tag:blogger.com,1999:blog-38218797776105573422024-03-13T21:35:48.618-07:00Ceaser Work Counsel Labour and Employment Law UpdateLabour and Employment Law Update: Providing an update on workplace issues, including recent developments in labour and employment lawR Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.comBlogger72125tag:blogger.com,1999:blog-3821879777610557342.post-4537551713454812382015-06-01T12:11:00.000-07:002015-06-01T14:11:42.685-07:00The High Cost of Being Unreasonable (Part II)<span style="font-family: inherit;">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 <a href="http://www.canlii.org/en/on/onsc/doc/2015/2015onsc343/2015onsc343.pdf"><strong><em>Partridge v. Botony Dental Corporation</em></strong></a>, the employer was ordered to pay not only pay in lieu of reasonable notice, but damages for violating the employee's human rights.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">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 <em>Employment Standards Act, 2000</em> and the <em>Human Rights Code</em>, by refusing to return her to her former job and then terminating her employment, and that she was entitled to reasonable notice of dismissal.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">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.</span><br />
<span style="font-family: inherit;"></span><br />
<span style="font-family: inherit;">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 <em>ESA</em> 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 <em>Code</em>, the Court held (on the basis of the analysis in <em>Johnstone</em> & <em>Seeley</em> (discussed <a href="http://rlceaser-work-law.blogspot.ca/2014/05/when-is-there-duty-to-accommodate.html">here</a>)) 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:</span><br />
<blockquote class="tr_bq">
<span style="font-family: inherit;">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 <i>Johnstone</i>, 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 <i>Human
Rights Code </i>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.</span></blockquote>
<span style="font-family: inherit; line-height: 107%; mso-ansi-language: EN-CA; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;">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. </span><br />
<br />
<span style="font-family: "Calibri",sans-serif; line-height: 107%; mso-ansi-language: EN-CA; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="font-family: inherit;">Do you have questions about how to manage an employee's return to work from leave? Have questions about accommodating family obligations? Contact </span><a href="mailto:Lance@ceaserworkcounsel.ca"><span style="font-family: inherit;">Lance Ceaser</span></a><span style="font-family: inherit;"> for expert guidance.</span></span><br />
<span style="font-family: "Calibri",sans-serif; font-size: 11.5pt; line-height: 107%; mso-ansi-language: EN-CA; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"></span><br />R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com1tag:blogger.com,1999:blog-3821879777610557342.post-32393753332022767462015-04-30T09:08:00.001-07:002015-04-30T09:08:38.547-07:00Consequences For Failing to Disclose Covert Surveillance<span style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"> </span><br />
<span style="font-family: Arial, Helvetica, sans-serif;">In <strong><em><a href="http://www.canlii.org/en/on/onca/doc/2015/2015onca110/2015onca110.pdf">Iannarelli v. Corbett</a></em></strong>, 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.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"></span><br />
<span style="font-family: Arial, Helvetica, sans-serif;">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 <em>Rules of Civil Procedure</em> 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 <em>Rules</em> require the party to produce a Supplementary Affidavit, which discloses the existence of the surveillance evidence.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"></span><br />
<span style="font-family: Arial, Helvetica, sans-serif;">The Court concluded that the trial judge erred in a number of ways, stating (at paras. 69 and 70):</span><br />
<div>
<span style="font-family: Arial, Helvetica, sans-serif;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">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.<o:p></o:p></span></blockquote>
</span><span style="font-family: Arial, Helvetica, sans-serif;"></span></div>
<span><div class="Default" style="margin: 0cm 0cm 0pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">Instead, the trial judge
enabled what amounted to a trial by ambush, which is completely inappropriate
under the <i>Rules </i>(see <i>Ceci</i>, 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. <o:p></o:p></span></blockquote>
</div>
</span><div class="Default" style="margin: 0cm 0cm 0pt;">
</div>
<span style="font-family: Arial, Helvetica, sans-serif;">
</span><span style="font-family: Arial;">The Court of Appeal concluded that the trial judge should not have permitted the defendants to introduce the surveillance evidence. Although the <em>Rules</em> 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 <em>voir dire</em> on whether the evidence should be played for the jury.</span><br />
<span style="font-family: Arial;"></span><br />
<span style="font-family: Arial;">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.</span><br />
<span style="font-family: Arial;"></span><br />
<span style="font-family: Arial;">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 <em>Rules</em> 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.</span><br />
<span style="font-family: Arial;"></span><br />
<span style="font-family: Arial;">Need advice on a wrongful dismissal claim or demand? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert advice.</span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-78290250594241921322015-04-27T10:20:00.001-07:002015-04-27T10:40:48.186-07:00Dealing with Off-Duty Driving Offences<span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>As discussed in an earlier post on the Ghomeshi fiasco, employees can
incur employment-related repercussions for actions they take in their personal
capacity.<o:p></o:p></span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"></span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">But what about driving infractions?<span style="mso-spacerun: yes;"> </span>Can offences behind the wheel have employment
ramifications?<span style="mso-spacerun: yes;"> </span>What about an employee
who suffers from alcoholism?<span style="mso-spacerun: yes;"> </span>Can they
rely on their disability to excuse charges under the <i style="mso-bidi-font-style: normal;">Highway Traffic Act</i> or the <i style="mso-bidi-font-style: normal;">Criminal
Code</i>?<span style="mso-spacerun: yes;"> </span>As seems to generally be the
case in matters like this, the answer to these questions is “it depends”.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">As the Court said in <i style="mso-bidi-font-style: normal;">Pearce
v. Foster et al.</i> (a “master-servant” case from the late 19<sup><span style="font-size: x-small;">th</span></sup>
Century):</span></div>
<div class="MsoNormal" style="margin: 0cm 28.55pt 8pt 1cm;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span>However, the principle is
still observed:<span style="mso-spacerun: yes;"> </span>an employee’s behaviour
outside of work <i style="mso-bidi-font-style: normal;">may</i> have
repercussions for the employment relationship (up to and including dismissal)
where the behaviour is prejudicial to the employer’s interests.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">Before considering how to respond, an employer must make the
necessary enquiries to determine what has occurred and how significant an event
it is.<span style="mso-spacerun: yes;"> </span>Obviously, the employee should be
interviewed and any other available information gathered.<span style="mso-spacerun: yes;"> </span>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’.<span style="mso-spacerun: yes;">
</span>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.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">Perhaps most crucial to the employer’s decision-making will
be the nature of the employee’s role and responsibilities.<span style="mso-spacerun: yes;"> </span>Is possession of a valid driver’s license a
requirement of the position?<span style="mso-spacerun: yes;"> </span>Is driving
the primary or an essential duty of the employee’s job?<span style="mso-spacerun: yes;"> </span>If not, how often is the employee expected to
drive in the course of performing the job?<span style="mso-spacerun: yes;">
</span>Does the employee operate an employer vehicle or his/her own car?<span style="mso-spacerun: yes;"> </span>Does the employer maintain fleet insurance
and what are its terms?<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>However, it is also essential for the
employer to understand the duration of the license suspension or
conditions.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">The seriousness of the infraction and the employee’s
explanation and display of remorse (if any) are also important factors to
consider.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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).<span style="mso-spacerun: yes;"> </span>Likewise, the
attitude of the employee and any explanation they may provide must be
weighed.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span>Where charges against the
individual have been reported in the media, the employer’s reputation may be at
stake, particularly in a smaller community.<span style="mso-spacerun: yes;">
</span>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).<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span>As Arbitrator Owen Shime observed in one of
the seminal arbitration cases on the subject (<b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">Re Bell Canada and C.W.C.</i> </b>(Shime),
24 L.A.C. (4th) 116):</span></div>
<div class="MsoNormal" style="margin: 0cm 28.55pt 8pt 1cm;">
<span style="font-family: Arial, Helvetica, sans-serif;">An employee who loses his or her driving licence for
violation of the <i style="mso-bidi-font-style: normal;">Highway Traffic Act</i>,
[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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span>However, this option should only be
considered in cases where the period of suspension or driving conditions is
known and relatively short.<span style="mso-spacerun: yes;"> </span>And of
course, this alternative should never be considered where it would result in
displacing another employee.<span style="mso-spacerun: yes;"> </span>Only
available work should be offered to accommodate the employee who has lost
his/her driving privileges.</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">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?<span style="mso-spacerun: yes;"> </span>What weight should the
employer give the employee’s disability?<span style="mso-spacerun: yes;">
</span>Is it an excuse or a mitigating factor?</span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: Arial, Helvetica, sans-serif;">In <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><a href="http://pslrb-crtfp.gc.ca/decisions/fulltext/31031_e.asp">English v. Treasury Board (Solicitor GeneralCanada - Correctional Service)</a></i></b>, 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.<span style="mso-spacerun: yes;"> </span>The officer had not told the employer that he
had been convicted or that his license had been suspended for two (2)
years.<span style="mso-spacerun: yes;"> </span>In addition, he continued to
operate employer vehicles (performing inmate transfers) after he lost his
license.<span style="mso-spacerun: yes;"> </span>Prior to the arbitration
hearing, the employee expressed remorse and took steps to address his
acknowledged problems with alcohol abuse.<span style="mso-spacerun: yes;">
</span>The Board Member observed that the employee’s alcoholism had to be
considered in assessing the appropriate penalty for his wrongful behaviour.<span style="mso-spacerun: yes;"> </span>Citing an earlier decision, the Board Member
wrote:</span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">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:</span></blockquote>
</div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">1.<span style="mso-tab-count: 1;"> </span>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;</span></blockquote>
</div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">2.<span style="mso-tab-count: 1;"> </span>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;</span></blockquote>
</div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">3.<span style="mso-tab-count: 1;"> </span>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;</span></blockquote>
</div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">4.<span style="mso-tab-count: 1;"> </span>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;</span></blockquote>
</div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">5.<span style="mso-tab-count: 1;"> </span>An
adjudication board should consider the extent to which and the duration for
which an employee is unable to perform his employment obligations;</span></blockquote>
</div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">6.<span style="mso-tab-count: 1;"> </span>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.<o:p></o:p></span></blockquote>
