Employers-Alert-January-2015

EMPLOYERS’
•Issue 59 January 2015
Each year, the lawyers at Rubin Thomlinson LLP set out to find the
significant, the substantial and the “wild and wacky”, and each year
Canadian employers and employees do not disappoint! We do not
undertake to provide you with an exhaustive review of the cases of the past
year, but just a sampling. Our hope is that, after reading, you will have a
sense of what is hot (and what is not) and how to approach your human
resources decision making with confidence in the year ahead.
Top 10 Employment Law Cases of 2014
1. Dennis v. Ontario Lottery and Gaming Corporation, 2014
ONSC 3882
• Theft from social fund is not after-acquired cause once settlement
documents have been signed
After terminating Dennis’ employment without cause, OLGC learned that
she had taken $1,000 from the staff social fund. OLGC halted severance
payments to Dennis accordingly, asserting that her conduct constituted
after-acquired cause for termination. The Court determined that: (i)
Dennis intended to return (and, indeed, had returned) the funds; (ii)
OLGC had made improper findings in its internal investigation; and (iii)
termination for just cause was a disproportionate remedy. Therefore,
OLGC was ordered to pay the remaining severance payments, plus interest
and legal costs.
RT Takeaway: When asserting just cause for termination of
employment, employers must (i) appreciate the context in which the
employee’s conduct occurred and (ii) ensure that the termination is a
proportional remedy.
2. Canada v. Johnstone, 2014 FCA 110
• Federal Court of Appeal comments on family status accommodation
Johnston alleged that her employer, the Canadian Border Services Agency
(“CBSA”), had discriminated against her by refusing to allow her to
accommodate her childcare needs, in violation of the Canadian Human
Rights Act. Finding in favour of Johnstone, the Tribunal, the Federal
Court, and the Federal Court of Appeal agreed that Johnstone had been
discriminated against on the basis of family status. Specifically, the
Federal Court concluded that family status under human rights legislation
includes certain types of childcare obligations.
e: info@rubinthomlinson.com
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
The Employment
Law Roundup
Teleseminar
January 27, 2015
&
The Workplace
Investigation
Roundup
Teleseminar January 29, 2015
In 2014, courts weighed in
on a varied and interesting
mix of employment
law and workplace
investigation cases.
Join us for a review of
the most interesting
legal developments of
the year. Find out what
these decisions mean
for employers; what our
employment lawyers
recommend; and what this
might mean for 2015.
This year, we will be
hosting two separate
Roundups. On January 27,
we will focus exclusively
on employment law cases;
and on January 29 we will
discuss the most notable
workplace investigation
cases from 2014.
Register for one, or
both, via our website
rubinthomlinson.com. The
fee for one teleseminar
is $129 plus HST (both
teleseminars will cost $258
plus HST).
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Employers’ Alert
Top 10 Employment Law Cases of 2014
The Employment
Law Bootcamp
Continued...
RT Takeaway: This case outlines a clear test to be followed by
employers looking to comply with the duty to accommodate. The test
focuses on (i) determining if the request is based on a need or a personal
choice; and (ii) exploring reasonable alternatives.
A 2-day
employment
law primer
for business
owners and HR
professionals
3. Wiens v. Davert Tools Inc., 2014 CanLII 47234
• Classic case of constructive dismissal
Wiens worked at Davert Tools Inc. as the Quality Control Manager.
In 2010, and again in 2011, Wiens was laid off, and her benefits were
terminated during the second layoff. Upon being asked to return to work
from the second layoff, Wiens declined, claiming constructive dismissal.
In advancing her constructive dismissal claim, Wiens relied upon the
layoffs, together with (i) an incident in which the owner of the company
had yelled at her in front of other employees, and (ii) a change in
reporting structure that saw her “pushed out” of the management team.
The judge concluded that the aggregate effect of the lay-offs, the yelling
and the change in the reporting relationship had, indeed, triggered a
constructive dismissal. As a result, Wiens was entitled to reasonable
notice of termination.
RT Takeaway: Constructive dismissal may be triggered by a confluence
of factors, even when any of those factors taken independently would
not be sufficient. Changes in reporting structures, particularly when
someone’s power and influence is diminished, may leave an employer
exposed to liability.
4. United Steelworkers of America, Local 9548 v. Tenaris
Algoma Tubes Inc., 2014 CanLII 26445
• Harassment through social media gives rise to just cause for
termination of employment
The grievor had made a series of derogatory comments about a co-worker
on his Facebook page, which ultimately led to the termination of his
employment. The grievor grieved the employer’s decision to terminate his
employment.
