Saturday, 29 August 2015

Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB

Are work requirements that impact on an employee’s breastfeeding schedules discrimination and, if so, are they discrimination on the basis of sex or family status or both? And does the distinction, if any, matter? What is necessary for a grievor to establish a prima facie case of discrimination on the basis of breastfeeding? What duty, if any, does an employer have to accommodate an employee who is breastfeeding, and how far — and for how long — does that duty extend?

Those were the questions that Public Service Labour Relations and Employment Board member Augustus Richardson was asked to answer in the case of Flatt v Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII). Not easy questions to be sure.

Saturday, 15 August 2015

Dead Employee Still Entitled to Severance: Judge

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If an employee dies due to a terminal illness (e.g. cancer), is his estate entitled to severance pay?

In the case of Estate of Cristian Drimba v Dick Engineering Inc., 2015 ONSC 2843 (CanLII), the Honourable Justice Douglas K. Gray of the Ontario Superior Court of Justice held that it is.

Death may put to an end many things, but an employee’s entitlement to severance pay would appear to not be one of them.

Sunday, 2 August 2015

Judge's Wrongful Dismissal Decision is Itself Wrongful

From time-to-time a decision will come along that will leave me not only confused, but frustrated. Wyllie v Larche, 2015 ONSC 4747 is one of those cases.

Yesterday, I wrote about the court’s decision not to award punitive damages in that case. With respect to that issue, the court decided that the employer’s refusal to pay the statutory minimum amount of severance to a dismissed employee was excused because the employer had offered the employee an extra $546.25 (gross of tax) to waive all of his rights. See: Failure to Pay Statutory Severance ‘Okay’ because Employer Offered to Do So.

In my earlier commentary I had written the following:

I have a number of issues with Justice Price’s decisions. Principally His Honour’s decision to award Mr. Wyllie no more than his five days of statutory severance and his decision to not award punitive damages.

I have already explained my concerns with respect to the punitive damages decision, this post examines the severance issue.

Saturday, 1 August 2015

Failure to Pay Statutory Severance ‘Okay’ because Employer Offered to Do So

Does an employer’s offer of legally required severance pay, provided that the employee signs a full and final release, mitigate against an award of punitive damages if the employer later refuses to pay that legally required severance pay? Surprising as it may seem, in the case of Wyllie v Larche, 2015 ONSC 4747, the Honourable Justice David Price of the Ontario Superior Court of Justice said “yes, it does.”

Saturday, 18 July 2015

Advertisement for “Caucasian” Nurse likely Discriminatory

While the CBC was running a feature segment as to whether racism remains an element of Canadian society, a Burlington, Ontario seniors home care company was posting an online advertisement for a “Caucasian RN or RPN.” In an online advertisement posted to Craigslist, shown below, Retire at Home services advertised that a client was "looking for a Caucasian RN or RPN to work shifts that are between eight and 12 hours in length."

The advertisement and subsequent stories touch off a debate as to whether the company had done anything legally wrong and if so what consequences it may face as a result.

Sunday, 5 July 2015

"Cynical, Patronizing, Unfair, Impractical, and Expensive" - How Justice Perell described the Partial Summary Judgment Approach to Wrongful Dismissal Cases

Summary judgment, a method of resolving lawsuits without the need for a trial, has long been considered an appropriate means by which to resolve wrongful dismissal cases. The changes made in 2010 to the Rules of Civil Procedure, the rules governing lawsuits in Ontario, served only to increase the popularity of such a process.

But, as this blog has considered on more than one occasion, the speed and efficiency of summary judgment bring with them their own challenges in wrongful dismissal cases; most acutely what to do about the dismissed employee’s duty to mitigate?

In April of 2015, in the case of Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (CanLII) the Honourable Justice Andra Pollak held that the use of the “Trust Approach” previously approved by the Court of Appeal for Ontario in Cronk v. Canadian General Insurance Co. (1995), 25 OR (3d) 505 (CA) was no longer appropriate given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. That case was summarized by this blog in the post Rushing to Judgment: How to Reconcile the Duty to Mitigate with Summary Judgment in Wrongful Dismissal Cases.

More recently however, on June 29, 2015, the Honourable Justice Paul Perell, also of the Ontario Superior Court of Justice, in the case of Paquette v TeraGo Networks Inc., 2015 ONSC 4189 (CanLII) described the "Partial Summary Judgment Approach", where the employee is granted a partial summary judgment and the parties return to court during and or at the end of the notice period for further payments subject to the duty to mitigate, employed by Justice Pollak as “cynical, patronizing, unfair, impractical, and expensive.” Justice Perell specifically mentioned the Markoulakis case in making such comments.


Wednesday, 1 July 2015

Is it Discrimination to Pay Bilingual Employees More?

Is it a prohibited form of discrimination to pay a higher salary to employees who can speak both English and French than to those who can speak only English?

In Arnold v. Stream Global Services, 2010 HRTO 424 (CanLII), the Human Rights Tribunal of Ontario said “non”, deciding that paying bilingual workers significantly more than those who spoke exclusively English was not a prohibited form of discrimination.