The High Cost of Being Unreasonable (Part II)

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

In the result, the Court found that the plaintiff was entitled to pay in lieu of 12 months' reasonable notice, less amounts already paid and the income she had received in mitigation during the notice period.  The Court went on to find that the employer had violated its return-to-work obligations under the ESA by not offering the plaintiff her former position at the end of her leave.  The evidence established that the office manager position still existed at that time and that the plaintiff had not elected to revert to a hygienist.  Moreover, the Court found that the employer had violated the reprisal provisions of the Act in all of its interactions with the plaintiff after she asserted her statutory rights. With respect to the plaintiff's claims under the Code, the Court held (on the basis of the analysis in Johnstone & Seeley (discussed here)) that the employer had discriminated against her on the basis of family status.  The employer had not provided any explanation for the change in the hours of work imposed on the plaintiff, and the Court accepted that the change was imposed in retaliation for her request to be returned to the office manager position.  In the result, the Court ordered the employer to pay human rights damages in the amount of $20,000 (approximately 1/2 of the amount she was awarded in lieu of reasonable notice). At para. 98, the Court stated:

The discrimination experienced by Partridge clearly did injury to her dignity, feelings and self-respect, as her testimony made clear that she took great pride in her job and the efforts that she had made on the defendant’s behalf. At the time of her testimony in this trial, she remained visibly emotionally affected by the ordeal. As in Johnstone, I found that the discrimination arose out of Jauhal's wilful and reckless disregard for her legal obligations as an employer. Accordingly, I found that the sum of $20,000 for breach of the Human Rights Code was a just and proper sum to signify the seriousness of breaches of this nature. Particularly where the discrimination has ultimately taken the form of dismissal, this particular breach affects a group of individuals who typically require childcare arrangements out of economic motivation. The discrimination not only has the effect of causing injury to dignity, feelings and self-respect, but may have an economic impact on individuals who can often least afford it. The Court’s censure is warranted by way of an award that will act as a deterrent to employers who are unwilling to accommodate childcare arrangements, except where legitimate, justifiable grounds exist for being unable to do so.

The decision makes clear the risk to employers when terminating an employee shortly after his/her return from a statutorily-protected leave of absence, particularly if the employee's former role continues to exist.  Unless an employer can establish a strong case for cause or an actual redundancy, the risks of doing so are likely greater than any potential benefit.  Moreover, employers need to be considerate of employees' childcare and other family obligations when the employee returns to the workplace - failing to do so (especially in a high-handed manner) can be extremely expensive.

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

Insensitive Presentation to Employees ≠ Harassment or Discrimination

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

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

The Grievance Settlement Board found that the grievances did not make out a prima facie case.  Assuming that the factual allegations were all true, there was nothing in the grievances that would establish a violation of the collective agreement or the statutes in questions.  Given that there were no particulars asserting that any of the grievors were identified with a protected ground, the union could not prove that the presentation amounted to harassment, discrimination or created a "poisoned work environment" for anyone identified with a particular racial group.  As the Board concluded at para. 37:

In the present case, there is no assertion that any of the grievors were members of a protected group or had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristic. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic. Since the collective agreement and Code provisions relied upon by the union prohibit discrimination on the basis of specified grounds, there can be no contravention based on the asserted facts.

The Board further found that the union had not alleged any facts that would tend to establish that the employer had engaged in anti-union activity by making the presentation during a bargaining year.  Without pointing to some objective evidence that the grievors had suffered some disadvantage because of their union membership or activity, the union could not establish a violation of the collective agreement.  Moreover, the union had not provided any facts that would raise an inference of anti-union animus by the employer. 
In closing, the Board felt compelled to address the union's argument that dismissing the grievances for lack of a prima facie case would send the message that the presentation was "fine".  The Board disagreed, pointing to its role as an adjudicator under a collective agreement.  At para. 46, the Board stated:

The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was "fine" or that the Board endorses such conduct. The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees. The Board’s determination is that as a matter of law, the grievors have not asserted facts [that], if accepted as true, are capable of establishing that any of them had their rights under any of the collective agreement and statutory provisions relied upon, denied or abridged. The Board so finds. As a result the employer’s motion is upheld and all of the grievances are hereby dismissed.

