought a challenge under the Canadian Charter of Rights and Freedoms (the “Charter”) on the basis that the legislation discriminated against her, contrary to section 15, and that this limitation on her right to equal treatment could not be justified.
After an extensive review of the evidence from two experts on the causative relationship between workplace stress and mental illness, the WSIAT Panel concluded that the claimant had established that there was a moderate association between workplace stressors and forms of illness, such as depression and adjustment disorder.  Moreover, the Panel accepted that individuals with mental illness brought on by longer-term stressors (such as a pattern of workplace bullying) did experience substantive discrimination in being excluded from coverage.  While individuals with physical injuries that arose due to prolonged exposure or gradual onset were protected from income loss, individuals with mental disabilities did not receive the same treatment.  The Panel also rejected the argument on behalf of the Attorney-General that these types of claims were excluded due to the virtual impossibility of being able to establish that they were caused or significantly contributed to by workplace issues. The Panel observed that establishing a causal link between work activities and other physical ailments can be equally challenging, but that this is no reason to exclude coverage.
In short, the Panel found that the denial of equal treatment for claimants with non-traumatic stress conditions was contrary to the Charter, as it relied on or supported stereotypes of persons with mental disabilities, and that the Attorney-General had not established that it was a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.   As a result, Tribunal declining to apply subsections 13(4) and (5) of the Act, or the Traumatic Mental Stress Policy.  Given that the Panel had previously held that the claim would succeed, but for those provisions and the Policy, the Tribunal upheld the appeal and the claimant was granted entitlement to benefits.
As was argued by the Attorney-General at the hearing of this matter, there is fear that permitting WSIB claims of this nature will “open the floodgates”.  However, it is too early to tell.  It should be acknowledged that prior to 1997 these provisions were not in the Act, and it does not appear that mental stress claims threatened the financial viability of WSIB at that time.  It is also quite possible that the Government will take this matter to court on judicial review.  Even so, the courts tend to show great deference to the Board and the Tribunal due to their special expertise.  Stay tuned for any further developments …
Do you have a WSIB issue or need general advice on the Act?  Feel free to contact Lance Ceaser at Ceaser Work Counsel for cost-effective, expert guidance.



 

Thursday 15 May 2014

The Enforceability of Grievance Settlements – A Good News/Bad News Story

Two recent decisions from administrative decision-makers shine a light on whether a settlement among an employer, an employee (or grievor) and the employee’s trade union is the end of the story or not.  Just how enforceable are the terms of those agreements? Sadly, it depends on the terms of the agreement and the nature of the dispute.

The Globe & Mail terminated the employment of long-time correspondent Jan Wong (the “Grievor”) in or about late 2007. Her union, the Communications Energy and Paperworkers Union of Canada, Local 87-M (the “Union”) filed grievances on her behalf challenging the employer’s denial of sick leave and claiming that her discharge was without just cause.  In the course of an arbitration hearing on the grievances, the parties engaged in negotiations.  The Grievor was represented by the Union’s counsel, but had also retained her own lawyer, who provided her with individual advice during the negotiation process.  After passing various versions of a Memorandum of Agreement (the “MOA”) back and forth, the parties arrived at a settlement of the grievances.  As part of the MOA, the parties agreed to a time-limited non-disparagement clause, as well as other provisions limiting disclosure of the terms of settlement:  the Grievor was permitted to disclose the employer’s acknowledgement that she had been ill and unable to attend work, but neither party was “to disclose the terms of settlement” aside from that fact.  The MOA also dealt with the consequences of a breach: 
Should the Grievor breach the obligations set out in paragraph 5 and 6 [dealing with non-disclosure], Arbitrator Davie shall remain seized to determine if there is a breach and, if she so finds, the Grievor will have an obligation to pay back to the Employer all payments paid to the Grievor under paragraph 3.
The Globe & Mail was aware during negotiations that the Grievor planned on writing a book about the situation, so the non-disclosure language was a key element of the MOA from the employer’s perspective.  In 2012, the Grievor self-published a book, which included references to the fact that the employer had made a sizeable payment to her, although she did not indicate the actual amount she received.  The employer brought the matter back before Arbitrator Davie to obtain an order that the Grievor repay the moneys.  The Grievor offered testimony that she thought she was only prohibited from disclosing the “precise terms” of the settlement, and that she was unaware that she could not even disclose the fact of a payment.  She had a lawyer review her book prior to publication for any libel concerns, but never asked the Union’s counsel or her own lawyer whether the content might violate the non-disclosure provision of the MOA. 
 
