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Take your kids (problems) to work

day: Accommodating family status in the

workplace

21 October 2014

Dentons Canada LLP

Jeffrey P. Mitchell

Partner

Family status – What’s the status?

2

• Human rights legislation in most provinces protects employees

against discrimination on the basis of “family status”

• Great deal of recent litigation, with variety of approaches: • Initial (2004 BCCA Campbell River decision): discrimination only found when “a change in a term or

condition of employment imposed by an employer results in a serious interference with a substantial

parental or other family duty or obligation of the employee” – high threshold

• Emerging: Lower threshold, which finds “prima facie” discrimination based on a legal parental

obligation; focuses more on undue hardship

Johnstone v. Canada Border Services Agency 2014 FCA

110 (CanLII) and Seeley v. Canadian National Railway

2014 FCA 111 (CanLII)

3

• Two cases dealing with requests to accommodate family status of two

workers

• Johnstone: Collective Agreement had unpredictable, rotating shift

schedule

• Seeley: Collective Agreement provided that employees had to be willing

to work at a different terminal on 30 days’ notice

Johnstone and Seeley: Federal Court of Appeal

4

• Johnstone:

• Had two young children, and a spouse that worked at CBSA

• Had trouble with full-time rotating shift schedule because of childcare issues,

and asked for accommodation, being a fixed schedule

• CBSA’s accommodation – she move to part-time with fixed schedule

• Seeley:

• Also had two young children, and a spouse that worked at CN

• Was told to move from Alberta to Vancouver

• She asked to remain on layoff until position in Alberta opened up, because

couldn’t find childcare in her town and didn’t want to disrupt children by a move

• Employment terminated due to refusal to report


5

• Federal Court of Appeal rejected Campbell River approach, and held that

in order to make out a prima facie case of family status discrimination,

the individual advancing the claim must show:

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

(ii) that the childcare obligation at issue engages the individual’s legal

responsibility for that child, as opposed to a personal choice;

(iii) that he or she has made reasonable efforts to meet those childcare

obligations through reasonable alternative solutions, and that no

such alternative solution is reasonably accessible, and

(iv) that the impugned workplace rule interferes in a manner that is

more than trivial or insubstantial with the fulfillment of the childcare

obligation.


6

• BUT - Federal Court of Appeal recognized the limits:

“Voluntary family activities, such as family trips, participation in

extracurricular sports events, etc. do not have this immutable

characteristic since they result from parental choices rather than

parental obligations. These activities would not normally trigger a claim

to discrimination resulting in some obligation to accommodate by an

employer….”

Johnstone: Federal Court of Appeal

7

• CBSA argued that there was no obligation, as the family status obligation was not

triggered at all

• Court of Appeal found, on basis of its test, that prima facie case was made out,

particularly given evidence of Johnstone’s unsuccessful attempts to find

alternative child care (family/friends/licensed day care), and difficulty that rotating

shifts presented

• Since CBSA denied the obligation, it did not make an undue hardship argument,

and the Court of Appeal upheld the following remedies:

• CBSA cease its discriminatory practice

• CBSA consult with the Canadian Human Rights Commission to develop

plans/policies

• CBSA compensate Johnstone for lost wages and benefits

• $15,000 for pain and suffering

• $20,000 for “wilful and reckless” conduct

Seeley: Federal Court of Appeal

8

• CN argued that Seeley had failed to make reasonable efforts to meet her

childcare obligations, and disputed whether the recall to the different site

was “more than trivial”. Relied on the following:

• Seeley chose to live in a place where there was no childcare available, which

was a personal choice

• Seeley had decided not to bring her children to Vancouver, where more

childcare would be available

• Court of Appeal:

• CN’s argument fails, since it did not respond in a meaningful way to Seeley’s

requests for information about where in the city she would be assigned, her

hours of work or the housing that was available

• Move from Alberta to Vancouver definitely “more than trivial”

• Discrimination made out, then looked at nature of accommodation

Seeley: Federal Court of Appeal

9

• Court of Appeal:

• No reasonable accommodation – extending date for her to report did not go far

enough

• CN had accommodated employees with other restrictions (disabilities or elder

care responsibilities) in various ways, such as exemptions from reporting and

setting up “home terminals”, which were not considered for Seeley

• Could not rely on Collective Agreement provisions, since no evidence that

Union was engaged and objected

• Tribunal’s remedies upheld:

• Reinstatement

• Lost wages

• $15,000 for pain and suffering

• $20,000 for CN’s “reckless conduct”

Clark v. Bow Valley College 2014 AHRC 4 (CanLII)

