Dress codes, accommodation, constructive dismissals and severance pay were just some of the issues covered in notable employment law cases in 2015. Here are 10 decisions covered by Canadian Employment Law Today and Canadian HR Reporter featuring notable elements employers should be aware of.
Rogers Cable and Unifor, Local 875 (Hogan), Re, 2015 CarswellNat 76 (Can. Arb.).
This was a case where an employer wasn’t required to accommodate an employee with an addiction. An arbitrator upheld the dismissal of a New Brunswick worker who lost his driver’s licence because of a conviction for drunk driving.
The employee had a string of performance and attendance issues. The employer gave him an opportunity to use the employee assistance program (EAP), but the employee declined. The EAP provider asked the employee if he had a medical condition that affected his attendance, but the employee denied any such condition.
The employee was charged with driving while under the influence of alcohol and his driver’s licence was suspended for one year, leading to the employer dismissing him. The employee argued he had an addiction that should have been accommodated, but the arbitrator found the employer dismissed the employee because he couldn’t do his job. With the information the employer had at the time, it was a reasonable decision and there was no discrimination because the employer wasn’t aware of any addiction.
Wilson and Atomic Energy of Canada Ltd., Re, 2015 CarswellNat 64 (F.C.A.).
A federally regulated employer dismissed an employee and gave him six months’ severance pay. The employee filed a complaint pursuant to the Canada Labour Code, alleging he was unjustly dismissed. An adjudicator followed precedent in finding the employee was unjustly dismissed, but the Federal Court overturned the adjudicator’s decision.
The Federal Court of Appeal affirmed the Federal Court’s decision, finding that if Parliament intended to divert from the common law and prevent dismissals without cause, it would have done so explicitly. It also pointed out that there are notice and severance pay provisions within the code, so it made sense that Parliament didn’t intend to prevent federal employers from having the same rights as other non-unionized employers in the country with regards to common-law notice.
Until this decision, employers governed by the Canada Labour Code were pretty much unable to dismiss employees without cause. Going forward, it looks like such employers can choose to dismiss an employee without cause, so long as they give reasonable notice or pay in lieu of.
Keenan v. Canac Kitchens, 2015 ONSC 1055 (Ont. S.C.J.).
This case out of Ontario reminded employers that determining whether someone is an employee or an independent contractor depends on the nature of the relationship, not the contract.
A married couple was employed by Canac Kitchens in the early 1980s. Canac eventually informed them they would no longer be employees but rather independent contractors. Canac would set the rates and pass along money for the installers, while paying the couple on a piecework basis. Canac drafted a subcontractor agreement stating “as a subcontractor of Canac, you will devote full-time attention to the business of Canac and shall report to Canac’s installation manager.”
The couple worked almost exclusively for Canac for more than 20 years. They continued to receive employee discounts, wore shirts with Canac logos, had Canac business cards, mobile phones provided by Canac, and an office at Canac’s location.
In 2009, Canac informed the couple it was closing its operations and their services would no longer be required. The court found the couple’s relationship with Canac favoured a finding that they were “dependent contractors” due to “a high level of exclusivity” with the company and significant economic dependence. Canac “maintained effective control of the business” and the couple was almost completely dependent on Canac, despite its attempts to distance itself from the employment relationship.
This case is a good example of the relatively new, in-between level of employment relationship featuring a dependent contractor.
MS Equipment v. CEP, Local 707, 2015 CarswellAlta 385 (Alta. Q.B).
This Alberta case continued the trend set by the landmark 2014 case of Johnstone v. Canada (Border Services Agency) dealing with accommodation of employee parental obligations.
A single mother with two children was an apprentice welder. Her first-year position had shifts of “seven days on and seven days off with rotating tours of days and nights” so she had to use childcare.
The worker requested her hours be changed to straight day shifts since she was finding it difficult to balance her childcare needs. The employer denied the request and the union filed a grievance claiming discrimination.
An arbitrator found that family status included childcare responsibilities and the employer’s rule that welders must work night shifts “has the effect of imposing a burden on (the worker) due to her childcare responsibilities that is not imposed upon welders who do not share her status.”
The appeal court agreed that the choice to become a working parent “(does) not negate a claim of discrimination” and it was reasonable to expect employers to develop rules and policies that help share the burden of family responsibilities and not impede the “full participation in the workforce” of working parents.
