Significant court decisions from last year leave imprint on labour relations landscape
Psychological harassment and constructive dismissal
The decision in Strizzi v. Curzons Management Associates Inc. offers guidance to employers when it comes to psychological harassment.
In this case, over the course of several telephone conversations, one of the co-owners of an Ottawa health and fitness club verbally threatened the club’s general manager, Giovanni Strizzi.
In the final call, the employer “berated” the manager, dictating the terms upon which he would consider paying any money owing.
The manager claimed he had been constructively dismissed after more than six years’ service.
In the decision, the arbitrator characterized the employer as a “bully” and awarded the employee seven months’ reasonable notice, as well as $10,000 in outstanding wages for the two months prior to his constructive dismissal.
“Many employers may not have thought a few awful exchanges could trigger constructive dismissal,” Rubin says. “Twenty years ago that would not have been enough. Today, you really have to behave.”
On the flip side, a British Columbia case confirms complaints by employees against managers can be grounds for dismissal, provided the employer has exercised care and caution.
In Grewal v. Khalsa Credit Union, there was existing tension between the CEO and an employee, Sukhwinder Grewal.
Grewal had been effectively demoted twice and had been confronted on several occasions about concerns with her work.
Eventually, there were concerns about apparent irregularities with the renewal of her personal mortgage.
The CEO interviewed Grewal but before any disciplinary action was taken, the CEO received a letter from her lawyer demanding a written apology, as well as several other demands, including a request the apology be copied to the employer’s board of directors, a government official, and the deputy superintendent of credit unions and trusts.
A second letter with similar demands was sent a few days later.
Grewal eventually sued the credit union alleging she had been wrongfully dismissed.
The Supreme Court of B.C. ruled the letters were both disrespectful and inflammatory and, when combined with her past misconduct, enough to justify her dismissal.
“Employees have to be careful in how they communicate with employers,” says Charles Harrison, partner with Fasken Martineau in Vancouver. “Her reaction was the cause for dismissal.”
The ‘post-Bill 168’ world
The decision in Kingston (City) v. CUPE Local 109 demonstrates a heightened sensitivity to workplace violence and harassment since the introduction of Ontario legislation requiring employers to be increasingly vigilant in this area, according to Janice Rubin, partner with Rubin Thomlinson in Toronto.
The case involved a city employee with 28 years of service who allegedly uttered a death threat to her local union president, days after attending anger management counseling.
Following a subsequent investigation, the city fired her; the union grieved.
In reaching a decision, the arbitrator noted the Bill 168 amendments “make it clear that language that is vexatious and unwelcome is harassment, and very serious in its own right. But language that is made in direct reference to the end of a person’s life or that suggests impending danger, falls into a category of its own. This is not just language, it is violence.”
The grievance was dismissed.
The outcome suggests all parties must take threats seriously, Rubin says, with employers also being obligated to conduct a thorough investigation of all complaints.
Reasonable notice
Two cases heard before the Ontario Court of Appeal suggest traditional assumptions about reasonable notice timelines may be open to challenge.
The first, Love v. Acuity Investment Management Inc., focused on the character of the employment.
The court of appeal set aside an award of five months’ notice and extended it to nine for a 50-year-old senior executive with two-and-a-half years’ service. The court said the initial award gave insufficient weight to the character of employment.
Illustrating the balance in another way, the court held that the decision in the second case, Di Tomaso v. Crown Metal Packaging Canada LP, paid too much attention to character of employment without assessing the other factors in reasonable notice.
In this case, the employee was a 62-year-old mechanic with 33 years’ service.
The employer argued there was a 12-month cap on notice periods for unskilled, non-managerial employees.
The court of appeal found no such cap, and upheld an award of 22 months.
Rubin says the key to reasonable notice is to weigh every factor — age, length of service and character of employment — and not to focus on any one to the exclusion of the others.
Another case, Brito v. Canac Kitchens, also challenged commonly held assumptions about notice held by many employers, says Harrison.
In this case, the employer closed its Canadian plant. Luis Romero Olguin, a 55-year-old cabinetry maker with 24 years’ service, was among those laid off. He received the minimum severance and benefits required by law.
Shortly after losing his job, Olguin was diagnosed with throat cancer, preventing him from working. He sued Canac.
The court held he did not get reasonable notice that would have allowed him to continue receiving benefits during the period in which he was diagnosed and treated.
The issue, according to Harrison, is employees don’t often get working notice; rather, employers offer severance — paying up front what they would have earned in that period.
Olguin was awarded damages in the hundreds of thousands of dollars for lost disability benefits, as well as wrongful dismissal damages for the lack of a fair severance.
“One of the challenges is that there is no formula to know to get the number right,” Harrison says.
