employment & labour law: what have the courts done now?

What have the Courts done now?

Presentation to the Grand Valley HRPA

St. George’s Hall, Waterloo

May 15, 2014

Recruiting

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Reiss v. CCH Canadian Limited

• Reiss, a 60-year-old lawyer applied for a legal writing position with CCH, a legal publishing company, for position of commercial legal writer

• In his job application, Reiss intentionally omitted any dates and information which would identify his age

• Submitted salary expectations below market • CCH had third party consultant assisting with recruitment

process • When contacted about the missing dates by the

consultant, Reiss provided information – application was then put on “hold”

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• In an email exchange, the consultant advised Reiss that CCH was “moving toward candidates that are more junior in their experience…”, when in fact his application was on hold

• Position eventually filled and Reiss was not interviewed• Decision- HRTO

• Emails telling Reiss that CCH was looking at more junior candidates in experience and salary expectations was “suggestive of a stereotyped assumption that an older person would necessarily want a higher salary and would therefore not be a good candidate”

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• Consultant misled Reiss by telling him CCH was moving to other candidates, when in fact his application was on hold – this deprived him of an opportunity to follow up

• There was no finding of age discrimination on the part of CCH for not giving Reiss an interview

• HRTO awarded $5,000 to Reiss “for injury to dignity, feelings and self-respect as a result of the discrimination resulting in [the consultant] giving the applicant incorrect information about the status of his job application”

• CCH liable due to misleading information provided by consultant, as consultant was acting as employer’s “agent”

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Employment Agreements

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Termination Provisions Must Comply with ESA

Wright v. Young and Rubicam (2011 ONSC) and Stevens v. Sifton Properties Ltd., (2012 ONSC)• Provisions which do not include reference to continuation of

benefits can make provisions unenforceable• Expressly refer to vacation pay, severance pay• ESA saving provision• Severability provision

Musoni v. Logitek (2014 ONCA) – Provisions which may fall below ESA minimums at some point, but not at the point of termination, may be enforceable• Better to comply with ESA minimums in the provision

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Enforceability of Restrictive Covenants

Martin v. Concreate (2013 ONCA and Payette v. Guay Inc. (2013 SCC)• Sale of a business

Rhebergen v. Creston Veterinary Clinic Ltd. (2014 BCSC)• Payment of a fixed amount to reflect cost of training and

damage to business

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Enforceability of Employment Agreement Provisions

Blackberry v. Marineau-Mes (ONSC 2014)• 6 months notice of resignation clause upheld

• Senior position• Clause consistent with industry practice• Salary paid during notice period

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Enforceability of Employment Agreement Provisions

7326246 Canada Inc. and Kevin Gardiner v. Ajilon Consulting (2014 ONSC)• Negligent misrepresentation by temp agency to consultant

regarding certainty of assignment• Consultant foregoes other assignements• Agency seeks to rely on “entire agreement” clause to avoid

liability for misrepresentation• Court says such a clause will only be enforced between

sophisticated parties and on specific notice of the clause

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Safety

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Mandatory Health & Safety Training

• Under the new Occupational Health and Safety Awareness and Training regulation of the OHSA (Occupational Health and Safety Act), which comes into force on July 1, 2014, all employers in Ontario must ensure that their workers and supervisors complete a basic health and safety awareness training program.

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Mandatory Health & Safety Training

• Under the new Occupational Health and Safety Awareness and Training regulation of the OHSA (Occupational Health and Safety Act), which comes into force on July 1, 2014, all employers in Ontario must ensure that their workers and supervisors complete a basic health and safety awareness training program.

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OHSA Update

• R. v. Flex-N-Gate - Court of Appeal decision• Post-offence compliance is not a mitigating factor on sentencing

• No jurisdiction to award concurrent fines

• R. v. J.R. Contracting• Supervisor jailed for 45 days

• Regulatory Modernization Act – allows the court to consider previous convictions under other regulatory Acts when determining the appropriate sentence for a violation of the OHSA

• R. v. Roofing Medics Ltd.• Supervisor jailed for 10 days

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Bill 168 Update

• Harassment Complaints and Reprisal Applications to the OLRB

• Ljuboja v. Aim Group Inc.: complaints regarding workplace harassment are subject to the reprisal provisions of the OHSA.