In dismissing the grievance and upholding the termination, the
Arbitrator concluded that the grievor’s “vicious and humiliating”
conduct constituted physical and sexual threats, contrary to Bill 168, the
company’s Code of Conduct, and the company’s Workplace Harassment
Policy.
e: info@rubinthomlinson.com
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
January 13 & 14, 2015
RT’s Employment Law
Bootcamp will arm
participants with the
ammunition they need to
successfully navigate the
employment relationship.
The Bootcamp will cover
essential employment
law issues from hiring,
accommodation, and
performance management
to termination and posttermination. Participants
will gain an understanding of
key employment legislation in
Ontario, and will learn how to
prepare effective employment
contracts and policies.
This session will cover:
•
Hiring: Avoiding the
Minefield
•
Employment Policies:
Preparing for Battle
•
Employment Standards
and Other Legislation: The
Rules of Engagement
•
Performance Management/
Discipline: No Need for a
Court Martial
•
Termination: Setting up
the Firing Squad
•
Post-Termination: The
Peace Treaty
Visit rubinthomlinson.com to
register.
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Employers’ Alert
Top 10 Employment Law Cases of 2014
Continued...
RT Takeaway: Social media misconduct with a negative impact on the
workplace can constitute cause (even after a first offence), despite not
having occurred at work.
5. Hryniak v. Mauldin, 2014 SCC 7
• Test for summary dismissal of (employment) litigation clarified
In this case, the Supreme Court of Canada re-evaluated the approach
to motions for summary judgment. Although Hryniak is a civil fraud
case, and not an employment law case, it provides direction to judges
hearing motions for summary judgment (including those brought in the
context of employment law litigation). Specifically, the Supreme Court
emphasizes a flexible and proactive approach to summary judgment
motions.
RT Takeaway: We are already seeing (and expect that we will continue
to see) attempts to resolve employment disputes through this summary
judgment process.
6. Kimball v. Windsor Raceway Inc., 2014 ONSC 3286
• Notice entitlements for a near retiree
After 27 years of service, Kimball advised his employer that he planned to
retire after his 65th birthday, at which time he began to collect a pension.
However, he did not retire. Shortly thereafter, Kimball was placed on
indefinite layoff, and provided with some of his statutory entitlements.
He then brought a claim for wrongful dismissal, seeking 24 months’ pay
in lieu of notice.
The Court ruled that Kimball was entitled to receive statutory severance
pay. However, with respect to the common law entitlements, the
Court held that an employee’s intention to retire is a relevant factor in
assessing reasonable notice, and that an employee who intends to end
their working career does not have any further entitlement to receive
reasonable notice payments.
RT Takeaway: This is just one example of the ways that the aging
workforce is impacting employment law.
e: info@rubinthomlinson.com
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
Workplace
Investigation
Training in 2015
Learn to address
inappropriate
workplace behaviour
before it becomes a
legal issue.
Join us in 2015 for Basic
Workplace Investigation
Techniques & the Report
Writing Workshop.
• February 3 - 5 in
Toronto
• April 21 - 23 in
Ottawa
• June 9 - 11 in
Calgary
• October 6 - 8 in
Toronto
• December 15 - 17 in
Toronto
Keep an eye on our
website as we will
be announcing 2015
training dates for
Vancouver.
Visit rubinthomlinson.
com for more
information or to
register.
We are also able to
bring a customized
version of this program
into your workplace to
provide your HR team
with a template on
how to conduct legally
defensible workplace
investigations. For more
information on bringing
this program to your
workplace, please call
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Employers’ Alert
Top 10 Employment Law Cases of 2014
Continued...
7. Paquette c. Quadraspec, 2014 ONSC 2431
• Global payroll to be considered when calculating severance
obligations pursuant to the Employment Standards Act, 2000
Paquette, a twenty-eight year employee of Quadraspec, had signed
an employment agreement stating that he would be entitled to two
(2) weeks’ notice per year of completed service to a maximum of
six (6) months’ notice. After Quadraspec terminated Mr. Paquette’s
employment, he commenced an action to challenge the enforceability of
the termination provisions in the employment agreement, arguing that (i)
severance pay was required if Quadraspec’s global payroll exceeded $2.5
million, and, as such, (ii) the entitlements prescribed by the employment
agreement were less than his statutory minimum entitlements.
The Court accepted Paquette’s arguments, finding that a company’s
global payroll is to be considered when determining whether an employee
is entitled to statutory severance pay.
RT Takeaway: Until we hear otherwise, this case leaves employers
having to take into account payroll outside of Ontario when calculating
whether the $2.5 million threshold for statutory severance has been met.