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

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



 


 

Termination One Day After Employee Disclosed Pregnancy Deemed Discriminatory

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

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

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

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

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

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

 

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

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

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

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

After hearing the parties' argument, the HRTO rejected the Applicant's submissions.  With respect to the argument that the Applicant should be deemed capable of performing the essential duty of customer service by assisting customers "most of the time", the Tribunal found (at para. 31):

... In my view, based on the agreed upon facts, assisting customers constitutes over two thirds of the duties of the Store Manager position. As well, according to the agreed upon facts, Store Managers typically are assigned to work alone 19.5 hours per week. Based on these facts, I find that it is an essential duty of the Store Manager position to assist customers. In my view, the proper way of framing the essential duty relevant to this case is that it is an essential duty to "assist customers", not to assist customers "most of the time". In my view, if a duty is essential, it is a duty that is required to be performed whenever there is a need to perform it.

Given that being able to assist every customer was an essential duty, the proposed accommodation amounted to 'exempting' the Applicant from performing that essential duty.  The employer's duty to accommodate did not extend that far.  Based on its finding that the accommodation proposed by the Applicant did not fall within the employer's duty to accommodate, the HRTO did not make any findings regarding the argument that the Applicant should also be permitted to defer tasks to other staff.

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

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



 

Drug & Alcohol Testing - The State of the Law

Over 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 bona fide 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.

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.

Entrop v. Imperial Oil

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 Entrop v. Imperial Oil ("Entrop").  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.  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.

On appeal from the judicial review decision, the Court of Appeal found that alcohol and drug dependency were forms of "disability" protected by the Human Rights Code.  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 Human Rights Code, 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.

Since the Entrop 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:

Random Testing

Following the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving"), 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.

 

However, in the non-union setting, employers may have slightly more leeway.  In Irving, the SCC expressly distinguished the Entrop 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 Irving will ultimately influence human rights decision-makers when addressing complaints from employees who do not have union representation.

Pre-Access Testing

In a recent decision, the Ontario Superior Court of Justice upheld the decision of Arbitrator George Surdykowski in Mechanical ContractorsAssn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, in which the Arbitrator determined that pre-access testing was more akin to random testing, and therefore unreasonable unless it can be established that:   

... 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 Human Rights Code. 

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.  Whether pre-access testing is permissible in non-union settings (following Entrop) remains to be conclusively determined.

For Cause, Post-Incident and Testing Following Return from Treatment

Following Entrop, 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.

The East-West Divide

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 Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, leave to appeal to the Supreme Court of Canada denied).  However, don't be confused.  As recognized by Arbitrator Surdykowski in the Mechanical Contractors' Association Sarnia 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.

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 Lance Ceaser for expert guidance.




 

Federal Court of Appeal Upholds Decision That There is No Independent Procedural Duty to Accommodate

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.
 
In Canada (Human Rights Commission) v. Canada (Attorney General), 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.
 
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.
 
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 Canadian Human Rights Act (the "CHRA"), interpreted correctly, did not provide for a separate procedural duty to accommodate.  Once a respondent employer established that a workplace rule was a bona fide occupational requirement, on the basis of the test in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union ("Meiorin"), [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 CHRA 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.
 
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:

I agree with the Federal Court Judge that the Supreme Court of Canada [in Meiorin] 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 bona fide occupational requirement and it is not a discriminatory practice.

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 ADGA Group Consultants Inc. v. Lane, 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.
 
This decision, if it is followed and applied under other provincial human rights legislation (such as the Ontario Human Rights Code), 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 Meiorin), 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.
 
Do you have questions about the accommodation process?  Need guidance on the forms of accommodation that an employer may be required to provide?  Contact Lance Ceaser for expert legal advice.
 

 
 
 

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

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

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

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

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

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

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

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

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

Alberta Human Rights Tribunal Finds School Liable for Harassment of Teacher by Student

While it is obvious that an employer can be held responsible for harassment perpetrated by one employee against another, the law is not well settled on the extent to which liability will attach for the actions of third parties, such as contractors, customers or people who receive services from the organization.  There is precedent for an employer being held responsible for such conduct under the terms of a collective agreement and the Human Rights Code (see for example, Clarendon Foundation v. Ontario Public Service Employees  Union, Local 593 (Mitchell Grievance), (2000), 91 L.A.C. (4th) 105 (Sarra), but few decisions have gone this way.

