Courts make significant employment rulings in 2010

Mental distress judgment allows employers to rest a little easier, but other torts possible

The past year brought about a number of significant legal decisions for employers. Canadian Labour Reporter offers a recap of some of the key developments of 2010.

Mental Distress

Employers can “rest a little easier” following the decision by the Ontario Court of Appeal in Piresferreira v. Ayotte, according to the firm Cox & Palmer.

The court’s decision suggests employers can’t be sued for the negligent infliction of mental distress in the workplace. The case involved a 60-year-old Bell Mobility employee who was shoved by her supervisor and provided with a performance improvement plan instead of an apology.

At trial, the employee was awarded damages totaling $500,000. On appeal, the decision was overturned. The Ontario Court of Appeal held that imposing a duty to protect employees would be overly intrusive on employers and expand the scope of liability too greatly.

The Toronto firm Rublin Thomlinson writes that the decision is “encouraging for employers” but suggests “the case still makes clear that employees can be awarded a range of other tort damages to compensate for the manner in which they are treated at work.” Employers are therefore advised to foster a workplace that is free from harassment.

Family Status

The case Johnstone v. Canada Border Services was one of the most closely watched last year. Fiona Johnstone worked a rotating shift as a border guard at Toronto’s Pearson International Airport. She requested a three-day part-time static shift of 12 hours per day because she had difficulty finding childcare on a rotating schedule.

Her employer refused because the shift didn’t fit its schedule arrangement. Johnstone claimed discrimination based on family status. A Canadian Human Rights Tribunal agreed and rejected the employer’s argument that accommodating one employee would open the floodgate for all employees with children to demand better shifts.

Canada Border Services was given six months to establish written policies to address family status accommodation requests. Johnstone was awarded lost wages and benefits, $15,000 in general damages and $20,000 in special compensation.

“Employers would be wise to use particular caution in managing claims with respect to family status,” writes the firm Rublin Thomlinson in its annual Employment Law Roundup. “Employers should specifically avoid a blanket approach to such claims and rather talk to the employee about their particular situation. A case-by-case analysis should be used in order to respond appropriately and reduce the risk of liability associated with these claims.”

Facebook and Workplace Privacy

The last year saw a precedent-setting case involving social media, a forum that is “one of the fastest growing areas of concern for employers,” suggests Roland Hung of the firm Gowlings in a recent update.

In the case Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, the B.C. Labour Relations Board upheld the firing of two employees by a car dealership over comments the workers posted on Facebook about their employer.

The union filed a complaint with the board alleging the workers were fired for anti-union reasons because of their union organizing activities.

The board called the comments posted online “offensive, insulting and disrespectful” and suggested they amounted to insubordination. It also rejected the union’s assertion that the comments were private given the two employees had more than 400 Facebook ‘friends’, including current and former employees of West Coast Mazda.

Gowlings suggests employers be cautious when deciding to monitor social networking sites.

“Employers may expose themselves to risk by acquiring certain information, such as learning of an employee’s previous unknown disability,” the firm writes. “Employers should be proactive, and develop and implement clear social media policies.”

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