Friday 26 September 2014

The Evolution of the Family Status Analysis

Further to my post of May 27, 2014 (here), it appears that the analytical approach to family status discrimination claims demonstrated in Campbell River is on its way out.  As explained in that earlier blog, in Campbell River, Arbitrator Lanyon set a higher bar for establishing that a workplace rule or condition of employment was discriminatory on the basis of an employee's family status.  Prima facie discrimination would only exist where the rule or condition in question "results in a serious interference with a substantial parental or other family duty or obligation of the employee".  While that approach was adopted in a number of cases in various Canadian jurisdictions, there had continued to be a great deal of debate about whether the threshold for establishing family status discrimination should be different from (and higher than) for other protected grounds.  The Campbell River analysis took a big hit when the Federal Court of Appeal released its decisions in Seeley and Johnstone earlier this year.

Now, the Alberta Human Rights Commission has also sided with the Federal Court of Appeal, and has applied the Johnstone/Seeley analysis in a recent decision.  In Clark v. Bow Valley College, the complainant was a nursing instructor.  She was to start pregnancy leave in February 2010, but her baby was born 7 weeks premature.  As a result, her pregnancy leave commenced in early January 2010.  However, no one advised the complainant that they had retroactively adjusted the dates of her leave and that she would be expected to return to work in January 2011.  Unaware of the change, she had made childcare arrangements for her son to start in February 2011.  In November 2010, she learned that the employer had scheduled her return to work for January 3, 2011, and immediately contacted the College to advise them of the challenge this posed.  Over the next few weeks, she communicated with various representatives of the employer, in an effort to be granted vacation or unpaid leave of absence for the month of January.  However, her requests were denied (due to operational requirements), and she was told to 'avail herself' of childcare services and return to work, or she would be deemed to have abandoned her position.  When she was unable to arrange any earlier childcare for her son, her employment was terminated by the College.

The Chair hearing the complaint applied the approach in Johnstone/Seeley, and found that the complainant had made out a case of prima facie discrimination.  The primary dispute between the parties was whether the complainant had made reasonable efforts to resolve the childcare problems herself before requesting accommodation from the employer.  While there was little evidence about why the complainant's husband could not assist in caring for their son (and the husband did not testify about his unavailability), the Chair accepted as fact that the complainant's spouse did not represent a reasonable alternative in the circumstances. He was working at the time, albeit part-time, and could not be expected to quit his job in order to assist with the care of the child.  Given that the employer had granted the complainant only a few days' extension of her return to work, and had provided her with brochures for two childcare providers, but without engaging in any meaningful discussions about how her situation could be resolved, the Chair found that the employer had not accommodated her family status to the point of undue hardship.

Given this decision, and the growing tide of cases that are leaning in this direction, employers would be well-advised to take requests for family status accommodation seriously, particularly before considering ending the employment relationship.  When an employee approaches the employer with a request for an extension of leave or other modifications to the terms of employment, ensure that you gather sufficient information to assess whether the employee has made "reasonable" efforts to find a solution to their childcare problem.  Be aware: the employee need not come up with a perfect solution, but must only make adequate effort.  The personal circumstances of the employee, such as the availability of a spouse or other family member, the costs associated with different childcare options, or any medical issues experienced by the child, must all be weighed in assessing what is reasonable.  Assuming that the employee has made appropriate efforts, the focus must then shift to creative solutions that the employer can support, such as adjusting hours of work, permitting a return to work on a part-time basis, assisting with the costs of childcare (at least on a temporary basis), or extending the employee's leave while they make necessary arrangements.  Remember that the "undue hardship" threshold is very high.  If, and only if, no possible accommodation can be identified or implemented without incurring undue hardship will the employer be held blameless.
 
Do you have questions about the test for family status discrimination or the duty to accommodate?  Do not hesitate to contact Lance Ceaser for additional information and guidance.
 
 



Monday 22 September 2014

Failure to Follow Procedure for Asbestos Removal and Attempt to Cover Up Mistake Constitute Just Cause

Everyone makes mistakes.  It's a truism, but one that labour arbitrators give weight to when considering whether employee conduct amounts to just cause for discipline or discharge.  However, when it comes to safety in an already dangerous environment, the margin for error is much narrower.
And an arbitrator will be reluctant to reinstate an employee who, given an opportunity to come clean, persists in a version of events meant to minimize or deny any wrongdoing.