Gatien v. Canada (Attorney General), 2015 CarswellNat 1195 (F.C.).
The Federal Court took a page out of the Supreme Court of Canada’s decision in Keayes v. Honda Canada and found mental stress damages should be based on whether they were foreseeable, rather than arising out of a separate actionable wrong.
A government worker had difficulty with a problem employee but her appeals for the higher-ups to do something went unheeded. Things came to a head in a physical altercation and the worker went off work for psychological stress. When she was back, the problem employee — who had been transferred — was allowed to come back to get her belongings so the worker built a barricade to prevent her return. She was then suspended for 10 days for her actions.
The Public Service Labour Relations Board reduced the suspension to an oral reprimand but found the excessive suspension could not lead to damages for mental suffering because it was not a “separate actionable course of conduct.” Though the Federal Court didn’t award stress damages either, it said it was current law that aggravated damages for mental stress were based on reasonable foreseeability, as established in Keayes, and didn’t require an independent actionable wrong.
Potter v. New Brunswick (Legal Aid Services Commission), 2015 CarswellNB 87 (S.C.C.).
The law surrounding constructive dismissal has changed considerably over the past few years. The Supreme Court of Canada weighed in on the issue when it determined an employee had been constructively dismissed when his employer suspended him with pay indefinitely.
The employee had a seven-year contract with Legal Aid of New Brunswick. After almost four years, the employee and the employer tried to negotiate a settlement whereby the employer would buy out the balance of the contract if the employee resigned. The employer, without informing the employee, decided that if an agreement was not reached by a specified date, it would request the lieutenant-governor in council revoke the appointment.
When the deadline passed, the employer sent a letter to the employee informing him his employment was suspended with pay. The Supreme Court concluded the employee had been constructively dismissed due to the fact the suspension was a unilateral change to the employment contract, entitling the employee to damages for the balance of the contract.
While this case is fact-specific, it helps clarify the two-step test the Supreme Court used to evaluate claims of constructive dismissal: whether there is a unilateral change in the contract and whether a reasonable person would perceive the change as an essential term of the contract.
Garda Security Screening Inc. and UFCW, Local 175 (Ciccone), Re, 2015 CarswellOnt 9906 (Ont. Arb.).
While accommodation is a two-way street, in this case, the employee didn’t co-operate with the employer’s accommodation efforts, relieving the employer of its duty.
The company in charge of screening passengers at an Ontario airport discovered one of its screening officers was colour-blind, which wasn’t allowed by minimum vision requirements. A company implemented accommodation procedures to allow the officer to continue working but removed his duties at the X-ray machine. The officer refused to sign the proper paperwork, arguing he had done a fine job with the X-ray machine for years and he had passed all the requirements. Allowing the officer to work on the machine was against regulations and policy, so the company terminated his employment.
The arbitrator found that it didn’t matter if the officer could operate the X-ray machine, as once the company became aware of his vision deficiency, it couldn’t allow him to continue under regulations. The arbitrator also found the officer’s employment wasn’t threatened because of his disability, nor was he discriminated against. His dismissal was for failure to let the company place him in an accommodated position.
Stewart v. Elk Valley Canadian Union of Public Employees, Local 1767 and B.C. Assessment Authority, 2015 CarswellBC 2268 (B.C. Arb.).
This case out of B.C. is an example not only of a sensible approach to a dress code, but the importance of a clear and consistent policy not just for dress codes, but for any workplace rule.
The B.C. Assessment Authority (BCAA) adopted a workplace attire policy applicable to all employees in its head and field offices. The policy recognized staff worked in “a variety of environments” when conducting field visits, so it couldn’t provide direction for appropriate dress in every work situation. It provided a guideline, stating “it is our expectation that employees will come to work wearing appropriate and professional attire. Common sense, reasonableness and good judgment should prevail when selecting work attire that is appropriate for the intended activity and in accordance with WorkSafe BC and any other safety considerations.”
After management in some local offices tried to ban jeans and shorts, the union filed a complaint. An arbitrator noted that dress standards evolved in local offices individually and employees dressed according to their circumstances. Under the new policy, there was still no specific prohibition. But when certain managers tried to limit the freedom given to employees in the policy, it wasn’t reasonable and inconsistent with the BCAA’s overall policy.
Jeffrey R. Smith is the editor of Canadian Employment Law Today.
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