Monday 1 June 2015

The High Cost of Being Unreasonable (Part II)

As previously reported, for an employer, being unreasonable can have some dramatic costs.  As one dentist recently learned, the price can be quite high.  In Partridge v. Botony Dental Corporation, the employer was ordered to pay not only pay in lieu of reasonable notice, but damages for violating the employee's human rights.
 
The plaintiff started working with the dental office as a hygienist in March 2004, but by 2007 she had been promoted to office manager.  She took two maternity leaves, but following her second leave, the employer advised her of some changes in the terms and conditions of her employment.  She would be returning as a part-time hygienist, not as the office manager, and she would be required to work shifts that conflicted with the availability of childcare for her two children.  When she told the owner of the office that she could not work the hours for which she was being scheduled, and questioned why she was not being returned to the position she held before her leave began, her employment was terminated, purportedly for cause.  The employer argued that the plaintiff was terminated for cause, as she had violated confidentiality by removing sensitive materials from the office, had plotted to start up a competing business and lure away patients and co-workers to join the new practice, harassed colleagues and management, was insolent or insubordinate, and had rejected her former position and demanded unreasonable changes to her hours of work.  The plaintiff's position was that the employer had violated the Employment Standards Act, 2000 and the Human Rights Code, by refusing to return her to her former job and then terminating her employment, and that she was entitled to reasonable notice of dismissal.
 
The Court considered the evidence of both parties, and held that it preferred the plaintiff's evidence on any point where it was in conflict with the defendant's evidence, because defence witnesses were all clearly trying to "vilify" the plaintiff and their evidence was contradicted by documentary evidence.  The Court found that the employer had not established any of the elements of cause it had raised.  The plaintiff had not refused her old role - her return to hygienist duties was unilaterally imposed by the employer, without any consultation, as were the changes to her hours of work, which the employer ought to have known would conflict with the plaintiff's childcare obligations.  When the plaintiff tried to assert her rights, the employer retaliated by firing her, and then effectively trumped up its reasons for dismissal.  There was no evidence that the plaintiff had actually attempted to challenge the owner's authority, nor had she breached confidentiality in any meaningful or damaging way.  There had bee discussions between the plaintiff and a co-worker about starting a competing practice, but those discussions did not come to fruition and did not take advantage of any confidences.  A handful of patients did leave the dental office after the termination of the plaintiff, but they had all been friends of the plaintiff previously and there was no evidence that she had made any efforts to attract those patients to the practice where she went to work afterward.  The allegedly insolent and insubordinate behaviour was simply the plaintiff's understandable reaction to the negative and confrontational environment created by the employer upon her return from leave.

In the result, the Court found that the plaintiff was entitled to pay in lieu of 12 months' reasonable notice, less amounts already paid and the income she had received in mitigation during the notice period.  The Court went on to find that the employer had violated its return-to-work obligations under the ESA by not offering the plaintiff her former position at the end of her leave.  The evidence established that the office manager position still existed at that time and that the plaintiff had not elected to revert to a hygienist.  Moreover, the Court found that the employer had violated the reprisal provisions of the Act in all of its interactions with the plaintiff after she asserted her statutory rights. With respect to the plaintiff's claims under the Code, the Court held (on the basis of the analysis in Johnstone & Seeley (discussed here)) that the employer had discriminated against her on the basis of family status.  The employer had not provided any explanation for the change in the hours of work imposed on the plaintiff, and the Court accepted that the change was imposed in retaliation for her request to be returned to the office manager position.  In the result, the Court ordered the employer to pay human rights damages in the amount of $20,000 (approximately 1/2 of the amount she was awarded in lieu of reasonable notice). At para. 98, the Court stated:
The discrimination experienced by Partridge clearly did injury to her dignity, feelings and self-respect, as her testimony made clear that she took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal. As in Johnstone, I found that the discrimination arose out of Jauhal's wilful and reckless disregard for her legal obligations as an employer. Accordingly, I found that the sum of $20,000 for breach of the Human Rights Code was a just and proper sum to signify the seriousness of breaches of this nature. Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation. The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.
The decision makes clear the risk to employers when terminating an employee shortly after his/her return from a statutorily-protected leave of absence, particularly if the employee's former role continues to exist.  Unless an employer can establish a strong case for cause or an actual redundancy, the risks of doing so are likely greater than any potential benefit.  Moreover, employers need to be considerate of employees' childcare and other family obligations when the employee returns to the workplace - failing to do so (especially in a high-handed manner) can be extremely expensive.

Do you have questions about how to manage an employee's return to work from leave?  Have questions about accommodating family obligations?  Contact Lance Ceaser for expert guidance.

Thursday 30 April 2015

Consequences For Failing to Disclose Covert Surveillance

In a decision that could have repercussions for employers, the Ontario Court of Appeal has overturned a trial decision where the defendant 'ambushed' the plaintiff with surveillance evidence that it had failed to disclose in its Affidavit of Documents.
 
In Iannarelli v. Corbett, a motor vehicle accident case, the plaintiff sued after his pick-up truck was struck from behind by a cement-mixer driven by the defendant.  At trial, the parties presented their evidence regarding the weather and road conditions on the evening of the accident, and the defendant also introduced footage of video surveillance that had been shot without the plaintiff's knowledge over a period of two and one-half years following the accident.  The video was shown during the cross-examination of the plaintiff, in an effort to impeach his credibility, as it tended to refute his evidence regarding the extent of his injuries.  The surveillance evidence was not mentioned in the defendant's Affidavit of Documents (which should contain a reference to any and all arguably relevant evidence), but the trial judge admitted it despite the failure to disclose.  Ultimately, the jury found that the defendant was not liable for the plaintiff's injuries.  The plaintiff appealed.

The Ontario Court of Appeal reviewed the judge's charge to the jury and determined that his instructions on the onus to be applied were in error.  Accordingly, the trial finding was overturned and the defendants were found liable.  With respect to the video evidence, the Court reviewed the Rules of Civil Procedure governing the disclosure and production of arguably relevant materials, which is supposed "to prevent surprise and trial by ambush".  Despite the plaintiff's failure to request production of an Affidavit of Documents by the defendants, the defendant had a positive obligation to disclose and produce any document or thing that it intended to rely on at trial.  Moreover, even if the surveillance evidence was arguably privileged (as being created at a time when litigation was ongoing or contemplated), the defendants also would have had to disclose its existence and make a claim for privilege before the evidence could be presented in an effort to impeach the plaintiff's credibility.  The Court noted that the disclosure of such evidence can also assist parties in assessing their relative legal positions and may encourage settlement.  Even where an Affidavit of Documents has been served, and the surveillance is conducted afterward, the Court of Appeal found that the Rules require the party to produce a Supplementary Affidavit, which discloses the existence of the surveillance evidence.

The Court concluded that the trial judge erred in a number of ways, stating (at paras. 69 and 70):
The trial judge erred at the trial management conference. He ought to have ordered the respondents to serve an affidavit of documents disclosing the surveillance or at least to disclose such particulars as are ordinarily provided through a discovery undertaking. He should have offered the appellants an adjournment of the trial, and dealt with the issue of costs thrown away, since the appellants were not without fault. This would have permitted the appellants to access at least some of the advantages of disclosure. Even a relatively short adjournment to permit counsel to plan Mr. Iannarella’s examination-in-chief in light of the surveillance particulars would have been appropriate, in the event that the appellants did not want a lengthy adjournment. None of this was offered.
Instead, the trial judge enabled what amounted to a trial by ambush, which is completely inappropriate under the Rules (see Ceci, at para. 10). In the circumstances, the respondents cannot be absolved of the disclosure obligations set out above. I do not excuse the lapse in good trial practice by appellants’ trial counsel (not Mr. Zuber), by failing to pursue the appellants’ entitlements at an earlier stage. However, the weight of the disclosure obligations falls on the respondents, and rule 48.04 does not provide them with an escape route.
The Court of Appeal concluded that the trial judge should not have permitted the defendants to introduce the surveillance evidence.  Although the Rules permit the admission of evidence in these circumstances, the prejudice suffered by the plaintiff in the instant case was significant and could not be remedied by an adjournment or the award of costs, and the judge had also failed to conduct a voir dire on whether the evidence should be played for the jury.