Employer Liable for Third-Party Harassment

In a recent decision of the Human Rights Tribunals of Alberta, however, has gone further than most.  In Malko-Monterrosa v. Conseil Scolaire Centre-Nord, the complainant was a teacher who was subjected to unwanted, harassing behaviour by a student ("S") over the course of almost two years.  It started with prank phone calls to her home.  The teacher advised the student to stop calling her, and also advised the student's parent (on more than one occasion) about the behaviour and the need for it to stop.  The complainant also brought it to the attention of the school's principal and vice-principal, but they were of the view that the teacher had addressed the situation and only offered to make counselling services available to the student (whose parent advised that she had psychological issues).  Several months later, the teacher again began receiving prank phone calls.  On one occasion, she confronted the caller, who identified herself as a friend of the student, who had provided the teacher's phone number.  The vice-principal of the school spoke to all of the students involved, including S, and they all received suspensions.  The vice-principal also recommended that the teacher change her home telephone number.

The following school year, and over a period of several months, the teacher began receiving harassing and vaguely threatening messages from the student via Facebook and through her work email account.  School administration had discussions with the student and her parent, and kept up regular contact with the teacher to monitor how she was doing.  In January 2009, the teacher received several such messages, and attempted to block the sender by changing her privacy settings and by seeking assistance from Facebook.  After being asked twice, the school's administration had IT block emails to her work email from the sender (who was later conclusively identified as S).  Once it was clear that a number of the offensive messages were coming from an IP address associated with the student, the school administration met to discuss a strategy to protect the teacher.  When S admitted to being the sender of the email messages, she was given a 5-day suspension and a recommendation was made to the school board that S be expelled from the school.  She was also subject to conditions intended to keep her from contacting the complainant directly or indirectly (for example, through the complainant's mother, who was a receptionist at the school S was sent to attend).

Following the student's expulsion, however, the teacher received two more Facebook messages from the student, as well as an offensive, vulgar letter slipped under her classroom door by some other students who were friends with S.  The board was also advised that S had swore at the complainant's mother.  Rather than expelling the student from the second school, however, the board demanded that she provide an apology to the complainant's mother and only issued a 3-day suspension for her breaches of the conditions of her expulsion. Shortly thereafter, the school board learned that S had sent email to two other students alleging that the teacher had sexually assaulted her.  The school contacted police, who investigated and immediately dismissed the allegations as being retaliation.  Despite the teacher's attempts to have the school issue a cease and desist letter to the student, no immediate action was taken and the teacher had to seek a peace bond on her own.  Ultimately, the student transferred out of the school system at the end of the school year.

While there was no question that the school board and its administrators had taken some action to address the harassing behaviour that was directed at the complainant, the Tribunal found that those actions were not effective in creating a workplace free of harassment.  The employer had the authority to sanction S and thereby protect the teacher, but its efforts were "piecemeal", dealing with discrete incidents, and not "coordinated or centralized" in any way to reflect the pattern of escalating harassment.  Too many different administrators were involved, leading to corrective action that was not progressive or meaningful.  When the student had clearly breached the conditions of her expulsion from the school, and should have been facing removal from the school system, the board instead imposed only a suspension.  The Tribunal also observed that it appeared the school board put its concern for the student (who appeared to be emotionally and psychologically "fragile") ahead of its concern for the teacher's safety and well-being.  In the result, the school board (as the employer) was found liable for its failure to address the racial and sexual harassment of the teacher.

What does it mean?

The decision in the Malko-Monterrosa case provides some valuable insights for employers.  When addressing issues of this nature, it's important to assign responsibility for managing the situation to only one or two people within the organization.  This will ensure that responses are coordinated and show an appreciation for the overall pattern of conduct, rather than just the most recent incident.  Complaints about the behaviour of third-parties should be conducted with sensitivity, but with a sense of urgency, and resolution should be offered in a timely manner.  Failure to take the complaint seriously or taking the position that the organization's "hands are tied" will only exacerbate a tense situation.  If the organization doesn't have the 'in-house' resources to investigate or remedy the concern (for example, where forensic IT assistance may be required), look outside the organization to locate the required expertise. 

Ensure that the organization carefully weighs any competing obligations.  Service providers, contractors and other third parties should be made aware from the outset of their duty to treat employees in a respectful way, and that harassment or discrimination will not be tolerated.  Where the employer services a clientele that may be prone to lashing out at staff, ensure that staff know that the employer will take all reasonable measures to protect them from discrimination and harassment.  This may sometimes require the employer to distance itself from the third-party or take serious steps to sanction the behaviour in order to address the employee's concerns.

