Summary Judgment - The Way of the Future for (Some) Wrongful Dismissal Cases

When the Supreme Court of Canada issued its decision in Hryniak v. Mauldin last year, it was not clear whether the Court's guidance on the use of summary judgment motions (under Rule 20 of the Rules of Civil Procedure) would be applicable to wrongful dismissal actions.  The Supreme Court made clear that unnecessarily protracted proceedings were not necessary in all cases, and in some cases the delays and expense of a prolonged trial could result in a denial of justice.  So what about your average allegation of wrongful dismissal?

In its recent decision in Arnone v. Theratronics Ltd., the Ontario Court of Appeal has suggested that some wrongful dismissal cases may be ideal candidates for summary judgment, in keeping with the Supreme Court's decision, particularly those where the only issue is the quantum of reasonable notice that the employee ought to have received.  In Arnone, the employer had not asserted cause for termination or any other form of justification, so the only outstanding question to be decided was the period of reasonable notice.  The plaintiff brought a motion for summary judgment under Rule 20, claiming that the matter could be disposed of in a summary fashion because there was no 'genuine issue' requiring a trial.  The motion judge agreed, and granted summary judgment to the plaintiff.

On appeal, the employer argued that the motion judge had erred as there was disagreement between the parties as to whether the plaintiff was a supervisor or a manager, a factor going to the analysis of appropriate notice under Bardal v. The Globe & Mail Ltd.  The Court of Appeal rejected this argument, finding that the judge had sufficient material before him, including documentary evidence submitted by the employer, that would allow him to make a determination without conducting a trial.  Moreover, the employee had conceded, for purposes of the motion, that he may have been supervisory rather than managerial.  The Court observed that this objection did not necessitate a full trial, particularly as the nature of the employment was only one Bardal factor to be considered in determining reasonable notice.  The Court then stated:

Finally, while the appropriateness of bringing a summary judgment motion must be assessed in the particular circumstances of each case, a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.

The Court of Appeal concluded that the motion judge had not erred, as there was no genuine issue for trial (although other aspects of the judge's decision were altered on the appeal).

Provided parties to a wrongful dismissal case marshal the necessary documentary and affidavit evidence, it is likely that the courts will be prepared to entertain summary judgment motions in most 'notice period' cases. Hearing a motion is much more timely and cost-effective, and preserves judicial resources that would otherwise be expended hearing a trial.  If there are factual issues that require a more thorough analysis, employers will have to persuade a motion judge that documentary evidence and affidavits are insufficient to resolve the dispute.  It will therefore be imperative that employers ensure that they prepare for a summary judgment motion as if it may be determinative.  In many cases, it could be. 

Do you have questions about wrongful dismissals?  Need guidance to make sure that the notice provided is "reasonable"?  Contact Lance Ceaser for expert advice.

The FCA Has Established the Test for Family Status Discrimination ... Or Has It?

As earlier reported, the Federal Court of Appeal established a test for prima facie discrimination on the basis of "family status" in its decisions in Johnstone and Seeley (reported on here).  The Court stated that a claimant must establish not only that he or she had legitimate family obligations that the workplace rule interfered with, but that the claimant had made reasonable efforts to address his or her family obligations.  Under this approach, the employer would have no onus to respond, by establishing that it had made reasonable accommodation efforts (short of undue hardship), unless and until the claimant had shown that attempts to 'self-accommodate' had been unsuccessful.  Many wondered if this formulation of the prima facie test for family status discrimination would be the final word on the subject, but it's now clear that it was not.  The Alberta Court of Queen's Bench has now weighed in, and the Court is not in agreement with the test set by the Federal Court of Appeal.

In SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, the employee was a single mother of two children who was required to work day and night shifts.  When she sought accommodation of her childcare obligations, by being assigned to a straight day shift, her employer declined, even though there was another employee who was willing to switch to a straight night shift.  The labour arbitrator hearing the employee's grievance determined that the employer had discriminated against the employee on the basis of family status, and that the employer had not discharged its duty to accommodate. The employer sought judicial review and was unsuccessful.  In dismissing the application, Justice Ross of the Alberta Court of Queen's Bench offered the following opinion on the test formulated by the Federal Court of Appeal (at para. 77):

A flexible and contextual application of the Moore test does not justify the application of an entirely different test of prima facie discrimination, and particularly does not justify including within that test a self-accommodation element that is not required with respect to other prohibited grounds of discrimination. This is unnecessary and contrary to the objects of human rights law. It is unnecessary because a finding of discrimination does not automatically follow once a prima facie case is established. It is only when the complainant establishes a prima facie case and the respondent fails to justify the rule or conduct that discrimination will be found. It is contrary to the objects of human rights law because it imposes one-sided and intrusive inquiries on complainants in family status discrimination cases. Complainants are not only required to prove that a workplace rule has a discriminatory impact on them, but that they were unable to avoid that impact. Thus the Grievor was subjected to an examination regarding her relationship or lack thereof with the biological fathers of her children, her choice of caregivers for her children and her personal financial circumstances. She had to undergo this examination before the Employer would even consider a request for an accommodation in the form of a shift exchange that she had arranged with another willing employee. The search for accommodation is intended to be “a multi-party inquiry,” involving the employer, the union and the complainant: Central Okanagan School District No 23 v Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970 at 994, 141 NR 185 [Central Okanagan], cited in Arbitrator’s Decision at para 69. Converting this multi-party inquiry into a one-sided investigation could certainly deter complainants from pursuing claims for discrimination based on family status, and thus detract from the policy goal of removing discriminatory barriers to full participation in the workforce.  

In short, the Alberta Court was of the view that the test for prima facie family status discrimination was the same as applied in relation to any other prohibited ground of discrimination. The complainant must show that:

1.      The complainant has a characteristic that is protected from discrimination;

2.      The complainant has experienced an adverse impact; and

3.      The complainant must show that the protected characteristic was a factor in the adverse impact.

Under this analysis, the efforts made by the employee to accommodate his or her family obligations would not be relevant to whether or not the employer had discriminated against the employee.  However, relying on the decision in Central Okanagan (cited in the paragraph quoted above), an employer could still argue that the employee had not met his or her share of the duty by not looking into options that would have eliminated or reduced the need for workplace accommodation (e.g., by seeking assistance from a spouse or family member).  To date, the issue of the test in the Johnstone/Seeley decisions has not been determined by the courts in Ontario.  It will be interesting to see which side of this debate they land on.  Stay tuned...

Do you need assistance with complex accommodation issues?  Need to better understand your workplace obligations?  Contact Lance Ceaser for expert guidance.

 

 

Court reminds: "a message does not become privileged merely by sending a copy of it to a lawyer"

A recent decision of the Superior Court of Justice should serve as a good reminder to HR professionals that one must be careful in how information is shared if privilege will be claimed.

