Smoking, workplace affairs and dismissal on the dockets
Last week, CLV Reports offered a recap of several key legal precedents from 2009. Here is our final installment, as highlighted by some of Canada’s top law firms.
Smoking in the Workplace
In Quebec, a policy banning smoking anywhere on an employer's property has been deemed legal. The arbitrator in Pratt & Whitney et TCA Quebec, section locale 510 concluded the ban was reasonable in this case. The company’s no smoking law had been in force since the 1980s and had been amended in 2003 to include parking lots and all outdoor areas. It applied to everyone, including visitors, employees, suppliers, customers and subcontractors.
Arbitrator Jean-Pierre Lussier found the company’s objectives were commendable: to promote good health, increase productivity and reduce absenteeism. He also stated the disability is the tobacco addiction itself, not the act of smoking per se. Thus, he ruled against the union’s request for a designated smoking area because it could exacerbate or perpetuate the disability.
Case law on workplace smoking bans has been divided on this in the past, according to the firm Ogilvy Renault. This is the first decision of its kind in Quebec, but the firm says because it was an arbitration award “… it remains to be seen how the Human Rights Tribunal would decide a similar dispute based on compliance with the Charter of Human Rights and Freedoms and the duty to accommodate in that context.”
Workplace Sexual Relationships
A case involving an employee who was terminated for having an “inappropriate relationship with a female subordinate” has underscored the importance of documenting disciplinary actions.
The plaintiff in Cavaliere v. Corvex Manufacturing Ltd. et al. had been demoted and warned of termination after an affair with a female subordinate. After a second sexual relationship of the same nature, the plaintiff was suspended with pay pending an investigation. He ignored orders not to have contact with any other employees, including the subordinate. They continued their affair, and the plaintiff attempted to obstruct the investigation.
The Ontario Court of Appeal ruled the company had just cause to terminate the plaintiff without notice.
“This case demonstrates how important a clearly documented trail of discipline, warnings and directions will be in assisting an employer in a final termination with cause, should the need arise,” according to the firm Rubin Thomlinson in its Employment Law Roundup for 2009.
Constructive Dismissal
Two cases in Canada last year dealt with constructive dismissal. In Colwell v. Cornerstone Properties Inc., the Ontario Superior Court of Justice was asked to rule on a case involving a privacy breach. The plaintiff learned that her immediate boss had placed a hidden camera in her office nine months earlier without her knowledge. The judge ruled she had been constructively dismissed since her contract contained “an implied term of good faith and fair dealing.”
“A right of privacy can be part of an employer’s obligation of good faith and fair dealing in an employment contract,” writes Rubin Thomlinson. “Employers should therefore consider all other less intrusive means of combating workplace issues before secretly invading an employee’s privacy.”
In the second case, the same court also ruled in favour of the plaintiff, this time on the basis of a mishandled sick leave. In Patterson v. Lee Munro Chevrolet Ltd., an 11-year employee called in sick three days in a row. On the third day, the employer arranged to run an advertisement for the plaintiff’s position.
The court found the employee was genuinely ill and unable to work at the time, and had thus been constructively dismissed.
“Constructive dismissal cases often conclude in surprising ways,” writes the firm Rubin Thomlinson, which urges caution when running an advertisement for an employee’s position.
