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.

Dealing with Off-Duty Driving Offences

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.  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.  As discussed in an earlier post on the Ghomeshi fiasco, employees can incur employment-related repercussions for actions they take in their personal capacity.

But what about driving infractions?  Can offences behind the wheel have employment ramifications?  What about an employee who suffers from alcoholism?  Can they rely on their disability to excuse charges under the Highway Traffic Act or the Criminal Code?  As seems to generally be the case in matters like this, the answer to these questions is “it depends”.

As the Court said in Pearce v. Foster et al. (a “master-servant” case from the late 19^th Century):

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.

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.  However, the principle is still observed:  an employee’s behaviour outside of work may have repercussions for the employment relationship (up to and including dismissal) where the behaviour is prejudicial to the employer’s interests.

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. 

Before considering how to respond, an employer must make the necessary enquiries to determine what has occurred and how significant an event it is.  Obviously, the employee should be interviewed and any other available information gathered.  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’.  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.

Perhaps most crucial to the employer’s decision-making will be the nature of the employee’s role and responsibilities.  Is possession of a valid driver’s license a requirement of the position?  Is driving the primary or an essential duty of the employee’s job?  If not, how often is the employee expected to drive in the course of performing the job?  Does the employee operate an employer vehicle or his/her own car?  Does the employer maintain fleet insurance and what are its terms?  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.  However, it is also essential for the employer to understand the duration of the license suspension or conditions.  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.

The seriousness of the infraction and the employee’s explanation and display of remorse (if any) are also important factors to consider.  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.  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).  Likewise, the attitude of the employee and any explanation they may provide must be weighed.  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.  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.

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.  Where charges against the individual have been reported in the media, the employer’s reputation may be at stake, particularly in a smaller community.  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).  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.

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.  As Arbitrator Owen Shime observed in one of the seminal arbitration cases on the subject (Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116):

An employee who loses his or her driving licence for violation of the Highway Traffic Act, [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.  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.  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.  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.

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.  However, this option should only be considered in cases where the period of suspension or driving conditions is known and relatively short.  And of course, this alternative should never be considered where it would result in displacing another employee.  Only available work should be offered to accommodate the employee who has lost his/her driving privileges.

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?  What weight should the employer give the employee’s disability?  Is it an excuse or a mitigating factor?

In English v. Treasury Board (Solicitor GeneralCanada - Correctional Service), 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.  The officer had not told the employer that he had been convicted or that his license had been suspended for two (2) years.  In addition, he continued to operate employer vehicles (performing inmate transfers) after he lost his license.  Prior to the arbitration hearing, the employee expressed remorse and took steps to address his acknowledged problems with alcohol abuse.  The Board Member observed that the employee’s alcoholism had to be considered in assessing the appropriate penalty for his wrongful behaviour.  Citing an earlier decision, the Board Member wrote:

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:

1.            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;

2.            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;

3.            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;

4.            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;

5.            An adjudication board should consider the extent to which and the duration for which an employee is unable to perform his employment obligations;

6.            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.

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.  Evidence that the employee has sought treatment even after termination may be relevant.  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).

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.

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.  A careful, fact-specific assessment is required in each and every case.

Do you have questions how to deal with an employee who has lost their driving privileges?  Need guidance on whether or not to discipline for off-duty conduct?  Contact Lance Ceaser for expert advice.

Guidance on What an Employer Can Do When Accommodating a Disabled Employee

In dismissing a complaint of disability-related harassment and discrimination, the Canadian Human Rights Tribunal recently made some helpful comments on an employer's authority to follow-up with an employee respecting their medical condition and any restrictions they may have.

In Croteau v. Canadian National Railway, the Complainant was a conductor on freight trains operated by CN when he was injured.  Following multiple accidents and injuries over a ten-year period, the Complainant had a negative interaction with a Risk Management Officer (regarding his request for benefit forms), and two workplace accidents that resulted in injuries.  CN conducted a reconstruction of one of the accidents (as part of its root-cause analysis), and investigated whether the Complainant was legitimately off work following the second accident, which included hiring a private investigator to conduct surveillance.  Over the course of the succeeding months and years, the Complainant developed certain mental health issues, including anxiety and depression.  He claimed that the employer had engaged in several incidents of harassment, and that it had also repeatedly failed over a period of years to accommodate his disabilities. The employer denied the allegations and brought a non-suit motion, which was successful in having the Tribunal dismiss two alleged incidents of harassment.  However, another nine allegations of harassment and failure to accommodate were the subject of full evidence before the Tribunal.