In Ontario Power Generation v. Power Workers Union (Grievance OPG-NT-1855), the grievor was a Front-Line Manager Assistant ("FLMa") on a roving outage crew.  The grievor and his crew reported to a Front-Line Manager and were responsible for performing working on OPG's facilities during scheduled outages. On one occasion, the crew was assigned to remove and replace gaskets on the Unit 1 generator end doors at the Pickering nuclear facility.  The grievor was aware that the gasket in question might contain asbestos, but upon visual inspection he concluded that it was a different type of gasket ("blue guard") which did not contain any asbestos.  The grievor directed his crew to remove the gaskets with hand tools, but when that proved difficult, he gave them the go-ahead to use power tools to grind the gaskets off the steel doors.  During this grinding procedure, an employee on another crew complained of the dust and his concern that the gaskets might contain asbestos.  Although the same employee complained three times, and the issue was brought to the grievor's attention, no formal complaint or documentation was created, the grievor did not check the OPG systems to confirm the type of gasket involved, and his crew was simply told to sweep up the dust created by the grinding.  Of course, throughout, the grievor and his crew did not utilize any of the required asbestos-containment techniques that would be required if work was being done on friable asbestos.

The employee who had complained, renewed his objections the next day, and his concerns ultimately reached OPG management.  The matter was investigated, and the grievor was called in to explain what had occurred.  The grievor confirmed that he had visually identified the gasket as not containing asbestos, and claimed that he had seen a "blue guard 3000" label on the gasket that was being removed - something which he later claimed to have been 'confusion', once it was clear that the gasket did, in fact, contain asbestos.  The grievor and his boss, the FLM, were both terminated, and another FLMa was given a 10-day suspension for their negligent handling of the work and the safety complaint.

Arbitrator Chris Albertyn recognized that the employer was not without some blame.  OPG was supposed to have created an inventory of all items that contained asbestos in the workplace, and was supposed to be in the process of replacing all asbestos-containing materials with non-asbestos substitutes, but had not met these commitments.  That being said, the grievor was a well-trained, licensed tradesperson.  He was aware of the risks presented by asbestos, having just completed a refresher on the issue.  The evidence established that the grievor never made an effort to confirm his visual identification of the gasket, even after a safety concern had been raised by a worker.  Instead, he took steps to avoid the necessity of an investigation, thereby putting his decision-making beyond scrutiny.  His alleged confusion about seeing a "blue guard" label was simply not convincing.  In the result, the arbitrator concluded:
... while I can see the grievor faced difficulty determining the true composition of the gasket in the early stages and that his blameworthiness then could be tempered with the institutional failures of the company and the other mitigating circumstances, that changed later. The manner in which the grievor responded towards the end of the day, and the next day, to the worker’s safety complaint and to the risk of asbestos contamination showed him to act in a manner best served to avoid difficulty for himself. He was willing to put at risk the health and safety interests of the employees for whom he was responsible, as for those coming on shift after him.
Although he had 7 1/2 years' service and no discipline on his record, Arbitrator Albertyn stated:
When an employee disregards the appropriate safety checks, when the risk of harm is substantial, as I have found to be the case here, the consequence to the employee should be severe, to reinforce the importance of safety and adhering to the safety rules and procedures.
In the result, discharge was the upheld as the grievor had not only been negligent, but had tried to cover up the possibility that he had misidentified the gasket, thereby exposing his co-workers to significant risk of harm.

While mistakes may be forgivable, making the conscious choice to ignore such an error, thereby exposing oneself and others to health and safety hazards, is not so easily overlooked.  Where an employee has responsibility for ensuring that work is performed safely, has the requisite training and resources, and still makes poor (i.e., unsafe) choices, the employment consequences need to be relatively harsh, if not dire.  Where mistakes are compounded by a lack of candour or an effort to cover up the error, the necessary trust in the employment relationship may be irrevocably damaged.  In those situations, employers need to consider the message that it is sending to the rest of the workforce about the importance of health and safety.

Do you have a question about health & safety in the workplace?  Trying to figure out how to respond to safety violations?  Feel free to contact Lance Ceaser for assistance.
 





 

Tuesday 16 September 2014

Contractor Entitled to "Reasonable Notice" Due to Economic Dependence

When it comes to assessing whether an individual providing services is employed by an employer, or an "independent contractor", the decision will often turn on an assessment of the degree of control that the alleged employer exercises within the relationship.  However, equally important is the degree of economic autonomy of the purported contractor, regardless of how the parties have structured the arrangement.  In a recent decision of the B.C. Supreme Court, an employer in the trucking industry learned that the form of the contractual relationship has very little influence on that assessment.