</div>
</div>
<span lang="EN" style="mso-ansi-language: EN; mso-bidi-font-style: italic;"><span style="font-family: Arial, Helvetica, sans-serif;">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.<span style="mso-spacerun: yes;"> </span>Evidence that the employee has sought
treatment even after termination may be relevant.<span style="mso-spacerun: yes;"> </span>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).<o:p></o:p></span></span><br />
<span lang="EN" style="font-family: Arial, Helvetica, sans-serif; mso-ansi-language: EN; mso-bidi-font-style: italic;"></span><br />
<span lang="EN" style="font-family: Arial, Helvetica, sans-serif; mso-ansi-language: EN; mso-bidi-font-style: italic;">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.</span><br />
<div class="MsoNormal" style="margin: 0cm 28.55pt 8pt 0cm;">
<span lang="EN" style="font-family: Arial, Helvetica, sans-serif; mso-ansi-language: EN; mso-bidi-font-style: italic;"></span><br />
<span lang="EN" style="font-family: Arial, Helvetica, sans-serif; mso-ansi-language: EN; mso-bidi-font-style: italic;">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.<span style="mso-spacerun: yes;"> </span>A careful, fact-specific assessment is
required in each and every case.</span></div>
<div class="MsoNormal" style="margin: 0cm 28.55pt 8pt 0cm;">
<span lang="EN" style="mso-ansi-language: EN; mso-bidi-font-style: italic;"><span style="font-family: Arial, Helvetica, sans-serif;">Do you have questions how to deal with an
employee who has lost their driving privileges?<span style="mso-spacerun: yes;">
</span>Need guidance on whether or not to discipline for off-duty conduct?<span style="mso-spacerun: yes;"> </span>Contact </span><a href="mailto:Lance@ceaserworkcounsel.ca"><span style="font-family: Arial, Helvetica, sans-serif;">Lance Ceaser</span></a><span style="font-family: Arial, Helvetica, sans-serif;"> for expert advice.</span></span><blockquote class="tr_bq">
</blockquote>
<span lang="EN" style="mso-ansi-language: EN; mso-bidi-font-style: italic;"><span style="font-family: Arial, Helvetica, sans-serif;">
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R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-62906781271048559602015-04-15T04:00:00.000-07:002015-04-15T12:32:46.526-07:00Summary Judgment - The Way of the Future for (Some) Wrongful Dismissal Cases<br />
When the Supreme Court of Canada issued its decision in <a href="http://www.canlii.org/en/ca/scc/doc/2014/2014scc7/2014scc7.pdf"><span style="color: windowtext; text-decoration: none; text-underline: none;"><em>Hryniak</em></span></a><em>
v. Mauldin </em>last year, it was not clear whether the Court's guidance on the use
of summary judgment motions (under Rule 20 of the <em>Rules of Civil Procedure</em>) 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?<br />
<br />
In its recent decision in <em><a href="http://www.ontariocourts.ca/decisions/2015/2015ONCA0063.htm#_ftnref1"><strong>Arnone v. Theratronics Ltd.</strong></a></em>, 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 <em>Arnone</em>, 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.<br />
<br />
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 <em>Bardal v. The Globe & Mail Ltd</em>. 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 <em>Bardal</em> factor to be considered in determining reasonable notice. The Court then stated:<br />
<div>
<blockquote class="tr_bq">
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.</blockquote>
<o:p></o:p><br /></div>
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).<br />
<br />
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. <br />
<br />
Do you have questions about wrongful dismissals? Need guidance to make sure that the notice provided is "reasonable"? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert advice.<br />
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<br />R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-52920117087072345102015-04-08T04:00:00.000-07:002015-04-08T04:00:00.108-07:00False Harassment Claim Warrants DischargeWhile 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.<br />
<br />
In <em><strong><a href="http://www.canlii.org/en/on/onla/doc/2014/2014canlii70956/2014canlii70956.pdf">Canadian Union of Public Employees, Local 3261 v. University of Toronto</a></strong></em>, 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.<br />
<br />
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.<br />
<br />
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:<br />
<blockquote class="tr_bq">
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. </blockquote>
In the result the grievance was dismissed.<br />
<br />
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:<br />
<ul>
<li>Make sure you're workplace harassment and/or violence policies expressly provide for sanctions for fabricated or bad faith complaints;</li>
<li>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;</li>
<li>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.</li>
</ul>
By exercising a degree of due diligence, an employer can greatly improve the likelihood of being able to address false claims when they arise.<br />
<br />
Do you need advice on conducting workplace investigations? Need an experienced investigator? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert assistance.<br />
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</span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-14668688083820133852015-04-01T04:00:00.000-07:002015-04-01T04:10:36.595-07:00The 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 <em>Johnstone</em> and <em>Seeley</em> (reported on <a href="http://rlceaser-work-law.blogspot.ca/2014/05/when-is-there-duty-to-accommodate.html">here</a>). 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.<br />
<br />
<span style="font-family: inherit;">In
<strong><em><a href="http://www.canlii.org/en/ab/abqb/doc/2015/2015abqb162/2015abqb162.pdf">SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707</a></em></strong>, 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):</span><br />
<blockquote class="tr_bq">
A flexible and contextual application of the <b><i>Moore </i></b>test does not justify the application of an entirely different test of <i>prima facie </i>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 <i>prima facie </i>case is established. It is only when the complainant establishes a <i>prima facie </i>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: <b><i>Central Okanagan School District No 23 v Renaud</i></b>, <span class="reflex3-block" concatenated-id="1992csc-scc78"><a class="reflex3-caselaw" href="http://www.canlii.org/en/ca/scc/doc/1992/1992canlii81/1992canlii81.html"><span style="color: blue;">1992 CanLII 81 (SCC)</span></a>, [1992] 2 SCR 970 at 994, 141 NR 185</span> [<b><i>Central Okanagan</i></b>], 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. </blockquote>
In short, the Alberta Court was of the view that the test for <em>prima facie</em> family status discrimination was the same as applied in relation to any other prohibited ground of discrimination. The complainant must show that:<br />
<blockquote class="tr_bq">
1.<span style="font-size: 7pt;"> </span>The complainant has a
characteristic that is protected from discrimination;<o:p></o:p></blockquote>
<blockquote class="tr_bq">
2.<span style="font-size: 7pt;"> </span>The complainant has
experienced an adverse impact; and<o:p></o:p></blockquote>
<blockquote class="tr_bq">
3.<span style="font-size: 7pt;"> </span>The complainant must
show that the protected characteristic was a factor in the adverse impact. </blockquote>
Under this analysis, the efforts made by the employee to accommodate his or her family obligations would <u>not</u> be relevant to whether or not the employer had discriminated against the employee. However, relying on the decision in Central <em>Okanagan</em> (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 <em>Johnstone/Seeley</em> 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...<br />
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Do you need assistance with complex accommodation issues? Need to better understand your workplace obligations? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert guidance.<br />
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R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-83809564096034415892015-03-26T02:53:00.000-07:002015-03-26T02:53:21.464-07:00Guidance on What an Employer Can Do When Accommodating a Disabled EmployeeIn 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.<br />
<br />
In <a href="http://www.canlii.org/en/ca/chrt/doc/2014/2014chrt16/2014chrt16.pdf"><em><strong>Croteau v. Canadian National Railway</strong></em></a>, 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.<br />
<br />
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:<br />
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
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.<o:p></o:p></blockquote>
</div>
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 <u>substantive</u> failure to provide reasonable accommodation. (The Tribunal based its view in this regard on the decision in <em>Attorney General of Canada v. Cruden et al.</em>, which was recently upheld by the Federal Court of Appeal, as discussed <a href="http://rlceaser-work-law.blogspot.ca/2015/02/federal-court-of-appeal-upholds.html">here</a>.) <br />
<br />
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:<br />
<ul>
<li>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;</li>
<li>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;</li>
<li>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;</li>
<li>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);</li>
<li>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.</li>
<li>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";</li>
<li>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;</li>
<li>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;</li>
<li>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.</li>
</ul>
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.<br />
<br />
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).<br />
<br />
Do you face challenges with accommodation? Need assistance in navigating the RTW process? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert advice.<br />
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</span></i>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-85212193319515278142015-03-23T04:00:00.000-07:002015-03-23T04:00:05.358-07:00SCC: Indefinite Suspension With Pay May Be Constructive DismissalThe 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. <br />
<br />
<strong><u>The Facts</u></strong><br />
<br />
In <em><strong><a href="http://scc-csc.lexum.com/scc-csc/scc-csc/en/14677/1/document.do">Potter v. New Brunswick Legal Aid Services Commission</a></strong></em>, 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. <br />
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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.<br />
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<strong><u>The Trial and Appeal Decisions</u></strong><br />
<strong><u></u></strong><br />
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. <br />
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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.<br />
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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. <br />
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<strong><u>The SCC's Decision</u></strong><br />
<strong><u></u></strong><br />
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:<br />
<blockquote class="tr_bq">
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. </blockquote>
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.<br />
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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. <br />
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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.<br />
<span style="font-size: small;"><br />
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.</span><br />
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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 <em><a href="http://www.canlii.org/en/ca/scc/doc/2013/2013scc70/2013scc70.pdf"><strong>IBM Canada Limited v. Waterman</strong></a>. </em>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.<em> </em><br />
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<strong><u>What It Means for Employers</u></strong></span><br />
The Supreme Court of Canada made a number of important findings in the decision that employers need to be aware of:<br />
<ul>
<li>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".</li>
<li>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).</li>
<li>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.</li>
<li>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.</li>
</ul>
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.<br />
<span style="font-size: small;"><em> </em></span>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 <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert, affordable advice.<br />