In the result, the Court of Appeal threw out the jury's provisional damages assessment, and ordered a new trial on the issue of damages.

While the decision arises in the context of a personal injury case, it is instructive for counsel and employers in wrongful dismissal and other employment-related cases.  The Court of Appeal made clear that failure to comply with the Rules which results in prejudice and unfairness to the other party will have repercussions.  In this case, despite the fact that the defendants had good evidence suggesting that the plaintiff was overstating his injuries, the unfair way in which that evidence was introduced resulted in liability which may end up being significantly more than it would have otherwise been.  Employers and their lawyers will need to ensure that they comply with their disclosure obligations, even in relation to video that is shot well after the fact, and that they are careful in how they go about impeaching the credibility of an employee who is claiming damages for wrongful dismissal.

Need advice on a wrongful dismissal claim or demand?  Contact Lance Ceaser for expert advice.

Monday 27 April 2015

Dealing with Off-Duty Driving Offences

While it’s easy to say that what an employee does on his or her time off is none of the employer’s business, this is not always true.  When an employee’s off-duty conduct has an impact on the employer’s operations or reputation, or interferes significantly with the employee’s ability to perform the job, the employer has a legitimate interest in addressing that behaviour.  As discussed in an earlier post on the Ghomeshi fiasco, employees can incur employment-related repercussions for actions they take in their personal capacity.

But what about driving infractions?  Can offences behind the wheel have employment ramifications?  What about an employee who suffers from alcoholism?  Can they rely on their disability to excuse charges under the Highway Traffic Act or the Criminal Code?  As seems to generally be the case in matters like this, the answer to these questions is “it depends”.
As the Court said in Pearce v. Foster et al. (a “master-servant” case from the late 19th Century):
If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.
Of course, the determination of whether particular actions amount to cause for dismissal is a much less black-and-white affair than it was 130 years ago.  However, the principle is still observed:  an employee’s behaviour outside of work may have repercussions for the employment relationship (up to and including dismissal) where the behaviour is prejudicial to the employer’s interests.
Typically, whether or not off-duty driving offences or license suspensions (or other off-duty conduct) can be treated as ‘misconduct’ will turn on the nature and scope of the employee’s duties, the amount of notoriety their actions have attracted, the seriousness of the charges, the duration of the license restrictions or suspension, and the availability of other work or roles that don’t require driving. 
Before considering how to respond, an employer must make the necessary enquiries to determine what has occurred and how significant an event it is.  Obviously, the employee should be interviewed and any other available information gathered.  In some cases, this process may be hampered if the employee has received legal advice from a criminal lawyer and decides to exercise his or her ‘right to remain silent’.  At very least, however, the employer should require the employee to provide a copy of the information or ticket that was issued, and/or any documentation that may have been provided by the Ministry of Transportation (for example, where the licensing issue results from administrative reasons or an accumulation of lesser driving offences) to establish what charges and/or driving conditions apply.
Perhaps most crucial to the employer’s decision-making will be the nature of the employee’s role and responsibilities.  Is possession of a valid driver’s license a requirement of the position?  Is driving the primary or an essential duty of the employee’s job?  If not, how often is the employee expected to drive in the course of performing the job?  Does the employee operate an employer vehicle or his/her own car?  Does the employer maintain fleet insurance and what are its terms?  The more central that driving is to the employee’s duties, the more stringent the employer can be in its scrutiny of the circumstances of the loss of license.  However, it is also essential for the employer to understand the duration of the license suspension or conditions.  The shorter the suspension, the more carefully the employer should consider other options short of termination, such as an administrative suspension or reassignment to other duties (if they are available), to keep the individual employed until they regain the ability to drive.
The seriousness of the infraction and the employee’s explanation and display of remorse (if any) are also important factors to consider.  If the employee’s license was suspended administratively or for reasons unrelated to behaviour behind the wheel (for example, due to a failure to renew on time, failure to provide required medical information, or due to arrears in spousal or child support), the employer should consider options short of significant discipline or discharge.  On the other hand, conduct that suggests poor judgment or risk-taking (e.g., drunk driving, over 80 mg, or so-called ‘stunt-driving’), may attract more significant sanctions (and , therefore, less empathy).  Likewise, the attitude of the employee and any explanation they may provide must be weighed.  An absence of contrition or insight into the seriousness of the situation are poor indicators of likely good behaviour when driving for work in the future.  Of course, the employer must also consider the employee’s general history in terms of performance and behaviour – an employee with long, good service will obviously expect to receive more leniency than a short-term employee or one with a chequered past.
In some cases, the nature of the employer’s business and/or the notoriety of the employee’s behaviour may also be an aggravating factor.  Where charges against the individual have been reported in the media, the employer’s reputation may be at stake, particularly in a smaller community.  In some cases, the extreme safety sensitivity of the work may dictate that the employee be pulled off the road immediately (e.g., a truck driver who works for a company that hauls fuel oil or other dangerous goods on public roadways).  If there’s a risk that the employee’s behaviour may impact public confidence in the services provided by the employer (such as would be the case in policing), this will also be relevant to how seriously the misconduct is treated.
In any event, it cannot be assumed that the loss or suspension of an employee’s driver’s license will necessarily result in termination, even where driving is a significant component of their job.  As Arbitrator Owen Shime observed in one of the seminal arbitration cases on the subject (Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116):
An employee who loses his or her driving licence for violation of the Highway Traffic Act, [citation omitted], or a similar statute need not suffer a loss of employment, even where the employee is required to have a driving licence in order to perform his or her duties.  An employer is required to act reasonably and must balance its interests in maintaining production with the grievor’s interest in retaining his or her employment.  Also some care should be taken to ensure that the employee is not penalized twice for off-duty conduct but rather that there is a legitimate and significant employer interest that is being protected.  And finally, in the loss of licence cases there is a presumption that an employee should be suspended until other work is available or the employee’s driving privileges are restored.
Alternatively, a number of adjudicators have also held that an employer should consider the possibility of offering other, non-driving duties to an employee pending reinstatement of their driver’s license.  However, this option should only be considered in cases where the period of suspension or driving conditions is known and relatively short.  And of course, this alternative should never be considered where it would result in displacing another employee.  Only available work should be offered to accommodate the employee who has lost his/her driving privileges.
But what about the employee whose license is suspended due to charges related to impairment by alcohol or drugs, but who suffers from a known addiction?  What weight should the employer give the employee’s disability?  Is it an excuse or a mitigating factor?
In English v. Treasury Board (Solicitor GeneralCanada - Correctional Service), 2003 PSSRB 72, Board Member Guindon was dealing with the case of a correctional officer who was terminated for failing to disclose off-duty conduct (i.e., criminal charges related to drunk driving) that compromised his ability to perform his duties.  The officer had not told the employer that he had been convicted or that his license had been suspended for two (2) years.  In addition, he continued to operate employer vehicles (performing inmate transfers) after he lost his license.  Prior to the arbitration hearing, the employee expressed remorse and took steps to address his acknowledged problems with alcohol abuse.  The Board Member observed that the employee’s alcoholism had to be considered in assessing the appropriate penalty for his wrongful behaviour.  Citing an earlier decision, the Board Member wrote:
What emerges from these cases and the other material cited to the board is a recurring set of considerations and principles arbitrators take into account when dealing with discipline as it is applied to the alcohol and/or drug-addicted employee. These principles and considerations include the following:
1.            Alcoholism is recognized as an illness albeit one with an element of volition, that can attract varying levels of justifiable disciplinary response from the employer up to and including discharge;
2.            An adjudication board is entitled to look at the rehabilitative progress made by an employee subsequent to the employer's decision to discipline and is likely to modify that discipline if the employee can demonstrate that he has been successful in his recovery;
3.            The discipline imposed by an employer should only be modified in "exceptional circumstances" and those circumstances exist where an employee has shown genuine prospects for recovery and the restoration of a productive employer-employee relationship;
4.            The employer is entitled to insist that the employee perform the work for which he is paid and is not obliged to bear all the costs and consequences associated with an employee's inability to perform his duties as a result of his alcoholism;
5.            An adjudication board should consider the extent to which and the duration for which an employee is unable to perform his employment obligations;
6.            That where reinstatement occurs in substitution for discharge arbitrators are prepared to attach conditions to such reinstatement. Recognizing that alcoholism and drug addiction are not curable and can only be arrested by total abstinence, one such condition often attached to reinstatement is the requirement that the employee remain drug and alcohol-free.
In short, where it is established that an employee’s misconduct (in this case, off-duty driving offences) are related to a proven medical condition (i.e., alcoholism), the focus of the analysis will be on whether the employee acknowledges and seeks treatment for his/her problem, as well as the likelihood for recovery.  Evidence that the employee has sought treatment even after termination may be relevant.  However, the employer can in these cases impose conditions on the employee to ensure that the employee completes any rehabilitation program and complies with prescribed after-care (including abstinence from alcohol).

