4 top lawyers chime in on recent trends in employment law
To capture the pulse of the employment law landscape, Canadian HR Reporter heard from four top employment lawyers in Manitoba, Saskatchewan, Alberta and British Columbia.
Manitoba
Human rights, economy-related disputes emerging in Manitoba
Tony Marques, partner
Myers Weinberg
Winnipeg
The Manitoba employment law picture hasn’t seen any one major issue take precedence lately, though there are a few trends Tony Marques thinks will become more prominent in the near future.
Certain human rights issues are emerging as concerns for employers, said Marques, a partner practising employment law with Winnipeg law firm Myers Weinberg. While some other jurisdictions have addressed personal harassment in the workplace as a protected ground of discrimination, Manitoba has yet to do so. However, there are signs it may be coming. The province’s Workplace Safety and Health Act has addressed harassment from a health perspective but its protection is not complete, said Marques, and there’s been some push to address it in human rights legislation.
Mandatory retirement came to the forefront last year with the arbitration decision in CKY-TV (“CTV”) v. CEP, Local 816. The arbitrator ruled the “normal age of retirement” exception in the Canadian Human Rights Act (CHRA) violated the Canadian Charter of Rights and Freedoms. Though retirement based on age is considered discriminatory by the CHRA, the exception allowed mandatory retirement if an employee reaches the “normal age of retirement” for co-workers in similar jobs. Though only binding for the parties involved, the decision brought mandatory retirement to the forefront in Manitoba, said Marques.
There are issues coming down the pipe that employers should be wary of. For instance, cases dealing with technological issues, privacy rights and disabilities relating to addictions have all been dealt with recently and continue to be emerging issues, said Marques. However, arbitrators in particular are holding the bar high for damages to employees and awards have been staying low or non-existent.
“Arbitrators in Manitoba are still reluctant to award damages,” said Marques.
As is the case in other jurisdictions, legal issues on the horizon for courts and arbitrators in Manitoba will likely be associated with the weak economy, such as employer cutbacks leading to layoffs or workplace changes that are challenged by individuals or unions, said Marques. As an example, there is an ongoing case in which an employer wants to change payments to a pension fund as part of cost-cutting measures but its collective agreement stipulates pension benefits can’t be changed without the consent of the union.
“Generally, we’re going to have more cases dealing with the economy,” said Marques. “Pensions in particular are going to become a big issue.”
Saskatchewan
New direction in Saskatchewan labour law causes controversy
Brian Kenny, partner
MacPherson Leslie and Tyerman
Regina
Much of the activity on Saskatchewan’s labour and employment law landscape has involved a revision of the province’s labour laws by the Saskatchewan Party government, according to Brian Kenny, a partner at MacPherson Leslie and Tyerman in Regina.
The government was elected in November 2007, replacing an NDP government that had been in power for 16 years. The result has been a new direction in labour law and some controversial amendments to the province’s Trade Union Act (TUA) and Public Service Essential Services Act (PSESA).
One major change was to the requirements for union-certification applications. Before the amendments, a union had to file cards showing support of the majority of the bargaining unit for certification, without a vote. Now, it must prove it has the support of 45 per cent of the unit in a secret ballot vote just to make an application, and certification will happen only after a second secret ballot vote results in a majority in favour, said Kenny.
The labour amendments also stipulate employers can communicate facts and opinions on unions and labour negotiations as long as they aren’t coercive, a somewhat ambiguous qualification that will open the door to disputes over its interpretation, said Kenny.
“There’s a widening range of what the employer can say,” he said. “It’s a matter of time before cases come before the Labour Relations Board about what is coercive and what is just opinion.”
Another amendment criticized by unions is the prevention of essential services workers from striking. Previously, Saskatchewan didn’t have any essential services legislation but the new PSESA specifically prevents employees deemed to be providing essential services from going on strike or being locked out. This amendment was challenged by the Saskatchewan Union of Nurses in September 2008 and proceedings are ongoing.
But not all the changes have been viewed negatively by the unions. With the Labour Relations Board notorious for taking a long time to render decisions, it is now required to issue decisions within six months, a development beneficial both to employers and employees in the grievance process, said Kenny.
The changes are still fairly recent, so it’s likely there will be significant activity on the labour law front in the coming months. The amendments to the TUA and PSESA have been legally challenged by unions, said Kenny, and the cases are still in the preliminary stages.
“All the labour law changes are controversial and have been subject to vocal criticism,” he said. “There will likely be a lot of challenges going forward.”
Alberta
Human rights issues front and centre in Alberta
Carmen Marshall, partner
Gowling Lafleur Henderson
Calgary
Alberta has been busy with developments in employment law, particularly regarding cases dealing with human rights, said Carmen Marshall, a partner in the employment and labour law group with Gowling Lafleur Henderson in Calgary.