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<strong><u></u></strong><br />R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-79426256390994675842015-03-19T04:00:00.000-07:002015-03-19T04:00:04.120-07:00"Earned" Commissions Found to Cease on Employee's Last Active Day of Employment<span style="font-family: inherit;">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.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">In <strong><em><a href="http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc2140/2014bcsc2140.pdf">Sciancamerli v. Comtech (Communication Technologies) Ltd.</a></em></strong>, 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.</span><br />
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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:<br />
<span style="font-size: small;"></span><blockquote class="tr_bq">
<span style="font-size: small;">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…. </span></blockquote>
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<span style="font-family: Calibri;"><o:p><br /><span style="font-family: inherit;">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.</span></o:p></span></div>
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<o:p>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.</o:p></div>
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<o:p>Do you need assistance reviewing your employment documentation? Need advice on drafting compensation and incentive plans to ensure clarity? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert guidance.</o:p></div>
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R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-36741168946221047992015-03-16T04:00:00.000-07:002015-03-16T05:56:17.315-07:00The High Cost of Being UnreasonableAll 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 <a href="http://www.canlii.org/en/on/onsc/doc/2015/2015onsc766/2015onsc766.pdf"><strong><em>Tossonian v. Cynphany Diamonds Inc.</em></strong></a> demonstrates how playing hard ball can be expensive.<br />
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As described in <a href="http://rlceaser-work-law.blogspot.ca/2015/02/employee-unable-to-establish.html">my earlier post on this case</a>, 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.<br />
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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.<br />
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The result? The employer was ordered to pay the plaintiff's costs on a "partial indemnity" basis to the tune of <strong>over $90,000</strong>, 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.<br />
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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.<br />
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Do you need sound legal advice on a labour or employment law issue? Need representation that is diligent without being unreasonable? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert guidance.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-72154237433174844402015-03-12T04:00:00.000-07:002015-03-12T04:00:00.146-07:00Insensitive Presentation to Employees ≠ Harassment or DiscriminationConcepts 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 <em>Human Rights Code</em> 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.<br />
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In <strong><em><a href="http://www.canlii.org/en/on/ongsb/doc/2014/2014canlii74778/2014canlii74778.pdf">Ontario Public Service Employees Union v. Ontario (Ministry of Transportation)</a></em></strong>, 39 employees joined a grievance alleging that the employer had violated several provisions of the collective agreement and the <em>Human Rights Code</em> 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 <em>Human Rights Code</em>, 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. <br />
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The Grievance Settlement Board found that the grievances did not make out a <em>prima facie</em> 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:<br />
<span style="font-size: small;"></span><blockquote class="tr_bq">
<span style="font-size: small;">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. </span></blockquote>
<span style="font-size: small;">
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. <br />
In closing, the Board felt compelled to address the union's argument that dismissing the grievances for lack of a <em>prima facie</em> 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:<br />
<span style="font-size: small;"><blockquote class="tr_bq">
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. </blockquote>
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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.<br />
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Do you have concerns about workplace harassment or other offensive behaviour? Need advice on an upcoming grievance arbitration? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for cost-effective assistance with all of your labour and employment law issues.<br />
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</span><br />R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-26672889773293128832015-03-10T06:44:00.000-07:002015-03-10T09:18:16.175-07:00Termination One Day After Employee Disclosed Pregnancy Deemed DiscriminatoryOnce 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.<br />
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In <em><strong><a href="http://www.canlii.org/en/on/onhrt/doc/2014/2014hrto1531/2014hrto1531.pdf">Lugonia v. Arista Homes</a></strong></em>, 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. <br />
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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. <br />
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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.<br />
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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.<br />
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If you need guidance on navigating a challenging employment issue, do not hesitate to contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert, practical advice.<br />
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<span style="font-size: small;"> </span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-89136975483954502712015-03-06T14:22:00.001-08:002015-03-06T14:22:27.225-08:00Court 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.<br />
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In <em><strong><a href="http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4/2015onsc4.pdf">Jacobson v. Atlas Copco Canada Inc.</a></strong></em>, 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. <br />
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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.<br />
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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:<br />
<blockquote class="tr_bq">
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.</blockquote>
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" <em>per se</em>, 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.<br />
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Do you have questions about how and when solicitor-client privilege can be claimed? Need assistance in conducting investigations? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert guidance.<br />
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</span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-17686936591064371372015-03-02T06:34:00.000-08:002015-03-02T06:34:45.569-08:00Duty to Accommodate Does Not Include Allowing Employee to Send Customers AwayThere 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.<br />
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In <strong><em><a href="http://www.canlii.org/en/on/onhrt/doc/2015/2015hrto138/2015hrto138.pdf">Pourasadi v. Bentley Leathers Inc.</a></em></strong>, 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 <em>Human Rights Code</em>, alleging that the employer had discriminated against her on the basis of disability by failing to accommodate her needs.<br />
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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.<br />
<br />
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):<br />
<blockquote class="tr_bq">
... 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. </blockquote>
Given that being able to assist <u>every</u> 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.<br />
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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.<br />
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Do you have questions about the duty to accommodate? Need guidance on how best to provide modified duties in accordance with the <em>Human Rights Code</em>? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for advice.<br />
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</span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-53522454039461137162015-02-26T12:20:00.001-08:002015-02-26T12:33:37.346-08:00Court of Appeal Determines PHIPA Does Not Preclude Action for Privacy BreachThe <em>Personal Health Information Protection Act</em> ("PHIPA") creates a myriad of obligations for "personal health information custodians", as defined by the Act. In a decision, that will be of particular interest to employers in the healthcare sector, the Ontario Court of Appeal has ruled that the legislative scheme does not close the door on a potential action for breach of privacy involving the personal health information ("PHI") of patients or clients.<br />
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After approximately 280 patient records were improperly accessed by an employee of the Peterborough Regional Health Centre (the "Hospital"), and the patients advised of the privacy breach, three (3) representative plaintiffs commenced a class action lawsuit (<em><strong><a href="http://www.canlii.org/en/on/onca/doc/2015/2015onca112/2015onca112.pdf">Hopkins v. Kay</a></strong></em>) against the Hospital, claiming "intrusion upon seclusion" (the privacy tort first recognized by the Ontario courts in <em><a href="http://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.pdf">Jones v. Tsige</a></em> ("<em>Jones</em>")). According to the Statement of Claim, a Registered Practical Nurse (who was later terminated as a result of her actions) and other Hospital employees accessed patient records without authorization. The Claim alleged that the Hospital had not taken proper measures to implement policies and monitor staff to prevent unauthorized access to PHI. Although the Claim had originally relied on provisions of PHIPA as a basis for relief, it was later amended to rely solely on the common law tort of intrusion upon seclusion. The Hospital brought a motion to dismiss the action, claiming that the plaintiffs' rights were entirely governed by PHIPA, which created an exhaustive code in relation to PHI, and that there was no access to a common law remedy for the privacy breach. The motion was dismissed and the Hospital appealed.<br />
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On appeal, the Hospital argued that PHIPA created a comprehensive scheme, including complaint and enforcement mechanisms, that was intended to be the sole means to remedy violations of privacy related to PHI. The Hospital argued that the Act set up adequate methods of redress, and it was clearly the intention of the Legislature that PHIPA was to occupy this field of the law, to the exclusion of the common law of tort. The Court reviewed the history of the statute, and provided an overview of its mechanisms. The Court observed that the Commissioner (who oversees the Act) has broad investigative and procedural powers, but that there was no "adversarial" dispute resolution contemplated and that orders of the Commissioner only became enforceable upon being filed with the Superior Court. Moreover, upon a finding of a violation by the Commissioner, a complainant was expressly entitled to pursue a claim for damages in the courts, including a claim for mental anguish (s. 65 of the Act). The Act also provides immunity for "good faith" acts or omissions that violate the legislation, but provides for fines for willful violations.<br />
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The Court found that there was nothing express or implied in PHIPA that would suggest the Legislature intended PHIPA to exclusively occupy the field of PHI protection. While PHIPA provides an expansive and detailed regime for the collection, use and disclosure of personal information, it does not provide a dispute resolution mechanism that allows complainants to present and challenge evidence, instead focusing on the Commissioner's investigative authority. The legislation expressly contemplates the possibility that a complaint might be more properly addressed through some other procedure, and permits individuals to pursue claims for damages in the courts. While there was some overlap between proving a violation of the Act and making out the <em>Jones</em> tort, the two proceedings are sufficiently different that there was no reason to conclude that allowing an action to proceed would undermine the enforcement provisions of the Act. Finally, the Court found that the Commissioner has broad discretion on whether to investigate a particular complaint, but that the Commissioner focuses on systemic issues. While the remedies available to a complainant may be similar, there was significantly less chance of achieving redress through the PHIPA procedure since individual complaints rarely resulted in an order by the Commissioner. The authorities advanced by the Hospital were also distinguished. In the result, the appeal was dismissed and the matter was permitted to proceed in the courts.<br />