In Jacobson v. Atlas Copco Canada Inc., the plaintiff was a former employee of the defendant.  Following a workplace altercation involving the plaintiff and a co-worker, human resources investigated.  However, the plaintiff took the position that the local HR representative was biased.  Accordingly, the HR representative sought the opinion of another HR employee from a different location to ensure impartiality.  Copies of the investigation notes were exchanged among the HR representatives, with a copy to an external employment lawyer.  However, it was not clear that all of the employees on the email chain were aware of the identity of the lawyer, nor did anyone expressly seek the advice of the lawyer with respect to the outcome of the investigation.  In one particular email message, one of the HR reps offered his views on the application of the employer's progressive discipline policy and a proposed course of action vis-à-vis the plaintiff's employment.  A couple of hours later the lawyer provided his legal advice on the situation, although his opinion had not been solicited.  The employee was ultimately terminated, and sued for wrongful dismissal. 

In the course of the action, the plaintiff brought a motion seeking production of the email from the second HR representative of the company (but not the responding email from the lawyer, which clearly contained legal advice).  The employer resisted the motion on the basis that the email communication was protected by solicitor-client privilege and should not be produced.  In support of its position, the employer provided an affidavit from the company's General Manager, who advised that the company had retained the external lawyer to provide advice on the investigation, and his belief that the HR representative had been seeking advice when he copied his email to the lawyer.  However, the company did not provide an affidavit from the HR representative himself.

Justice Ellies looked at the surrounding circumstances to determine whether it was clear that the HR representative had intended to seek the lawyer's advice when he sent his email.  Unfortunately, because the company had not provided the "best evidence" (i.e., a statement from the individual who actually sent the email), the Judge concluded that the hearsay evidence of the General Manager did not establish that this was the intention of the communication in question. As the party claiming privilege, the onus of proving the communication was privileged rested with the company.  The evidence it put forward failed to prove that point on a balance of probabilities.  At paragraph 25, the Judge very succinctly summarized his conclusion:

Atlas Copco relies on [the General Manager]`s evidence that [the lawyer] was retained to provide legal advice prior to the [HR representative's] message and provided an opinion via e-mail a few hours after the message was sent. There is no doubt that [the lawyer]’s role was to provide legal advice with respect to this particular situation and that he did provide that advice after receiving [the HR representative's] message. However, that is not enough, in my view, to establish that [the HR representative] sent the message for the purpose of obtaining that legal advice in light of the other circumstantial evidence surrounding the communication. In the same way that sending a message to both a fellow employee and a lawyer does not prevent a communication from being privileged, a message does not become privileged merely by sending a copy of it to a lawyer.

While the decision turned largely on the  importance of producing the "best evidence" in all circumstances, it also lays bare a common assumption or misunderstanding about legal privilege.  In order to claim solicitor-client privilege, the client (in this context, the employer) must establish that the communication in question was sent to a lawyer with the intention of getting the lawyer's legal advice.  Copying a lawyer without soliciting an opinion may not suffice to protect the message from disclosure later, particularly if there is no discussion amongst the parties about the role of counsel on the email chain. Likewise, if the advice in question is not "legal" per se, privilege will also not apply.  Legal privilege can be a very valuable tool, particularly in the context of an investigation into wrongdoing.  However, if the role of the lawyer is not observed, privilege may be elusive.

Do you have questions about how and when solicitor-client privilege can be claimed?  Need assistance in conducting investigations?  Contact Lance Ceaser for expert guidance.




 

Court of Appeal Determines PHIPA Does Not Preclude Action for Privacy Breach

The Personal Health Information Protection Act ("PHIPA") creates a myriad of obligations for "personal health information custodians", as defined by the Act.  In a decision, that will be of particular interest to employers in the healthcare sector, the Ontario Court of Appeal has ruled that the legislative scheme does not close the door on a potential action for breach of privacy involving the personal health information ("PHI") of patients or clients.

After approximately 280 patient records were improperly accessed by an employee of the Peterborough Regional Health Centre (the "Hospital"), and the patients advised of the privacy breach, three (3) representative plaintiffs commenced a class action lawsuit (Hopkins v. Kay) against the Hospital, claiming "intrusion upon seclusion" (the privacy tort first recognized by the Ontario courts in Jones v. Tsige ("Jones")).  According to the Statement of Claim, a Registered Practical Nurse (who was later terminated as a result of her actions) and other Hospital employees accessed patient records without authorization.  The Claim alleged that the Hospital had not taken proper measures to implement policies and monitor staff to prevent unauthorized access to PHI.  Although the Claim had originally relied on provisions of PHIPA as a basis for relief, it was later amended to rely solely on the common law tort of intrusion upon seclusion. The Hospital brought a motion to dismiss the action, claiming that the plaintiffs' rights were entirely governed by PHIPA, which created an exhaustive code in relation to PHI, and that there was no access to a common law remedy for the privacy breach.  The motion was dismissed and the Hospital appealed.

On appeal, the Hospital argued that PHIPA created a comprehensive scheme, including complaint and enforcement mechanisms, that was intended to be the sole means to remedy violations of privacy related to PHI.  The Hospital argued that the Act set up adequate methods of redress, and it was clearly the intention of the Legislature that PHIPA was to occupy this field of the law, to the exclusion of the common law of tort.  The Court reviewed the history of the statute, and provided an overview of its mechanisms.  The Court observed that the Commissioner (who oversees the Act) has broad investigative and procedural powers, but that there was no "adversarial" dispute resolution contemplated and that orders of the Commissioner only became enforceable upon being filed with the Superior Court.  Moreover, upon a finding of a violation by the Commissioner, a complainant was expressly entitled to pursue a claim for damages in the courts, including a claim for mental anguish (s. 65 of the Act).  The Act also provides immunity for "good faith" acts or omissions that violate the legislation, but provides for fines for willful violations.

The Court found that there was nothing express or implied in PHIPA that would suggest the Legislature intended PHIPA to exclusively occupy the field of PHI protection.  While PHIPA provides an expansive and detailed regime for the collection, use and disclosure of personal information, it does not provide a dispute resolution mechanism that allows complainants to present and challenge evidence, instead focusing on the Commissioner's investigative authority.  The legislation expressly contemplates the possibility that a complaint might be more properly addressed through some other procedure, and permits individuals to pursue claims for damages in the courts.  While there was some overlap between proving a violation of the Act and making out the Jones tort, the two proceedings are sufficiently different that there was no reason to conclude that allowing an action to proceed would undermine the enforcement provisions of the Act.  Finally, the Court found that the Commissioner has broad discretion on whether to investigate a particular complaint, but that the Commissioner focuses on systemic issues.  While the remedies available to a complainant may be similar, there was significantly less chance of achieving redress through the PHIPA procedure since individual complaints rarely resulted in an order by the Commissioner.  The authorities advanced by the Hospital were also distinguished.  In the result, the appeal was dismissed and the matter was permitted to proceed in the courts.

It remains to be seen whether the class proceeding will be certified by the Superior Court, but given the decision in Evans v. The Bank of Nova Scotia (discussed here), it is likely that the representative plaintiff can get past this hurdle.  So, what does it mean for employers who are responsible for collecting, using and disclosing PHI?  Well, in addition to the risk of being publicly shamed through the PHIPA enforcement procedure, personal health information custodians also bear the risk of being held vicariously liable for breaches of privacy by their employees.  Employers who possess PHI (whether covered by PHIPA as "personal health information custodians" or not) will want to ensure that they have robust policies, clearly communicate expectations to employees, provide adequate training on privacy protection, and implement effective safeguards to prevent unauthorized access and disclosure of such information.  Failing to take these steps could result in significant liability.

