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.




 

Monday 2 March 2015

Duty to Accommodate Does Not Include Allowing Employee to Send Customers Away

There is a lot of confusion with respect to what measures an employer must take in order to accommodate an employee with a disability.  While employers must be prepared to make modifications to an employee's duties, such as adjusting hours of work, providing modified duties during periods of recovery, tolerating some absenteeism or waiving workplace rules that have a discriminatory effect, it is often difficult to assess whether an employee is able to perform the "essential duties" of the job, even with these accommodations.  A recent decision of the Human Rights Tribunal of Ontario (the "HRTO") illustrates where a request for accommodation goes too far.

In Pourasadi v. Bentley Leathers Inc., the Applicant was a store manager at the store, which sells luggage, hand bags, wallets and similar merchandise. As a store manager, the Applicant was required to work alone in the store for almost 50% of her weekly hours of work.  The rest of the time (late afternoons/evenings and Saturdays), one or more staff members were also present to assist customers. Although a manager, the Applicant was required to spend most of her workday doing customer service or merchandising and maintaining the store.  The Applicant injured her right wrist, unpacking a box, and subsequently developed issues with both arms (due to overcompensation for the original injury). For over a year, the employer accommodated the Applicant's restrictions, until she went off for surgery on her right arm.  She subsequently returned to work, but continued to have restrictions that prevented her from performing all aspects of the store manager job while alone in the store.  For a period of time, the employer scheduled an additional employee to perform the more physical duties in the store, but after a time the WSIB determined that the store manager job was not suitable for the Applicant, bringing this arrangement to an end.  When the employer determined that it could no longer accommodate the Applicant, she commenced an Application under the Human Rights Code, alleging that the employer had discriminated against her on the basis of disability by failing to accommodate her needs.

 At the HRTO, the scope of the duty to accommodate was raised as a preliminary issue.  The Applicant claimed that as part of its duty, the employer should permit her to defer tasks (such as merchandising and housekeeping) to other staff in the store, and that she should be allowed to ask customers to come back to the store at another time (when another employee was present) if the customer required assistance that was outside her restrictions.  The employer argued that these measures amounted to stripping away the essential duties of the job, and exceeded the employer's duty to accommodate.

After hearing the parties' argument, the HRTO rejected the Applicant's submissions.  With respect to the argument that the Applicant should be deemed capable of performing the essential duty of customer service by assisting customers "most of the time", the Tribunal found (at para. 31):
... In my view, based on the agreed upon facts, assisting customers constitutes over two thirds of the duties of the Store Manager position. As well, according to the agreed upon facts, Store Managers typically are assigned to work alone 19.5 hours per week. Based on these facts, I find that it is an essential duty of the Store Manager position to assist customers. In my view, the proper way of framing the essential duty relevant to this case is that it is an essential duty to "assist customers", not to assist customers "most of the time". In my view, if a duty is essential, it is a duty that is required to be performed whenever there is a need to perform it.
Given that being able to assist every customer was an essential duty, the proposed accommodation amounted to 'exempting' the Applicant from performing that essential duty.  The employer's duty to accommodate did not extend that far.  Based on its finding that the accommodation proposed by the Applicant did not fall within the employer's duty to accommodate, the HRTO did not make any findings regarding the argument that the Applicant should also be permitted to defer tasks to other staff.

The case is a good reminder of the limits on the duty to accommodate.  Whenever accommodation may be required, it is imperative for the employer to establish which duties are "essential" to the performance of the job before considering what measures or modifications could be put in place. If accommodation would involve removing the essential duties of the job, or exempting the employee from performing those functions (whether occasionally or all the time), the employer may not be in a position of accommodating the employee's needs without incurring undue hardship.  That is not to say that the employer may not have to consider other strategies, such as identifying other comparable, available roles that fall within the employee's restrictions and for which they are qualified.

Do you have questions about the duty to accommodate?  Need guidance on how best to provide modified duties in accordance with the Human Rights Code?  Contact Lance Ceaser for advice.