Where dismissal is not the appropriate course of action, an employer can consider withholding assignments that involve driving, transferring the employee to another position or other duties that don’t require a license, suspending the employee (where no other suitable work is available) or demoting the employee to a role where driving is not required.

While driving offences can have a significant impact in the workplace – hindering efficient operations or drawing unwanted scrutiny on an organization – employers need to be aware that not every loss of a driver’s license should attract the same penalty.  A careful, fact-specific assessment is required in each and every case.
Do you have questions how to deal with an employee who has lost their driving privileges?  Need guidance on whether or not to discipline for off-duty conduct?  Contact Lance Ceaser for expert advice.

Wednesday 15 April 2015

Summary Judgment - The Way of the Future for (Some) Wrongful Dismissal Cases


When the Supreme Court of Canada issued its decision in Hryniak v. Mauldin last year, it was not clear whether the Court's guidance on the use of summary judgment motions (under Rule 20 of the Rules of Civil Procedure) would be applicable to wrongful dismissal actions.  The Supreme Court made clear that unnecessarily protracted proceedings were not necessary in all cases, and in some cases the delays and expense of a prolonged trial could result in a denial of justice.  So what about your average allegation of wrongful dismissal?

In its recent decision in Arnone v. Theratronics Ltd., the Ontario Court of Appeal has suggested that some wrongful dismissal cases may be ideal candidates for summary judgment, in keeping with the Supreme Court's decision, particularly those where the only issue is the quantum of reasonable notice that the employee ought to have received.  In Arnone, the employer had not asserted cause for termination or any other form of justification, so the only outstanding question to be decided was the period of reasonable notice.  The plaintiff brought a motion for summary judgment under Rule 20, claiming that the matter could be disposed of in a summary fashion because there was no 'genuine issue' requiring a trial.  The motion judge agreed, and granted summary judgment to the plaintiff.

On appeal, the employer argued that the motion judge had erred as there was disagreement between the parties as to whether the plaintiff was a supervisor or a manager, a factor going to the analysis of appropriate notice under Bardal v. The Globe & Mail Ltd.  The Court of Appeal rejected this argument, finding that the judge had sufficient material before him, including documentary evidence submitted by the employer, that would allow him to make a determination without conducting a trial.  Moreover, the employee had conceded, for purposes of the motion, that he may have been supervisory rather than managerial.  The Court observed that this objection did not necessitate a full trial, particularly as the nature of the employment was only one Bardal factor to be considered in determining reasonable notice.  The Court then stated:
Finally, while the appropriateness of bringing a summary judgment motion must be assessed in the particular circumstances of each case, a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.

The Court of Appeal concluded that the motion judge had not erred, as there was no genuine issue for trial (although other aspects of the judge's decision were altered on the appeal).

Provided parties to a wrongful dismissal case marshal the necessary documentary and affidavit evidence, it is likely that the courts will be prepared to entertain summary judgment motions in most 'notice period' cases. Hearing a motion is much more timely and cost-effective, and preserves judicial resources that would otherwise be expended hearing a trial.  If there are factual issues that require a more thorough analysis, employers will have to persuade a motion judge that documentary evidence and affidavits are insufficient to resolve the dispute.  It will therefore be imperative that employers ensure that they prepare for a summary judgment motion as if it may be determinative.  In many cases, it could be. 

Do you have questions about wrongful dismissals?  Need guidance to make sure that the notice provided is "reasonable"?  Contact Lance Ceaser for expert advice.


Wednesday 8 April 2015

False Harassment Claim Warrants Discharge

While it may be foolish for an employer to take a complaint of harassment or bullying lightly, it is equally unwise to assume that all complainants are making claims for legitimate reasons.  When an employer determines that an employee has fabricated or greatly embellished a complaint against a co-worker or supervisor for some improper purpose, the employer should seriously consider taking action against the complainant.  As a recent decision of a labour arbitrator recognizes, making false and bad faith accusations may warrant severe discipline.

In Canadian Union of Public Employees, Local 3261 v. University of Toronto, the union grieved the discharge of an employee after the employer determined that the grievor had fabricated an allegation of workplace bullying and violence against a co-worker.  The grievor claimed that he had been the victim of an escalating pattern of harassment and bullying which culminated in the co-worker threatening him in a stairwell with a knife.  Over the course of several years, the employee had frequently complained about the tradespeople who he interacted with, and claimed that his supervisor and other members of management were complicit in his being harassed.  The employer adduced evidence that the grievor had a history of making complaints against co-workers to deflect blame whenever his performance or conduct was brought into issue.  The employer conducted an investigation and became dubious of the legitimacy of the complaint.  The complainant had initially given one date for the incident and when he reported it, but then provided different information.  When he first spoke to a manager about the alleged incident, it was after an issue of his behaviour had been raised, and he seemed to suggest that it was a "little thing".  He also declined to provide any details (such as the date and location where the incident occurred), although the union provided this information weeks later when it questioned why the employer had not investigated the alleged threat.  Ultimately, the investigation team compared their notes, and the inconsistencies and discrepancies in the complainant's reporting of the incident, and concluded that he had fabricated the situation.  Although the grievor had relatively little discipline on his record, the employer decided that his falsification of a complaint of workplace violence was sufficiently egregious that he should be discharged.  After he was fired, the grievor made a claim to the WSIB, indicating yet another date for the incident and adding further details about being bumped and having a chair kicked out from under him.

After reviewing the evidence, Arbitrator Cummings agreed with the employer's decision and found that the University "came to the correct conclusion" (i.e., that the grievor made up the story in an effort to get the co-worker in trouble and deflect attention away from his own bizarre behaviour).  In the Arbitrator's view, the employee routinely offered inconsistent accounts of what had occurred or when, and sought to take breaks or adjourn the hearing whenever he was challenged on these inconsistencies, so he would have time to develop an explanation. Moreover, the grievor's failure to document and provide details of the incident was not in keeping with his past practice when complaining about co-workers or supervisory staff.  In short, the Arbitrator found that the grievor was not credible and his evidence was unreliable.