Do you have concerns with third-party behaviour in the workplace?  Need assistance in investigating or resolving harassment issues?  Contact Lance Ceaser for expert assistance.



 

   

Employer's Knowledge of Disability Not Necessary to Establish Duty to Accommodate Disabled Employee - Or is it?

While the law tends to move incrementally, one decision at a time, slowly establishing "precedents" that later decisions will follow, the outcomes in some cases do not always appear to be consistent.  Not infrequently, a decision may appear to be an outlier, at least until one delves deeper to understand the basis on which the result differs from previous cases. 

In a post on this blog in August (here), I noted that an employer generally does not have an obligation to accommodate an employee until such time as the employee comes forward with a condition that requires accommodation.  In both Bish v. Elk Valley Coal Corporation and Huffman v. Mitchell Plastics, employers were not held responsible for failing to accommodate employees who failed to disclose their "disability". However, it should be noted that in both decisions, the underlying condition related to substance abuse.

In a recent decision of the Alberta Court of Appeal, however, the Court found that an employer's knowledge of the employee's disability was not an essential element of establishing whether there was prima facie discrimination.  In Telecommunications Workers Union v Telus Communications Inc., the employee was employed as a representative in a call centre operated by Telus.  He was a member of a bargaining unit represented by the TWU.  At the time of hiring, the employee had completed a Diversity Form, indicating "yes" to the question of whether he was a "person with a disability".  At no time, however, did Telus follow up with the employee to learn the nature of his condition or whether he required any form of accommodation. The employee was ultimately hired, but began displaying performance issues within the probationary period. On the evidence presented at grievance arbitration, it appears that the employee may have told his supervisors that the performance issues were related to his "condition", but it was not clear whether he expressly mentioned having Asperger's Syndrome.  The grievor was terminated, and the Union took his discharge to arbitration.

At labour arbitration, the Arbitrator determined that the employee did have a disability and that the issues with his performance which resulted in his termination were connected to that disability.  However, the Arbitrator also found that the employee had not provided sufficient information to the employer to trigger the duty to accommodate (or even to compel the employer to look further into his condition), and that the position in question could not be modified in a way that would permit the grievor to meet the requirements of the job.  The Union sought judicial review, but the Arbitrator's decision was upheld by a judge of the Court of Queen's Bench.

On appeal, the Union argued that the Arbitrator and the lower court had both misapplied the test for prima facie discrimination, and had failed to properly consider the test for establishing a bona fide occupational requirement.  The Court of Appeal reviewed the test for a finding of adverse effect discrimination, and found that the employer's knowledge was not a necessary element of that test.  Provided there was a negative consequence for the claimant from an apparently neutral rule, and the employee's disability contributed to that adverse outcome, the claimant has made out adverse effect (or indirect) discrimination.  In the case at bar, the employee's disability was a contributing factor in his inability to meet the employer's performance standards, which led to his discharge, so he had clearly made out a case. 

However, the Court then went on to consider the test for demonstrating a bona fide occupational requirement as set out in PublicService Employee Relations Commission v British Columbia Government and ServiceEmployees’ Union (often cited as “Meiorin”), and found that the employer could not have accommodated the employee in his current or any other position, given the effects of his disability.  Accordingly, although the Court disagreed with the Arbitrator's finding that there was no prima facie discrimination, the Court upheld the ultimate decision to dismiss the grievance.

The Alberta Court of Appeal's finding that an employer need not have actual knowledge of an employee's disability before being obligated to accommodate the employee initially appears to be supported by the decision of the Supreme Court of Canada in Moore v British Columbia (Education).  However, the Moore test for prima facie discrimination does not stand in isolation. One must still consider the test in Meiorin, and other earlier human rights decisions, such as Central Okanagan School District No. 23 v. Renaud.  In the latter case, the SCC commented on the duty on a complainant, whether in a case of direct or adverse effect discrimination.  At p. 994, the Court stated:

The search for accommodation is a multi-party inquiry.  Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.  The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley.  At page 555, McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

To facilitate the search for an accommodation, the complainant must do his or her part as well.  Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation.  Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

Clearly, unless an employee explicitly draws the employer's attention to the need for accommodation (or even the fact of disability), there cannot be an obligation on the employer to take steps to accommodate the employee.  The employer's knowledge, therefore, is an element of the analysis (albeit not at the stage of establishing prima facie discrimination).