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It remains to be seen whether the class proceeding will be certified by the Superior Court, but given the decision in <em><a href="http://www.canlii.org/en/on/onsc/doc/2014/2014onsc2135/2014onsc2135.pdf">Evans v. The Bank of Nova Scotia</a></em> (discussed <strong><a href="http://rlceaser-work-law.blogspot.ca/2014/06/can-employer-be-held-liable-for-privacy.html">here</a></strong>), it is likely that the representative plaintiff can get past this hurdle. So, what does it mean for employers who are responsible for collecting, using and disclosing PHI? Well, in addition to the risk of being publicly shamed through the PHIPA enforcement procedure, personal health information custodians also bear the risk of being held vicariously liable for breaches of privacy by their employees. Employers who possess PHI (whether covered by PHIPA as "personal health information custodians" or not) will want to ensure that they have robust policies, clearly communicate expectations to employees, provide adequate training on privacy protection, and implement effective safeguards to prevent unauthorized access and disclosure of such information. Failing to take these steps could result in significant liability.<br />
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Do you have questions about the protection of personal information? Concerned about a potential "intrusion upon seclusion" claim? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for cost-effective and expert help.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-28051074928596599282015-02-25T10:29:00.002-08:002015-02-25T10:30:51.367-08:00Trying to Stop Shoplifter While on a Break Not "In the Course of Employment": WSIATIn a recent decision, the Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or the "Tribunal") has ruled that an employee of a supermarket can sue her employer and a third-party for injuries she incurred when she was run over in the parking lot by a suspected shoplifter. The employee was on a break at the time that she became involved in trying to apprehend the shoplifter. In its decision, WSIAT determined that neither the employee nor the personal defendant (the grocery manager) were "in the course of employment" when the employee was injured, and that she was not therefore precluded from pursuing a civil claim.<br />
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In <strong><em><a href="http://www.canlii.org/en/on/onwsiat/doc/2014/2014onwsiat2526/2014onwsiat2526.pdf">Guizzo v. Metro Ontario Inc.</a></em></strong>, the Tribunal initially focused on whether it could be said that the grocery manager (Mr. Hughes, a defendant in the action by cross-claim) was in the course of employment, taking into consideration the factors of time, place and activity. At the point when Mr. Hughes pursued the suspected shoplifter, he had completed his shift. The pursuit led to a shared parking lot that was not part of the employer's premises, and the employer had a violence prevention policy that prohibited employees from trying to apprehend thieves. Pursuing shoplifters was not part of the defendant's job, in any event.<br />
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Likewise, the Tribunal found that Ms. Guizzo was on a break, and the employer had an expectation that she would be available to be called back to work if needed. She had varied from her usual routine of spending her breaks near the exit door of the store. The employer did not expect the employee (a cashier) to attempt to stop a suspected shoplifter, and such activity was expressly prohibited by the violence prevention policy. Ms. Guizzo's injuries were incurred in the parking lot, which was not part of the employer's premises.<br />
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Under the WSIB's policies (OPM Document No. 15-02-02, "Accident in the Course of Employment"), an accident is deemed to be work-related where "the worker was engaged in the performance of a work-related duty or in <u>an activity reasonably incidental to (related to) the employment</u>" (emphasis added). However, OPM Document No. 15-03-04 specifies that "[w]orkers are not in the course of employment in public parking areas not under the employer’s control". Moreover, where an employee is doing something that is outside their duties, or that he or she was not reasonably expected to do, this will generally take an employee outside the course of employment (OPM Document No. 15-03-08). In addition to Board policy, the Tribunal also considered a list of factors that had been determined to be relevant in previous decisions:</div>
<blockquote class="tr_bq">
<span></span>1. Whether the employer derived a benefit from the activity performed by the
worker. <o:p></o:p></blockquote>
<blockquote class="tr_bq">
2. Whether the worker was paid by the employer for the activity. <o:p></o:p></blockquote>
<blockquote class="tr_bq">
3. Whether the accident occurred while the worker was using equipment or
materials supplied by the employer. <o:p></o:p></blockquote>
<blockquote class="tr_bq">
4. Whether the risk to which the employee was exposed was the same as the
risk to which he would normally be exposed in the course of his employment. <o:p></o:p></blockquote>
<blockquote class="tr_bq">
5. Whether the activity was a result of instructions received by the
employer. <o:p></o:p></blockquote>
<blockquote class="tr_bq">
6. Whether the accident occurred during the worker's normal working hours or
overtime hours.<o:p></o:p></blockquote>
<blockquote class="tr_bq">
7. Whether the activity was reasonably incidental to the worker's normal
employment duties. <o:p></o:p></blockquote>
In reviewing these factors, the Tribunal concluded that neither employee was doing something from which the employer derived a benefit, and that the time and place of the accident suggested that neither was performing their duties or an activity "reasonably incidental" to those duties when the accident occurred. <br />
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Despite the obvious connection with the workplace, the Tribunal concluded that neither Ms. Guizzo nor Mr. Hughes were "in the course of employment" when Ms. Guizzo was injured. Because of this finding, the WSIAT concluded that section 28 of the <em>Workplace Safety and Insurance Act</em> did not remove Ms. Guizzo's right to sue for her injuries.<br />
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For employers, the moral of the story is that despite WSIB coverage, there will still be instances in which an employee's injuries may not be covered by the statutory regime. Where employees are engaged in activities that take them outside the normal course of their duties (even where the employer has a policy prohibiting such behaviour), an employee may still retain a right to bring a civil action naming the employer. It must be remembered, however, that this decision does not determine fault with respect to the employee's injuries. It remains open to the defendants to argue contributory negligence on the part of the plaintiff, relying on the employer's violence prevention policy.<br />
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Do you have questions about what it means to be "in the course of employment"? Need guidance on a WSIB claim or civil action by an employee? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert advice.<br />
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<span style="font-size: x-small;"> </span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-68914403934807512392015-02-23T10:59:00.001-08:002015-02-23T10:59:42.563-08:00Drug & Alcohol Testing - The State of the LawOver the last couple of years, the law on workplace drug and alcohol testing has become significantly clearer - to the point where it's arguable that there is little ambiguity left. It is widely accepted that alcohol and drug dependency are 'disabilities' protected by human rights legislation, and that drug testing tends to impose differential treatment on those who suffer from these conditions or presupposes that those who test positive are "addicts" and more likely to be impaired in the workplace. In the absence of evidence to establish that testing (to ensure freedom of impairment) is a <em>bona fide</em> occupational requirement (i.e., rationally connected to preventing impairment, adopted in good faith, reasonably necessary to achieve that end, and that no other reasonable accommodation of disabled employees is possible, without incurring undue hardship), alcohol and drug testing will be found to be discriminatory.<br />
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So what are employers allowed to do in the name of workplace health and safety? What is out of bounds? Here's an overview of how the law has evolved, and where employers and employees stand following the most recent pronouncements of the courts and arbitrators.<br />
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<strong><em>Entrop v. Imperial Oil</em></strong><br />
<strong><em></em></strong><br />
The debate about the competing interests of employers (maintaining a safe workplace) and employees (protecting privacy and dignity) really got started with the decision of the Ontario Court of Appeal in <em><strong><a href="http://www.canlii.org/en/on/onca/doc/2000/2000canlii16800/2000canlii16800.pdf">Entrop v. Imperial Oil </a></strong></em>("<em>Entrop</em>"). In that case, the employee had disclosed a past substance abuse problem, in line with the employer's alcohol and drug policy, and was transferred out of a safety-sensitive position as a result. <span style="font-family: inherit;">In order to be reinstated to his former job, the employee was required to complete a company-approved two-year rehabilitation program followed by five years of abstinence and to sign an undertaking to abide by specified post-reinstatement controls (such as unannounced testing). The policy also provided for random testing for all employees in safety-sensitive roles, providing for termination for a failed test. The employee complained to the Ontario Human Rights Commission, and his complaint was upheld by a Board of Inquiry.</span><br />
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<span style="font-family: inherit;">On appeal from the judicial review decision, the Court of Appeal found that alcohol and drug dependency were forms of "disability" protected by the <em>Human Rights Code</em>. The Court went on to find that testing was rationally connected to the legitimate goal of preventing potentially "catastrophic" incidents at an oil refinery, which is an inherently safety-sensitive workplace. However, drug testing (at the time) did not establish "present impairment", and therefore could not establish that an employee's condition, following a positive test, posed an actual danger. While alcohol testing could establish impairment, it could not be justified unless the sanction imposed by the employer was tailored to the individual's circumstances and was supportive of accommodating his or her disability. The Court of Appeal agreed with the Board of Inquiry that the provisions on disclosure, reassignment and reinstatement also violated the <em>Human Rights Code</em>, in that the employer did not establish that these rules were reasonably necessary to ensure that employees were not impaired in the workplace. The mandatory disclosure of a past substance abuse problem, no matter how long ago, was unreasonable, particularly once an employee was no more at risk of relapse than a member of the general population. Requiring that an employee be reassigned out of a safety-sensitive position once they had disclosed a past substance abuse problem was also not reasonable because it failed to offer any accommodation to the employee who had disclosed a disability. The obligations that the policy imposed post-reinstatement were overly broad and unnecessarily rigorous. The Court, however, found that reasonable cause and post-incident testing were defensible, provided they were part of a broader assessment of impairment by alcohol and drugs in the workplace.</span><br />
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Since the <em>Entrop</em> decision, there has been a vast amount of litigation on the subject of whether an employer can legitimately test employees for impairment by alcohol or drugs. Here's a summary of where the law currently stands in Ontario:<br />
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<strong><u>Random Testing</u></strong><br />
<br />
Following the decision of the Supreme Court of Canada in <em><a href="http://www.canlii.org/en/ca/scc/doc/2013/2013scc34/2013scc34.pdf"><strong>Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.</strong></a> </em>("<em>Irving</em>")<em>,</em> it is now accepted that a unionized employer cannot justify the random testing of employees in safety-sensitive positions, unless the employer can establish that there is an actual workplace problem with drug and alcohol impairment which threatens health and safety.