In terms of the penalty of discharge, the Arbitrator acknowledged being troubled by the way in which the grievor's co-workers had openly shunned and bullied him in the past. At least one of the grievor's co-workers had admitted to trying to exclude him from eating in the trades shop.  However, given the gap in time between the last incident of bullying and when the false accusation was laid, the Arbitrator did not consider this mistreatment to be a mitigating factor.  The grievor's failure to admit his wrongdoing, however, was a seriously aggravating factor:
The aggravating factor is Mr. Tropak’s failure to take any responsibility for his termination. Making an unfounded allegation of a threat of workplace violence is malicious. Mr. Tropak has aggravated that misconduct by lying to the employer, the union and to the arbitrator in maintaining to the end that Mr. Ford threatened him with a knife. I echo the concerns of the employer that it is hard to imagine rebuilding an employment relationship with someone who lies about such a serious matter. It is also hard to imagine requiring other employees to work with Mr. Tropak, knowing that he has made and maintained such serious, unfounded allegations about another employee.
In the result the grievance was dismissed.

It is not often that an employee will make an unfounded complaint as was the case in this decision, and evidence of the falsehood will seldom be so obvious.  However, in order to ensure that action can be taken in the event of a false complaint, it's important to be prepared:
  • Make sure you're workplace harassment and/or violence policies expressly provide for sanctions for fabricated or bad faith complaints;
  • Ensure investigations are conducted in a thorough manner.  The investigator should take all reasonable steps to resolve any inconsistencies in the complainant and respondent's accounts;
  • Whenever possible, assign the inquiry to an investigator who will be perceived as unbiased.  In appropriate circumstances, consider retaining a third-party to conduct the investigation where there is a lot of history with the complainant, the respondent(s) or both.
By exercising a degree of due diligence, an employer can greatly improve the likelihood of being able to address false claims when they arise.

Do you need advice on conducting workplace investigations?  Need an experienced investigator?  Contact Lance Ceaser for expert assistance.




 

Wednesday 1 April 2015

The FCA Has Established the Test for Family Status Discrimination ... Or Has It?

As earlier reported, the Federal Court of Appeal established a test for prima facie discrimination on the basis of "family status" in its decisions in Johnstone and Seeley (reported on here).  The Court stated that a claimant must establish not only that he or she had legitimate family obligations that the workplace rule interfered with, but that the claimant had made reasonable efforts to address his or her family obligations.  Under this approach, the employer would have no onus to respond, by establishing that it had made reasonable accommodation efforts (short of undue hardship), unless and until the claimant had shown that attempts to 'self-accommodate' had been unsuccessful.  Many wondered if this formulation of the prima facie test for family status discrimination would be the final word on the subject, but it's now clear that it was not.  The Alberta Court of Queen's Bench has now weighed in, and the Court is not in agreement with the test set by the Federal Court of Appeal.

In SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, the employee was a single mother of two children who was required to work day and night shifts.  When she sought accommodation of her childcare obligations, by being assigned to a straight day shift, her employer declined, even though there was another employee who was willing to switch to a straight night shift.  The labour arbitrator hearing the employee's grievance determined that the employer had discriminated against the employee on the basis of family status, and that the employer had not discharged its duty to accommodate. The employer sought judicial review and was unsuccessful.  In dismissing the application, Justice Ross of the Alberta Court of Queen's Bench offered the following opinion on the test formulated by the Federal Court of Appeal (at para. 77):
A flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima facie discrimination, and particularly does not justify including within that test a self-accommodation element that is not required with respect to other prohibited grounds of discrimination. This is unnecessary and contrary to the objects of human rights law. It is unnecessary because a finding of discrimination does not automatically follow once a prima facie case is established. It is only when the complainant establishes a prima facie case and the respondent fails to justify the rule or conduct that discrimination will be found. It is contrary to the objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases. Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable to avoid that impact. Thus the Grievor was subjected to an examination regarding her relationship or lack thereof with the biological fathers of her children, her choice of caregivers for her children and her personal financial circumstances. She had to undergo this examination before the Employer would even consider a request for an accommodation in the form of a shift exchange that she had arranged with another willing employee. The search for accommodation is intended to be “a multi-party inquiry,” involving the employer, the union and the complainant: Central Okanagan School District No 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 at 994, 141 NR 185 [Central Okanagan], cited in Arbitrator’s Decision at para 69. Converting this multi-party inquiry into a one-sided investigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract from the policy goal of removing discriminatory barriers to full participation in the workforce.  
In short, the Alberta Court was of the view that the test for prima facie family status discrimination was the same as applied in relation to any other prohibited ground of discrimination. The complainant must show that:
1.      The complainant has a characteristic that is protected from discrimination;
2.      The complainant has experienced an adverse impact; and
3.      The complainant must show that the protected characteristic was a factor in the adverse impact.
Under this analysis, the efforts made by the employee to accommodate his or her family obligations would not be relevant to whether or not the employer had discriminated against the employee.  However, relying on the decision in Central Okanagan (cited in the paragraph quoted above), an employer could still argue that the employee had not met his or her share of the duty by not looking into options that would have eliminated or reduced the need for workplace accommodation (e.g., by seeking assistance from a spouse or family member).  To date, the issue of the test in the Johnstone/Seeley decisions has not been determined by the courts in Ontario.  It will be interesting to see which side of this debate they land on.  Stay tuned...

Do you need assistance with complex accommodation issues?  Need to better understand your workplace obligations?  Contact Lance Ceaser for expert guidance.
 

 

Thursday 26 March 2015

Guidance on What an Employer Can Do When Accommodating a Disabled Employee

In dismissing a complaint of disability-related harassment and discrimination, the Canadian Human Rights Tribunal recently made some helpful comments on an employer's authority to follow-up with an employee respecting their medical condition and any restrictions they may have.

In Croteau v. Canadian National Railway, the Complainant was a conductor on freight trains operated by CN when he was injured.  Following multiple accidents and injuries over a ten-year period, the Complainant had a negative interaction with a Risk Management Officer (regarding his request for benefit forms), and two workplace accidents that resulted in injuries.  CN conducted a reconstruction of one of the accidents (as part of its root-cause analysis), and investigated whether the Complainant was legitimately off work following the second accident, which included hiring a private investigator to conduct surveillance.  Over the course of the succeeding months and years, the Complainant developed certain mental health issues, including anxiety and depression.  He claimed that the employer had engaged in several incidents of harassment, and that it had also repeatedly failed over a period of years to accommodate his disabilities. The employer denied the allegations and brought a non-suit motion, which was successful in having the Tribunal dismiss two alleged incidents of harassment.  However, another nine allegations of harassment and failure to accommodate were the subject of full evidence before the Tribunal.

At the outset of its analysis, the Tribunal made a couple of important observations.  First, it stated that not every interaction that a disabled employee has with the employer which is subjectively objectionable will amount to "harassment".  At para. 43, the Tribunal wrote:
It is important to recognize when dealing with allegations of “disability harassment” that it denotes more than just being uncomfortable or offended in the sometimes difficult, sensitive discussions between management and employees. For example, an employer has the right to manage its employees and issues relevant to the operation of its business, such as making, monitoring and enforcing rules in the workplace. The key is to examine whether the conduct has violated the dignity of the employee (e.g., as a result of belittling or degrading treatment by the employer linked to the ground of disability) from an objective perspective such that it has created a hostile or poisoned work environment.
Secondly, although the duty to accommodate does have a procedural aspect to it, that doesn't mean that a complainant is entitled to a remedy for a deficiency in the process unless it leads to a substantive failure to provide reasonable accommodation.  (The Tribunal based its view in this regard on the decision in Attorney General of Canada v. Cruden et al., which was recently upheld by the Federal Court of Appeal, as discussed here.) 