In Khan v. All-Can Express Ltd., the employing company ("Ace") was a subsidiary of a larger logistics enterprise that operated a courier business in British Columbia.  Ace retained primarily owner-operators to cover its routes, including the plaintiff, Mohammed Khan ("Khan"), but did employ at least 3 drivers, as well.  Khan owned and was responsible for all costs associated with his truck, had to provide a relief driver if he was to be absent, and filed his income taxes as a 'self-employed' individual.  He was paid on a 'piece-work' basis (i.e., by the loads he carried).  He signed a contract for services (affirming his self-employed status) when he commenced driving for Ace, and also agreed to the terms of a non-competition agreement with Ace.  The Court also heard evidence that Khan worked full-time hours for Ace, wore a uniform provided by the company and carried a company-supplied cell phone, was bound to follow company policies, and his truck bore a company logo.  After 5 years with Ace, Khan was terminated following three incidents in which he was alleged to have tried to divert business to another logistics company.

Before weighing the evidence, the Court observed that the common law "has evolved into a more nuanced state, one that reflects the reality of an economy where many workers perform services for others in arrangements that are specifically structured such that they are neither employer - employee relationships nor are they properly characterizable as independent contractor relationships" (para. 21).  In effect, rather than recognizing only employment and independent contractor relationships, the law now places relationships at varying points along a continuum.  Along that spectrum, the courts have recognized intermediary relationships, sometimes called "dependent contractor" arrangements.  After reviewing the evidence, the Court concluded that Khan was in such a dependent contractor relationship with Ace, and that he was, therefore, entitled to reasonable notice of termination of the contract.  With respect to the form of the relationship the parties had documented, the Court said:
I realize that the contract which the plaintiff signed at the time of commencing his relationship with Ace clearly stipulates that he is an "independent contractor". With respect, that is not necessarily determinative of the issue, if the consequence of the plaintiff signing the document is to significantly circumscribe the rights available to him at law in the event of termination. In the contract at hand, while the label is spelled out, important consequential conditions which the defendant seeks now to enforce, particularly that the plaintiff can be terminated without notice, are not articulated. The document specified some terms, such as the requirement that the plaintiff would provide his own vehicle, that he would file his income tax, indicating a status of self-employed and so on. The plaintiff can be taken to have understood those terms. However, I am not convinced that it automatically follows that he must be bound by conditions that were not set out in the agreement.
After finding that Ace did not have just cause to end the contract without notice (because of its failure to properly investigate allegations of breach of fidelity), the Court held that Ace should have provided Khan with 4 months' notice of termination.

The decision in this case reflects a growing recognition of how the provision of services has changed over time.  The form of the relationship will typically take a back seat to the realities of the arrangement, particularly where the party providing his or her services is not overly sophisticated and the other indicia demonstrate control and dependency.  Where the employing entity maintains significant control, both in terms of the work and economically, the courts will find a way of 'implying' an obligation to provide reasonable notice of termination into the contract.  However, it may, in some circumstances, be possible to avoid this result by incorporating a termination provision in the contract - something which was not done in the Khan case.

Before entering into independent contractor relationships, it is important to assess both the benefits and the risks involved.  A mischaracterization of the arrangement could result in substantial costs to the employer, as well as heightened regulatory scrutiny. 

Do you need advice on your contractual relations with service providers?  Need help determining whether to retain a contractor or hire an employee?  Feel free to contact Lance Ceaser for guidance.




 



Monday 8 September 2014

How Not to End a Fixed-Term Employment Agreement

Typically, when an employer and employee agree to a fixed-term arrangement, the employee has no entitlement when the agreement expires.  In effect, no notice or payment in lieu of notice is required on the theory that the employee has effective notice of the end of the agreement from the start.  However, often parties will agree to the terms on which the contract may be terminated prior to its end date.  In one recent decision of the Alberta courts, an employer learned the hard way how not to end a temporary arrangement on the eve of its expiry.

In Thompson v Cardel Homes Limited Partnership, the employer had retained a senior executive on two consecutive, fixed-term contracts.  The first contract was for two years, and before its expiry the parties had agreed to a second one-year term.  In the latter agreement, the employee would receive no notice or severance upon expiry of the contract.  However, the agreement did provide that the employer would provide the employee with four (4) weeks' notice if the contract was to end early, and the employee was also entitled to receive a severance payment equivalent to twelve (12) months' salary.  One month prior to the end of the agreement, the employer advised the executive that his employment would not be extended and that he need not attend work for the remainder of the contract term.  He was also directed to return certain company assets (keys, key card, computer passwords) to the employer, and his boss took over his duties effective immediately.  The employer also told third parties that the employee was no longer with the company. The employee sued, claiming that he had been terminated early without cause and should receive the early termination payment described in his contract.