On the facts, the employer could only point to eight (8) safety incidents over a 15-year period that were caused or attributable to drug or alcohol impairment, so the employer was unable to establish that the balance of interests favoured intruding upon employee's autonomy by imposing random, unannounced testing.<br />
<div class="MsoNormal" style="line-height: normal; margin: 0cm 0cm 0pt; mso-layout-grid-align: none;">
<i style="mso-bidi-font-style: normal;"><span style="font-family: "Times-BoldSC",serif; mso-bidi-font-family: Times-BoldSC; mso-bidi-font-weight: bold;"></span><o:p></o:p></i> </div>
However, in the non-union setting, employers <u>may</u> have slightly more leeway. In <em>Irving</em>, the SCC expressly distinguished the <em>Entrop</em> decision, as non-union employers are not subject to the same managerial fetters as they are under a collective agreement. It remains to be seen whether the analysis in <em>Irving</em> will ultimately influence human rights decision-makers when addressing complaints from employees who do not have union representation.<br />
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<strong><u><span style="font-family: inherit;">Pre-Access Testing</span></u></strong><br />
<br />
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="font-family: inherit;">In a recent decision, the Ontario Superior Court of Justice upheld the decision of Arbitrator George Surdykowski in <strong><em><a href="http://www.canlii.org/en/on/onla/doc/2013/2013canlii54951/2013canlii54951.pdf">Mechanical ContractorsAssn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry</a></em></strong>, in which the Arbitrator determined that pre-access testing was more akin to random testing, and therefore unreasonable unless it can be established that:<span style="mso-spacerun: yes;"> </span> </span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<blockquote class="tr_bq">
<span style="font-family: inherit;">... such testing will probably have a meaningful ameliorating effect on an actual substance abuse problem at that work site, and so long as such pre-access testing is part of a broader alcohol and drug policy which includes an individualized approach to dealing with employee alcohol and drug issues which is consistent with the Ontario <em>Human Rights Code</em>.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></blockquote>
</div>
<span style="font-family: inherit;">In short, unless the employer can establish both an actual workplace problem with alcohol or drugs and the availability of accommodation for employees who test positive, pre-access testing will not be reasonable in unionized workplaces.<span style="mso-spacerun: yes;"> </span>Whether pre-access testing is permissible in non-union settings (following <em>Entrop</em>) remains to be conclusively determined.<o:p></o:p></span><br />
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<strong><u><span style="font-family: inherit;">For Cause, Post-Incident and Testing Following Return from Treatment</span></u></strong><br />
<span style="font-family: inherit;"></span><br />
<span style="font-family: inherit;">Following <em>Entrop</em>, there has been little argument about an employer's right to perform drug and alcohol testing where there is reasonable cause to suspect impairment (e.g., where an employee is behaving in a manner that raises a suspicion of substance abuse), or following an incident or near-miss in the workplace. In order to qualify, the employee must be in a safety-sensitive position, and there must be objective reasons to consider drug or alcohol impairment as a potential cause or contributor to the employee's behaviour or performance. Likewise, when an employee in a safety-sensitive job has disclosed an addiction and has sought treatment, an employer has a right to require testing for a reasonable period of time following the employee's return to work to monitor compliance with the employee's rehabilitation program. Of course, the response to a positive test in any of these circumstances must be tailored to the employee's personal circumstances and provide the potential for accommodation of a disability, but it is otherwise permissible.</span><br />
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<strong><u>The East-West Divide</u></strong><br />
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Ontario employer may have heard of more lenient decisions emanating from the courts of Alberta (most notably the 2007 decision of the Alberta Court of Appeal in <em>Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company</em>, leave to appeal to the Supreme Court of Canada denied). However, don't be confused. As recognized by Arbitrator Surdykowski in the <em>Mechanical Contractors' Association Sarnia</em> decision (above), there is truly a divide in the approach as between Alberta and all points east. In Ontario, the reasons of the Alberta courts have not found favour, and the approach continues to be much more restrictive. Unless an employer can point to safety-sensitive positions (or a workplace that is inherently dangerous) and evidence of a workplace 'problem' related to alcohol or drug impairment (i.e., erratic behaviour, an accident or near miss, an employee returning from drug or alcohol rehabilitation, or a proven substance abuse problem in the workplace generally), testing under a policy will be a tough sell. Most adjudicators in Ontario will find in these situations that an employee's interest in personal dignity, autonomy and privacy will trump the employer's concerns for workplace health and safety, no matter how sincerely held those beliefs may be.<br />
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Do you have questions about how to formulate or apply a drug and alcohol policy in your workplace? Need advice on what to do in the event of a positive drug or alcohol test? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert guidance.<br />
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</span></span></i>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-51811378465519541532015-02-19T11:00:00.000-08:002015-02-19T11:00:43.724-08:00Employee Unable to Establish Entitlement Based on Purported 5-Year ContractWhere an employee is retained for a fixed-term and is dismissed prior to the expiry of the contract, the employer may be liable for any compensation and benefits that the employee would have been entitled to for the remaining term (subject to a provision setting describing the parties' rights and obligations in the event of an early termination). However, what happens when there is disagreement between the parties about the existence of a fixed-term contract? The Ontario Superior Court of Justice recently wrestled with this very issue.<br />
<br />
In <strong><em><a href="http://www.canlii.org/en/on/onsc/doc/2014/2014onsc7484/2014onsc7484.pdf">Tossonian v. Cynphany Diamonds Inc.</a></em></strong>, the plaintiff alleged that the employer had 'guaranteed' him employment for 5 years as part of their contractual arrangement. The plaintiff was working for a jewellery store in British Columbia, but was interested in a position in the Toronto area. He had discussions with the owner of Cynphany Diamonds (which operated as Symphony Diamonds) about a position managing two of the company's stores. The parties had two conversations on the terms and conditions under which the plaintiff would be employed. Following the second conversation, the plaintiff wrote to his potential employer, setting out what he expected in his contract. His email message included reference to a fixed, 5-year term, as well as compensation, bonus and moving expenses in line with their earlier conversation. When the owner of Symphony Diamonds replied to the plaintiff a few days later, his email made no reference to a 'guarantee' or a fixed-term. The plaintiff did not object, although he alleged that the parties had a subsequent conversation during which he claimed that the employer told him that it was "not a problem. I will guarantee you." <br />
<br />
The plaintiff commenced working for the defendant company, and a couple of months later the contract was reduced to writing. The initial "Employment Contract" set out the terms of employment, but did not make mention of a fixed term. Subsequently, the employer did sign two letters that the plaintiff provided, which included a 5-year term, but the owner explained that both of these documents were provided solely to assist the plaintiff in obtaining a mortgage for a property in the Toronto area. There was also evidence that the employer confirmed this information on a call with a representative of the bank that offered the plaintiff a mortgage.<br />
<br />
Only a few months later, there was a dispute between the parties surrounding the plaintiff's decision to take employment with a competitor. While the employer alleged that the plaintiff had resigned his employment with Symphony, the plaintiff claimed that he was dismissed when the employer learned that he had been negotiating with the competitor, and suspected that the plaintiff was also encouraging other employees to leave the employer. <br />
<br />
The Court concluded that the owner had, in fact, terminated the employment of the plaintiff, after only 8 months, so the primary issue was whether or not the plaintiff was working on a 5-year contract, or had been hired indefinitely (and was entitled to "reasonable notice" at common law). The Court considered the case law that analyzed when a contract was formed. In the Court's opinion, the plaintiff's contract of employment came into existence when the owner emailed the plaintiff with the terms of their agreement, excluding the fixed term. The plaintiff had failed to ensure that the 5-year 'guarantee' was incorporated into that agreement, and the evidence did not establish that Symphony had subsequently to make such a promise. The parties' agreement was evidenced in the formal "Employment Contract" that they signed after the commencement of employment. The Court also accepted the employer's evidence that the other documentation that was signed by the parties was solely for the purpose of helping the plaintiff to obtain a mortgage, and did not amend their agreement. Given that the plaintiff had not established the parties' mutual intention that he would be employed for a 5-year term, the plaintiff's entitlement was to be determined in accordance with the common law factors applicable to "reasonable notice". In light of his short service, the fact that he relocated to take the job, and the availability of other similar work, the Court concluded that he was entitled to pay in lieu of two (2) months' notice (not the outstanding 52 months remaining on the purported contract claimed by the plaintiff).<br />
<br />
The decision in <em>Tossonian</em> highlights the importance of clear communication and documentation. The parties' agreement on the fundamental terms and conditions of employment should be reduced to writing, and signed by both parties prior to the commencement of employment. If a party feels that the written agreement omits some important detail, their objection should also be put in writing and addressed in the contract (assuming they agree on its inclusion). Where the contract consists of an exchange of correspondence or email, the parties would still be wise to create a formal document to memorialize their agreement prior to the employee starting work. Doing so avoids confusion or misunderstandings that may arise later (when memories are not as clear and valuable evidence of negotiations may be gone).<br />
<br />
Do you have questions about how to structure an employment agreement? Need guidance on whether a fixed-term or indefinite contract is right for you? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert assistance with your labour and employment law issues.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-65651134077351094832015-02-18T05:57:00.001-08:002015-02-18T06:15:51.021-08:00Corporate Directors Jailed After Worker Falls to His DeathAny employer who has not yet received the memo, should pay close attention to some recent decisions of the Ontario courts. In cases where employees are seriously injured or killed following a workplace accident, the courts are increasingly willing to impose jail sentences in addition to substantial fines.<br />
<br />
In <em><strong>R. v. New Mex Canada Inc.</strong></em>, a decision of the Provincial Offences Court (summarized <a href="http://news.ontario.ca/mol/en/2015/01/company-directors-receive-jail-sentences-corporation-fined-250000-after-worker-dies-in-fall.html">here</a>), the employee was using an "order-picker" (a combination forklift/operator-up platform) which had been modified by tack-welding an additional platform onto the forks of the device. There was no guarding surrounding the added platform, and the employee was not wearing fall-arrest protection. The employee fell from the machine and died of blunt-force trauma to the head. The Ministry of Labour found a number of violations of the <em>Occupational Health and Safety Act </em>(the "OHSA"), including the lack of fall-arrest equipment and the failure to provide health and safety training to employees. <br />
<br />
The Ministry prosecuted the company and two of its directors. The corporation pleaded guilty, and Justice of the Peace C. Jill Fletcher imposed a fine of $250,000 (plus the 25% victim surcharge) for failing to provide information and instruction to a worker about fall-arrest protection when the worker is working at heights. The two directors also pleaded guilty, and were each given 25 days in jail (to be served on weekends) for failing to ensure that the corporation complied with its OHSA obligations. In addition, they were ordered to take a health and safety training course within the next 60 days.<br />
<br />
Sadly, this is not the first time that the Provincial Court has attempted to send this message. It's troubling that an employer today would still not be providing the rudiments of workplace health and safety. Still, the decision stands as one of many reminders to employers (and their corporate directors, supervisors, etc.) about the risks inherent in failing to take health and safety obligations seriously. To avoid this outcome, employers must:<br />
<ul>
<li>Ensure that they have a health & safety policy, and procedures that explain to employees how to perform their duties safely. Review policies on a regular basis to ensure they remain relevant and up-to-date;</li>
<li>Ensure that corporate directors are familiar with the employer obligations under the OHSA and Regulations;</li>
<li>Ensure that employees receive health and safety training (including, but not limited to, the "basic awareness training" mandated by Regulation 297/13), and provide regular refreshers;</li>