The Tribunal then weighed the credibility of the various witnesses, including the Complainant (whose evidence was found to often be unreliable, due to his skewed perspective on events), and determined that none of the alleged incidents were proven or amounted to harassment or discrimination.  Most importantly, the Tribunal found:
  • The Complainant may have found the RMO to be rude or overly assertive, but she did not harass the Complainant merely by asking whether his injury was personal or work-related;
  • Investigating the reasons for the Complainant's absenteeism did not amount to harassment, even where the employee was cautioned about the possible consequences of continued high levels of absence;
  • Asking the Complainant to recreate the circumstances of a work-related injury was a legitimate exercise, intended to avoid or reduce future incidents leading to injuries;
  • Questioning the bona fides of an injury, on its own, does not amount to harassment, particularly where the employer has legitimate doubts about an employee's account of how the injury occurred.  Likewise, an employer has a right to inquire into the reason that an employee has a much higher than average incidence of work-related injuries (as was the case with this Complainant);
  • Despite the fact that the federal Privacy Commissioner had taken issue with the employer's use of surveillance by a private investigator, the Tribunal found that the surveillance did not amount to harassment.  The employer had legitimate reasons to question the reason for the Complainant's extended absence without leave (including the submission of contradictory doctor's notes, and his failure to answer 58 calls from the employer), and the surveillance itself was conducted in a reasonable manner.
  • Conducting a meeting with the Complainant to discuss his absence and the outcome of the surveillance (which captured the Complainant playing soccer and basketball, despite an alleged knee injury) was a necessary adjunct to the employer's investigation, and was not harassment, despite the meeting running "inordinately long";
  • Rescinding approval for tuition reimbursement, due to the Complainant's injury record and period of AWOL, was a legitimate response (given CN had reason to believe the Complainant was not "promotable"), and did not constitute harassment;
  • Although the employer may have relied on some inaccurate information in deciding to deny the tuition reimbursement, it did not amount to discrimination as there was no evidence it was related to a prohibited ground;
  • Issuing a 'deferred' suspension, while the Complainant was off on STD and then LTD leave, did not amount to harassment, particularly where the Complainant never ended up serving the suspension.
The Tribunal then went on to consider the Complainant's claims that CN had failed to accommodate his disability over a number of years, and ultimately found that CN had accommodated the Complainant to the point of undue hardship.  The Tribunal was satisfied that the operation of a freight railway was a very safety-sensitive endeavour.  The Complainant's restrictions (related to his anxiety disorder) prevented him from working alone, being responsible for the safety of others, operating any moving equipment or working in a safety-sensitive/critical position, although over the course of years these limitations changed to include restrictions from certain shifts, as well.  The Complainant acknowledged that the employer had taken some measures to accommodate him between 2007 and 2013, but still claimed that the employer had not done enough (over the course of five (5) failed attempts to return him to work).  Ultimately, the employer was unable to find any positions for the Complainant within his restrictions, either in Sarnia (where he had worked) or elsewhere within the railway. The Tribunal found that the RTW efforts had foundered because the Complainant was unable to fully participate in the employer's efforts (due to his anxiety disorder and certain unreasonable demands he made) and was fixated on obtaining an apology and other redress (despite the employer not having done anything wrong) before he would cooperate in RTW efforts.  The Tribunal observed that there were aspects of the accommodation process that CN could improve, but that no accommodation, short of undue hardship was possible, and dismissed the complaint.

The decision reflects both the challenges of dealing with a claim for disability accommodation (which can be particularly onerous in the area of mental health issues), and the types of normal employer interactions with a disabled employee that will not amount to harassment or discrimination.  While employers often feel as if their "hands are tied", this case shows that an employer does still have the authority to manage the employment relationship, including reviewing the circumstances leading to an injury or absence, investigating and addressing employee conduct (such as when an employee is AWOL), and questioning the legitimacy of medical notes (where there is reason to do so).

Do you face challenges with accommodation?  Need assistance in navigating the RTW process?  Contact Lance Ceaser for expert advice.





 

Monday 23 March 2015

SCC: Indefinite Suspension With Pay May Be Constructive Dismissal

The Supreme Court of Canada recently released an important decision, in which it found that the former Director of N.B. Legal Aid had been constructively dismissed when he was placed on an administrative leave with pay, and most of his duties were assigned to a colleague. 

The Facts

In Potter v. New Brunswick Legal Aid Services Commission, the plaintiff had been the interim Director of Legal Aid for 12 years before receiving an appointment from the Lieutenant-Governor in Council in 2005.  He was appointed to serve as Executive Director for a term of 7 years.  However, approximately halfway through his appointment, relations with the Legal Aid Commission began to deteriorate, and the parties started negotiating the terms of a buy-out for the ED.  In the fall of 2009, the plaintiff went on a medical leave.  During his absence, he delegated his responsibilities to a colleague.  He was due to return to work in mid-January 2010, but by then the Commission had determined that the negotiated package was not progressing quickly enough.  Instead, the Commission advised the plaintiff that he should not return to the office, although he would continue to receive full pay and benefits.  In the meantime, and unbeknownst to the plaintiff, the Commission had also forwarded a recommendation to the Lieutenant-Governor in Council that the plaintiff's appointment should be revoked for cause.  The plaintiff's lawyer contacted the Commission to confirm that he had been suspended indefinitely, which the Commission's lawyer confirmed. 

He then commenced an action for constructive dismissal.  The Commission took the position that his employment had not been terminated, and that he had effectively resigned by starting a legal claim against his employer.

The Trial and Appeal Decisions

The employer prevailed at both the trial and appellate levels of the New Brunswick Courts. In essence, the New Brunswick Court of Queen's Bench found that the indefinite suspension of the plaintiff did not constitute a constructive dismissal, based in part on the fact that the plaintiff could not rely on the employer's recommendation to revoke his appointment. Moreover, given that the plaintiff had taken the "precipitous" and "dramatic" action of commencing a claim for wrongful dismissal (after he had been off work for approximately 7 weeks), the Court concluded that he had repudiated the contract of employment. 

The trial judge did provide a provisional assessment of the plaintiff's damages (in case the decision was successfully appealed), and found that the plaintiff would have been entitled to his remaining salary for the balance of the 7-year term of his contract, less amounts that he would have received by way of pension benefits (which he was eligible to receive).  However, the judge also found that because of his age (66 years old) and the low likelihood of him finding comparable employment, the plaintiff would not be subject to the duty to mitigate his damages.

The New Brunswick Court of Appeal upheld the decision of the trial judge, finding that the Commission had the authority to suspend the plaintiff with pay as part of its responsibility to oversee and supervise his work.  The Court of Appeal found that the judge had considered the relevant factors in concluding that the employer had not made a fundamental change to the plaintiff's terms of employment.  The Court of Appeal did suggest that the trial judge may have been in error in finding that only circumstances known to the plaintiff at the time were relevant, and should have considered whether the recommendation to revoke the plaintiff's appointment created an objective perception that the employer intended to not be bound by his contract.  However, the Court went on to find that such an error was "wholly harmless" and would not have changed the outcome.

