Canadian Mining HR Leadership ConferenceApril 24, 2014

Presented by

Stuart E. Rudner

What’s been happening?• Childcare obligations recognized as being within definition of family status• Reinstatement and 9+ years of lost wages• Human rights damages awarded in civil court• Long-standing principles questioned

– Temporary layoffs ok– Cant dismiss employee accused of misconduct

• Age and character of position less relevant• Termination clauses questioned

– Benefits– mitigation

• Deductibility of pension benefits explained• Just cause cases continue• Social media – Er right to search• Courts confirm Ee duty in search for accommodation• AODA – duty to inquire during hiring process

HUMAN RIGHTS

Employer’s duty to accommodate: Family Status

Childcare needs can trigger the duty to accommodate an employee’s family status

Can require rearranging shifts / work hours Must be legitimate need – doesn’t mean all parents can choose hours Onus on employee to show need Employers cannot dismiss requests for accommodation out of hand Will apply to elder care, similar needs as well For any accommodation request

onus is on employees to provide detailed information Employees are not entitled to dictate their preferred form of

accommodation The employer can assess all options and determine if any are viable.

Canada v. Johnstone, 2013 FC 113

Employee Reinstated 9 years after termination (with full back pay)

Employee developed a generalized anxiety disorder; subsequently diagnosed with PTSD. Problems were a reaction to the stressful nature of her job. She feared that if she made a mistake with asbestos removal she could be held personally liable under the Ontario Health and Safety Act.

Tribunal found the employer liable for failing to accommodate the applicant and, in particular, for failing to consider her other options available in the workplace – even if they arose while she was receiving LTD benefits

Record-setting human rights case: award worth over $450,000 Reminders for employers:

– Substantial liability can flow from breaches of the Code where an applicant is insistent on his/her right to reinstatement

– The awards for injury to dignity, feelings and self-respect continue to creep higher

Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440

Wrongful dismissal: Employee awarded damages under

Human Rights Code Discrimination and accommodation cases can be raised in wrongful

dismissal cases First Ontario court decision to award damages under the Human Rights

Code Trial judge awarded $20,000 in general damages after finding that the

employee’s ongoing back problems and related requests for accommodation were a factor in the employer’s decision to terminate

Only evidence of impact of termination on employee was that she “was shocked, dismayed and angered” by the employer’s pre-termination letter and she experienced “loss of dignity and loss of feelings of self-worth” in relation to the same letter

Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799

Ee duty to participate in accommodation

• Robinson v Edmonton (City)• Susan Robinson was employed by the City of Edmonton as a bus driver. She suffered from

environmental urticaria, a severe allergy that caused reactions such as hives and facial swelling when she was exposed to fumes such as perfume or diesel.

• Robinson was required to take antihistamines, which caused drowsiness and made it unsafe for her to carry out her duties.

• As a result, she was often absent from work and went on periods of short-term disability (STD) leave.• information came to light that Robinson’s medical condition could be accommodated if she were to

drive an LRT train, which may mitigate her exposure to fumes. Her application for LTD was denied based on those grounds. There was documentation to show that the city acted on the information from the insurer and began pursuing the necessary arrangements to have Robinson return to work as the driver of an LRT train.

• Following the telephone call, Robinson resigned.• The Alberta Human Rights Tribunal found that the city could have provided clearer communication

detailing its accommodation efforts, but that the employee still knew or ought to have known that the city wanted to pursue the LRT option, and Robinson’s resignation effectively prevented the city from further fulfilling its duty to accommodate. The Alberta Court of Queen’s Bench upheld the tribunal’s finding that Robinson elected to abandon the accommodation process and found no failure of the city to meet its duty to accommodate.

WRONGFUL DISMISSAL

There is no ‘rule of thumb’ for reasonable notice

Court affirms that employers who use 1 months' notice per year of service do so 'at their own peril’

Simple way to avoid the difficulty of determining what “reasonable notice” is in a particular situation — use a termination clause in an employment agreement in order to clearly establish how much notice will be required

This allows both parties to avoid the unnecessary time and legal fees involved in assessing the notice period, negotiating, and potentially litigating the issue

Capital Pontiac Buick Cadillac GMC Ltd. v. Coppola, 2013 SKCA 80

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The aging workforce

End of mandatory retirement: people are working longer --> There are Wrongful dismissal claims by workers in their 70s and 80s!

Ontario Superior Court of Justice: “I do not think there is a place in this social reality for an automatic presumption that persons should or would naturally retire on reaching senior age.”

Filiatrault v. Tri-County Welding Supplies Ltd., 2013 ONSC 3091

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Factors affecting reasonable notice

There is recent jurisprudence suggesting that, if anything, the “position/character of employment” is today a factor of declining relative importance.

Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469

Mitigation: Failure to mitigate can reduce notice period

Courts can (and will) penalize employees who don't look for work Employers should keep themselves aware of opportunities that former

employees may be qualified for, and document those in order to be in a position to challenge their mitigation efforts.