At the outset of its analysis, the Tribunal made a couple of important observations.  First, it stated that not every interaction that a disabled employee has with the employer which is subjectively objectionable will amount to "harassment".  At para. 43, the Tribunal wrote:

It is important to recognize when dealing with allegations of “disability harassment” that it denotes more than just being uncomfortable or offended in the sometimes difficult, sensitive discussions between management and employees. For example, an employer has the right to manage its employees and issues relevant to the operation of its business, such as making, monitoring and enforcing rules in the workplace. The key is to examine whether the conduct has violated the dignity of the employee (e.g., as a result of belittling or degrading treatment by the employer linked to the ground of disability) from an objective perspective such that it has created a hostile or poisoned work environment.

Secondly, although the duty to accommodate does have a procedural aspect to it, that doesn't mean that a complainant is entitled to a remedy for a deficiency in the process unless it leads to a substantive failure to provide reasonable accommodation.  (The Tribunal based its view in this regard on the decision in Attorney General of Canada v. Cruden et al., which was recently upheld by the Federal Court of Appeal, as discussed here.) 

The Tribunal then weighed the credibility of the various witnesses, including the Complainant (whose evidence was found to often be unreliable, due to his skewed perspective on events), and determined that none of the alleged incidents were proven or amounted to harassment or discrimination.  Most importantly, the Tribunal found:

• The Complainant may have found the RMO to be rude or overly assertive, but she did not harass the Complainant merely by asking whether his injury was personal or work-related;
• Investigating the reasons for the Complainant's absenteeism did not amount to harassment, even where the employee was cautioned about the possible consequences of continued high levels of absence;
• Asking the Complainant to recreate the circumstances of a work-related injury was a legitimate exercise, intended to avoid or reduce future incidents leading to injuries;
• Questioning the bona fides of an injury, on its own, does not amount to harassment, particularly where the employer has legitimate doubts about an employee's account of how the injury occurred.  Likewise, an employer has a right to inquire into the reason that an employee has a much higher than average incidence of work-related injuries (as was the case with this Complainant);
• Despite the fact that the federal Privacy Commissioner had taken issue with the employer's use of surveillance by a private investigator, the Tribunal found that the surveillance did not amount to harassment.  The employer had legitimate reasons to question the reason for the Complainant's extended absence without leave (including the submission of contradictory doctor's notes, and his failure to answer 58 calls from the employer), and the surveillance itself was conducted in a reasonable manner.
• Conducting a meeting with the Complainant to discuss his absence and the outcome of the surveillance (which captured the Complainant playing soccer and basketball, despite an alleged knee injury) was a necessary adjunct to the employer's investigation, and was not harassment, despite the meeting running "inordinately long";
• Rescinding approval for tuition reimbursement, due to the Complainant's injury record and period of AWOL, was a legitimate response (given CN had reason to believe the Complainant was not "promotable"), and did not constitute harassment;
• Although the employer may have relied on some inaccurate information in deciding to deny the tuition reimbursement, it did not amount to discrimination as there was no evidence it was related to a prohibited ground;
• Issuing a 'deferred' suspension, while the Complainant was off on STD and then LTD leave, did not amount to harassment, particularly where the Complainant never ended up serving the suspension.