The SCC's Decision

In a lengthy decision, the majority of the Supreme Court of Canada (McLachlin C.J. and Cromwell J. concurring in separate reasons) upheld the appeal and found that the Courts below had erred in finding that the plaintiff was not constructively dismissed. The majority's analysis started with a very succinct statement of the law of constructive dismissal:
When an employer’s conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or the changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal.
In assessing the evidence of whether the employer no longer intended to be bound, one has to determine whether the employer has breached a term of the employment contract, and whether the breach is sufficiently serious to constitute a repudiation of the contract.  While constructive dismissal often arises from a unilateral change to a key term of the employment relationship, an employer may also be found to have constructively dismissed an employee where its treatment of the employee makes continued employment intolerable.  Unless the employer can point to some contractual authority for taking the action that it has, or the employee consents, its unilateral actions will be found to constitute a breach of the contract. A minor breach will not amount to constructive dismissal.

The Court went on to state that, although the plaintiff bears the burden of proving that there has been a breach of the contract, in the case of an administrative suspension the burden shifts to the employer to establish that the suspension was "justified".  If the employer fails to justify the suspension, the burden returns to the plaintiff to establish that the breach of contract was "fundamental" or so significant that the employment contract was repudiated. 

In applying the law to the facts, the Supreme Court found that the courts below had erred in their analysis.  The majority was of the view that the Commission did not have the authority, express or implied, to administratively suspend the plaintiff, and so its actions were not permitted by the contract.  The Court found that, "[i]n light of the indefinite duration of the suspension, of the fact that the Commission failed to act in good faith insofar as it withheld valid business reasons from Mr. Potter, and of the Commission’s concealed intention to have Mr. Potter terminated", the Commission had, in fact, constructively dismissed the plaintiff.  The Court concluded that the trial judge erred in not considering the Commission's attempt to revoke the plaintiff's appointment in determining whether there had been a breach of the contract.  Although the plaintiff was not aware of this action at the time of commencing his claim, it was still relevant to whether the employer had breached the contract (i.e., by suspending the plaintiff without the requisite contractual authority to do so).  Such evidence would not, however, be relevant to whether a reasonable person in the circumstances of the plaintiff would consider the breach sufficiently serious to suggest the employer no longer intended to be bound by the contract.  Moreover, the Court also found that "in most cases in which a breach of an employment contract results from an unauthorized administrative suspension, a finding that the suspension amounted to a substantial change is inevitable."  This case was no exception.

Interestingly, the minority decision (penned by Justice Cromwell) came to the same conclusion, but on the basis that the employer's actions showed an intention to no longer be bound by the plaintiff's contract.  Cromwell J. was of the view that it was irrelevant whether or not the contract expressly or impliedly authorized the employer to suspend the employee:  the trial judge and the Court of Appeal had failed to take into consideration the fact that, at the time of the suspension, the employer was actively seeking to have the plaintiff's appointment revoked.  This was a highly relevant circumstance, despite the fact that the plaintiff was unaware of the employer's actions at the time.  In seeking to bring the contract to an end, and advising the employee not to return to the workplace, the employer had offered an "anticipatory repudiation" of the contract, which permitted the employee to treat their agreement as being at an end.


Both the majority and minority decisions also overturned the trial judge's provisional damages assessment.  In particular, the Court reaffirmed that pension benefits received by an employee should not be deducted from the employee's wrongful dismissal damages, on the basis of its earlier decision in IBM Canada Limited v. Waterman.  In short, private insurance benefits to which an employee contributes and which are not intended to provide an indemnity against loss of income or employment are not deductible from a payment in lieu of reasonable notice. 

What It Means for Employers

The Supreme Court of Canada made a number of important findings in the decision that employers need to be aware of:
  • In the absence of express contractual authority for an employer to suspend an employee, an administrative suspension (with or without pay) may constitute constructive dismissal.  One has to look to the surrounding circumstances to assess whether the employer's actions evince "an intention no longer to be bound by the employment contract".
  • Even if an employer has the authority to suspend an employee, the employer will still have to provide a justification for the suspension and establish that it was "reasonable" (e.g., that the suspension was not unnecessarily long).
  • Even where an employee is not aware of actions on the part of the employer that suggest an intention to repudiate the employment agreement, those actions are relevant and admissible evidence of whether the employer has breached a term of the employment agreement.
  • While there may not be an obligation on the part of an employer to provide an employee with work, the withholding of work from an employee may, in and of itself, constitute constructive dismissal in the absence of some legitimate reason.  Withholding work may amount to repudiation of the contract irrespective of the nature of the work - this rule should not apply only to employees whose income is tied to performing services or who receive a "reputational benefit" from working.
Employers will want to review their employment agreements (and any documents that are incorporated by reference) to determine whether they have the ability to suspend employees without effectively terminating their employment.  Where there is the requisite authority, employers should ensure that they have good reasons prior to suspending, and that they communicate those reasons to the employee.  Suspensions should not be any longer than necessary to address the underlying reason.  If an employee is to be suspended pending the outcome of an investigation (either internal or external) or some other proceeding, the employer should regularly communicate with the suspended employee and assess periodically whether the employment has effectively come to an end.  Employers should also take care in discussing the termination of an employee who is serving a suspension, as evidence of such discussions may tip the balance in favour of a finding that the employer intended to end the relationship.
 Need guidance with respect to whether your employment documentation gives you the right to suspend or layoff employees?  Looking for advice on whether or not to suspend an employee?  Contact Lance Ceaser for expert, affordable advice.


Thursday 19 March 2015

"Earned" Commissions Found to Cease on Employee's Last Active Day of Employment

A recent decision of the British Columbia Supreme Court has found that an employee was entitled to only those commissions that had been earned up to the date he was advised of his termination.  Without relying on legal presumptions or maxims, the Court concluded that the clear and unambiguous terms of the employment agreement led to this result.
 
In Sciancamerli v. Comtech (Communication Technologies) Ltd., the plaintiff was employed by the company as a Regional Sales Manager for British Columbia, selling technology infrastructure to other businesses.  After only 10 months, his employment was terminated on October 10, 2013, and he was provided only 1 week of severance pay.  He sued for wrongful dismissal, claiming reasonable notice well in excess of what was provided, as well as the commissions and benefits he would have received during the notice period.  Based on his age, length of service and the relatively specialized nature of his role, the Court found that he was entitled to five (5) months notice of termination.

The Court then proceeded to consider what, if any, commissions the plaintiff was entitled to.  The plaintiff claimed that he should receive all commissions that were closed during the notice period, while the employer took the position that he was entitled only to commissions on those sales that had been invoiced by or before the last day he was at work.  The employer had already paid commissions on all of the plaintiff's invoiced sales prior to the trial.  The Court observed that the starting point for the analysis was to look at the express terms of the employment agreement.  The commission plan documentation (incorporated into the agreement by reference) stipulated that the timing for payment of commissions was when the sale was "closed, won and invoiced".  Upon further analysis, it was clear that this was the basis upon which the employer determined what commissions had been "earned".  The Court then had to consider the "termination" provision in the commission plan, which stated:
Participants who [are terminated]… whether or not for cause will be paid their base salary through the agreed upon termination date. In addition, the Participant will be eligible only for commission payments earned prior to their last date of employment….


The Court noted that base salary was payable through "the agreed upon termination date", while the employer was only obligated to make commission payments "earned prior to [the Participant's] last date of employment".  The Court found that the difference in the verbiage in these two sentences indicated an intention that the two phrases must have different meanings.  Although it was clear that the parties intended that an employee would receive payment of salary through the entire reasonable notice period (i.e., "through the agreed upon termination date"), the expression "last date of employment" was intended to mean the last day that the individual was at work.  Accordingly, the plaintiff's entitlement was limited to commissions on those sales that had been invoiced by or before October 10, 2013, as argued by the employer.  Given that these amounts had already been paid, there was no outstanding commission to be paid.
This decision highlights the importance of ensuring that employment documents clearly delineate an employee's entitlements to things like commission, stock options and other incentives following the end of the employment relationship.  If the employment agreement and incentive plan documentation stipulate that entitlement ceases at the end of the active employment relationship, it is much simpler and cleaner to calculate the final payments due to a departing employee.  Consideration should be given to defining terms like "earned", "termination date", and "last date of employment" to avoid any misunderstandings at a time when emotions are often running high.
Do you need assistance reviewing your employment documentation?  Need advice on drafting compensation and incentive plans to ensure clarity?  Contact Lance Ceaser for expert guidance.
 