8. WSIAT Decision No. 2157/09
• Workers suffering from work-related mental stress may now be
entitled to workers’ compensation benefits
After being subjected to twelve (12) years of ill treatment by a co-worker,
the worker was diagnosed with “adjustment disorder with mixed features
of anxiety and depression”. Given that her diagnosis appeared to be workrelated, the worker applied for benefits from the WSIB. However, her
claim was denied because she did not have “an acute reaction to a sudden
and unexpected traumatic event”, as required by subsections 13(4) and
(5) of the Workplace Safety and Insurance Act, 1997 (the “Act”).
The worker challenged sections 13(4) and 13(5) of the Act as being
unconstitutional, arguing that those provisions unfairly discriminated
against her on the basis of her type of disability. The Tribunal agreed, and
granted the worker initial entitlement for mental stress.
RT Takeaway: Employees may now be entitled to WSIB benefits for the
effects of harassment in the workplace.
e: info@rubinthomlinson.com
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
Investigating Complex
Cases
February 25, 2015 in
Toronto
Have you ever been stopped
in your tracks during an
investigation? Or have you ever
known that you have to do some
form of investigation, but the
traditional model doesn’t seem to
suit? Then this course is for you.
We look at some unusual starting
points for investigations, as well
as all of the twists and turns that
an investigation can take, and
provide you with the tools you
need to navigate the forks in the
road.
This course will cover:
•
Investigations into complaints
of systemic discrimination
•
Responding to Anonymous
complaints
•
Distinguishing countercomplaints from other
information provided by
respondents
•
Reviews, assessments and
other processes which can be
undertaken when there is no
“complainant”
Participants will be provided
with comprehensive materials
explaining these concepts and
tools to better support their
investigation practice. Following
the RT methodology of role play
and problem solving, internal
investigators will have the
opportunity to enhance their skills
allowing them undertake these
investigations with confidence.
Visit rubinthomlinson.com to
register.
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com
Employers’ Alert
Top 10 Employment Law Cases of 2014
Continued...
RT Law at Work
Blog
9. McIntosh v. Legal Aid Ontario, 2014 ONSC 6136
• The tort of intrusion upon seclusion strikes again
Here’s what we’ve been
blogging about:
In 2012, the Ontario Court of Appeal created a new tort – intrusion upon
seclusion – in its decision in Jones v. Tsige. In this case, McIntosh’s
personal information was accessed by an employee of Legal Aid Ontario
(“LAO”), Reddick, who also happened to be the current girlfriend
of McIntosh’s ex-boyfriend. Reddick reviewed the file, telephoned
McIntosh, and made a series of threats to disseminate the information
contained in the file.
McIntosh sued both LAO and Reddick, alleging a violation of her privacy
rights. It appears that LAO subsequently settled with McIntosh. Reddick
did not participate in the action; and, in the absence of any defence, the
Court awarded McIntosh $7,500 in general damages plus $6,500 in legal
fees, all of which is to be paid by Reddick.
RT Takeaway: Employers should continue to be vigilant about
protecting the privacy of confidential information belonging to their
customers, and should ensure that their expectations are communicated
to employees.
10. R. v. J.R. Contracting Property Services Ltd. and
Lootawan, (unreported)
• Health and safety violation leads to imprisonment for supervisor
While removing shingles from a roof, a worker employed by JR
Contracting Property Services (under the supervision of Lootawan)
slipped and fell onto the walkway below. A Ministry of Labour
investigation followed, concluding that the worker had not been (i)
trained on the proper use of fall protection equipment, or (ii) provided
with any fall protection equipment to use on the job site.
Both the employer and the supervisor were convicted of failing to ensure
the safety of the worker. The employer was fined $75,000 and the
supervisor was sentenced to 45 days in jail.
RT Takeaway: Employers and supervisors are jointly responsible for
worker health and safety and may face significant consequences for
failing to comply with the Occupational Health and Safety Act.
e: info@rubinthomlinson.com
@rubinthomlinson
t: 416.847.1814
f: 416.847.1815
Santa is Coming: Have
You Been Naughty or
Nice?
On the First Day of
Christmas…
One of these things is
(not) like the other
My Lips Are Sealed:
The Importance
of Honouring
Confidentiality
Obligations Following a
Settlement
Nothing in Life is
Free: Certain Unpaid
Positions Now Protected
under the OHSA
When Do An Employer’s
Accommodation Actions
Become Harassment?
Atlantic Provincial
Governments’
Respectful Workplace
Policies – The Must
Haves
Recent Ontario Case
Revisits Tort of
Invasion of Privacy
– Intrusion Upon
Seclusion
20 Adelaide St. East • Suite 1104 • Toronto, Ontario • M5C 2T6
rubinthomlinson.com