10

• Ms. Clark was a nursing instructor, whose child was born on January 2,

2010, seven weeks premature

• Towards the end of 2010, Ms. Clark learned she was on the schedule to

start back on January 10, 2011

• Because of the early birth, Ms. Clark had mistaken her return to work

date

• Ms. Clark said she couldn’t start until February 1 because she couldn’t

get child care, and offered to use up her vacation time


11

• Employer refused, saying:

• Collective Agreement only provided for 52 weeks of leave;

• She requested vacation less than two weeks prior to the commencement of

classes;

• Students needed one instructor for consistency;

• There was a shortage of nursing faculty, and it was unable to locate coverage;

• There were two day cares that were a possibility; and

• Her husband could look after the child.


12

• Ms. Clark rejected the suggestions and refused to return, because:

• Her husband worked part-time;

• One of the two daycares would have required her to transport the child in her

car, and the car seat would not fit;

• The other daycare was “transitory”, and her child had reduced immune system,

so it was not appropriate.

• She was deemed to have resigned when she did not return on January

10


13

• Adopted same four-step test as was used in Seeley and Johnstone

• Tribunal:

“What is noticeably absent from all of the communications between

Bow Valley representatives while this circumstance was unfolding is

ANY discussion about Ms. Clark's childcare challenge. At no time do

they ask Ms. Clark to attend a meeting to see if something could be

worked out, or to further understand the nature of her concerns.”

• Discrimination made out:

• Lost wages from the termination date until the date she became re-

employed (4 months); plus

• $15,000 as general damages for injury to dignity.

Duty to accommodate: Best practices

14

• Threshold questions to ask:

• Does the request engage a prohibited ground/make out a prima facie

case?

• Do you have sufficient information to justify the accommodation

claimed?

• What efforts has the person made?

• What options can you suggest?

• For how long is the accommodation needed?


15

• Engage the employee in discussions – he/she has an obligation to

facilitate accommodation by:

• Providing information so that the need for accommodation is clearly justified,

and the restrictions clearly outlined

• Advising/answering questions as to what attempts he/she has already made to

avoid the need for a workplace accommodation

• Making suggestions as to accommodation that he/she thinks are suitable

• Accepting “reasonable” (even if not perfect) accommodation


16

• Keep Records of every step in the process:

• Validate the need to accommodate, and the nature of the “family obligation”

• List options considered

• Why the options were not viable, either from the employee’s perspective or your perspective:

• Cost

• Disruption to organization

• Disruption to other employees

• The Tribunal will not accept “impressionistic” responses; it looks for hard facts

Jeffrey P. Mitchell Partner, Dentons Canada LLP

D +1 416 863 4660

[email protected]

October 21 2014 17 Dentons Canada LLP

Thank you

mailto:[email protected]

How to avoid getting charged:

Recent trends in Ministry of Labour prosecutions

October 21, 2014

Dentons Canada LLP

Chelsea Rasmussen

Associate

Employment Standards Act

19

Employment standards violations

October 21 2014 Dentons Canada LLP 20

• Employment standards violations may be discovered through:

• A “blitz”

• A complaint filed under the ESA

• A targeted inspection

Top 5 ESA complaints in 2013 and 2014 :


The top five complaints in 2013 and 2014 were:

1. Unpaid wages

2. Vacation pay/vacation time

3. Termination pay

4. Public holidays / public holiday pay

5. Overtime pay

Top 5 ESA violations discovered during targeted

inspections in 2013 and 2014:

00 Month 2013 Dentons Canada LLP Document reference # 22

The top 5 ESA violations discovered during targeted inspections in

2013/14 were:

1. Public holidays/public holiday pay

2. Record keeping

3. Overtime pay

4. Vacation pay/vacation time

5. Hours of work: excess daily or weekly

Blitz: retail services

00 Month 2013 23

• Only 24 employers out of 118 were compliant with the ESA

• Compliance enforcement:

• 215 Compliance Orders issued

• 40 Part 1 Tickets issued

• 1 Order to pay wages issued

• Most common monetary violation: public holiday pay

• Most common non-monetary violations: excess hours, vacation pay and

record keeping

Consequences of non-compliance

00 Month 2013 Dentons Canada LLP Document reference # 24

Consequences of non-compliance with the ESA include:

• Compliance order

• Order to pay

• Ticket with fine

• Notice of contravention

• Prosecution

Prosecutions and convictions


• The Ministry of Labour initiates about 400 ESA prosecutions per year.

• Convictions can result in:

• For individuals:

• a fine of up to $50,000; and/or

• imprisonment for not more than 12 months

• For corporations, a fine up to:

• $100,000 for a 1st offence;

• $250,000 if one previous offence; and

• $500,000 if more than one previous offence.