<li>Be particularly diligent in training and supervising young workers and employees who are new to the workplace, as they are most vulnerable to hazards;</li>
<li>Ensure that supervisors are "competent", by providing enhanced training designed to identify and alleviate workplace hazards. Also make sure that supervisors are aware of and consistently enforcing workplace rules and policies regarding health and safety; </li>
<li>Conduct regular inspections of the workplace to identify any hazards, and be aware of any attempts by employees to circumvent safety measures.</li>
</ul>
Employers who make health and safety a 'front-of-mind' consideration are much less likely to end up on the wrong side of the Ministry of Labour or the courts. And their directors probably won't end up in jail.<br />
<br />
Do you have questions about your responsibilities under the OHSA and Regulations? Need guidance in responding to a critical incident? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert advice.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-20377481122066060322015-02-09T05:45:00.000-08:002015-02-09T05:45:04.127-08:00Federal Court of Appeal Upholds Decision That There is No Independent Procedural Duty to Accommodate<span style="font-family: inherit;">In a brief decision that will hopefully clarify the law, the Federal Court of Appeal has found that there is no independent procedural duty to accommodate an employee, despite previous findings to that effect. In the Court's opinion, once an employer establishes that it cannot accommodate an employee without incurring undue hardship, it is unreasonable for an adjudicator to award remedies to a claimant on the basis that the accommodation process was flawed or inadequate.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">In </span><a href="http://www.canlii.org/en/ca/fca/doc/2014/2014fca131/2014fca131.pdf"><em><strong><span style="font-family: inherit;">Canada (Human Rights Commission) v. Canada (Attorney General)</span></strong></em></a><span style="font-family: inherit;">, the Court was considering an appeal from the Canadian Human Rights Commission (the "CHRC") of a decision by the Federal Court, which had overturned the Commission's decision in the case of Bronwyn Cruden. Ms. Cruden had been seeking overseas experience, so that she could qualify for the position of Development Officer with the Canadian International Development Agency ("CIDA"), and was successful in obtaining two temporary assignments to Afghanistan. Ms. Cruden has Type 1 Diabetes, but CIDA did not initially require medical clearance for assignments to Afghanistan. There were no issues during Ms. Cruden's first stint in Afghanistan, but during her second assignment she experienced a hypoglycemic episode and was sent back to Canada. Shortly thereafter, Health Canada introduced its Afghanistan Guidelines, which required medical assessments prior to posting to Afghanistan, and which precluded anyone with a chronic medical condition from serving in Afghanistan. Although Ms. Cruden was a satisfactory employee, she was not offered any further assignments in Afghanistan because of her medical condition. </span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">Ms. Cruden filed a complaint against CIDA and Health Canada, alleging discrimination on the basis of disability. In its decision, the Canadian Human Rights Tribunal found that neither Health Canada nor CIDA had complied with their procedural duty to accommodate the complainant, as they had not explored accommodative options short of a complete prohibition. However, the Tribunal also found that in the circumstances, there was nothing that CIDA could have done to accommodate Ms. Cruden in an assignment to Afghanistan without incurring undue hardship. Despite this finding, the Tribunal awarded Ms. Cruden certain remedies for the violation of the procedural duty to accommodate.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">On judicial review, the CHRC did not challenge the finding that CIDA could not accommodate the complainant without undue hardship, but supported the Tribunal's decision on the existence of an independent procedural duty. The Federal Court found that the <em>Canadian Human Rights Act </em>(the "<em>CHRA</em>"), interpreted correctly, did not provide for a separate procedural duty to accommodate. Once a respondent employer established that a workplace rule was a <em>bona fide</em> occupational requirement, on the basis of the test in <i>British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union ("Meiorin"), </i>[1999] 3 S.C.R. 3, it was unreasonable for an adjudicator to find a procedural breach and provide any kind of remedy. The essence of the analysis to be conducted is to determine whether substantive accommodation was or was not possible without undue hardship. The wording of the <em>CHRA</em> did not provide for a separate analysis of the process by which accommodation was sought. In the result, the Federal Court held that the Tribunal's decision could not stand.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">On appeal, the Federal Court of Appeal upheld the decision of the Federal Court below. At paragraph 21, Justice Webb (writing for a unanimous Court) wrote:</span><br />
<div class="Default" style="margin: 0cm 0cm 0pt;">
<blockquote class="tr_bq">
<span style="font-family: inherit;">I agree with the Federal Court
Judge that the Supreme Court of Canada [in <em>Meiorin</em>] was not intending to create a separate
procedural right to accommodate. There is simply one question for the purposes
of the third step of the test: has the employer “demonstrated that it is
impossible to accommodate individual employees sharing the characteristics of
the claimant without imposing undue hardship upon the employer”? Once the
employer has established this, then it has satisfied the requirements of the
third step. Assuming that the first two steps are also satisfied (which they
were in this case), it is a <i>bona fide </i>occupational requirement and it is
not a discriminatory practice. <o:p></o:p></span></blockquote>
</div>
<span style="font-family: inherit;">
</span><br />
<span style="font-family: inherit;">
The Court acknowledged that a separate procedural duty to accommodate had been recognized in other decisions of lower courts, such as that of the Ontario Divisional Court in <em><a href="http://www.canlii.org/en/on/onscdc/doc/2008/2008canlii39605/2008canlii39605.pdf"><strong>ADGA Group Consultants Inc. v. Lane</strong></a></em>, but held that the court in that case "did not examine the statutory basis for this procedural duty but rather it appears to have assumed its existence as it commenced its analysis of the procedural duty to accommodate" (para. 23). Given that this decision, and those of other human rights tribunals, upholding the existence of a procedural duty were not grounded in an interpretation of the underlying legislation, they did not constitute authority for the proposition that there was such a free-standing duty. Given that there was no dispute that CIDA could not accommodate Ms. Cruden in a posting to Afghanistan without undue hardship, the Tribunal should have dismissed the complaint against both CIDA and Health Canada, and no remedies were available to the complainant.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">This decision, if it is followed and applied under other provincial human rights legislation (such as the Ontario <em>Human Rights Code</em>), should bring much needed clarity to an area of law that has grown muddied over the years. While employers still must ensure that they take all reasonable steps to assess the availability of accommodation for employees, flaws in that process should not become more important than the question of whether accommodation is possible without undue hardship, no matter how flawed the search for accommodation may be. Unless it can be established that the employer has discriminated (by imposing workplace rules that cannot be justified under the test in <em>Meiorin</em>), the procedural aspects of the duty to accommodate cannot give rise to a remedy. It remains to be seen whether this decision will be appealed further and whether the Supreme Court of Canada will weigh in.</span><br />
<span style="font-family: inherit;"> </span><br />
<span style="font-family: inherit;">Do you have questions about the accommodation process? Need guidance on the forms of accommodation that an employer may be required to provide? Contact </span><a href="mailto:Lance@ceaserworkcounsel.ca"><span style="font-family: inherit;">Lance Ceaser</span></a><span style="font-family: inherit;"> for expert legal advice.</span><br />
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<span style="font-family: inherit;"> </span>R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-14957976299435959922015-02-04T08:45:00.001-08:002015-02-04T08:45:48.261-08:00Claiming Privilege Over Workplace Investigation RecordsOften employers will retain the services of an independent investigator (typically a lawyer) to investigate issues in the workplace, either expecting or assuming that the investigator's work product (such as notes and the written report) will be privileged and not subject to disclosure and production obligations. However, if the work of the investigator is to be protected from later disclosure in the course of litigation, the employer must carefully consider the law of privilege prior to retaining a third-party investigator. The recent decision of Master Short of the Ontario Superior Court of Justice in <strong><em><a href="http://www.canlii.org/en/on/onsc/doc/2015/2015onsc156/2015onsc156.pdf">Howard v. London (City)</a></em></strong> illustrates the challenges.<br />
<br />
<strong><u>Background</u></strong><br />
<br />
In 2012, a resident of the Dearness Home (a nursing home operated by the City of London) packed up his belongings and left the facility, unbeknownst to staff. The resident had recently been moved from a secure part of the facility to an area that did not have the same access controls. The resident managed to wander some distance up a very heavily travelled road before he stepped into traffic, was struck, and subsequently died from his injuries. The death of the resident was widely reported in local media, which raised questions about how such a tragedy could have occurred. The administrator of the Home was away on vacation at the time, but commenced an investigation immediately upon her return. However, after only a few days, she was instructed to cease her inquiries, as the City had decided (on advice from external counsel) to conduct an independent investigation, using the services of a local lawyer. At the same time, the Ministry of Health and Long-Term Care was also conducting its own investigation. Ultimately, the investigator was retained by the Interim City Manager to conduct an investigation into the City's policies, procedures and actions, oversight by the City Council, the City's procedures for investigating critical incidents, and whether City employees and representatives had complied with applicable standards, and to provide legal advice on same.<br />
<br />
Before and during the investigation, there was evidence of several "Strictly Privileged and Confidential" email messages among a number of City staff, including the administrator of the Home, regarding the scope of the investigation. The administrator was interviewed twice and provided some documentation requested by the investigator. She was repeatedly reassured that she need not be concerned about the outcome of the investigation for her employment, and was specifically told that she could not have her lawyer present during the interviews. At the end of the investigation, the administrator was advised that she could resign, failing which her employment would be terminated for cause. She did not receive a copy of any interview notes or the investigator's report, and was given no opportunity to respond to its findings before she was terminated. She commenced a wrongful dismissal claim and sought production of the investigator's file, including any notes and the report. The City resisted the motion, claiming solicitor-client privilege and litigation privilege.<br />
<br />
<strong><u>The Production Motion</u></strong><br />
<br />
In his decision, Master Short reviewed the evidence that was presented, including a number of the email messages among senior City staff that debated whether the investigation was for human resources purposes or to establish due diligence vis-a-vis resident care (in anticipation that the resident's family would likely bring an action against the City). In one email, the City Solicitor suggested that he would be prepared to seek Council's approval to retain "independent legal counsel... to provide advice and an independent privileged legal opinion" concerning the issues that were ultimately referred to the investigator. The Master observed that this email was focused on obtaining advice in relation to potential civil liability regarding the death of the resident and made no mention of legal advice on potentially terminating an employee. It was also clear from the email that the City was retaining the lawyer to conduct a fact-finding investigation, not seeking a legal opinion (as suggested by the City Solicitor). Despite the reassurances allegedly given to the administrator, it was also clear that the investigation did have a HR focus, and was intended to determine outcomes for staff who may have had involvement in the incident.<br />
<br />
The Master also considered the fact that the City had relied on the investigation in determining that the administrator should be terminated, and had disclosed this reliance to the media on more than one occasion. The <em>London Free Press</em> reported extensively on the story, and quoted the Mayor tying the termination of the administrator to the report prepared by the investigator.<br />
<br />
Under the<em> Rules of Civil Procedure</em>, all relevant documents are to be disclosed to the opposing party, "whether or not privilege is claimed in respect of the document". Where a party claims privilege over a document, it must set out the basis for its privilege claim, and bears the onus of establishing that privilege applies. The City claimed both that the investigation documents were covered by solicitor-client privilege, as the investigator was a lawyer whose retainer included the provision of legal advice, and litigation privilege, which applies to documents created by a party when litigation is occurring or is contemplated. Master Short conducted an extensive review of the law applicable to both types of privilege and made several very helpful findings:<br />
<ul>