Legge v. TEKSmed Services Inc., 2013 ONSC 5543

In another case, an employee claiming unjust dismissal did not commence his job search until 12 weeks after termination.

Court held that the time lapse was unreasonable and reduced the notice to which he would be otherwise entitled by eight weeks.

Walter Bustos v. Celestica International Inc., 2005 CanLII 24598 (O.N. S.C.)

Mitigation & Termination Clauses Employment contract provided that the employee would be

entitled to six months of notice, or pay in lieu thereof, in the event he was dismissed on a without cause basis.

No mention of mitigation Within weeks of the dismissal, employee obtained new

employment with comparable compensation. Ontario Court of Appeal: If employment contract contains a

termination clause, employee will not be required to mitigate his or her damages by seeking new employment unless the clause specifically says so

Bowes v. Goss Power Products Ltd., 2012 ONCA 425

How dusty are your employment contracts?

Employer sought to enforce termination clause Termination clause provided for pay in lieu of notice of termination, but did not provide

for continuation of benefits Although the employer did, in fact, continue employee’s benefits during notice period, by

failing to require it, the contract provided for less than the Employment Standards Act, 2000 and was therefore unenforceable.

As a result, common law requirement of reasonable notice applied: If employment contract fails to comply with the minimum requirements of

employment standards legislation, presumption of reasonable notice has not been rebutted

any attempt to contract out of the minimum standards required by the legislation renders a contract provisions providing for lesser benefits “null and void.”

If a clause in an employment contract is rendered “null and void” by operation of employment standards legislation, then it is null and void for all purposes, and cannot be used as evidence of the parties’ intention to displace the common law presumption of reasonable notice

Stevens v. Sifton Properties Ltd., 2012 ONSC 5508

Can you package someone out instead of investigating misconduct?

Investigations becoming more important Recent decision suggests employers may not be entitled to

terminate without cause in order to 'side-step' the duty to investigate

Ontario Superior Court of Justice:“it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged”

When an employee is alleged to have engaged in misconduct, employers are expected to investigate before taking disciplinary action

Brownson v. Honda Canada Mfg., 2013 ONSC 896

Temporary lay offs: Do employers have the right due to a shortage of work?

Recent decision appears to give employers facing financial difficulties more flexibility

Employee had been temporarily laid off and claimed to have been constructively dismissed

However, the court wrote as follows:"In my view, there is no room remaining at law for a common law claim for a finding of constructive dismissal in circumstances where a temporary layoff has been rolled out in accordance with the terms of the ESA.”

In this case, the layoff did not comply with the terms of the Employment Standards Act; for that reason, the layoff was found to be a constructive dismissal

However, if it had complied, then based upon the wording above, the court would have concluded differently

Trites v. Renin Corp., 2013 ONSC 2715

Deductibility of pension benefits Issue: whether the pension benefits received should be deducted from

entitlement to severance pay Benefits received from a defined benefits plan should not be deducted

from wrongful dismissal damages otherwise payable It would be unfair for an employer to benefit by dismissing an

employee it knew had fully vested pension entitlements, thereby, reducing their obligation to provide termination pay

Employers: be cautious before taking the position that any form of income received by a dismissed employee can be deducted from the amount to be paid for severance

Employees: be mindful of the law regarding mitigation, and remember that termination pay is not an absolute right

IBM Canada Limited v. Waterman, 2013 SCC 70

JUST CAUSE

Urinating on colleagues: Just Cause? Officer charged with four counts of discreditable conduct, all arising on the same night while

the he and the complainant officer were at a police safety training course:– he urinated on another officer who was lying in bed– he pushed that same officer into the wall while walking past him– he used profane, abusive or insulting language about that same officer– he confined that same officer to his assigned room and would not let him leave

Offences happened over a 15 minute period, after the officer and others had been drinking and the complainant had gone to bed

Law Enforcement Review Board found that it could not be said that the officer’s character was so flawed that he was unfit to continue as a police officer, and determined the penalty of dismissal was disproportionate.

Alberta Court of Appeal: Just Cause The court took into account the special nature of a police officer’s employment and that

police officers are, in many respects, subject to different standards of conduct and a higher level of workplace discipline than ordinary employees

Edmonton Police Service v. Furlong, 2013 ABCA 121

Setting colleagues on fire: Just cause?

As a prank, an employee set fire to some fabric hanging from the back of co-worker’s safety vest. Although he extinguished the flame, the vest reignited. The co-worker was unaware that his vest had been set on fire

When the safety vest reignited, a customer smothered the flames with his hands. As a result, the customer suffered burns and blisters to his hands

The employee immediately apologized to the customer and his co-worker The employer failed to see the humour in the prank. He was terminated for cause. His

actions were determined to be a breach of the company’s safety management system, its written safety manual, and its “zero-tolerance” policy towards horseplay.