Director jailed and companies fined after failing to

pay employees


• R. v. Blondin, 2012 ONCJ 826 (CanLII)

• A director ignored 113 separate orders to pay $125,000 in unpaid

wages to employees

• The director was jailed for 90 days and the company was fined

$280,000

Fitness club operator and director fined $130,000 for

employment standards violations


• Between June 2009 and September 2010, 38 current and former

employees of the fitness club filed claims with the Ministry of Labour over

wages not being paid in a timely fashion

• The investigation revealed the claimants were owed a total of roughly

$75,000

• The fitness club was fined $100,000 for failing to pay wages owed to

employees

• A director of the company, was fined $30,000 for the same violation

ESA: How to avoid getting charged

October 21 2014 28

• Be cooperative with ESA officers

• Take all complaints seriously

• Ensure careful record keeping

Occupational Health and Safety

Act

29 October 21 2014 Dentons Canada LLP

Proactive inspections


Factors considered by MOL when identifying a workplace for a proactive

inspection include:

• The number and severity of past lost-time and non-lost-time workplace

injuries, including the associated costs

• Compliance history

• Hazards inherent to the work

• New businesses

• Size of businesses

• Specific events or incidents (e.g., Critical injuries or fatal injuries, or

injuries due to violence)

• The presence of young, new or otherwise vulnerable workers

What does an inspector look for?


• All required postings are up

• Health and safety programs and policies

• Internal responsibility system — self reliance

• Training requirements ⁄ deficiencies

• Record of injuries, including musculoskeletal disorders (MSDs)

• Occurrence and record of workplace violence

• Attention to young worker health and safety

• Workplace–specific sector hazards

Blitz: new and young workers (Industrial)


Sector Name Orders Issued

Stop Work Orders Issued

Requirements Issued

Workplaces Visited

Retail 2,119 37 37 608

Restaurants 1,248 12 4 275

Tourism, Hospitality and Recreational Services

710 4 8 208

Food, Beverage and Tobacco

659 6 2 139

Wood and Metal Fabrication

641 28 14 123

Wholesalers 444 12 21 144

Vehicle Sales and Service

425 11 4 86

Industrial Services 277 10 6 86

Government 218 7 1 80

Automotive 174 6 1 64

OHS prosecutions and penalties

• OHSA convictions in Ontario at six-year low

• 780 convictions in 2013/14, down from 1,303 in 2008/09

• Convictions can result in:

• For individuals:

• a fine of up to $25,000; and/or

• imprisonment for not more than 12 months

• For corporations:

• a fine of up to $500,000

Dentons Canada LLP October 21 2014

OHS prosecutions – corporations

Figure 2

Convicted after trial

4%

Acquitted after trial

2%

Pleaded guilty and negotiated

fine with MOL

62%

Withdrawn-other party

convicted

17%

Withdrawn-no other party

convicted

9%

Pleaded guilty and let the

court decide the amount of

fine

6%


OHS prosecutions

• Dentons study (Ontario):

• - 68% of charged corporations pleaded guilty

• - 36% of charged supervisors and workers pleaded guilty

• - only 6% of corporations fought charges through trial

• - 2/3 of those were found guilty of at least one charge

• - 82% of incidents/accidents that resulted in charges produced at least one

conviction

See full study at www.occupationalhealthandsafetylaw.com


http://www.occupationalhealthandsafetylaw.com/

Examples of recent convictions

21 October 2014 Dentons Canada LLP Document reference # 36

• Failure to comply with inspector’s orders - $110,000 fine

• Failure to provide adequate information, instruction and

supervision with respect to avoiding trip hazards -

$50,000

• Failure to ensure floor was kept free from hazards -

$90,000 (young worker injured)

OHS: How to avoid getting charged

21 October 2014 Dentons Canada LLP Document reference # 37

• Ensure all postings are up

• Ensure all employees have completed the mandatory

safety training (and the training records are easily

accessible)

• Ensure the joint health and safety committee is meeting

regularly, and immediately address hazards that are

identified

• Treat inspectors respectfully

Thank you

Chelsea Rasmussen Associate, Dentons Canada LLP Tel: (416) 862-3464 E-mail: [email protected]

© 2013 Dentons. Dentons is an international legal practice providing client services worldwide through its member firms and aff iliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking,

action based on its content. Please see dentons.com for Legal Notices.

Feeling demoted? Understanding constructive dismissal and how to best protect your organization.

October 21, 2014

Dentons Canada LLP

Matthew Curtis

Associate With assistance from Andy McDonnell, Articling student

What is constructive dismissal?

