Is the “Character of Employment” still relevant to reasonable notice?
Just how important is the “character of [an employee’s]
employment” when assessing reasonable notice?
Traditionally, higher reasonable notice periods had been reserved for
terminated employees in more senior roles within an organization, with upper
management and executives achieving the largest periods (maxing out around 24
months’ pay). However, in Di Tomaso v. Crown Metal Packaging Canada LP,
the Ontario Court of Appeal made the following observation back in 2011:
[The employer]
would emphasize the importance of the character of the appellant’s employment
to minimize the reasonable notice to which he is entitled. I do not agree with that
approach. Indeed, there is recent jurisprudence suggesting that, if anything,
it is today a factor of declining relative importance: … [citations omitted].
This is particularly so if an employer
attempts to use character of employment to say that low level unskilled
employees deserve less notice because they have an easier time finding
alternative employment. The empirical validity of that proposition cannot simply
be taken for granted, particularly in today’s world.
Di Tomaso was a very long-service (33 years), older worker
(62 years old), and was deserving of a significant period of notice despite
having held a semi-skilled position throughout his employment with Crown. In the result, the Court of Appeal upheld 22
months’ notice.
If “character of employment” is still alive, it’s on life
support. In the recent decision in Kotecha v. Affinia Canada ULC, the terminated employee had worked for Affinia
for over 20 years and was 70 years old at the time of trial in 2013. At trial he was awarded 22 months’ notice (on
top of 11 weeks’ working notice he’d been given by the employer). The Court of Appeal recognized that the
plaintiff employee had shorter service than Mr. Di Tomasso, and reduced his
award of damages to 18 months’ pay, less the 11 weeks’ working notice that had
been provided. While this may appear to be a loss for the employee, it still represents
a significantly better outcome than one would have expected before the decision
in Di Tomaso. The moral of the story: age and length of service continue to be the
primary drivers in assessing reasonable notice, and the nature of the role is
less important to the analysis.
Municipality May be Certified on Strength of Two Membership Cards
The recent decision of the Ontario Labour Relations Board in
United Brotherhood of Carpenters and Joiners of America v Regional Municipality of Waterloo highlights the
dangers for employers who operate in the construction industry and who have
work performed by small numbers of workers outside normal working hours. The Municipality had two workers building a
shed on the Region’s property on a Saturday.
Both employees had signed cards with the Carpenters’ union. The UBCJA filed its application on that day,
and the Board determined that it had the requisite support among a bargaining
unit of carpenters working for the Municipality to be certified. {Ultimately, the Board still needs to determine
whether the Union will be successful in displacing the Canadian Union of Public
Employees, which currently represents these workers.]
In the construction industry in Ontario, trade unions need
only submit signed membership cards representing 55% of more of the employees
who were working on the “Application Filing Date” in order to be certified as
the bargaining agent for all of the employees in the applicable bargaining
unit. It matters not whether a majority
of all the employees in that bargaining unit support unionization – there need
only be two (2) or more employees who have signed cards at work on the day the
Application for Certification is filed.
The Waterloo
decision also raises the issue of when an employer is subject to the “construction
industry” provisions of the Labour
Relations Act. The Municipality
argued that it was a “non-construction employer”, but the Board heard evidence
that the Municipality had its employees perform repairs or assist with
construction work on premises that it rented to third-parties. For employers who own premises, but rent
portions to other organizations, it’s important to understand that any
construction work performed for tenants and for which the “landlord” will
receive compensation could put that employer in the “construction industry”,
and make the organization subject to the card-based certification process.
Getting Tough on Workplace Harassment
In two recent arbitration decisions, labour arbitrators have
considered the scope of their remedial authority when addressing harassing
behaviour. In Unimin Canada Ltd v. United Steelworkers, Local 5383, the grievor had been given a 15-day suspension
for repeatedly harassing and bullying a female co-worker in front of her male
counterparts. Following the grievance
procedure, the suspension was reduced to 10 days on the condition that the
grievor provide a written apology to the complainants and the company. The grievor’s letter of “apology” showed no
remorse, and shortly after his return from suspension he engaged in a number of
retaliatory actions. The company
discharged him.
On the arbitration of the discharge grievance, the Union
sought to exclude any evidence related to the earlier suspension or the
apology, relying on a version of “double-jeopardy” (i.e., those issues had
already been considered in the settlement of the earlier grievance, and the
employer had accepted the apology he provided, such as it was, without
reinstating the 15-day suspension). The
Arbitrator found that the evidence of the grievor’s earlier behaviour, and the
content of the apology were relevant to the discharge grievance, and that there
were compelling reasons to consider this evidence. The evidence reflected on the grievor’s
credibility in continuing to deny all wrong-doing, there was a similarity of
facts between the earlier matter and the reasons for discharge, and it
reflected on his complete lack of remorse.
In the result, Arbitrator Randall
concluded that the grievor had attempted to retaliate and intimidate the
complainants, and that there were no persuasive reasons to alter the penalty
imposed by the employer. The grievance
was dismissed.
In William Osler Health System v Ontario Nurses’ Association, the Union brought a grievance on behalf of a nurse
who had been sexually harassed by a doctor.
While the Hospital agreed that the harassment had occurred, it felt that
its removal of the doctor’s privileges at the hospital was adequate to address
the issue. The Union disagreed, and
pressed the labour arbitrator to prohibit the doctor from returning to work at
the hospital. The Hospital took the
position that a labour arbitrator does not have the jurisdiction to issue such
a remedy.
Arbitrator Albertyn had to consider whether the doctor’s return
to the workplace would “pose any reasonable risk of harm to the grievor”, and
assess whether his authority under statute extended to effectively stripping
the doctor’s medical privileges indefinitely.
The Hospital argued that under the Public
Hospitals Act and regulations, there was a process for removing or
declining to reappoint a doctor’s privileges, but that the procedure was
subject to appeal to the Health Professionals Appeal and Review Board and was
to be carried out pursuant to the rules of natural justice. At the same time, freedom from harassment and
the obligation to provide a safe, healthy workplace were subject to the Human Rights Code and the Occupational Health and Safety Act, both
of which an arbitrator has jurisdiction to interpret and apply.
The arbitrator concluded that the process under the Public
Hospitals Act was outside his jurisdiction, and that ultimately he could not
decide whether the doctor’s privileges should be restored. However, assuming that the HPARB determined
that he would regain those privileges, the arbitrator’s jurisdiction would be
to answer the “labour relations and workplace safety question arising directly
from the collective agreement”: how closely
should the doctor be permitted to work with the grievor and under what, if any,
conditions? Arbitrator Albertyn
indicated that he would have to consider what hours and locations of the
Hospital the doctor could work at, and whether he could be in the workplace at
all while the grievor was present, in order to provide the grievor with a safe,
harassment-free work environment.
* * *
Do you have questions about employment and labour law
issues? Please don’t hesitate to contact
Lance Ceaser for assistance.
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