Monday 16 March 2015

The High Cost of Being Unreasonable

All parties in litigation should be able to expect zealous representation from their lawyers.  But when does zealous become overzealous?  When do strategic decisions end up hurting the outcome?  The costs decision in Tossonian v. Cynphany Diamonds Inc. demonstrates how playing hard ball can be expensive.

As described in my earlier post on this case, the plaintiff had claimed that he had a 5-year contract with the employer, and that he should be entitled to damages based on the outstanding term of that contract when he was terminated after only 8 months' employment.  The trial judge found that the parties were not in agreement on a fixed-term contract; although the employer had signed two separate documents citing the 5-year term, these were provided solely for the purpose of assisting the plaintiff in getting a mortgage.  In the result, the plaintiff was awarded damages in lieu of 2 months' reasonable notice of termination.  Although his initial claim had been for over $400,000, which was whittled down to $175,000 at the start of trial, he ultimately recovered damages falling within the jurisdiction of the small claims court.  The judge sought submissions on the question of the parties' legal costs.

In this follow-up decision, the judge's displeasure with the fact that the defendant "played hard ball throughout the litigation" came through loud and clear.  First, the judge found that there was good reason for the plaintiff to allege the existence of a 5-year contract, based on the documents that the employer had signed.  Second, the defendant's own trial tactics had unnecessarily incurred costs and lengthened the trial.  The defendant brought a motion for security for costs and another for the issuance of an interprovincial summons (to the plaintiff's wife), both of which failed.  The defendant also argued a number of "largely unmeritorious evidentiary and procedural objections". All of these measures served to extend a 4 - 5 day trial to 7 days.  Finally, the employer failed to make a reasonable effort to resolve the matter.  As the judge observed, a "commercially astute party in the position of the defendant" would have offered more than the $3,000 (inclusive of interest and costs) that the employer put on the table.

The result?  The employer was ordered to pay the plaintiff's costs on a "partial indemnity" basis to the tune of over $90,000, despite the fact that his damages award was less than $15,000.  The employer was also still responsible for its own legal fees, which exceeded $140,000 for the trial alone.

The message is clear.  Judicial resources are limited.  Parties who waste court time, whether  by failing to engage in good faith efforts to settle cases or by prolonging trial through litigation "tactics", can expect to be sanctioned.  As this decision illustrates, being legally right is often not as important as being reasonable.

Do you need sound legal advice on a labour or employment law issue?  Need representation that is diligent without being unreasonable?  Contact Lance Ceaser for expert guidance.

Thursday 12 March 2015

Insensitive Presentation to Employees ≠ Harassment or Discrimination

Concepts like "harassment" and "discrimination" have been the subject of a great deal of legal analysis and debate.  Ultimately, how these terms are defined is a matter of context.  Where parties to a collective agreement sign off on provisions that protect employees from harassment or discrimination on the basis of the grounds in the Human Rights Code or union membership and activity, it is only conduct that violates those protections that a labour arbitrator will punish.  In a recent case dealing with a presentation to employees that was widely described as "offensive", the Ontario Grievance Settlement Board had to decide whether the employer had crossed the line.

In Ontario Public Service Employees Union v. Ontario (Ministry of Transportation), 39 employees joined a grievance alleging that the employer had violated several provisions of the collective agreement and the Human Rights Code when a Regional Manager made a presentation to employees which they found deeply offensive.  The presentation, titled "New Year New Outlook" contained graphic imagery depicting poverty in the developing world. One slide contained an image of an impoverished child, with the caption:  "If you think your salary is low, how about her?"  Other slides seemed to trivialize "first-world problems" and asked employees to set "new expectations". At the time of the presentation, the parties were about to enter collective bargaining.  The union alleged that the images of poverty in the slide show were racist in their depiction of people of colour as deserving of pity.  Moreover, the union took the position that the slide show was condescending, suggested that staff were lazy and overpaid, and was intended to shame and discourage union members in their upcoming negotiations with management. The employer brought a motion to dismiss the grievances on the basis that the allegations, if proven, did not establish a violation of any provision of the collective agreement.  The grievors were not themselves members of any group protected by the Human Rights Code, and could not therefore rely on the non-discrimination provision of the agreement.  The employer also argued that the union had not provided any particulars of how the grievors' rights to participate in the union's activities had been impacted. 

The Grievance Settlement Board found that the grievances did not make out a prima facie case.  Assuming that the factual allegations were all true, there was nothing in the grievances that would establish a violation of the collective agreement or the statutes in questions.  Given that there were no particulars asserting that any of the grievors were identified with a protected ground, the union could not prove that the presentation amounted to harassment, discrimination or created a "poisoned work environment" for anyone identified with a particular racial group.  As the Board concluded at para. 37:
In the present case, there is no assertion that any of the grievors were members of a protected group or had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristic. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic. Since the collective agreement and Code provisions relied upon by the union prohibit discrimination on the basis of specified grounds, there can be no contravention based on the asserted facts.
The Board further found that the union had not alleged any facts that would tend to establish that the employer had engaged in anti-union activity by making the presentation during a bargaining year.  Without pointing to some objective evidence that the grievors had suffered some disadvantage because of their union membership or activity, the union could not establish a violation of the collective agreement.  Moreover, the union had not provided any facts that would raise an inference of anti-union animus by the employer. 
In closing, the Board felt compelled to address the union's argument that dismissing the grievances for lack of a prima facie case would send the message that the presentation was "fine".  The Board disagreed, pointing to its role as an adjudicator under a collective agreement.  At para. 46, the Board stated:
The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was "fine" or that the Board endorses such conduct. The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees. The Board’s determination is that as a matter of law, the grievors have not asserted facts [that], if accepted as true, are capable of establishing that any of them had their rights under any of the collective agreement and statutory provisions relied upon, denied or abridged. The Board so finds. As a result the employer’s motion is upheld and all of the grievances are hereby dismissed.

The case demonstrates the importance of carefully reviewing the language of the collective agreement when assessing the strength of a grievance or argument. Depending on the language of the agreement, "offensive" may not amount to "harassment" or "discrimination".  While the result would be different under an agreement that contains broader definitions of employee rights, the case stands for the proposition that an arbitrator is limited to the four corners of the collective agreement and cannot assert free-standing jurisdiction to judge every employer action, no matter how "offensive, distasteful and inappropriate" those actions may be.  The collective agreement still dictates the arbitrator's jurisdiction.

 Do you have concerns about workplace harassment or other offensive behaviour?  Need advice on an upcoming grievance arbitration?  Contact Lance Ceaser for cost-effective assistance with all of your labour and employment law issues.



 



 

Tuesday 10 March 2015

Termination One Day After Employee Disclosed Pregnancy Deemed Discriminatory

Once an employee discloses that she is pregnant and/or intends to take pregnancy or parental leave, an employer must tread carefully.  But what about the situation where the employee discloses her pregnancy to a co-worker?  Should the employer be deemed to be aware of her condition?  In a recent case before the Human Rights Tribunal of Ontario (the "HRTO"), an employer was found to have discriminated against a pregnant employee, despite denying any knowledge of her pregnancy.

