Monday, 5 January 2015

Year in Review: The Top 5 Labour & Employment Law Developments of 2014

Welcome to 2015!  With the coming of a new year, it's always a handy time to look back and see what we've learned and what's changed over the preceding 12 months.  In no particular order, here are the 5 biggest events of the year 2014 that all workplace parties should be aware of:

1.  Walmart gets punished for treatment of assistant manager - Although the Ontario Court of Appeal felt that the jury's award of aggravated and punitive damages (in the amount of $1.45 million against Walmart and its store manager) were excessive, even the reduced damages total was significant (in excess of $400,000).   In this case, the plaintiff's superior had asked her to complete reports which should have been done in her absence.  Feeling that completing the reports would be a form of falsification, she refused to do so.  Thereafter, the store manager targeted her for abusive and demeaning treatment, to the point that she ultimately became ill and quit her job.  At the end of the day, employers should take away that it's not enough to have positive workplace policies - complaints of harassment must be taken seriously and investigated, and frontline managers must also walk the walk, failing which the employer will be held to account. Managerial employees should also be aware that they may be held personally responsible for their actions if they go out of their way to create an unpleasant work environment for their reports.

2.  Total payroll, both within and outside Ontario, is included when determining whether an employer is subject to severance pay obligations under the Employment Standards Act - In Paquette c. Quadraspec Inc. (referenced in an earlier post here), the Ontario Superior Court of Justice had to assess whether an employee was entitled to severance pay.  While the employer's Ontario payroll did not exceed the $2.5 million threshold, the company had operations outside Ontario as well, and it's total payroll was greater than that figure.  Looking at the wording of the ESA, the Judge concluded that the Legislature had not intended to limit "payroll" to only the employer's Ontario payroll, and found severance to be applicable.  Previously, most employment lawyers and the Ministry of Labour had asserted that only Ontario payroll need be counted.  For employers with large workforces predominantly outside of Ontario, this development may be concerning.  It remains to be seen whether the decision will be appealed.

3.  Mental Stress claims at the WSIB no longer limited to “acute reaction to a sudden and unexpected traumatic event” - As discussed in an earlier blog post, the Workplace Safety Insurance Appeals Tribunal has struck down the WSIB's policy on 'traumatic stress' claims on the basis that it was discriminatory towards a sub-group of individuals who suffer work-related stress.  It can be expected that this decision will result in increased stress claims to the WSIB.

4.  New test for family status discrimination created by Federal Court of Appeal - As discussed in a blog post from May 2014, the Federal Court of Appeal has created a new test for when an employer must accommodate an employee's family status needs.  Since that decision came out, the approach of the Federal Court of Appeal has been approved and applied by the Alberta Human Rights Commission (discussed here).  So long as an employee has a child in his/her care and supervision, has legal responsibilities to that child, has made reasonable efforts to meet his/her childcare responsibilities without success, and a workplace rule interferes with the employee's ability to meet those obligations (in a manner that is not trivial or insubstantial), the employer has a duty to accommodate the employee to the point of undue hardship.  While this test does strike a balance between the duties of both employee and employer, it is not nearly as narrow as the test some adjudicators had previously applied.  Accordingly, employers will need to ensure that they thoroughly investigate requests for family status accommodation before asserting that they have no responsibility for doing so.

5.   An employee who breaches confidentiality can be ordered to repay a termination settlement - In a relatively rare 'good news' story for employers, an employee was ordered to repay almost the entirety of a termination settlement that was reached between her union and her former employer.  As discussed here, Jan Wong was fired by the Globe & Mail, but her discharge grievance was resolved by way of written minutes of settlement, which included a confidentiality provision.  When Wong later wrote about the event in a self-published book, including statements about the nature of the settlement, the Globe & Mail took the matter back before the arbitrator, who was satisfied that she had in fact violated the terms of the agreement.  In the result, the employee was ordered to repay over $200,000, as well as the employer's legal costs (of approximately $30,000).

Of course, these are not the only important developments over the past 12 months.  The Ontario Government has passed a number of changes to labour and employment statutes; the Ontario Human Rights Tribunal ordered the reinstatement of an employee who had been out of the workplace for over 10 years in Hamilton-Wentworth District School Board v. Fair; and the Supreme Court of Canada has issued a decision clarifying the test for summary judgment which should open the door to increased use of this procedure in wrongful dismissal cases. The Jian Ghomeshi firing turned the spotlight on how much an employer can punish an employee for his/her conduct outside the workplace.  That debacle, along with the harassment scandal on Parliament Hill, has brought the issue of workplace sexual harassment back into the spotlight again, as well. 

In short, it was an interesting year, and undoubtedly, we can expect more of the same in 2015.  Stay tuned to Ceaser Work Counsel's labour and employment law updates to stay on top of all that's new and interesting.

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