The result in the Telus case does line up with the outcomes in Bish and Huffman, but how the Court got there may have created unnecessary confusion in the law.  By suggesting that an employer's knowledge is not a necessary element of the discrimination and accommodation analysis, the Court may lead employers and HR professionals to believe that they need to ferret out any and all potential disability claims before they surface as human rights complaints.  The law does not go that far.  Employees still have an individual responsibility to be frank about the need for accommodation and to participate in the process.  That has been the law for over 20 years, and the decision in Telus doesn't change that.

Do you have questions about human rights issues or the scope of the employer's duty to accommodate?  Contact Lance Ceaser for expert advice and guidance.

 

 

The Evolution of the Family Status Analysis

Further to my post of May 27, 2014 (here), it appears that the analytical approach to family status discrimination claims demonstrated in Campbell River is on its way out.  As explained in that earlier blog, in Campbell River, Arbitrator Lanyon set a higher bar for establishing that a workplace rule or condition of employment was discriminatory on the basis of an employee's family status.  Prima facie discrimination would only exist where the rule or condition in question "results in a serious interference with a substantial parental or other family duty or obligation of the employee".  While that approach was adopted in a number of cases in various Canadian jurisdictions, there had continued to be a great deal of debate about whether the threshold for establishing family status discrimination should be different from (and higher than) for other protected grounds.  The Campbell River analysis took a big hit when the Federal Court of Appeal released its decisions in Seeley and Johnstone earlier this year.

Now, the Alberta Human Rights Commission has also sided with the Federal Court of Appeal, and has applied the Johnstone/Seeley analysis in a recent decision.  In Clark v. Bow Valley College, the complainant was a nursing instructor.  She was to start pregnancy leave in February 2010, but her baby was born 7 weeks premature.  As a result, her pregnancy leave commenced in early January 2010.  However, no one advised the complainant that they had retroactively adjusted the dates of her leave and that she would be expected to return to work in January 2011.  Unaware of the change, she had made childcare arrangements for her son to start in February 2011.  In November 2010, she learned that the employer had scheduled her return to work for January 3, 2011, and immediately contacted the College to advise them of the challenge this posed.  Over the next few weeks, she communicated with various representatives of the employer, in an effort to be granted vacation or unpaid leave of absence for the month of January.  However, her requests were denied (due to operational requirements), and she was told to 'avail herself' of childcare services and return to work, or she would be deemed to have abandoned her position.  When she was unable to arrange any earlier childcare for her son, her employment was terminated by the College.

The Chair hearing the complaint applied the approach in Johnstone/Seeley, and found that the complainant had made out a case of prima facie discrimination.  The primary dispute between the parties was whether the complainant had made reasonable efforts to resolve the childcare problems herself before requesting accommodation from the employer.  While there was little evidence about why the complainant's husband could not assist in caring for their son (and the husband did not testify about his unavailability), the Chair accepted as fact that the complainant's spouse did not represent a reasonable alternative in the circumstances. He was working at the time, albeit part-time, and could not be expected to quit his job in order to assist with the care of the child.  Given that the employer had granted the complainant only a few days' extension of her return to work, and had provided her with brochures for two childcare providers, but without engaging in any meaningful discussions about how her situation could be resolved, the Chair found that the employer had not accommodated her family status to the point of undue hardship.

Given this decision, and the growing tide of cases that are leaning in this direction, employers would be well-advised to take requests for family status accommodation seriously, particularly before considering ending the employment relationship.  When an employee approaches the employer with a request for an extension of leave or other modifications to the terms of employment, ensure that you gather sufficient information to assess whether the employee has made "reasonable" efforts to find a solution to their childcare problem.  Be aware: the employee need not come up with a perfect solution, but must only make adequate effort.  The personal circumstances of the employee, such as the availability of a spouse or other family member, the costs associated with different childcare options, or any medical issues experienced by the child, must all be weighed in assessing what is reasonable.  Assuming that the employee has made appropriate efforts, the focus must then shift to creative solutions that the employer can support, such as adjusting hours of work, permitting a return to work on a part-time basis, assisting with the costs of childcare (at least on a temporary basis), or extending the employee's leave while they make necessary arrangements.  Remember that the "undue hardship" threshold is very high.  If, and only if, no possible accommodation can be identified or implemented without incurring undue hardship will the employer be held blameless.