British Columbia Labour Arbitrator: No just cause– Part of the employer’s “zero tolerance” safety policy provided that, “horseplay “is

forbidden and may result in disciplinary action”– Employee’s actions were not malicious - he was “careless”, “stupid”

Dryco Drywall Supplies Ltd v Teamsters Local Union No 213, 2013 CanLII 7695 (BC LA)

Assaulting colleagues: Just cause? Teacher dismissed after she verbally and physically assaulted a colleague,

after suspecting her colleague of carrying on an affair with her husband Had an unblemished record and this was an isolated event Immediately sought anger management treatment She was charged and later pled guilty to common assault Just because an employee engages in misconduct, it does not necessarily

mean they can be fired Employers: use a “contextual approach” when considering summary

dismissal– assess the egregiousness of the offence and all relevant factors, such

as the employee`s length of service, disciplinary record, the nature of the position and degree of trust required, and any mitigating circumstances

Gunville-McCallum and Ballantyne, Re

Where do Ers go wrong?

• Not treating requests for accommodation seriously– Dismissing request as unreasonable– Not properly considering potential accommodation

• Letting human rights creep into dismissal decision– dismissing @ wrong time– Ie while employee on leave

• Letting human rights creep into hiring decision

Dismissing Ee on Leave• Eeson leave, or are planning to take leave, can be dismissed like anybody el

se. However, they cannot be dismissed because of the leave or the underlying reason for it.

• Parent v. Spielo Manufacturing Incorporated, the evidence revealed the employer had made the decision to dismiss the plaintiff as a result of its unhappiness with her performance. However, before the decision was implemented, she went on leave. The employer decided to hold off on dismissing her until she returned to work, which it did promptly upon her return. She then filed a claim and alleged there were ulterior motives for the dismissal.

• Ultimately, the court found the employer had demonstrated legitimate reasons for its decision to dismiss, and that the dismissal was entirely unrelated to the leave. As a result, it ruled in favor of the employer.

•

Balancing Rights• not difficult to imagine the evolution from that situation to one where an employee refuses to work in a cubicle, or on a team with, for

example, colleagues that are black, Jewish, gay, lesbian, or any other group. As a society, we would never tolerate such a request in a vacuum. Whatmakes it acceptable when it is made in the name of religious freedom?

• Essentially, this comes down to a question of competing rights, as both religion and gender are protected grounds under human rights legislation. However, before one even gets to the point of balancing rights, one must assess whether the request for accommodation is legitimate. In this case, as reported in the press, the student made the request in the name of religious freedom, but did not mention a specific religion.

• If such a situation were to be brought before the human ights tribunal, or a court, the first issue to address would be the legitimacy of the request and, in that regard, courts have adopted a "sincerity of belief" test. In other words, individuals making the request do not have to objectively prove it is required by their religion. Rather, they must prove they sincerely believe that it is. This makes sense, given that religious leaders within the same religion will often disagree as to what their laws require. While the test is subjective, there must be some objective element to it, in the sense that it should be difficult if not impossible for anindividual to satisfy the test if the request is completely outlandish and unsupported by existing religious interpretations.

• Employees should remember that when they need accommodation, no matter what type, they have an obligation to make the request and also to provide sufficient information to allow their employer to assess what must be accommodated, and the potential accommodations that exists. As courts have made clear, accommodation is a two-way street and employees cannot simply submit a bald request and then refuse to provide further information. When I work with employees, I assist them in preparing a package of appropriate information that will, in turn, assist the employer in assessing accommodation options.

• Treat accommodation requests seriously• For employers, it is incumbent upon you to treat any request for accommodation seriously. In the childcare obligations case referenced above, the evidence

revealed that the employer had not taken the request for accommodation seriously, in the way that it would if the request related to a disability.• When I advise employers, I caution them that just because a request may seem to be outlandish, they should not dismiss it out

of hand as doing so can expose them to significant liability if it is found that the request for accommodation was legitimate and they refused to consider it. When we determine a request for accommodation is legitimate, we can then go on to assess the available information and the accommodation options. I work with employers to document their efforts in this regard, as human rights tribunals and courts will be quite critical of employers that respond by stating, simply, that "We can't do that."

• Even if that is the ultimate conclusion, it will be incumbent upon the employer to document its efforts to consider any potential accommodation and assess its viability.

•

Balancing discipline & accommodation

• Mr lube case• Rob Ford

AODA Employer Requirements• Develop accessibility policies and a plan to outline how they

will comply with the regulation• Incorporate accessibility when they procure goods, services

and facilities• Incorporate accessibility features (public sector) or consider

accessibility (private sector) when designing or buying self-service kiosks

• Train staff and volunteers so that everyone who provides goods or services on their behalf understands the:– Integrated Accessibility Standards Regulation and its

requirements, and– Ontario Human Rights Code (as it relates to people with

disabilities)

(a) Make hiring accessible

• Include information about accommodations for applicants with disabilities in the job posting

• Call applicants directly or speak to them in person• Keep interview formats flexible so that applicants

of all abilities can participate• Include the company’s policy on accommodating

employees with disabilities in the offer letter to successful applicants so they know the organization’s policies

Stuart E. Rudnersrudner@rudnermacdonald.com

www.rudnermacdonald.com

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