The Tribunal then went on to consider the Complainant's claims that CN had failed to accommodate his disability over a number of years, and ultimately found that CN had accommodated the Complainant to the point of undue hardship.  The Tribunal was satisfied that the operation of a freight railway was a very safety-sensitive endeavour.  The Complainant's restrictions (related to his anxiety disorder) prevented him from working alone, being responsible for the safety of others, operating any moving equipment or working in a safety-sensitive/critical position, although over the course of years these limitations changed to include restrictions from certain shifts, as well.  The Complainant acknowledged that the employer had taken some measures to accommodate him between 2007 and 2013, but still claimed that the employer had not done enough (over the course of five (5) failed attempts to return him to work).  Ultimately, the employer was unable to find any positions for the Complainant within his restrictions, either in Sarnia (where he had worked) or elsewhere within the railway. The Tribunal found that the RTW efforts had foundered because the Complainant was unable to fully participate in the employer's efforts (due to his anxiety disorder and certain unreasonable demands he made) and was fixated on obtaining an apology and other redress (despite the employer not having done anything wrong) before he would cooperate in RTW efforts.  The Tribunal observed that there were aspects of the accommodation process that CN could improve, but that no accommodation, short of undue hardship was possible, and dismissed the complaint.

The decision reflects both the challenges of dealing with a claim for disability accommodation (which can be particularly onerous in the area of mental health issues), and the types of normal employer interactions with a disabled employee that will not amount to harassment or discrimination.  While employers often feel as if their "hands are tied", this case shows that an employer does still have the authority to manage the employment relationship, including reviewing the circumstances leading to an injury or absence, investigating and addressing employee conduct (such as when an employee is AWOL), and questioning the legitimacy of medical notes (where there is reason to do so).

Do you face challenges with accommodation?  Need assistance in navigating the RTW process?  Contact Lance Ceaser for expert advice.

 

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.

ESA Complaint Found to Not Preclude Human Rights Application

While the Human Rights Code does provide a mechanism to prevent the relitigation of claims that may arise under a collective agreement or another statutory regime, it will not apply in all cases to prevent a claimant from making an Application to the Human Rights Tribunal of Ontario (the "Tribunal" or the "HRTO") based on the same or related circumstances.  Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

The Tribunal's focus in these cases is on determining whether the other proceeding "has appropriately dealt with the substance of the application".  Mere overlap between the factual allegations will not suffice, unless the other matter has resolved the human rights aspects of the claim.

Recently, the Tribunal found that a claim of family status discrimination was not precluded by the employee having made a prior claim under the Employment Standards Act, 2000 (the "ESA").  In Bala v. TRQSS, Inc., the employee had advised her employer in January of 2013 that she anticipated having child care issues as her mother was becoming increasingly ill.  Although there was some discussion between employee and employer about the potential for trading shifts with other employees, it does not appear that any arrangements were put in place before the employee went on medical leave from mid-March until the end of April of 2013.  When the employee was supposed to return, she claimed one day of emergency leave to deal with child care, and was then absent for two more days.  The company advised the employee that she needed to attend work the following week or she would be deemed to have abandoned her position.  When she did not come to work for the first three days of the following week she was deemed to have resigned and her employment ended.

The employee made a claim to the Ministry of Labour for termination and severance pay under the ESA, but an Employment Standards Officer ("ESO") denied the claim, finding instead that the employee was disentitled as she had engaged in wilful neglect of duty.  She did not appeal the decision of the ESO to the Ontario Labour Relations Board.  The employee then brought an Application before the HRTO, alleging that she had been discriminated against on the basis of family status.  The employer asked the Tribunal to dismiss the application on the basis that it raised the same factual matters that had been addressed in the ESO's decision.

Following a summary hearing, the Tribunal rejected the employer's request to dismiss the Application.  The Tribunal noted that the remedial provisions of the ESA were not as robust as those found in the Code (at least in relation to orders to pay termination and severance pay), and that the ESO's decision did not reference the Code, the employer's duty to accommodate, whether the attendance policy was discriminatory, or any of the human rights issues that were raised by the Application.  Accordingly, it could not be said that the ESA claim had dealt "appropriately" with the "substance" (i.e., the human rights issues) of the employee's Application, and the matter should be allowed to proceed before the Tribunal.