 

Do you have questions about the test for family status discrimination or the duty to accommodate?  Do not hesitate to contact Lance Ceaser for additional information and guidance.

 

 

Did you know...?

... Telling an employee who has given notice of resignation that you no longer require their services and they can leave immediately can convert that resignation into a termination without notice?  If the employee has provided 'reasonable notice' of resignation, but the employer decides to end the relationship before the expiry of that notice, it is the employer who has terminated the contract.  In these circumstances, the employee is entitled to payment in lieu of reasonable notice. 

This concept was illustrated in a recent decision out of the Supreme Court of Canada, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc. The Supreme Court determined that it is a "fiction" for an employer to claim that it has 'renounced' (or 'waived') the employee's notice of resignation, when in fact it has taken unilateral action to bring the contract to an immediate end. While the Asphalte Desjardins case was decided under the Quebec Civil Code, similar rules are applied by the common law courts.  See for example, the decision in Compton v. Partners in Motion Pictures Inc., a 2005 decision of the Saskatchewan Court of Queen's Bench. 

Once an employee provides notice of resignation, the employer can accept it or seek to negotiate a longer or shorter period of notice, but cannot dictate the effective date of resignation.  If the employee is to be sent home prior to the effective date of resignation, the employer should make clear that their active service will not be required, but that the employee should make him or herself available during the notice period to facilitate the transition of duties, projects, etc.  Full salary and benefits must be maintained for the entirety of the notice period, as well.

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... That the new Ontario Budget Bill was accompanied by the Building Opportunity and Securing Our Future Act (Budget Measures, 2014) ("Bill 14") which, among other things, amends the Insurance Act to require employers who provide Long-Term Disability ("LTD") benefits to do so through "a contract of insurance undertaken by a licensed insurer"?  No longer can such benefits be self-insured. Health benefits providers have been pressing for this change for some time, as it provides greater security for those receiving benefits coverage.  This measure brings provincially-regulated employers in Ontario into line with federal employers, who have been subject to a similar requirement since 2012. Bill 14 received Royal Assent on July 24, 2014, but has yet to be proclaimed.  Stay tuned...

 

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... That an employer's duty to accommodate an employee suffering from drug addiction or alcoholism may not be triggered until the employee fully discloses the existence of the disability?  In a handful of recent decisions, adjudicators have been reluctant to overturn employer decisions to terminate the employment relationship where an employee engages in serious misconduct, even where the behaviour has its roots in addiction or alcoholism.

In Bish v. Elk Valley Coal Corporation, the employer had a drug and alcohol policy which offered amnesty to employees who disclosed an addiction, in exchange for their undertaking to go to rehab.  The employee was found to have cocaine in his system when he was tested after an accident on the job.  He had never disclosed an addiction prior to the accident, although he had attended a training session on the drug and alcohol policy.  The Alberta Human Rights Commission dismissed his complaint, finding that the employee was terminated not because of his addiction, but for his non-compliance with the policy, including his failure to reveal his condition and seek treatment. The Commission's decision that there was no prima facie discrimination was upheld by the Alberta Court of Queen's Bench on appeal.

In Huffman v. Mitchell Plastics, the Human Rights Tribunal of Ontario reached a similar conclusion.  Huffman was terminated by the company following grossly inappropriate behaviour at the office Christmas Party.  The employee was drunk, and belatedly claimed that he suffered from alcoholism, which he had 'disclosed' to the employer when he inquired about benefit coverage for the medication "Champix" (commonly used to assist smokers to quit smoking).  The Tribunal found that the Applicant had not properly disclosed his disability or provided sufficient information from which the employer ought to have known that he was an alcoholic.  Accordingly, the employer could not be expected to recognize that it had a duty to accommodate the employee at the point when it terminated him for his conduct.

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Are you struggling to manage an employee's resignation?  Have questions about accommodating an addicted employee?  Feel free to contact Lance Ceaser to obtain advice and guidance.

A Few Quick Bites

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. 

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Do you have questions about employment and labour law issues?  Please don’t hesitate to contact Lance Ceaser for assistance.