Alcohol and drug testing in employment has been a hot topic in the province and the Alberta Court of Appeal fanned the flames when it ruled recreational abusers are not entitled to protection under human rights legislation.
In Alberta v. Kellogg Brown & Root (Canada) Company, a worker was fired after testing positive for marijuana. His claim of discrimination due to his employer’s perception he was a drug addict was rejected after he admitted he was a recreational user and not an addict. The case introduced a standard for what constitutes discrimination of employees who use drugs and alcohol, said Marshall.
“As a result of Kellogg, it is clear that in Alberta, human rights protections do not extend to casual or recreational users,” said Marshall. “Employees who are addicted to drugs and alcohol and use them on this basis will be protected by human rights legislation where they can establish discrimination, but not otherwise.”
Employment law issues related to technology have also been raised in Alberta, including a recent grievance where a public service employee’s termination for writing unflattering blogs about her co-workers and management was upheld by an arbitrator. The arbitrator ruled the blogs were a public display harmful to the workplace that “irreparably severed the employment relationship.”
There will likely be more cases dealing with employee misconduct of this type, with the rising popularity of social networking sites on the Internet, said Marshall.
Technology and employee privacy rights have also been on the radar. The Alberta privacy commissioner ruled in two separate decisions that biometric scanning systems at an Edmonton nightclub and a Calgary nursing home used to confirm employee identities did not violate employee privacy rights. Because the systems didn’t collect an image of the actual thumbprint but rather data representing it, the adjudicators found they were permitted under privacy legislation.
In addition to Alberta-only cases, recent Supreme Court of Canada decisions in Shafron v. KRG Insurance Brokers, RBC Dominion Securities v. Merill Lynch Canada Inc. and Hydro-Quebec have affected Alberta employment law, said Marshall. The decisions on enforceablity of non-competition clauses, employees’ implied duty of good faith to employers and undue hardship have helped shape how these issues are addressed by Alberta courts. The landmark decision in Keays v. Honda Canada has also been important, dictating how attendance-management programs and bad-faith damages are addressed, said Marshall.
On the legislative front, the Alberta government is planning to overhaul the province’s human rights legislation, including the inclusion of sexual orientation as a protected ground of discrimination. Though the Supreme Court of Canada essentially incorporated it into Alberta’s Human Rights Act in 1998, sexual orientation has yet to be formally included. When this happens, it will bring the issue to the forefront and set the table for public debate, said Marshall.
British Columbia
Employee honesty, human rights hot topics in B.C.
Colin Gibson, partner
Harris and Company
Vancouver
In British Columbia, employee honesty and human rights have been prominent legal issues of which employers would be wise to keep informed, according to Colin Gibson, a partner with Vancouver law firm Harris and Company.
Courts have found employee dishonesty to be sufficient grounds for dismissal and potentially take precedence over an employee’s misconduct or even a disability, said Gibson. The British Columbia Supreme Court’s decision in Obeng v. Canada, for example, involved an employee who was fired after being accused of theft. The court found it didn’t matter if the employee actually committed the theft because he was evasive and failed to provide an alternative explanation.
In other cases, BC Ferries employees were fired for failing to answer questions in the investigation into the Queen of the North sinking and a liquor store manager could not use his alcoholism as an excuse for stealing. The latter case is notable, said Gibson, because the B.C. Court of Appeal, in overturning the B.C. Labour Relations Board’s finding the employee should be accommodated, made a distinction between the employee’s “culpable dishonesty and his non-culpable disability.”
However, there seem to be more pro-employee decisions in other areas, particularly human rights. The B.C. Human Rights Tribunal, according to Gibson, has been placing a larger emphasis on the less-tangible effects of workplace discrimination. In Senyk v. WFG Agency (No. 2) from last fall, an employee fired by e-mail while on disability leave was awarded $35,000 by the tribunal for injury to her dignity.
“The tribunal is becoming more and more employee-friendly and damage awards for injury to dignity and self-respect are increasing,” said Gibson. “This trend of upward creeping is something employers need to be aware of.”
The economic downturn may also be contributing to more pro-employee court decisions in wrongful dismissal cases. Employees are often winning big awards because of the difficulty they have mitigating their damages in a weak economy, said Gibson.
An upcoming provincial election has put the statutory side of things in B.C. on hold. But if there is a change in the governing party, such as the NDP coming into power, there will be significant changes to employment and labour laws, he said. Regardless of which party wins the election, neither the Liberals nor the NDP are likely to lift the ban on using replacement workers during work stoppages. The province’s business community has been pressuring the government to repeal the provision, passed by the NDP in 1992, because it allows striking workers to find work elsewhere but limits what employers can do. The current Liberal government has resisted making any changes to the ban and would be unlikely to do so if re-elected, said Gibson.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