While the Bala decision is fairly straight-forward on its face, it highlights an issue that employers should address when faced with a "proceeding" by an employee or former employee that may involve human rights issues, but which is not brought through the HRTO process.  Employers should ensure that any human rights claims are fully addressed in the initial proceeding, and dealt with effectively.  If the matter is resolved in a mutually acceptable manner, any settlement documentation should clearly address the fact that the human rights issues have also been fully and finally resolved.  Outside of these situations, arguing that a subsequent HRTO Application should be dismissed will be all but futile, and only serve to delay and drive up the costs of the litigation.

Do you have questions about procedure before the HRTO?  Wonder about the impact of various dispute resolution schemes on a claim?  Contact Lance Ceaser for advice and guidance.

 

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.

* * *

 

... 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...

 

 * * *

... 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.

* * *

 

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.

When Must an Employer Accommodate Parental Obligations? - The Test Has Changed

The legal landscape continues to evolve with respect to how an employer should respond when confronted with an employee's request to accommodate parental obligations.  Until recently, many employers were following the guidance of the B.C. Court of Appeal in Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society (“Campbell River”), which found that an employer need only accommodate an employee “when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee” (para. 39).  However, two recent decisions of the Federal Court of Appeal (A-G of Canada v. Johnstone (“Johnstone”), and Canadian National Railway Company v. Seeley (“Seeley”)) provide a different, less restrictive test.

In Johnstone and Seeley, the complainants were both federal employees (one with the Canadian Border Services Agency ("CBSA"), and the other employed by the Canadian National Railway ("CNR")) who sought and were denied accommodation for their childcare needs after returning from pregnancy leave.  While CNR had argued that it had offered accommodation to the point of undue hardship (by extending the date for Ms. Seeley to return to work after being recalled to the Vancouver terminal), the CBSA had simply refused Ms. Johnstone’s proposed accommodation on the basis that it had no legal obligation to accommodate her parental obligations (relying on the test in Campbell River).  Both complainants were successful at the Canadian Human Rights Tribunal and on judicial review to the Federal Court.  At the Federal Court of Appeal, argument centred on exactly what was protected by “family status”, and what test should be applied in determining whether the employer had discriminated against an employee on this ground.

The Federal Court of Appeal upheld the decisions below (which had rejected the Campbell River test for prima facie discrimination), finding that there was no principled basis for imposing stricter conditions on a claimant seeking protection due to their family status than would apply under any other protected ground.  In the Court’s opinion, the test in Campbell River effectively narrowed “family status” to the point where very few individuals could ever make out a prima facie case.  This was not consistent with the remedial purpose of human rights legislation, which is to be interpreted broadly and generously to ensure that rights do not become illusory.  At the same time, however, the Court was prepared to take a more contextual approach to the issue of proving family status discrimination.  Matters of personal choice, such as children’s extracurricular activities, would not be counted among parental obligations requiring accommodation. At paragraph 71, the Court stated:

The childcare obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.

However, the Court was not prepared to only protect employees from “serious interference” with “substantial” parental duties.

Instead, the Federal Court of Appeal established the following test for a claimant to establish a prima facie case of discrimination on the basis of family status:

(i)                  that a child is under his or her care and supervision;

(ii)                that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

(iii)               that he or she has made reasonable efforts to meet that childcare obligation through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and

(iv)              that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

If the employee can establish these four factors, then it falls to the employer to establish that it made all reasonable efforts and is unable to accommodate the employee’s needs without incurring “undue hardship” (on the basis of the so-called Meiorin test).

While the decisions in Johnstone and Seeley do move away from the narrow test applied by the B.C. Court of Appeal in Campbell River (and followed by many labour arbitrators and tribunals), the Federal Court of Appeal has steered a course that appears to balance legitimate parental duties against the employee’s responsibility to pursue available alternatives before requesting modification of workplace rules or policies.  Only where this balancing favours the family obligation is the employer’s duty engaged.

This decision emanates from the federal jurisdiction, so it remains to be seen whether it will be applied to claims under the Ontario Human Rights Code.  However, given the confusion in the case law from various boards, tribunals and courts across the country, there seems a strong likelihood that it could become the governing approach on this issue.  Only time will tell.

Do you have family status issues in your workplace?  Need advice and guidance?  Feel free to contact Lance Ceaser for assistance.