• “the focus of the Board’s inquiry will almost never be upon the underlying allegations of harassment….In the usual case, the only inquiry that the Board will make into the underlying allegations of harassment is whether the employer terminated, or otherwise penalized, the worker for having filed the harassment complaint.”

• R. v. Schultz – Assault by Excavator• Re Hood Packaging Corporation – Threats of Violence• Amalgamated Transit Union, local 113 v Toronto Transit

Commission – Strike Three

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Discipline for Safety Violations

• Re Dufferin Concrete

• Safety in the workplace is both a stringent statutory obligation and an important industrial relations concern that involves employers, unions and employees. Given the potential consequences, safety infractions are among the most serious of workplace consequences.

• As the industrial relations party with the pre-eminent control over the workplace, the employer has a legal obligation to provide a safe and secure workplace for its employees. Hand in hand with this obligation is the employer’s authority to insist that workers perform their duties in a safe and efficient manner.

• Workplace misconduct arising from deliberate, reckless, or negligent behaviour which results in a potential safety threat or an actual injury is grounds for significant discipline, up to and including dismissal.

• There does not have to be a physical injury or actual harm to establish the seriousness of the incident.

• In any particular safety-related offence, the most important mitigating factors are those that will address the probabilities of the grievor repeating the same type of offence.

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Privacy in the Workplace

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Basra v. Deputy Head (Correctional Services of Canada)

• Basra was a correctional officer with the Correctional Service of Canada (CSC)

• CSC was informed by letter dated March 24, 2006, that Basra was charged with sexual assault

• Basra was ultimately convicted of the offence and sentenced to a prison term of two years less one day - his employment was terminated

• Basra grieves his termination

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• Test applied by adjudicator – off duty conduct justified discipline where the conduct:

1. Harms the Company's reputation or product

2. Renders the employee unable to perform his duties satisfactorily

3. Leads to refusal, reluctance or inability of the other employees to work with him

4. Is a serious breach of the Criminal Code

5. Is injurious to the general reputation of the Company and its employees

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• Findings:• Bond of trust was irreparably broken as a result of Basra’s

conviction of sexual assault, a very serious criminal offense• Evidence established that Basra was not forthright during the

criminal investigation, was deceitful and lied throughout the process

• While the misconduct was off-duty, it was so serious that it affected his capacity to carry out the duties of correctional officer, who is in charge of inmates, responsible for their rehabilitation and a model to them of how to behave in society

• Conduct harmed the employer’s reputation, caused others to be reluctant to work with him and made it impossible for him to act as a peace officer

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Direct Energy Marketing Limited v. UNIFOR LOCAL 975

• Union wishes to rely upon surreptitious audio recording as part of its evidence to establish what representations were made by the employer during collective bargaining negotiations

• There was no agreement between the parties regarding audio recording

• Employer argues against admissibility and relies on two lines of argument: (1) recording unreliable; (2) surreptitious recording a heinous affront to acceptable labour relations conduct and should not be admitted as matter of policy

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Direct Energy Marketing Limited v. UNIFOR LOCAL 975

• Held• Audio recording admissible as evidence• Defects in scope and quality of the audio recording are

factors that go to weight of relevant evidence, not admissibility

• No privacy rights were violated by the surreptitious audio recording

• Privacy rights are not engaged in the process of collective bargaining

• Collective bargaining negotiations are not privileged

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ACCOMMODATION

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Accommodation: Family Status

Johnstone v. CBSA • Fiona Johnstone worked full-time as a Border Services

Officer as did her husband;• After her second child, childcare difficult• Johnstone could work part-time, but wanted full-time• Johnstone provided evidence that regulated childcare

limited (7:00 am to 6:00 pm, weekdays)• Others had been accommodated (illness, religion)

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• Johnstone requested accommodation in the form of a fixed full-time schedule but was only offered a fixed part-time schedule.

• CHRT and Federal Court found Johnstone had been discriminated against on the basis of family status, which included child care obligations.