Do you have questions about the protection of personal information?  Concerned about a potential "intrusion upon seclusion" claim?  Contact Lance Ceaser for cost-effective and expert help.

Failure to Prove Cause Leaves Employer Responsible for LTD Payments to Dismissed Employee

When an employee is terminated without cause, the employer is obligated to continue all benefits to which the employee is entitled for the entirety of the reasonable notice period (unless some lesser entitlement is clearly spelled out in the contract of employment).  In a recent decision, where a teacher was dismissed, purportedly for cause, but became totally disabled during the reasonable notice period, the employer was found to not have had cause for termination and was ordered to pay the employee disability benefits to age 65, along with 12 months' pay in lieu of reasonable notice.

In Fernandes v. Peel Educational, the plaintiff was a teacher who had been employed by the private school for over ten years.  Although he had generally received good or excellent reviews during his teaching career, some concerns were identified in his end-of-year review following the 2007-08 school year.  Despite these issues, he continued working for the school the next year.  However, in March 2009, matters came to a head when the plaintiff submitted incomplete and inaccurate marks that were to be included on students' interim report cards.  The plaintiff advised the school that he was awaiting some work from students and that he would correct calculation errors.  Over two weeks later, the issues had still not been resolved, and the school continued to coach the teacher on the importance of submitting accurate marks for his class.  A couple of days later, the teacher submitted the marks and report cards, but the administration was suspicious because of the sudden completeness of what was turned in.  After some investigation, the school determined that the teacher had in fact inputted marks on student assignments that had not yet been completed.  The teacher was asked to attend a series of meetings with administration, during which he did not provide an explanation. However, he did ultimately confess to fabricating marks for some students. He was dismissed for cause, on the basis of "academic fraud".  Shortly thereafter, he was diagnosed with a major depressive disorder, and was deemed totally disabled by his doctor and psychiatrist.  By then, his long-term disability coverage had already been terminated.

After a trial, the Judge reviewed the competing evidence.  Although he concluded that the teacher had not been forthright with the school, and had actually lied in his evidence before the court, the Judge decided that the school had not established that the plaintiff's dishonesty was cause for summary dismissal.  Applying the 'contextual approach' dictated by the Supreme Court of Canada's ruling in McKinley and BC Tel, the judge felt that the employer's claim of academic fraud was a "very dramatic way of describing a few students who were marked on presentations that they had not yet given", and did not amount to the kind of dishonesty which undermined the trust essential in the employment relationship.  Having found that the employer did not have cause for dismissal, the Judge went on to find that the teacher was entitled to 12 months' reasonable notice.  In addition, given that he would have been entitled to claim LTD benefits, due to a disability that arose during the notice period, his wrongful dismissal also made the employer liable for those LTD benefits that the teacher would have otherwise been eligible to receive.  Given the plaintiff's prognosis, the employer was responsible for all LTD payments he would have received until age 65 (when LTD coverage would cease under the terms of the plan). 

The decision in Fernandes may come as a surprise for a couple of reasons.  The Court's rejection of the employer's case for cause is concerning. If a teacher falsifying marks is not the kind of dishonest conduct that warrants dismissal, it is hard to imagine what behaviour would meet that standard.  That being said, the employer's investigation of the problem was found to be flawed, and the teacher had enjoyed a long, unblemished teaching career prior to the issue arising.  In that context, the decision is somewhat more understandable.  Even more concerning for employers, however, is the school's liability for LTD benefits for a period of approximately 9 years.  The decision is a reminder to employers of the dangers of alleging cause on the basis of a relatively slim record of misconduct (particularly in the case of a long-term employee), and the risks associated with not continuing benefits (or providing a cash equivalent) during the notice period.  Before doing so, it is sound practice to obtain legal advice.

Do you have questions about what amounts to cause for dismissal?  Need guidance on whether or not to continue benefits to a terminated employee?  Contact Lance Ceaser for expert assistance.

 

 

 

Inducement, Not Length of Service, Drives Long Notice Period

In a recent decision that ought to stand as a cautionary tale for employers when they hire senior employees, the Ontario Superior Court of Justice made clear that efforts to lure an employee away from secure employment elsewhere can prove costly. The case also highlights (once again) the importance of ensuring that termination provisions in employment contracts are carefully drafted.

In Rodgers v. CEVA, the plaintiff was hired by the defendant in 2009 to be its Country Manager, Canada.  At the time, Rodgers was the President of another company in the logistics business, and had been with his employer for over 10 years.  He was approached by a former colleague, who was then working for CEVA, about the possibility of a position with the company, and he expressed an interest in the role.  After 7 interviews, including two in Houston, Texas (the last of which was conducted by the CEO of CEVA), the company made the plaintiff an offer.  He declined it.  In turn, the company presented a more lucrative offer, including a $40,000 signing bonus, higher salary and a number of perks. As a condition of the offer, however, Rodgers was required to acquire a quantity of the company's equity (to ensure that he had "skin in the game"), which cost him approximately $100,000.  Less than three years later, following some difficult economic times for the company, the plaintiff was terminated and offered 2 weeks' termination pay and approximately $5,000 in severance pay.  At the time, he was 55 years old, and was earning an annual salary of $276,000.  He sued for wrongful dismissal.  The employer's only dispute with the plaintiff was on the actual amount of notice to which he should have been entitled.

The employer relied on the termination provision in the contract which provided:

Your employment may also be terminated by our providing you notice, pay in lieu of notice, or a combination of both, at our option, based on your length of service and applicable legal requirements.

The employer argued that the primary consideration in assessing appropriate notice was the plaintiff's length of service (less than 3 years).  However, the Court did not agree.  If the parties intended length of service to have primacy, they could have done so in clear language.  Instead, they had made the calculation dependent on both tenure and "applicable legal requirements".  After considering the fact that the plaintiff was induced (at least mildly) to join CEVA, and then led to believe that he would have long-term, secure employment (based on the requirement to purchase shares in CEVA at a cost equivalent to approximately 4 1/2 months' salary), the Court was of the opinion that the plaintiff should receive notice at the high end of the scale.  The plaintiff did not find another comparable role for almost 10 months, and even then he took a significant reduction in salary.  In the result, the Court awarded the plaintiff damages equivalent to fourteen (14) months' notice.  After a reduction for amounts already paid and the plaintiff's mitigation income, the defendant was ordered to pay the plaintiff $345,000.

The Court's decision illustrates that employers must be cautious when they recruit senior employees who are already gainfully employed.  Efforts must be made to ensure that an offer of employment is not designed to induce the individual to leave other employment, and this should also be acknowledged in the employment agreement. Ensure that recruiters do not make promises or representations about the likelihood of long-term employment, particularly during challenging economic times.  And if the intention is to minimize the organization's exposure in the event of a subsequent termination, care must be taken in crafting termination language that is clear and meets the requirements of the Employment Standards Act (see for example, this post on the topic).  The downside?  Significant liability.

Do you have questions about inducement?  Need help with your termination language?  Contact Lance Ceaser for expert advice.

