Saturday, 28 May 2016

Divisional Court endorses Wunderman, Rejects Ford v Keegan

If an employment contract’s termination provision has the potential to violate the Ontario Employment Standards Act, 2000, but is legally compliant at the time of termination is it legal or not?

The issue has been litigated several times. On February 16, 2016, the Honourable Justice Laurence A. Pattillo, writing on behalf of the Ontario Divisional Court, provided his position on the debate in the case of Garreton v Complete Innovations Inc., 2016 ONSC 1178 .

Sunday, 22 May 2016

Employees’ Rights under the Ontario Human Rights Code are Not Infringed by a “Failure to Accommodate”

Is an employee required to prove that his employer “failed to accommodate” his parental status in order to succeed in a human rights case in Ontario? Or must the employee establish only that his employer breached his rights? Does an employee have a freestanding right to be "accommodated to the point of undue hardship?"

In a case concerning an employee whose employment was terminated after he took days off work to care for his sick children, Miraka v. A.C.D. Wholesale Meats Ltd., 2016 HRTO 41 (CanLII), Vice-Chair Sheri D. Price confirmed that an employer’s inability to accommodate an employee’s family status operates as a defence to an allegation; it is not a requirement of the applicant to show that the employer could not do so.

Tuesday, 17 May 2016

Human Rights Adjudicator Allows Employee to Take Entire Summer Off to Care for Disabled Child

Is a request to take leave without pay from mid-July to the end of August, in order to care for one’s disabled child, a reasonable request, which an employer must accommodate to the point of undue hardship?

For most employers unfamiliar with the provisions of human rights legislation, the question may seem ridiculous or incredible. Certainly no employee could demand to have the entire summer off, simply because one’s child is not in school.

However, in a decision released by the Northwest Territories Human Rights Adjudication Panel, A.B. v Yellowknife (City), 2016 CanLII 19718 (NT HRAP), the answer was that the employee was entitled to have the requested leave of absence and a finding was made that the employer had discriminated against the employee, on the basis of family status, by failing to accommodate her to the point of undue hardship.

Saturday, 14 May 2016

Employee "On Probation" Terminated Without Cause after Five Months of Employment Not Entitled to Any Notice: Div Court

What is the legal effect of being “on probation”? While this blog has looked at the issue of an employee being employed pursuant to a written employment contract containing a period of probation, (see Ontario Court Awards Four Months Notice to Employee Fired while “On Probation”), a recent decision from the Ontario Divisional Court provides a new wrinkle to this issue.

In Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490 (CanLII) the Ontario Divisional Court, sitting as the court of appeal from a decision of the Ontario Small Claims Court found that “in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons.”

For the reasons argued below, I would respectfully submit that the court in this case got it wrong.

Monday, 2 May 2016

Labour Arbitrator says: "A Finding of Harassment Requires a Departure from Reasonable Conduct."

What constitutes workplace harassment?

Every time I encounter a case of alleged workplace harassment, which is far, far more frequently than anyone outside this practice might think, I harken back to what the Honourable Justice Perell wrote in the case of High Parklane Consulting Inc. v. Royal Group Technologies Limited, 2007 CanLII 410 (ON SC):

[36] It is trite to say that that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another, and the elements of the tort of intentional infliction of mental distress that the conduct must be extreme, flagrant, outrageous and calculated to caused harm are the law’s ways of narrowing the ambit of the tort.

In short, there are some behaviours up with which one must put, if I may paraphrase the great Sir Winston Churchill.

But, returning to the point, the law does, at least in theory, prohibit workplace harassment. In the labour context, collective agreements often forbid such behaviour, so what then constitutes workplace harassment?

In a labour arbitration award released April 18, 2016, Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, 2016 CanLII 23226 (ON LA), Arbitrator Michael Bendel defined the answer as follows, “a finding of harassment requires a departure from reasonable conduct.”

The case stands as an important reminder that notwithstanding a written prohibition against workplace harassment, someone still needs to agree that the behaviour complained of rises to that level.

Sunday, 17 April 2016

Disease of Alcoholism Does Not Prevent Discipline

Can an employee suffering from the disease of alcoholism be punished for her behaviour if her disease contributed to the behaviour under review? What if the employee is a police officer?

The issue of alcohol dependency among first responders is an interesting subject. Police officers are people, susceptible to any number of diseases and disabilities. Alcohol dependency has consistently been held to be a “disability” under human rights legislation. Human rights legislation prescribes that employers have a duty to accommodate disabilities, including alcohol dependency, to the point of undue hardship. So therefore, if a police officer has a problem with alcoholism her employer, the police, must accommodate that disability, correct?

In the case of Mansley v. Canada (Attorney General), 2016 FC 389 (CanLII) (released April 7, 2016) the Federal Court was asked to judicially review a decision of the Canadian Human Rights Commission to decline to investigate an allegation of adverse differential treatment by the RCMP on the basis of alcoholism and post-traumatic stress disorder.

In deciding to upheld the Commission’s decision the Honourable Mr. Justice B. Richard Bell held that the Commission’s decision, based on the findings of any investigation report, met the standard of reasonableness and fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. Mr. Justice Bell was also satisfied that the investigator conducted a thorough and neutral analysis based on the various sources of information available to her and there was no bias, apprehension of bias or breach of procedural fairness.

Saturday, 9 April 2016

Woman’s Miscarriage a “Disability” says Human Rights Tribunal of Ontario

Is a woman's miscarriage a “disability” under Ontario’s Human Rights Code? Based on the media headlines following a decision by the Human Rights Tribunal of Ontario, Mou v. MHPM Project Leaders, 2016 HRTO 327 (CanLII), most people would now likely answer “yes.” But did the Human Rights Tribunal really just say that suffering a miscarriage can qualify as a “disability” under the Code?