21 October 2014 Dentons Canada LLP 40

• “Where an employer decides unilaterally to make substantial changes to the

essential terms of an employee’s contract, and the employee does not agree to

the changes and leaves his or her job, the employee has not resigned, but has

been dismissed. Since the employer has not formally dismissed the employee

this is known as ‘constructive dismissal’. By unilaterally seeking to make

substantial changes to the essential terms of the employment contract, the

employer is ceasing to meet his obligations and is therefore terminating the

contract.”

• – Justice Gonthier, Farber v. Royal Trust Co [1997], Supreme Court of Canada.


41

• Constructive dismissal usually results from a unilateral change in the working

conditions and/or environment of an employee

• Not every change to an employee’s working conditions and/or environment will

lead to a claim in constructive dismissal: changes must be fundamental to, or “go

to the root” of the employment agreement, and the decision to make these

changes must have been taken unilaterally by the employer

• The Courts in Ontario have found that in employment agreements there is an

implied term that the employer will refrain from making substantial changes to the

duties and role of an employee without agreement of the employee, such that

those changes would result in a fundamental breach of contract

21 October 2014 Dentons Canada LLP


42

Examples of changes that can lead to a constructive dismissal claim:

• Demotion (this may be subject to the duty to mitigate damages)

• Changing or reassigning job duties / responsibilities

• Changing reporting status

• Reducing or changing hours of work

• Substantially reducing salary or hourly wage

• Loss or material reduction of a benefit or bonus plan

• Geographic transfers

• Imposing a suspension or lay-off (unsettled law in Ontario)

21 October 2014 Dentons Canada LLP Document reference #11285783


43

• Liability for constructive dismissal is the same as for regular dismissal:

• Under employment / labour standards act

• Under contract / common law


Leading case law

44

• Farber v. Royal Trust Co. [1997] SCC:

• Farber promoted a number of times over 15 years, and was eventually

promoted to the position of regional manager

• In this role he supervised and administered twenty one offices directly.

• His remuneration was made up of a guaranteed salary, commissions and

benefits, such that in 1983 he earned $150,000.

• In 1984 Farber was informed by Royal Trust Co. that his position was being

eliminated as part of a major restructuring

• Royal Trust Co. offered Farber a lesser position within the organization. The

position offered was as manager of the least successful Quebec branch

• Under the new role Farber would receive a reorientation allowance of

$40,000 but no base salary, and his commission rate would drop

• Farber refused to accept the offer and brought a claim in damages for

constructive dismissal


Leading case law

45

• Farber v. Royal Trust Co. [1997] SCC Continued:

• The Supreme Court found while there was no bad faith in that Royal Trust Co.

needed to reorganize its hierarchical structure, the company nevertheless

unilaterally altered the essential terms of the employment contract

• The change involved a significant demotion and far less favourable terms of

income, to the point that had Farber accepted the terms his income would be

halved

• Farber remains the leading case on constructive dismissal in Canada


Leading case law

46

• Evans v. Teamsters, Local 31, [2008] SCC:

• Plaintiff worked as business agent in Union office for over 23 years.

• Incoming Union President sent the plaintiff a letter, which purported to

terminate his employment

• Of note was that the termination letter did not contain any reference to

working through the notice period

• Over a period of time in which the defendant continued to pay the salary of

the plaintiff, both parties counsel were in constant communication however no

resolution was reached

• The employer then sent a letter stating that if the plaintiff did not return to

work the balance of his notice period, the employer would treat that as just

cause for dismissal and allege that the plaintiff had failed to mitigate his

damages

• The plaintiff replied that he would return to work provided that the employer

withdrew its termination letter, which was something the employer was not

prepared to do


Leading case law

47

• Evans v. Teamsters contd.:

• The Supreme Court of Canada stated that a plaintiff has the same duty to

mitigate his or her damages in constructive dismissal cases, as in any other

wrongful dismissal cases

• The Court stated, “Where an employer offers the employee a chance to

mitigate damages by returning to work for him or her, the central issue is

whether a reasonable person would have accepted such an offer”

• The critical element is that an employee is not obliged to mitigate his or her

damages by working in an atmosphere which is hostile, embarrassing, or

humiliating

• The test for determining whether the workplace environment has become so

toxic so as the reasonable employee would not return to mitigate their

damages, is an objective one requiring the court to consider all of the

circumstances


Leading case law

48

• Farwell v. Citair Inc.(General Coach Canada), [2014] ONCA

• The Plaintiff was 58 years old and had 38 years of service with the Defendant

having built a position of authority and respect. The Defendant purported to

transfer him from the position of Vice President of Operations to his previous

role as Purchasing Manager

• The Defendant’s reasoning for the reorganization was that the Plaintiff did not

have the required expertise in the line of products they wished to develop

• As a Purchasing Manager, the Plaintiff would be reporting to his previous

direct subordinate

• The Plaintiff’s income, however, would remain substantially similar (the

material difference being the treatment of discretionary bonuses)


Leading case law

49

• Farwell v. Citair Inc.(General Coach Canada) contd.