Considerations on Ending the Employment of Senior Workers

With the elimination of mandatory retirement (through amendments to the Human Rights Code in 2006), many older workers have made the choice to remain in the workforce longer.  Obviously, the increase in tenure that this change permits will lead to increased termination costs, as employees with longer service are entitled to heftier periods of reasonable notice at common law.  However, employers also need to be aware of other issues that may arise from employees’ decision to defer retirement and continue working.  When it comes time to end the employment of an older, more senior employee, employers should be aware of some of the risks, as illustrated in three recent decisions from Canadian courts.

The Older Worker's Duty to Mitigate:  Dodge v. Signature Automotive Group Ltd.

The plaintiff was approaching 60 years old when his employment was terminated without cause or notice due to his declining sales of 'add-ons' to new car buyers.  He had worked for the employer car dealership for just over 20 years, and was offered a package equivalent to less than 6 months' pay.   The employer argued that the plaintiff had made inadequate mitigation efforts and that any damages for lack of reasonable notice should be reduced.  In the first six months following his termination, the plaintiff did not even prepare a resume and over the course of the first year post-termination, he only applied for seven (7) positions.  Despite the fact that there were numerous other car dealerships in the area, including some that had advertised job openings, the plaintiff made little effort to contact other potential employers seeking work. 

The Court agreed with the employer that the plaintiff's rather "passive attitude" toward his job search did not reflect a reasonable mitigation effort on his part.  The Court found that the plaintiff would be entitled to 17 months' reasonable notice based on his age, length of service, level of responsibility and the availability of other work in the industry.  However, considering his insufficient mitigation, the Court reduced that figure to 14 months' notice.  In most cases, the reduction for lack of mitigation would have likely been greater than 3 months' notice, but the Court made the following observation:

...  I spoke earlier about the Plaintiff's age. As Brenner J. said, at para. 39 in Carlysle-Smith, above, "[i]f an employee has not taken reasonable steps, but if the court is satisfied that even if such steps were taken that it is unlikely that such alternative employment would have been achieved, then presumably little or no reduction in the notice period would be appropriate." In my view, the fact that Mr. Dodge is 60 means that it was less likely that alternative employment would have been achieved. It is only for that reason that I have not reduced more substantially the applicable notice period.

This case arguably stands for the proposition that although an older worker still bears responsibility to look for other work, lack of mitigation will not have the same adverse consequences as it would for a younger worker because of the likelihood that the terminated employee would not find another position anyway because of his/her age.

Loss of an Unreduced Pension:  Arnone v. Best Theratronics Ltd.

The plaintiff was 53 and had 31 years of service when he was terminated by the employer.  At the date of his dismissal, the plaintiff was less than 17 months from having earned an unreduced pension.  As a result of his termination, and the employer's refusal to bridge his service, he received a reduced pension.  In addition, because the plaintiff was terminated prior to his retirement, he was denied a 'retiring allowance' of 30 weeks' salary that would have otherwise been payable.  The employer offered the plaintiff only the termination pay required under the Canada Labour Code (about 14 1/2 weeks' salary continuance).  The plaintiff brought a motion for summary judgment, seeking payment of 24 months' reasonable notice, the difference between a reduced pension and the unreduced amount (based on actuarial calculations), as well as the retiring allowance.  The employer argued that there was a "genuine issue for trial", including a determination of the nature of his position (supervisory vs. managerial) and whether his mitigation efforts were adequate.

The Court found that the trial record did contain sufficient evidence to permit a fair resolution of the outstanding issues.  With respect to the amount of reasonable notice that the plaintiff was entitled to, the Court stated:

Of particular importance in the circumstances of this case is the fact that the plaintiff was 16.8 months from achieving full pension entitlement. This doesn’t mean that the plaintiff had to retire in 16.8 months but rather that upon the expiration of that period of time he would be entitled to receive an unreduced pension. Time to retirement is an obvious consideration when long-term employees are dismissed due to restructuring. In such circumstances it is also common that the employer does not have an expectation of mitigation because the bridging period ... may be less than the notice period that would otherwise be applicable.

...

There is no reasonable doubt that the plaintiff would be entitled to at least seventeen months’ notice (subject to mitigation considerations) regardless of the subtle distinctions urged by the defendant respecting the character of the plaintiff’s employment.

In the result, the Court awarded the plaintiff pay in lieu of the bridging period of 16.8 months' pay, $65,000 for the value of an actuarially  unreduced pension, 30 weeks' pay as a retiring allowance, pre- and post-judgment interest, and legal costs of almost $53,000.

Where an employer terminates the employment of a long-service employee who would become eligible for an unreduced pension within the reasonable notice period, the employer should seriously consider bridging the employee to retirement age, or risk becoming liable for the loss that flows from providing a reduced pension.

Effect of Employee's Decision to Retire:  Kimball v. Windsor Raceway Inc.

The plaintiff employee had worked for the Raceway for 42 years (with some brief interruptions due to medical leave or layoff), and was 70 years old when his employment was terminated as part of the fall-out from the OLG's decision to remove slot operations from Ontario's horse racing facilities.  Prior to his termination, the plaintiff had expressed an intention to retire, but had extended his retirement date several times.  Most recently, the plaintiff had told the employer that he intended to retire at the end of 2012.  However, his employment was terminated effective August 31, 2012, several months before his retirement was to occur.  The plaintiff brought a motion for summary judgment on his wrongful dismissal claim, arguing that there was "no genuine issue for trial" since there was no argument that his employment was terminated without cause and the employer had conceded that the plaintiff was at least entitled to statutory severance pay under the Employment Standards Act, 2000.  The employer defended the motion, arguing that a trial was necessary to weigh evidence of the plaintiff's potential retirement and how that would affect the reasonable notice to which he might be entitled.

The Court found that the plaintiff had a clear entitlement to his statutory severance, and there was no compelling reason to make him wait until after a trial to receive this money.  The Court therefore granted partial summary judgment in the amount of 26 weeks' pay.  However, with respect to the plaintiff's claim for reasonable notice, the Court held that there was a genuine issue for trial and that further evidence would be necessary to properly adjudicate various aspects of the case, including mitigation and the impact of the plaintiff's likely retirement.  After considering the rationale behind the concept of reasonable notice (i.e., to give the employee a fair opportunity to find other work), the Court observed:

If the dismissed employee has no intention to look for work, but has instead decided to retire, the very purpose for which reasonable notice is required to be given is absent. That is a factor that may well be relevant in assessing what constitutes reasonable notice in this case.

Accordingly, the motion for summary judgment on the common law claim was dismissed.  It remains to be seen how much an employee's stated intention to retire may affect his/her entitlement to damages for reasonable notice.

* * *

Do you have questions about an employee's entitlements upon termination?  Need guidance on the challenges of dismissing an older, long-service employee?  Contact Lance Ceaser for assistance.

 

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.



 

   

Avoiding Risk at All Stages of the Employment Life-Cycle

As 2014 nears its end, I thought I'd offer some general guidance for employers.

Like pretty much anything else, the employment relationship can be neatly packaged up into three parts: the beginning; the middle; and the end.  Each of these stages of the relationship can be characterized conceptually by a predominant theme.  For purposes of this post, I'll call them "Expectations", "Performance" and "Cessation".  What occurs at the Expectations stage will have the largest impact as it can significantly change how the contract is performed and what happens when it ends.  Likewise, the Performance phase will influence when and how the contract ends.  Once the relationship has reached the Cessation stage, there is little that can be done to alter the outcome, other than to manage risks that have already been created earlier in the employment life-cycle.