The trial judge concluded that the employer had not simply advised the employee of its intention to not renew the contract, but had taken active steps to immediately end the relationship without cause.  In the result, he was found to be entitled to the payment of 12 months' salary.  The employer appealed the decision, but was unsuccessful.  The Alberta Court of Appeal found that the employer had constructively dismissed the employee by not allowing him to attend the office or perform his duties, which were assumed by his manager, for the remaining term of the agreement. By asking the employee to return all company property in his possession, arrange to pick up his personal effects, and by assigning his functions to another employee of the company, the employer had made clear that the arrangement was at an immediate end.  In upholding the trial judge's decision, the Court of Appeal stated:
By not obtaining the employee’s agreement to a parting of the ways prior to the end of the contract, the employer denied the employee the opportunity to complete his tour of duty and all that that entails in an employment relationship. When no attempt is made by an employer to obtain an employee’s consent to early termination of a fixed-term contract, the employer risks a finding of termination. When there is evidence of a unilateral change in the terms of employment, the employer runs the risk of being found by a court to have terminated the employee without cause. These are the findings the trial judge made in this case. And those findings disclose no error. Nor are they unreasonable.
The Court's statement serves as good advice to other employers looking to bring a fixed-term agreement to an early end.  If the employer in this case had wanted to provide the departing executive with an opportunity to look for other work (as they argued), it would have been advisable to discuss that with the employee and reach a mutual agreement.  Having failed to do so, the employer was on the hook for the entirety of the early termination payment.

Do you have questions about fixed-term agreements or how to end them properly?  Feel free to contact Lance Ceaser for assistance.

Friday 5 September 2014

Employer Violates Employee Copyright by Using Photograph on its Facebook Page

It is generally accepted that an employer holds the copyright in works created by an employee "in the course of ... employment".  That assumption is reflected in subsection 13(3) of the Copyright Act, which reads:
Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, ...
This section of the Act creates an exception to the general rule that copyright resides with the person who made the work in question, to ensure that the employer gets the benefit of work that emerges from the employment relationship.

However, in a recent case from British Columbia, Mejia v. LaSalle College International Vancouver Inc., one judge has determined that an instructor at a private college was the holder of copyright in a photo that was posted by the college to its Facebook page, even though the picture depicted a student and was taken within a classroom.  The issue arose as a collateral claim in a wrongful dismissal action brought by the instructor, who was terminated for cause.  The court concluded that the college did have cause to end the employment relationship (because of disparaging comments the instructor made to students in a workshop) and that the employer was not liable in defamation for certain comments that were made about the termination of the plaintiff.  The Court also found that the instructor had defamed the college, by protesting outside the college for four (4!) months wearing a sandwich board which stated "Teacher fired for demanding LaSalle stop breaking the law", and ordered $1,500 in damages against him.

With respect to the copyright issue, the Court reviewed the relevant statutory provisions and focused on the interpretation of the phrase "in the course of ... employment".  Although the college relied heavily on the circumstances of the photo (of a student, in a classroom, modeling a project completed by another student, etc.), the Court placed greater weight on the nature of the plaintiff's employment duties:

The plaintiff was hired by LaSalle as an instructor and not as a photographer. While an instructor "proceeding generally about his master's affairs" could possibly be engaging in a wide variety of activities, whether paid or unpaid, I do not view the taking of photographs to be an example of such an activity. In the circumstances of this case, the taking of photographs was not an activity that was generally considered to be within the duties of the plaintiff instructor, and there was no contractual agreement that he do so. Though the photograph is connected with the employer LaSalle by virtue of its subject and the location in which it was taken, I do not view it as being connected with the plaintiff’s employment.
The employment contract between the parties did stipulate that "All materials developed during the term of this Contract, including those that pertain to program and course development, curriculum work and agent contacts are property of the College. Upon completion of this Contract these materials remain with the College."  However, the Court found that this language was "of little assistance", as it wasn't clear that this provision was intended to displace the effect of section 13 of the Act, which would grant copyright to the creator of the work.  Moreover, long after the photo was taken, the plaintiff had complained that the college had not recognized his copyright in the picture, which the college then corrected (by affixing his watermark to the image).  In the result, the Court awarded the plaintiff damages (pursuant to the statutory scheme) in the amount of $500.

Employers would be well advised to ensure that they obtain advice and have employees sign a comprehensive intellectual property agreement if the employee's duties will include the creation of any copyrighted works or other forms of intellectual property.  In situations where no such agreement is in place, but an employee is asked to create something as an adjunct to his or her duties, it would be wise to obtain an assignment of copyright or other intellectual property rights from the employee to avoid later disputes about ownership.  The fact that the work or IP is related to the employment may not be enough, in some circumstances, for the employer to assert its right to use or exploit the work.

Do you have questions about the development of copyrightable works or other intellectual property in the course of employment?  Feel free to contact Lance Ceaser for guidance.