At the arbitration hearing, the Union argued that the Grievor’s breach of the MOA was, at most, technical, and that the repayment provision should not be enforced in any event as it was punitive and unconscionable.  Arbitrator Davie rejected both of these arguments, citing jurisprudence from arbitrators, the Ontario Labour Relations Board and human rights adjudicators that stood for the proposition that freely negotiated settlements should be upheld in the interests of labour relations and to not discourage other parties from reaching compromise.  Moreover, non-disclosure provisions “are also a recognition of the fact that parties settle grievances for a variety of reasons which may be unrelated to liability or wrongdoing” (para. 26).  The Arbitrator also rejected the suggestion that the MOA was unenforceable, as the Grievor had experienced legal representation, her own lawyer, and was sophisticated enough to participate in the negotiation of the MOA.  Importantly, the Arbitrator found (at para. 48):

At the hearing the grievor testified she misunderstood the scope of her nondisclosure obligations under the MOA.  If that is the case, responsibility for that rests with her.  In the circumstances of this case it would be inappropriate to set aside a comprehensive settlement, negotiated over a lengthy period of time, which in clear, unambiguous and objective language sets out what the nondisclosure obligation entails merely because of the grievor’s subjective opinion and what she “thought” her nondisclosure obligations to be.
In the result, the Arbitrator found that the disclosure of a payment was in violation of the non-disclosure provision and enforced the terms of settlement, ordering the Grievor to repay the monies she had received from the Globe & Mail. [Globe and Mail, a Division of CTV Globemedia Publishing Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 87-M, Southern Ontario Newspaper Guild (Breach of Memorandum Grievance) (2013), 233 L.A.C. (4th) 265 (Davie).  Note:  given that the Grievor brought an application for judicial review in relation to a preliminary decision of Arbitrator Davie already, it's entirely possible that the final decision will also go before the courts.  Stay tuned...]

In the decision in Knipfel v. The Regional Municipality of York (“Knipfel”), however, another employer’s attempt to rely on the terms of a negotiated settlement were not so successful.  In Knipfel, the employee was a paramedic whose employment was terminated in August 2012.  His union filed a grievance on his behalf, and the employee also made an Application to the Human Rights Tribunal of Ontario (the “HRTO” or the "Tribunal").  Ultimately, the employee (the “Applicant”), the Municipality, and the Union negotiated Minutes of Settlement (“MOS”) resolving both the grievance and his Application to the HRTO.  As part of the MOS, the employer agreed to provide a neutral employment reference to the Applicant.  The MOS also provided that its terms constituted “full and final settlement of any existing, planned or possible complaint(s) against, including any outstanding or contemplated Human Rights Tribunal application, the Employer or its representatives.”  The Applicant also signed a Release, which provided that the payment contemplated by the settlement was in consideration of “full and final settlement of any existing, planned or possible complaint(s) against [the employer] under the Ontario Human Rights Code up to the date of execution of the Release, arising out of or in respect to his employment.”  The Arbitrator who had been scheduled to hear the grievance was to “remain seized” of any issues arising from the MOS.
Subsequently, the Applicant brought a new Application to the HRTO, alleging discrimination in the form of a negative employment reference he had received from the Municipality.  The employer argued that the Application should be dismissed as the Applicant had signed a Release, and the Application was therefore an abuse of the Tribunal’s process.  The employer also argued that the parties’ agreement that the Arbitrator “remain seized” (i.e., was to be the sole adjudicator of any issues arising under the MOS) meant that the HRTO was without jurisdiction to hear the Application.

Vice-Chair Sheri Price dismissed both arguments.  First, it was clear on the face of the Release that it was only to cover complaints that related to events “up to the date of execution of the Release”, and not any alleged future breaches of the Human Rights Code.  It would be contrary to public policy to allow an individual to waive or contract out of his or her rights prospectively, so the Release could not have this effect.  With respect to the argument that the Arbitrator had exclusive jurisdiction, the HRTO pointed out that the MOS related not only to the Applicant’s discharge grievance, but also resolved his Application to the Tribunal.  Given that his allegations amounted to a claim that a prior settlement of a Human Rights Code complaint had been breached, section 45.9 of the Code granted the Tribunal jurisdiction to hear and decide that issue.  Once jurisdiction is granted to the HRTO, parties to a private agreement cannot deprive the Tribunal of its statutory jurisdiction.  Even if the issue of the alleged violation of the MOS had been brought before the Arbitrator, the HRTO would still have concurrent jurisdiction under the Code.
In the result, the employer’s request to dismiss the Application was denied and the Application was permitted to proceed through the HRTO process.

The lesson to be learned?  When crafting settlement documentation, it is generally advisable to get legal advice, particularly where large sums of money may change hands, the underlying dispute needs to be kept confidential, and/or a human rights issue is involved.  Obviously, any non-disclosure language should be paired with a clause that identifies the consequences of a breach.  However, it’s also wise to consider whether to require full repayment, or some lesser sanction for a violation of the agreement.  There have been cases where arbitrators have reduced the amount of repayment on the basis that the clause in question amounted to an unfair penalty.  On the other hand, ‘bundling’ the settlement of a grievance together with the resolution of an HRTO Application may have an unforeseen downside.  Before entering into a global settlement, discuss your options with counsel.
If you have a question about this post or have a labour relations issue you’d like to discuss, please don’t hesitate to contact Lance Ceaser.