So, how do you significantly reduce the risks inherent in the employment relationship?  Let's look at each stage and the critical steps that employers should consider.

Expectations

Prior to and at the time of hiring, employers need to consider how "expectations" are communicated to prospective or new employees.  Clear expectations eliminate misunderstandings and lay the groundwork for a transparent and accountable workplace.  Setting expectations takes some work, but removing ambiguity at the outset of the employment relationship sets the stage for employees to perform their duties and helps manage the risks (and costs) associated with ending employment.

• Review job descriptions on a regular basis to ensure they accurately reflect the job as it is currently performed.  A role profile that does not align with the role may mislead a new employee as to the expectations for their performance.
• Where appropriate, develop policies that are clear and unambiguous. Ensure that policies align with actual practices and procedures in the workplace and set reasonable expectations for both parties.  If a policy is difficult to enforce, it is likely to go by the boards.
• Document variable pay programs, such as annual bonuses or incentives, and make sure that new hires are given an explanation of how they work.
• Develop a solid, enforceable employment agreement.  Use plain language to spell out the terms covering wages, variable compensation, vacation and benefits entitlements, and the parties' rights and obligations on cessation of the contract.  Carefully review termination language in particular to ensure compliance with employment standards.  Failure to do so could lead to claims for 'reasonable notice' in the courts.
• Ensure that all required documentation is reviewed with new employees and signed off before they commence employment.  If policies are referenced or incorporated into the employment agreement, ensure that new hires are provided with the policies and acknowledge having read and understood them.

Performance

Once the formalities of hiring are out of the way, the real hard work begins.  While there is much that can be said about how to get the best out of employees while they are working for the organization, I'd like to focus on just a handful of keys that are likely to improve productivity while reducing legal risks.

• Whenever in doubt, be guided by fairness and reasonableness in administering the relationship.  It's sometimes easy to lose sight of the issue and focus on the employee, but this can prove disastrous. Enforce rules consistently, but with a contextual approach that weighs the circumstances, the history of the particular employee, how past issues were dealt with, and any mitigating or aggravating factors. Be prepared to be flexible in appropriate situations. Failure to insist on fairness can lead to morale issues (such as claims of favoritism or discrimination) and can also undermine the effectiveness of your workplace policies.
• Provide good supervision. Sounds simple, but it isn't.  It starts with careful selection criteria when hiring or promoting supervisory and managerial staff. I would suggest that it's better to look for leaders rather than technical experts. Yes, experience in the field is important, but it's often hard to make an exceptional 'lone wolf' into a good manager, no matter how accomplished they are. Follow-up on supervisory hiring with training on the basics of managing people (including the basics of human resources and employee relations). Failing to provide solid supervision invariably leads to underperformance that is not managed (and cannot be relied on later as cause for termination) and a failure to keep an eye on the workplace (which often results in complaints of harassment or bullying).
• Document, document, document. It's trite, but true. Failing to keep notes of conversations and coaching sessions can be costly later when you need to establish a pattern of inappropriate conduct or poor performance that you have tried to address.  Get in the habit of making brief notes to file, showing the date and time of discussions with employees. Ensure that all notes ultimately make it into a file that others can find later. Otherwise, you risk losing evidence that you'll need later when an employee challenges unwelcome discipline. 
• Make sure that managers actually manage. This means bringing issues to employees' attention when they arise (not months later when patience has worn thin), documenting conversations about the issue, providing timelines for improvement, and following-up in a timely fashion.  Managing performance, behaviour and attendance are tedious and time-consuming processes, but they should be the primary expectation that is placed on supervisors and managers.

Cessation

If the employer has paid proper attention to the details in the first two phases of the employment relationship, the third stage, Cessation, will typically be less risky and costly, and much more manageable.  Still, there are a few things to bear in mind.

• If the employer will be terminating the employment relationship, be prepared to pay.  It can be very costly to allege 'just cause' for termination.  The courts and tribunals will only find cause in the clearest of cases and on very compelling evidence. If in doubt, terminate on a without cause basis (and move to the bullet point immediately below).
• If there is a contractual termination provision in the employee's contract, ensure that you understand the employer's obligations and abide by them carefully.  No termination provision?  You'll have to choose between the statutory minimum (which is typically quite meagre), the employee's common law entitlement (typically quite generous) or something in between.  If in doubt, obtain legal advice.
• Plan and prepare for the termination meeting to ensure that it is conducted in a professional and respectful manner.  Try to avoid ending employment on a Monday morning or a Friday afternoon (except in the most extreme cases), and be conscious of any occasions that could place the employer in a bad light (e.g., try not to terminate the employee on their birthday or in the weeks immediately preceding Christmas).  Hold the meeting somewhere that provides privacy and where other employees won't be alerted to what is going on. Ensure that you consider arrangements to get the employee home in the event that they carpool or won't be in any condition to drive. Avoid escorting the employee through areas where coworkers are present following the meeting.  Failure to abide by these relatively simple rules could lead to a claim for enhanced or added damages in the event the employee later alleges wrongful dismissal.
• If the employee is looking to end the employment relationship, try to get their resignation notice in writing and verify that they have provided appropriate notice.  Ensure that they are given time to reconsider, particularly if they resign under stressful conditions or following a heated exchange. Whenever possible, conduct an exit interview to assess whether the climate in the workplace may have influenced the decision to leave.  It is valuable to find out whether there are unidentified issues that could lead the departing employee or others to raise concerns with harassment or bullying before you receive a claim.
• Prior to any employee's departure, make sure that you recover company property.  In particular, smartphones, laptops, VPN tokens and system/application passwords should be obtained to avoid the potential for a disillusioned employee being tempted to take data or engage in other post-termination misdeeds.  Once the employee has departed, ensure that all access is removed and that passwords are changed, as necessary.

While the foregoing guidance is not exhaustive, and is no substitute for legal advice, it does provide an overview of some of the larger risk management issues that employers face.  Being proactive, setting clear expectations, and ensuring that those expectations are routinely met, will go a long way to avoiding or reducing many of those risks.

Does your organization need advice on how to reduce the HR risks it encounters?  Need guidance on a particularly thorny or complicated employment situation?  Contact Lance Ceaser for expert assistance.

Employer Condones 'Wilful Misconduct' by Failing to Take Effective Action

Under the Employment Standards Act, 2000 (the "ESA"), employees generally have an entitlement to notice of termination or payment in lieu of notice, unless they fall into one of a handful of exemptions.  One of the exceptions provided under the Regulations to the ESA covers "[a]n employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer."  Because the ESA provides a statutory minimum entitlement, adjudicators apply the exemption from termination notice or pay very strictly.  Employers will often focus on the seriousness of the offence, and struggle to establish the "intent" (i.e., the wilfulness) necessary to bring a "just cause" dismissal within the exemption.