• The Ontario Court of Appeal empathized with the employer’s argument that

the decision to transfer the employee was taken due to economic

considerations and no bad faith was present, but it dismissed the employer’s

appeal due to what it described as an “insurmountable” obstacle, stating that:

• “To paraphrase Evans, the Appellant's mitigation argument presupposes

that the employer has offered the employee a chance to mitigate damages

by returning to work. To trigger this form of mitigation duty, the Appellant

was therefore obliged to offer Mr. Farwell the clear opportunity to work out

the notice period after he refused to accept the position of Purchasing

Manager and told the Appellant that he was treating the reorganization as

constructive and wrongful dismissal”

• Farwell makes it clear that in such situations an employer must reiterate to

the employee who has alleged constructive dismissal that the altered terms of

employment remain available to be accepted for mitigation of damages


• A well-drafted employment contract or offer letter is an effective tool to

provide an employer with the degree of flexibility it needs

• Get agreement from employee that the employer can make reasonable

changes to terms of employment in the future

• Outline termination provisions in the contract. Termination provision must

meet or exceed the Employment Standards Act, 2000

Employment contracts offer protection for employers


Description of employee compensation

• Confirm only starting salary – any future salary adjustments will be made

at the sole discretion of the employer

• When describing current group benefits, make it clear that plan is subject

to employer’s right to amend or discontinue benefit plans, or change

carriers, from time to time, with or without advance notice

• Refer to “eligibility to participate”, not entitlement

• Where appropriate, reference the terms and conditions of the underlying

plans, or the employer’s policies, as amended from time to time (e.g.

vacation policy)

Employment contracts – key provisions


Description of employee compensation

• When describing incentive, commission or bonus plans, refer to only the

current year’s plan

• Again, make it clear that eligibility to participate in the plans and any

applicable targets are subject to the terms and conditions of the plan as

replaced, amended or revised by employer from time to time

• Be careful: a specific list of benefits = contractual entitlement



• Include acknowledgement that changes to job title, reporting relationship,

duties and responsibilities shall not constitute a constructive dismissal

• Confirm that termination provision shall remain in full force and effect,

notwithstanding any other changes to terms and conditions of

employment

• Make sure that employment contract or offer letter is presented to the

candidate, and is signed back, prior to commencement of employment



• Keep the employment contract or offer letter fresh

• You can implement changes for existing employees in an offer of

continued employment

• Make sure that employee receives consideration in exchange for signing

new offer (i.e. promotion, salary increase, signing bonus, new bonus or

benefit)

• Give employee time to review and seek advice

• If there are key changes, review them with employee (and retain proof

that you did)

Update your employment contracts


• Before implementing change, develop a proactive communications

strategy

• An effective strategy has two objectives:

1. reducing litigation risk

2. managing overall employee stress and anxiety that can lead to lower

productivity

• Give sufficient advance notice: Wronko case

• Always communicate motive – if you are choosing to implement

measures to save jobs, say that

Be proactive in your communications


• Employees are generally risk-averse:

• Lose job – no income

• All or nothing case

• If lose, must pay own lawyer and organization’s lawyer

• Court may say you should have stayed to mitigate

Practical considerations


• Your best protection is a well-drafted employment offer or contract that

gives you flexibility

• Have existing employees sign updated offers in exchange for

consideration to reflect current terms

• When making changes to existing employment terms, be proactive in

communicating to employees – and never forget motive

• Reiterate to an employee who has alleged constructive dismissal that the

altered terms of employment remain available to be accepted for

mitigation of damages.

Best practices – in summary


• Plan ahead – build in the time you need to give advance notice before

rolling out any changes

• Get back a signed acknowledgment from employees when implementing

changes - and keep those on file

• Confirm that a restructuring plan is consistent with defined business

objectives

Best practices – in summary


Thank You

59 21 October 2014 Dentons Canada LLP

Matthew Curtis Associate, Dentons Canada LLP D +1 416 367 6767 [email protected]

The preceding presentation contains examples of the kinds of issues companies dealing with Employment and Labour could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.

Dentons Canada LLP

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