<li>Although solicitor-client privilege is designed to ensure justice and fairness, by allowing the free exchange of information necessary to a lawyer's representation of a client, it has its limits. For example, the exchange of communication between a client and a lawyer who has been retained only to address a specific legal matter will not be protected if the communication is unrelated to the retainer. Likewise, if the lawyer has been retained in some other capacity unrelated to providing legal advice or exercising the skills of a lawyer (i.e., acting as a fact-finder where legal skills are not required), no privilege will attach.</li>
<li>In those cases where privileged applied to the findings of a lawyer-acting-as-an-investigator, the retainer was clear that the lawyer was to provide legal advice on the specific subject matter of the investigation or was using the specific skills of a lawyer (such as where a lawyer was investigating whether a member of the judiciary had acted inappropriately during a trial).</li>
<li>When considering whether solicitor-client privilege attaches to records, the understanding of the parties is a factor. Where the lawyer is presented solely as a fact-finder, and explains that his/her assignment is limited to certain factual matters, it is unlikely that privilege will attach or that it will be limited to those legal issues within the investigator's mandate.</li>
<li>Unless the retainer specifies that the lawyer-investigator is to provide "legal advice" (rather than just "advice"), a court is less likely to find that solicitor-client privilege applies.</li>
<li>One party to a privileged communication cannot assert privilege against someone else who also received the advice from the same lawyer, on the basis that the parties have "joint interests". </li>
<li>In order for litigation privilege to apply, it must be contemplated that a specific claim will be made by or against a particular party. Where communications involve an incident that may give rise to one particular type of claim (e.g., liability due to negligence), they will not be privileged in relation to a different type of claim (e.g., wrongful dismissal of the person who is found to be negligent).</li>
</ul>
In the result, Master Short concluded that the investigation file was not privileged, and ordered the City to produce it to the plaintiff (with any personal information of third parties redacted in accordance with the <em>Municipal Freedom of Information and Protection of Privacy Act</em>). The investigator had been retained not as a lawyer (i.e., to provide legal advice or representation), but to find certain facts. While the investigation may have been conducted in the contemplation of litigation by the family of the deceased resident, it was not related to a potential wrongful dismissal claim by the plaintiff. Moreover, the City could not assert privilege against the administrator when she had been part of the communication with respect to the conduct of the investigation.<br />
<br />
<strong><u>What Does It Mean?</u></strong><br />
<br />
For employers, this case provides some important guidance:<br />
<ul>
<li>Determine whether the employer wishes to maintain privilege over the investigation file. If it is unlikely to be crucial, it may be advisable to retain a non-lawyer or hire a lawyer to act solely as a fact-finder to contain the costs of the investigation. It is advisable to obtain legal advice before deciding whether privilege ought to be claimed.</li>
<li>If a claim of solicitor-client privilege will be made, ensure that the retainer letter is clear that the lawyer-investigator is to make findings of fact <strong><u>and</u></strong> to provide legal advice or opinion on the basis of those findings. Also ensure that the scope of the retainer is broad enough to cover the personal conduct or blameworthiness of individual employees, and that the advice sought includes labour and employment law advice and recommendations.</li>
<li>If it's likely that some form of labour or employment litigation may arise from the matter under investigation, such as a civil action, grievance or human rights complaint, then there may be a basis for litigation privilege. In that case, the investigator need not be retained to provide legal advice. However, if the investigator will be only a fact-finder in this scenario, he/she should be retained by counsel for the employer (whether external or in-house), rather than by some other representative of the employer, and it should be clear that the investigator's findings are necessary for counsel to advise and represent the "client" (i.e., the employer) in relation to all potential forms of litigation.</li>
<li>Communication with an investigator or in regards to the investigation must be handled delicately. It is preferable for communication with the investigator to be with only one or two representatives of the employer, or with counsel for the employer (if possible). Anyone who may fall within the scope of the investigation should <u><strong>not</strong></u> be included on any 'privileged' communication. Erect a 'cone of silence' and carefully maintain it, or privilege may be "waived".</li>
</ul>
Unfortunately, the law of legal privilege is a very complicated area. While the foregoing recommendations may prove helpful, they cannot be construed as legal advice, in the absence of a very fact-specific analysis of a particular situation. If you are uncertain about how to undertake an investigation or whether you can assert privilege over the findings of an investigator, obtain legal advice. Feel free to contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for guidance or to ask about investigation services.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-60149151212447261962015-02-03T07:24:00.000-08:002015-02-03T07:24:22.012-08:00Supreme Court of Canada "Constitutionalizes" the Right to StrikeIn a decision that will have deep reverberations throughout the broader public sector across Canada, the Supreme Court has ruled that section 2(d) of the <em>Canadian Charter of Rights and Freedoms</em> protects the right to strike for all workers in Canada, including those public sector employees who are currently covered by labour legislation that limits or eliminates the right to strike.<br />
<br />
In <em><strong><a href="http://www.canlii.org/en/ca/scc/doc/2015/2015scc4/2015scc4.pdf">Saskatchewan Federation of Labour v. Saskatchewan</a></strong></em>, the Supreme Court held (in a 5-2 decision) that the right to strike is a merely an extension of the right to engage in meaningful collective negotiation of working conditions, which was previously found to be protected as part of Canadians' "freedom of association", guaranteed by section 2(d) of the <em>Charter</em>. The majority of the Court found that removing the right to strike curtails this freedom in a manner that is not justified under section 1 of the <em>Charter</em>. In particular, the Court found that rights under section 2(d) were not "minimally impaired" as the legislation introduced by the Government of Saskatchewan in 2007 gave the employer (the Province) the unilateral discretion to identify the number and identity of workers who would be providing "essential" public services, required those workers to perform all of their regular duties (not just provide services that were deemed to be essential), and offered no alternative mechanism for the resolution of collective bargaining impasses. In short, the legislation eliminated the right of certain workers to strike (without any negotiation on which services or workers were "essential") and offered no meaningful scheme (such as binding arbitration) to resolve disputes that might otherwise lead to the withdrawal of employees' services. The majority suspended the application of the decision for one year to allow the Government to make necessary modifications to the legislation to comply with the <em>Charter</em>.<br />
<br />
The minority (Rothstein and Wagner JJ) held that the majority's decision overstepped the bounds of judicial intervention, effectively ensconcing a right that had previously been found to not exist (in a decision of the Court from 1987). The minority Justices were of the opinion that the majority's approach removed the flexibility that Government required to balance the interests of employers, employees and the public. In the minority's opinion, recognizing a constitutional right to strike would upset that balance, in favour of employees.<br />
<br />
While it remains to be seen how this decision will be interpreted and applied outside Saskatchewan, where legislative schemes differ, it is likely to change the tenor of public sector collective bargaining everywhere. Public sector employers will likely have to, at least, engage in meaningful negotiation with public sector trade unions regarding which and how many employees are required to perform essential services during a work stoppage. Those who are required to work during a strike will only have to perform those functions necessary to continue the essential service in question. Where regimes provide for a complete ban on strikes, legislation will have to be amended to provide for some other dispute resolution mechanism as an alternative. <br />
<br />
One outcome is clear, however. This decision represents a significant victory for the labour movement in Canada, as it has redefined and broadened the meaning of "freedom of association" beyond what it has been for the last 30 years.<br />
<br />
Do you have questions about labour relations or employees' right to strike? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser</a> for expert guidance.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-54869575741303696132015-01-16T08:01:00.000-08:002015-01-16T08:01:09.788-08:00Failure to Prove Cause Leaves Employer Responsible for LTD Payments to Dismissed Employee
<br />
When an employee is terminated without cause, the employer is obligated to
continue all benefits to which the employee is entitled for the entirety of the
reasonable notice period (unless some lesser entitlement is clearly spelled out
in the contract of employment). In a recent decision, where a teacher was
dismissed, purportedly for cause, but became totally disabled during the
reasonable notice period, the employer was found to not have had cause for
termination and was ordered to pay the employee disability benefits to age 65,
along with 12 months' pay in lieu of reasonable notice.<o:p></o:p><br />
<br />
In <a href="http://www.canlii.org/en/on/onsc/doc/2014/2014onsc6506/2014onsc6506.pdf"><strong><i><span style="text-decoration: none; text-underline: none;"><span style="color: blue;">Fernandes v. Peel Educational</span></span></i></strong></a>,
the plaintiff was a teacher who had been employed by the private school for
over ten years. Although he had generally received good or excellent
reviews during his teaching career, some concerns were identified in his
end-of-year review following the 2007-08 school year. Despite these
issues, he continued working for the school the next year. However,
in March 2009, matters came to a head when the plaintiff submitted
incomplete and inaccurate marks that were to be included on students' interim
report cards. The plaintiff advised the school that he was awaiting
some work from students and that he would correct
calculation errors. Over two weeks later, the issues
had still not been resolved, and the school continued to coach the teacher
on the importance of submitting accurate marks for his class. A couple of
days later, the teacher submitted the marks and report cards, but the
administration was suspicious because of the sudden completeness
of what was turned in. After some investigation, the school determined
that the teacher had in fact inputted marks on student assignments that had not
yet been completed. The teacher was asked to attend a series of meetings
with administration, during which he did not provide an explanation. However,
he did ultimately confess to fabricating marks for some students. He was
dismissed for cause, on the basis of "academic fraud". Shortly
thereafter, he was diagnosed with a major depressive disorder, and was deemed
totally disabled by his doctor and psychiatrist. By then, his long-term
disability coverage had already been terminated.<o:p></o:p><br />
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After a trial, the Judge reviewed the competing
evidence. Although he concluded that the teacher had not been
forthright with the school, and had actually lied in his evidence before the
court, the Judge decided that the school had not established that the
plaintiff's dishonesty was cause for summary dismissal. Applying the
'contextual approach' dictated by the Supreme Court of Canada's ruling in <em>McKinley
and BC Tel</em>, the judge felt that the employer's claim of academic fraud was
a "very dramatic way of describing a few students who were marked on
presentations that they had not yet given", and did not amount to the kind
of dishonesty which undermined the trust essential in the employment relationship. Having
found that the employer did not have cause for dismissal, the Judge went on to
find that the teacher was entitled to 12 months' reasonable notice. In
addition, given that he would have been entitled to claim LTD benefits, due to
a disability that arose during the notice period, his wrongful dismissal
also made the employer liable for those LTD benefits that the teacher would
have otherwise been eligible to receive. Given the plaintiff's
prognosis, the employer was responsible for all LTD payments he would have
received until age 65 (when LTD coverage would cease under the terms of
the plan). <o:p></o:p><br />
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The decision in <em>Fernandes</em> may come as a surprise for a couple of
reasons. The Court's rejection of the employer's case for cause is
concerning. If a teacher falsifying marks is not the kind of dishonest
conduct that warrants dismissal, it is hard to imagine what behaviour would
meet that standard. That being said, the employer's investigation of the
problem was found to be flawed, and the teacher had enjoyed a long, unblemished
teaching career prior to the issue arising. In that context, the decision
is somewhat more understandable. Even more concerning for employers,
however, is the school's liability for LTD benefits for a period of approximately
9 years. The decision is a reminder to employers of the dangers of
alleging cause on the basis of a relatively slim record of misconduct
(particularly in the case of a long-term employee), and the risks associated
with not continuing benefits (or providing a cash equivalent) during the notice
period. Before doing so, it is sound practice to obtain legal advice.<o:p></o:p><br />
<br />
Do you have questions about what amounts to cause for dismissal? Need
guidance on whether or not to continue benefits to a terminated employee?