• Federal Court of Appeal:• Parental obligations that are protected by the Canadian

Human Rights Act are those whose non-fulfilment engages the parent’s legal responsibility to the child under, for example, child welfare or criminal legislation

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• Federal Court of Appeal:• “protection from discrimination for childcare obligations

flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual. In both cases, the individual would not require accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected.”

• Test for discrimination based on family status should be substantially the same as for other ground of discrimination: “[t]here should be no hierarchy of human rights.”

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• Federal Court of Appeal:• Test: Court provides a test which, to some degree, clarifies

the nature of the family obligations and the circumstances where an employer must accommodate: (1) the employee has a child under care (2) the issue involves their legal duty to the child and not a personal choice (3) they have exhausted their own reasonable efforts to solve the issue and (4) the workplace standard substantially interferes with the person’s ability to satisfy the legal obligation to the child under care. If those facts exist, an employer must attempt to accommodate.

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Accommodation: Disability

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Gahagan v. James Campbell Inc.• James Campbell Inc. operates a number of McDonald’s

restaurants• Ms. Gahagan employed at one of them for over 7 years –

worked at the grill station • Ms. Gahagan sustains workplace injury to her back in 2009

which results in significant impairment which prevented her from returning to work

• Restrictions: could not lift more than 10 pounds; twist or bend; stand for longer than 10 minutes; or sit for longer than five

• She was entitled to and received WSIB benefits and then disability benefits


• In 2011, employer terminated Ms. Gahagan’s employment on the basis of frustration of the employment contract

• Employer concluded she would be unable to return to work even with significant accommodation

• Ms. Gahagan brings an application before the HRTO: (1) prior to termination alleging failure to accommodate and (2) after terminating alleging reprisal (these were consolidated)

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• Findings of the Tribunal: • Employment was terminated when the respondent

concluded she could not return to work with or without accommodation because of her permanent medical restrictions

• In light of my finding that the applicant could not work in 2009 because of the nature of her physical restrictions, she could not work in 2011 when her employment was terminated with the same physical restrictions.

• The respondent terminated the applicant because of frustration of contract and not because the applicant had filed an Application before the Tribunal.

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Employers Have Obligation to Investigate

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Pate v. Township of Galway-Cavendish and Harvey

• Pate was Chief Building Officer for 11 years• Fired, allegedly for cause on March 26, 1999• CAO pressured OPP to charge Pate• Acquitted of criminal charges• Never found work again and died January 2011• Sued for wrongful dismissal and malicious prosecution• Township withheld exculpatory evidence• Court of Appeal awards substantial punitive damages of

$450,000 in addition to wrongful dismissal damages and costs

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Why it Matters?

• Employers can reduce exposure in human rights matters if:• Prompt, fair and thorough investigation is undertaken

• Employers can expose themselves to huge damage awards if:• Biased and sloppy investigation undertaken• Exculpatory evidence is not considered or withheld• Investigation is undertaken with an “agenda” in mind

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Morgan v. University of Waterloo

• Two counsellors (Morgan and MacKay) both employed by UW

• Both attend party• Morgan alleges that she was sexually harassed by

MacKay during the party• During investigation, MacKay works out of satellite office

(physical separation from Morgan)• UW’s Office of Conflict Management and Human Rights

conducts investigation and concludes there was no sexual harassment

• Morgan complaints to HRTO

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Morgan v. University of Waterloo

• Morgan complains about initial harassment and reprisal

• HRTO decides that there was harassment at the party

• HRTO dismisses reprisal complaint

• HRTO awards damages of $7,500 plus $278 in medical expenses against MacKay ALONE

• HRTO dismisses complaint against University of Waterloo

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Why it Matters?

• Despite “incorrect” conclusion, HRTO found:

I have not found that the University’s investigation process is flawed, or that the University failed in

its duty to investigate. … I do not find that the University failed in its duty to respond to Dr. Morgan’s

complaint.

• Under section 46.3 (1), corporation not liable for acts of harassment unless there is a failure on the part of the corporation or very senior person (“alter ego”) of corporation.

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Thank You

Christopher M. Andree Bettina Burgess Katia Diab

519-575-7505 519-569-4557 519-575-7534

[email protected] [email protected] [email protected]

P.A. Neena Gupta John Illingworth

519-575-7501 519-575-7507

[email protected] [email protected]

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