However, as the recent decision in Cancore Building Services Ltd v. Merlos illustrates, employers also need to be aware of the dangers of having condoned an employee's bad behaviour.  In Cancore, the claimant was the supervisor of a window washing crew employed by the janitorial company.  He started with Cancore in 1989, and was promoted to a supervisory position after years of good performance.  However, as early as 1999 or 2000, the company began to have concerns about the claimant's performance as a supervisor, including misstating the hours that his crew worked on time sheets that he submitted.  He was cautioned about this issue at the time, and received repeated notes and warnings from the company regarding deficiencies in his supervision of staff, his work attitude, and his lack of responsiveness to pages.  In 2009, the employer again advised him to only record actual hours worked by his crew on time sheets, and that "padding" time sheets amounted to theft from the company.  Even more openly critical letters were written and given to the claimant in 2009 and 2010, which again highlighted the inaccurate reporting of employee working hours. The 2010 letter to the claimant purported to be a 'final warning' that he had to improve in all areas, but only three (3) weeks later, the employer issued yet another warning about improperly completed time sheets.  No disciplinary measures were ever taken to address his shortcomings.

In July 2012, a student employed on the claimant's crew told the company that he had been paid 8-hours' pay on a day when he did not work 8 hours.  Rather than investigate, by reviewing the time sheet in question or asking the claimant about the allegation, the employer summarily dismissed the supervisor.  In the termination letter, the employer accused the claimant of "time theft", among a number of other things, and stated that his behaviour constituted "willful misconduct" and cause for termination.  The employee filed a claim with the Employment Standards Branch, and an Employment Standards Officer found that he was entitled to termination pay.  The employer sought review of the Order to Pay at the Ontario Labour Relations Board.

The Board started by observing that where an employer tries to rely on an exemption from an entitlement under the ESA, the employer bears the onus of proving that the exemption applies.  The Board found that the employer tried over a period of several years to improve the claimant's performance as a supervisor by "writing him letter after letter on the finer points of supervision", warning him about 'padding' time sheets.  While time theft of the nature alleged was "presumptively" wilful misconduct under the ESA, in the opinion of the Board, the employer did not have any evidence that the claimant had intentionally attempted to obtain wages for himself or his crew for work that they had not performed.  When an opportunity arose for the employer to establish that this was in fact the case, when the student came forward, the employer failed to investigate and just assumed that the allegation was true.  Moreover, despite numerous warnings over a period spanning about 12 years, the employer never imposed any sanctions on the employee.  In the words of the Board:  "That, quite simply, is condonation within the meaning of the Act."  In the result, the application for review was dismissed and the Order to Pay termination pay was upheld.

The decision in Cancore is illustrative of a number of principles and best practices that employers need to embrace.

• Managers need to be prepared to have difficult conversations with employees, about their performance, but they also have to be equipped to take meaningful action to address shortcomings and misbehaviour.  A written 'scolding' on a periodic basis, if not backed with progressively harsher forms of corrective action, will not suffice.
• Whenever feasible, investigate concerns about employees when they first arise.  Often where there's smoke there's fire, and it's best to stamp it out before it  becomes a blaze.  Remind senior management that putting in time and effort now could save a lot of aggravation and money down the road.  The longer the employee is allowed to stick around, the greater the risk that it will amount to condonation and the larger his/her entitlement to termination pay (and severance pay, if it applies to the employer).
• Enact policies and procedures to address the areas of concern.  Ensure that the policy is written in plain language and clear on what is permitted and what is not.  Educate employees on the content of the policy, and that there will be consequences for breaking the rules.
• Consider whether your existing policies and employment contracts provide the ability to impose disciplinary sanctions on employees, such as suspensions of varying lengths.  If the employer does not have the authority to suspend, doing so could amount to constructive dismissal.  If in doubt, speak to a labour & employment lawyer for guidance.
• If you find out that an employee has been engaged in a practice that is contrary to policy for an extended period of time without being addressed, set the stage to confront the issue going forward.  Bring the issue to the employee's attention, including the fact that the employer is aware of past violations, and put the employee on notice that the behaviour will be subject to discipline if repeated.  Follow-up and document any repetitions. (Check out the decision in Leon's Furniture Limited for an example of how an employer successfully addressed a pattern of bad behaviour that had persisted for some time.)

Employers need to be aware that their actions (or inaction) can be the biggest impediment to removing unsatisfactory employees.  By ensuring that dismissals for "just cause" also consider the more stringent requirements under the ESA (i.e., serious, intentional misconduct or neglect that has not been tolerated ), employers can avoid issues under the Act as well as at common law.

Do you have questions about the difference between "just cause" and "wilful misconduct"?  Need advice or guidance on an issue related to dismissal?  Contact Lance Ceaser for expert assistance.

 

 

Labour Arbitrators Uphold Discharge of Facebook Bullies

Two recent cases illustrate that labour arbitrators are more than willing to consider misconduct via social media a serious offence.  In both cases labour arbitrators upheld the terminations of employees for incidents of online bullying and harassment.

In CEP, Local 64 and Corner Brook Pulp and Paper Limited, the grievor worked at a pulp and paper operation for almost 13 years.  On one occasion, the grievor was asked to work a casual shift cleaning up pumps on one of the paper machines.  While cleaning the area around the pump with a pressure washer, water from the washer hit the motor and grounded it.  The motor sparked before coming to a halt, and the grievor was frightened by the incident.  She believed that the work was dangerous, although she was assured that it posed no risk of injury.

A couple of days later, the day that an investigatory meeting was scheduled to occur, the grievor posted comments on Facebook abusing certain named managers and threatening violence against management for failing to take safety seriously.  Two of the managers named in her post were concerned enough to contact police, although no charges were laid.  A co-worker mentioned the post to the grievor, and she immediately took it down.  However, by then it had been posted for several hours and would have been visible to a number of other employees who were the grievor’s Facebook “friends”.

During an investigatory meeting, the grievor acknowledged that she had made and posted the comments, but minimized the degree to which they were intended to be threatening.  She also seemed less than remorseful, and more focused on finding out who had ‘ratted her out’.  The employer discharged the grievor, relying on her Facebook comments and a prior one-day suspension that she received for abusing a supervisor about one year earlier.  Her discharge was grieved.

At arbitration, the grievor testified that she had been diagnosed with anxiety earlier in the year, and had been prescribed anti-depressants.  However, over time she decided to stop taking the medication (although she did not consult a doctor before doing so).  She alleged that, as she weaned herself off the anti-depressants, she had difficulty sleeping, especially following the “safety incident” that had just occurred.  She said in the circumstances, she was “not in her right mind” when she made the post in question.  She acknowledged that the comments were inappropriate and could be taken as threatening, and offered an apology to the company and the managers she had named.

The Arbitrator reviewed the evidence and found that the so-called safety incident did not constitute provocation, nor was the grievor justified in being frustrated with how the matter was being investigated by the employer.  The Arbitrator carefully analyzed the content of the grievor’s post and found that it contained seriously offensive and threatening statements.  The Arbitrator also reviewed the arbitral cases involving the appropriate penalty for abusive and threatening Facebook posts.  While many were distinguishable, the precedents did establish that a single inappropriate post, if egregious enough, could constitute just cause for discharge.  Moreover, even in those cases where adjudicators had found that dismissal was inappropriate, the claimants often weren’t reinstated due to the damage to the employment relationship.