Contact <a href="mailto:Lance@ceaserworkcounsel.ca"><span style="color: blue;">Lance Ceaser</span></a> for expert
assistance.<o:p></o:p><br />
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R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-56727132616666768302015-01-05T11:19:00.001-08:002015-01-05T11:19:51.915-08:00Year in Review: The Top 5 Labour & Employment Law Developments of 2014Welcome 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:<br />
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<strong>1.</strong> <strong>Walmart gets punished for treatment of assistant manager</strong> - 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). <a href="http://www.canlii.org/en/on/onca/doc/2014/2014onca419/2014onca419.pdf">In this case</a>, 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.<br />
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<strong>2. Total payroll, <em>both within and outside </em>Ontario, is included when determining whether an employer is subject to severance pay obligations under the <em>Employment Standards Act</em></strong> - In <em><strong><a href="http://www.canlii.org/fr/on/onsc/doc/2014/2014oncs2431/2014oncs2431.pdf">Paquette c. Quadraspec Inc.</a> </strong></em>(referenced in an earlier post <a href="http://rlceaser-work-law.blogspot.ca/2014/07/have-you-reviewed-your-termination.html">here</a>), 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.<br />
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<span style="font-family: inherit;"><strong>3.</strong> <strong>Mental Stress claims at the WSIB no longer limited to “acute reaction to a sudden and unexpected traumatic event”</strong> - As discussed <a href="http://rlceaser-work-law.blogspot.ca/2014/05/wsiat-strikes-down-exclusion-of-non.html">in an earlier blog post</a>, 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.</span><br />
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<strong>4. New test for family status discrimination created by Federal Court of Appeal</strong> - As discussed in a <a href="http://rlceaser-work-law.blogspot.ca/2014/05/when-is-there-duty-to-accommodate.html">blog post </a>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 <a href="http://rlceaser-work-law.blogspot.ca/2014/09/the-evolution-of-family-status-analysis.html">here</a>). 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.<br />
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<strong>5. An employee who breaches confidentiality can be ordered to repay a termination settlement</strong> - 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 <a href="http://rlceaser-work-law.blogspot.ca/2014/05/the-enforceability-of-grievance.html">here</a>, 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).<br />
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Of course, these are not the only important developments over the past 12 months. The Ontario Government has passed a number of <a href="http://rlceaser-work-law.blogspot.ca/2014/07/stronger-workplaces-for-stronger.html">changes to labour and employment statutes</a>; the Ontario Human Rights Tribunal ordered the reinstatement of an employee who had been out of the workplace for over 10 years in <strong><em><a href="http://www.canlii.org/en/on/onscdc/doc/2014/2014onsc2411/2014onsc2411.pdf">Hamilton-Wentworth District School Board v. Fair</a></em></strong>; and the Supreme Court of Canada has issued <a href="http://www.canlii.org/en/ca/scc/doc/2014/2014scc7/2014scc7.pdf">a decision</a> clarifying the test for summary judgment which should open the door to increased use of this procedure in wrongful dismissal cases. <a href="http://rlceaser-work-law.blogspot.ca/2014/10/when-is-your-personal-life-your_27.html">The Jian Ghomeshi firing</a> 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. <br />
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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.R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0tag:blogger.com,1999:blog-3821879777610557342.post-60637494557236689642014-12-23T10:47:00.000-08:002014-12-23T10:47:24.105-08:00Inducement, Not Length of Service, Drives Long Notice PeriodIn<span style="font-family: inherit;"> a recent decision that ought to stand as a cautionary tale for employers when they hire senior employees, the Ontario Superior Court of Justice made clear that efforts to lure an employee away from secure employment elsewhere can prove costly. The case also highlights (once again) the importance of ensuring that termination provisions in employment contracts are carefully drafted.</span><br />
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<span style="font-family: inherit;">In <a href="http://www.canlii.org/en/on/onsc/doc/2014/2014onsc6583/2014onsc6583.pdf"><strong><em>Rodgers v. CEVA</em></strong></a>, the plaintiff was hired by the defendant in 2009 to be its Country Manager, Canada. At the time, Rodgers was the President of another company in the logistics business, and had been with his employer for over 10 years. He was approached by a former colleague, who was then working for CEVA, about the possibility of a position with the company, and he expressed an interest in the role. After 7 interviews, including two in Houston, Texas (the last of which was conducted by the CEO of CEVA), the company made the plaintiff an offer. He declined it. In turn, the company presented a more lucrative offer, including a $40,000 signing bonus, higher salary and a number of perks. As a condition of the offer, however, Rodgers was required to acquire a quantity of the company's equity (to ensure that he had "skin in the game"), which cost him approximately $100,000. Less than three years later, following some difficult economic times for the company, the plaintiff was terminated and offered 2 weeks' termination pay and approximately $5,000 in severance pay. At the time, he was 55 years old, and was earning an annual salary of $276,000. He sued for wrongful dismissal. The employer's only dispute with the plaintiff was on the actual amount of notice to which he should have been entitled.</span><br />
<span style="font-family: inherit;"></span><br />
<span style="font-family: inherit;">The employer relied on the termination provision in the contract which provided:</span><br />
<blockquote class="tr_bq">
<span style="font-family: inherit;">Your
employment may also be terminated by our providing you notice, pay in lieu of
notice, or a combination of both, at our option, based on your length of
service and applicable legal requirements.</span></blockquote>
<span style="line-height: 107%;"><span style="font-family: inherit;">The employer argued that the primary consideration in assessing appropriate notice was the plaintiff's length of service (less than 3 years). However, the Court did not agree. If the parties intended length of service to have primacy, they could have done so in clear language. Instead, they had made the calculation dependent on both tenure and "applicable legal requirements". After considering the fact that the plaintiff was induced (at least mildly) to join CEVA, and then led to believe that he would have long-term, secure employment (based on the requirement to purchase shares in CEVA at a cost equivalent to approximately 4 1/2 months' salary), the Court was of the opinion that the plaintiff should receive notice at the high end of the scale. The plaintiff did not find another comparable role for almost 10 months, and even then he took a significant reduction in salary. In the result, the Court awarded the plaintiff damages equivalent to fourteen (14) months' notice. After a reduction for amounts already paid and the plaintiff's mitigation income, the defendant was ordered to pay the plaintiff $345,000.</span></span><br />
<span style="line-height: 107%;"><span style="font-family: inherit;"></span></span><br />
<span style="line-height: 107%;"><span style="font-family: inherit;">The Court's decision illustrates that employers must be cautious when they recruit senior employees who are already gainfully employed. Efforts must be made to ensure that an offer of employment is not designed to induce the individual to leave other employment, and this should also be acknowledged in the employment agreement. Ensure that recruiters do not make promises or representations about the likelihood of long-term employment, particularly during challenging economic times. And if the intention is to minimize the organization's exposure in the event of a subsequent termination, care must be taken in crafting termination language that is clear and meets the requirements of the <em>Employment Standards Act</em> (see for example, <a href="http://rlceaser-work-law.blogspot.ca/2014/07/have-you-reviewed-your-termination.html">this post</a> on the topic). The downside? Significant liability.</span></span><br />
<span style="line-height: 107%;"></span><br />
<span style="line-height: 107%;">Do you have questions about inducement? Need help with your termination language? Contact <a href="mailto:Lance@ceaserworkcounsel.ca">Lance Ceaser </a>for expert advice.</span><br />
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R Lance Ceaserhttp://www.blogger.com/profile/00335453256682829780noreply@blogger.com0