In Lugonia v. Arista Homes, the Applicant was hired by the company on a one-year contract to cover for the absence of the receptionist, who was about to commence a pregnancy and parental leave.  Between the time of hiring, and her start date, the Applicant learned that she was pregnant, but did not disclose this information to the company's CFO or its Office Manager (who had hired her).  She commenced working two shifts a week for the first month, shadowing the regular receptionist to learn the role, before taking over her duties on a full-time basis.  In the Applicant's view, nothing remarkable occurred on the first two days that she worked for the company.  However, on the third day, she disclosed to the regular receptionist that she was also pregnant.  According to the Applicant, the receptionist suggested that she not disclose her pregnancy for 3 to 4 months, because it was not clear how the employer would react.  The Applicant did not say anything to the employer, and was given an employment contract to sign that day.  Despite the fact that the Applicant knew that she could not fulfill the one-year term of the contract, she signed the document.  When she attended the office for her fourth shift, she was called to a meeting at which her employment was terminated. 

The Applicant argued that the receptionist must have told the employer about her pregnancy, and that the employer then decided to terminate her employment.  The company denied any awareness that she was pregnant, and claimed that it had received troubling reports about the Applicant's attitude and demeanour.  The employer had previously struggled with at least one employee who exhibited similar behaviour, and so it decided to dismiss the Applicant early in the relationship as she was not a good "fit" with the organization or the culture they were trying to foster.  The company argued that its actions were not motivated or influenced by discriminatory considerations, as the decision-makers were not aware that the Applicant was pregnant at the time.  The receptionist had testified that she did not tell anyone about her conversation with the Applicant, although she had reported some concerns with the Applicant's attitude to the Office Manager on one occasion. 

In its decision, the HRTO observed that the Applicant bore the onus of establishing that it was more likely than not that the employer had discriminated against her on the basis of gender.  As in most cases before the Tribunal, any evidence of discriminatory conduct would be circumstantial, as most parties do not openly engage in such behaviour.  Given that the employer's defence depended on a finding that the company was unaware of the Applicant's pregnancy, the outcome was a function of the credibility of the various witnesses.  After reviewing the testimony and the parties' arguments, the Tribunal concluded that the three witnesses for the company were not credible.  First, the timing of the dismissal supported an inference that the CFO and Office Manager were aware.  Prior to her disclosure to the receptionist, there had been no criticism of the Applicant's performance or conduct. In light of this questionable timing, the HRTO considered the employer's reasons for terminating the Applicant's employment, and found them to be rather thin.  Despite the 'probation' clause in the Applicant's employment contract, it was not credible that the company would engage in a lengthy job competition, hire the Applicant, and then terminate her after her 3rd day of work based solely on one or two comments that the receptionist made to the Office Manager "in passing".  Given these concerns with the evidence of the employer, the HRTO concluded that it was more likely than not that the Applicant had been terminated due to her pregnancy.  In the result, the company was ordered to pay $15,000 in damages for injury to the Applicant's dignity, feelings and self-respect.  The employer was also ordered to hire an expert to assist it in the development of a human rights policy.

Aside from confirming that "honesty is the best policy", this decision highlights the importance of carefully documenting discussions that may have human resources impact, and to avoid taking action precipitously.  When dealing with any employee, including a worker on probation, it is imperative to ensure that any concerns regarding performance or conduct are documented and addressed with the employee.  While it may be tempting to 'pull the trigger' early in the relationship if it is determined that a new employee is not going to work out, the purpose of a probationary period is to afford the worker an opportunity to show what they are capable of.  Three days is simply not enough to form an opinion, particularly if the employee is only shadowing another staff member.  In this case, the employer may have had an opportunity to deal with the issue appropriately (i.e., by confronting the employee with its awareness of her pregnancy and the fact that she had signed a one-year contract knowing that she could not fulfill her side of the bargain).  Having failed to do so, it fell back on "fit", one of the weakest and most suspicious reasons for dismissal an employer can offer.

If you need guidance on navigating a challenging employment issue, do not hesitate to contact Lance Ceaser for expert, practical advice.


 

Friday 6 March 2015

Court reminds: "a message does not become privileged merely by sending a copy of it to a lawyer"

A recent decision of the Superior Court of Justice should serve as a good reminder to HR professionals that one must be careful in how information is shared if privilege will be claimed.

In Jacobson v. Atlas Copco Canada Inc., the plaintiff was a former employee of the defendant.  Following a workplace altercation involving the plaintiff and a co-worker, human resources investigated.  However, the plaintiff took the position that the local HR representative was biased.  Accordingly, the HR representative sought the opinion of another HR employee from a different location to ensure impartiality.  Copies of the investigation notes were exchanged among the HR representatives, with a copy to an external employment lawyer.  However, it was not clear that all of the employees on the email chain were aware of the identity of the lawyer, nor did anyone expressly seek the advice of the lawyer with respect to the outcome of the investigation.  In one particular email message, one of the HR reps offered his views on the application of the employer's progressive discipline policy and a proposed course of action vis-à-vis the plaintiff's employment.  A couple of hours later the lawyer provided his legal advice on the situation, although his opinion had not been solicited.  The employee was ultimately terminated, and sued for wrongful dismissal. 

In the course of the action, the plaintiff brought a motion seeking production of the email from the second HR representative of the company (but not the responding email from the lawyer, which clearly contained legal advice).  The employer resisted the motion on the basis that the email communication was protected by solicitor-client privilege and should not be produced.  In support of its position, the employer provided an affidavit from the company's General Manager, who advised that the company had retained the external lawyer to provide advice on the investigation, and his belief that the HR representative had been seeking advice when he copied his email to the lawyer.  However, the company did not provide an affidavit from the HR representative himself.

Justice Ellies looked at the surrounding circumstances to determine whether it was clear that the HR representative had intended to seek the lawyer's advice when he sent his email.  Unfortunately, because the company had not provided the "best evidence" (i.e., a statement from the individual who actually sent the email), the Judge concluded that the hearsay evidence of the General Manager did not establish that this was the intention of the communication in question. As the party claiming privilege, the onus of proving the communication was privileged rested with the company.  The evidence it put forward failed to prove that point on a balance of probabilities.  At paragraph 25, the Judge very succinctly summarized his conclusion:
Atlas Copco relies on [the General Manager]`s evidence that [the lawyer] was retained to provide legal advice prior to the [HR representative's] message and provided an opinion via e-mail a few hours after the message was sent. There is no doubt that [the lawyer]’s role was to provide legal advice with respect to this particular situation and that he did provide that advice after receiving [the HR representative's] message. However, that is not enough, in my view, to establish that [the HR representative] sent the message for the purpose of obtaining that legal advice in light of the other circumstantial evidence surrounding the communication. In the same way that sending a message to both a fellow employee and a lawyer does not prevent a communication from being privileged, a message does not become privileged merely by sending a copy of it to a lawyer.
While the decision turned largely on the  importance of producing the "best evidence" in all circumstances, it also lays bare a common assumption or misunderstanding about legal privilege.  In order to claim solicitor-client privilege, the client (in this context, the employer) must establish that the communication in question was sent to a lawyer with the intention of getting the lawyer's legal advice.  Copying a lawyer without soliciting an opinion may not suffice to protect the message from disclosure later, particularly if there is no discussion amongst the parties about the role of counsel on the email chain. Likewise, if the advice in question is not "legal" per se, privilege will also not apply.  Legal privilege can be a very valuable tool, particularly in the context of an investigation into wrongdoing.  However, if the role of the lawyer is not observed, privilege may be elusive.

Do you have questions about how and when solicitor-client privilege can be claimed?  Need assistance in conducting investigations?  Contact Lance Ceaser for expert guidance.