In considering mitigating factors, the Arbitrator did not accept the grievor’s medical explanation for her behaviour.  While the Arbitrator believed that she may have been having difficulty sleeping, it appeared that she was able to perform her job and the post was logically constructed, suggesting that she was not “crazy and delusional”, as she alleged.  Her 13 years’ service was a consideration, but given the severity of the posting, her disciplinary record, and the lack of any indication that the employment relationship could be repaired, the employer was found to have just cause to discharge the grievor.

In United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc., another employee was terminated because of a Facebook posting.  After a dispute about how a co-worker was performing her job as signalperson, a crane operator went home and posted disparaging comments about the co-worker on Facebook.  Although he did not name her, the co-worker was identifiable to other employees by the manner in which the grievor described her.  A second employee chimed in suggesting that the grievor should commit a physically aggressive act to the co-worker, to which the grievor responded by suggesting that a “violent and humiliating sex act be inflicted upon” the co-worker (to quote the Arbitrator’s description of the comments which were omitted from the decision).  The co-worker was alerted to the comments by another employee, and approached Industrial Relations the following morning.

It was notable that the grievor’s last comment was posted two hours after the first.  After he was called to a meeting with Industrial Relations the next day, but before the meeting, he deleted the post.  Because the grievor was not utilizing any privacy settings, the post was open to anyone who came upon his Facebook page. 

In the investigative meeting, the grievor acknowledged his wrongdoing, and offered to apologize to the co-worker.  Management advised him that this would not be a good idea as the co-worker was still very upset.  The grievor expressed concern that he didn’t want to lose his job.  He was not asked about any events that preceded or may have influenced his behaviour, and the employer ultimately concluded that this act of harassment was inconsistent with continued employment.  The grievor was discharged, and the matter proceeded to arbitration.  The other employee who commented on his post received a 10-day suspension.

The Union argued that the employer was not compliant with the Occupational Health and Safety Act in that its policy was not recently updated and available to employees in a conspicuous location, and therefore could not rely on its Bill 168 obligations to discharge the grievor.  It further argued that the grievor was truly remorseful and was a good candidate for rehabilitation, despite some past discipline.  The Union also argued that the employer did not consider the safety issue that had arisen between the grievor and his co-worker on the evening preceding the offensive posts when it decided to terminate his employment. 

Arbitrator Trachuk considered the evidence and rejected the Union’s position, finding that the largest aggravating factor in the case was the “vicious and humiliating” nature of the comments that were made.  Moreover, the Union’s argument that the employer should have considered the dispute between the employees before deciding to discharge the grievor was misguided:  even if the grievor was frustrated with the way the employer responded to the issue, that could not in any way explain or excuse his behaviour.

With respect to the fact that the harassment policy was ‘inaccessible’, the Arbitrator did express mild concern that it should be more readily available.  However, she observed that the grievor had received training, and went on to state:

… Furthermore, sexual harassment has not just become unlawful or unacceptable with the inclusion of Bill 168 in OHSA. It has been in the Human Rights Code for many years. I did not hear from the grievor but it would be highly unreasonable for him to claim that he did not know that publicizing such comments about a co-worker was harassment and contrary to the company’s policies.

Although the employer’s policy did not mention social media activity, the grievor would have known that he was making public statements about a co-worker to other co-workers, and that the types of statements he was making could attract discipline.

With respect to the employer’s decision to terminate rather than imposing further progressive discipline, the Arbitrator found:

… progressive discipline is not appropriate in every case. Some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men “joke” about the sexual violence they should inflict on a woman she can reasonably be concerned that they may actually hurt her.

In the result, the Arbitrator concluded that the grievor's 3 1/2 years' service did not deserve significant weight, and that discharge was the appropriate penalty in the circumstances.

 While it is not expressly stated in either decision, it appears that labour arbitrators are reaching the point where harassment, whether in person or through social media platforms, is viewed as an offence akin to theft:  an employer hardly needs to have a policy in order for employees to understand that abusive and intimidating behaviour directed at co-workers and managers will not be tolerated.  While employers still have obligations under the Occupational Health and Safety Act to ensure that employees do not engage in harassment or threats of violence, these decisions give some comfort that severe penalties can be imposed where this behaviour occurs.  As these two grievors learned, discharge is a likely outcome in the absence of very compelling mitigating factors. 

 Do you have questions about workplace harassment and how to address it?  Need assistance with appropriate policies or investigations?  Contact Lance Ceaser for assistance.

 

Legal Strategy as PR Strategy - Jian Ghomeshi's Dubious Lawsuit

As of this morning, the number of women making allegations of sexual violence against Jian Ghomeshi has grown to eight, with at least one person, actress and RCAF Captain Lucy DeCoutere, coming out of anonymity.  While I am a strong believer in the presumption of innocence, there is no question that this story has ceased to be about whether Jian Ghomeshi was fired for liking kinky sex (the way he has framed it in his Facebook post on Sunday), and is now about the emerging portrait of someone serially engaging in violence against women.  No charges have been laid, as of yet, but it stretches the imagination to believe that eight different women have all concocted similar stories in a malicious attempt to scupper Mr. Ghomeshi's career.  Whether or not he may face criminal prosecution remains to be seen.
 
And it is in this changing light that one begins to wonder if Mr. Ghomeshi's legal strategy isn't all part of the PR strategy that was implemented with his careful casting of the "truth" on Facebook.  Obviously, he has received advice from his "high-stakes" handlers at Navigator to get "out in front of the story" by formulating and offering a friendlier version of events.  But the lustre is coming off that narrative with each passing day and the mounting number of alleged victims.  So, what about this lawsuit that he started?  He wouldn't have sued the CBC if he and his legal team didn't think he had a case, right? 
 
Sadly, people assume that the mere commencement of an action in the courts must signal that the defendant has "done something wrong".  The fact is anyone can "sue" (start an action against) anyone else at any given time without ever having to establish that their claims have any merit.  Although bringing a matter to litigation is generally quite costly, it is a relatively simple and inexpensive process to start a legal claim.  And you can rest assured that it does have the impact of suggesting to the broader world that you have been wronged.  But what leads me to believe that Mr. Ghomeshi's lawsuit is more a PR than a legal play?
 
Let me start by saying that Dentons is a well-respected law firm.  I suspect their lawyers are smart, efficient, careful, and they know what they're doing.  But in this case they have brought a claim that has very limited chances of success.  Ever since the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, it has been the law of the land that matters arising out of an employment relationship that is governed by a collective agreement generally must be brought through the grievance and arbitration procedures, not the courts.  All such disputes fall within the exclusive jurisdiction of a labour arbitrator.  The decision in Weber was most recently upheld and applied in Ontario in George v. Anishinabek (Police Service).
 
And the decision in Weber is not limited to claims of unjust discipline or discharge.  It relates to any claim related to the employment and which can be said to fall within the 'four corners' of the collective agreement between union and employer. One of the earlier cases to consider Weber was the decision of the Ontario Superior Court of Justice in Ruscetta v. Graham.  In that case, an employee sued the CBC and its disability claims manager for their role in the denial of his claim for workers’ compensation benefits.  The disability claims manager had stated in correspondence to the Workers' Compensation Board (now the WSIB) that the employee was a “problem employee”, which was then picked up by the carrier of the CBC’s Long-Term Disability benefits (which were also denied).  The employee sued, alleging that the employer had made negligent misstatements and or defamatory comments, but also pursued a grievance with respect to the denial of LTD benefits.  On the basis of Weber, the Court found that the essential character of the dispute did arise out of the collective bargaining relationship and that the dispute was therefore within the exclusive jurisdiction of a labour arbitrator.  At paragraph 9 of the decision, the Court stated:

In short, [the] defamation complained of arises out of a communication from an employee of the CBC whose precise job was to communicate with the WCB regarding the claims of employees who are bound by the collective agreement and that communication was about the plaintiff solely in his capacity as an employee. As the collective agreement does govern issues such as injuries and LTD benefits, and the dispute arises in an employee-employer context, this court lacks jurisdiction to hear the matter.

 The motion to dismiss the action was granted.
 
With very few exceptions, defendants have been successful in arguing this jurisdictional issue to have actions in the courts dismissed.  Here are but a few examples:
 
Giorno v. Pappas – An employee brought a defamation action based on a memorandum that was circulated by another employee criticizing her work performance.  The plaintiff was a member of the bargaining unit represented by OPSEU, and also filed a grievance related to the issue, which was settled.  The Court determined that the subject matter of the action fell within the collective agreement and was subject to the exclusive jurisdiction of a labour arbitrator appointed under the agreement.  Therefore, the Court granted the defendants' motion to dismiss, which decision was upheld by the Court of Appeal.
 
Bujold v. Taylor – An employee brought a defamation action against his former supervisor on the basis that the supervisor leaked information provided by the employee to the effect that several named co-workers were using alcohol and drugs on the job.  The Court found that, as a unionized employee, the plaintiff was required to bring his dispute forward through the grievance and arbitration procedure, especially since part of his claim related to “loss of income” and was tantamount to a constructive dismissal claim.  The Court granted the defendants' motion to dismiss the action.

Soulos v. Leitch – The owner of a construction company brought defamation claims against members of the union, claiming that they had made untrue and disparaging comments about the company’s practices, and that the union had failed to live up to certain representations it made to the employer.  The Court granted the defendants' motion to dismiss the action as the allegations should have been addressed through the grievance and arbitration procedures under the Provincial collective agreement between the company and the union.

Byrne v. Ontario – An OPP Constable brought a claim for harassment, intimidation, and other tortious conduct against a number of fellow officers and management based on issues arising in the course of his employment, including the issuance of discipline and the imposition of performance management measures.  The Court found that grievance arbitration and/or the legislated scheme for disciplinary matters (under the Police Services Act) provided the exclusive means by which such disputes should be adjudicated.  Accordingly, the Court granted the motion to dismiss.

Walters v. Toronto Transit Commission – A bus driver brought a claim for malicious prosecution after the TTC instigated charges under the Highway Traffic Act following an accident the driver had in the course of his duties.  The Court found that framing the dispute as “malicious prosecution” did not take it outside the bounds of the collective agreement.  The employee had the ability to challenge any discipline that was imposed or otherwise grieve the issue of the TTC pursuing charges, and the issue should be dealt with through labour arbitration.  The Court granted the defendants' motion to dismiss the action.

Paonessa v. Lifemark Health Management Inc. – An employee who was terminated due to physical inability to perform the essential functions of his job brought a claim against the company that performed the Functional Abilities Evaluation that found him unfit.  The plaintiff's discharge was grieved and arbitrated, resulting in a settlement.  He was ultimately terminated a second time, due to an alleged breach of the settlement, and that termination was also grieved and the grievance settled.  The Court granted the defendants' motion to dismiss the action on the basis that the issue arose under the collective agreement and the arbitration process provided an “adequate remedy” to the plaintiff.

However, it must be noted that the defendant does not always succeed.  In one of the earliest post-Weber decisions, the Ontario Court of Appeal found that certain claims by a unionized employee could be brought in the courts.  In Piko v. Hudson's Bay Company, the employee had been found to have committed fraud, and her employer initiated criminal charges.  The Crown eventually withdrew the charges.  The employee brought a grievance challenging her discharge as being without just cause, but she also commenced a claim for malicious prosecution against the employer.  The Hudson's Bay Company brought a motion to dismiss the action on the basis that the subject matter of the dispute arose under a collective agreement and should be dealt with through arbitration.  The motions judge agreed, and dismissed the action.  However, Piko appealed.  At the Ontario Court of Appeal, the Court had to consider the impact of Weber, and observed:

Nonetheless, Weber also recognizes that the collective agreement does not govern every dispute between an employer and an employee. Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes.

The Court considered the relevant provisions of the collective agreement, and found that the essential character of the dispute did not relate to the agreement because of the employer's actions:

But her claim that the Bay maliciously prosecuted her in the criminal courts lies outside the scope of the collective agreement. The Bay itself went outside the collective bargaining regime when it resorted to the criminal process. Once it took its dispute with Piko to the criminal courts, the dispute was no longer just a labour relations dispute. Having gone outside the collective bargaining regime, the Bay cannot turn around and take refuge in the collective agreement when it is sued for maliciously instituting criminal proceedings against Piko.

In the result, the Court of Appeal allowed Piko to pursue her tort claims against her former employer.

Although relatively rare, the Piko decision has been relied on in other similar cases.  See for example, O’Loan v. Risinger, in which the actions of the defendants were found to be "personal" and unrelated to the plaintiff's employment, even though they all worked together in the same workplace.

So, does Mr. Ghomeshi's team really think it can shoe-horn its case into the exception created by Piko?  Can it point to some way in which the CBC has stepped "outside the collective bargaining regime" and brought itself under the 'general law' applied by the courts?  On the pleadings, there doesn't appear to be a suggestion that the CBC went beyond its responsibility and authority as Mr. Ghomeshi's employer in obtaining and acting on the personal information he provided.  The CBC had to make an assessment of whether the allegations, which had been bubbling for months, represented a real risk of damage to the broadcaster's reputation and brand.  As an employee, and one who was a very public face of the CBC, Mr. Ghomeshi had a responsibility to not engage in conduct (whether in the workplace or outside of it) that could damage his employer's business interests.  In short, the alleged tortious conduct is all part and parcel of the CBC managing the employment relationship with one of its "stars".  This undoubtedly would fall within the CBC's management rights under its collective agreement, including its authority to impose discipline for misconduct.  The fact that Mr. Ghomeshi has stated an intention to challenge his dismissal under the collective agreement bolsters this conclusion.  Characterizing the disclosure of personal information as being an incident of "common interest privilege" is just one way of reframing a very common workplace issue as a legal one - the situation is no different than a million other cases where an employee advises his/her employer of work-related issues before they come to the employer's attention in an effort to mitigate the negative consequences.  If "privilege" attached to these types of disclosures, employers would never be able to rely on statements made by an employee in the course of an investigation into alleged bad behaviour.  I doubt very much the courts want to set that precedent.

In short, I don't see how Piko could apply to this fact pattern, and I anticipate that the CBC will make the argument that it does not, in an effort to have the action dismissed.  Mr. Ghomeshi's legal team undoubtedly knows this, too.  That being said, it's entirely possible that commencing the court action really was part of the PR strategy to start with, and has already served its desired purpose.

Do you have questions about a legal dispute arising in the workplace?  Want to know whether it belongs in the courts?  If you have any questions about workplace law, don't hesitate to contact Lance Ceaser for assistance.