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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

SCC Decision Regarding Wal-Mart In Québec A Cautionary Case For All Canadian Unionized Employers

Posted in Labour Relations, Litigation, Termination, Unions
Christopher McHardy

Our colleagues in Québec have produced a helpful summary of the recent Supreme Court of Canada decision involving a Wal-Mart in Jonquière, Québec, found to have breached its statutory duties during the freeze period following certification of a bargaining unit.

After negotiations for a collective agreement reached a standstill, the Wal-Mart in question decided to close its doors, for what it alleged to be legitimate business reasons. The arbitrator appointed to decide the Union’s grievance of the closure concluded that Wal-Mart’s decision to close the store was not in the course of the company’s ordinary business and therefore breached section 59 of Quebec’s Labour Code (the “Code“), which prohibits any changes to “conditions of employment” during the statutory freeze period.

The arbitrator’s decision was upheld by the Quebec Superior Court, but reversed in the decision of the Québec Court of Appeal on the basis that the arbitrator did not properly have jurisdiction over the closure grievance, which involved termination of employment and, as such, did not involve “conditions of employment”.  In effect, the Court of Appeal held that the closure of a business rules out the possibility that an employer can be found to have breached its statutory duties.  The Court of Appeal relied in part on an earlier decision by the Supreme Court of Canada in the labour relations saga regarding the Jonquière Wal-Mart, concluding that, because the arbitrator did not have jurisdiction to compel Wal-Mart to continue its operations, no remedy was available for any alleged breach and therefore the grievance was not appropriate for arbitration under the Code.

The Supreme Court of Canada disagreed and reversed the Court of Appeal’s decision. In doing so, the Court held, firstly, that termination of employment in connection with the closure of a business does not fall outside of the Code‘s prohibition on altering “conditions of employment”:

[44] … Like any other condition of employment, maintenance of the employment relationship remains a condition but is nevertheless subject to the employer’s exercise of its management power. Therefore, in the words of Deschamps J.A., as she then was, [translation] “although dismissal is not, strictly speaking, a condition of employment, the condition of continued employment, and thus the protection against dismissal without a good and sufficient reason, can be included in the conditions of employment covered by section 59 L.C.”: Automobiles Canbec Inc., per Deschamps J.A., at p. 13.

Secondly, regarding remedial authority, the Court held that even though an arbitrator cannot compel an employer to stay in business:

[63]…In appropriate circumstances…an arbitrator can order reparation in kind, such as the reinstatement of a condition of employment. Where the circumstances do not lend themselves to such a remedy, however, the arbitrator can order reparation by equivalence. The latter remedy will be appropriate where the employer goes out of business either in part or completely, at least insofar as it is impossible to reinstate the employees dismissed in contravention of s. 59.

Finding that the closure of a store may properly engage s. 59 of the Code and that an arbitrator has remedial authority to decide a grievance under that section, the Court concluded as follows regarding the essential question to be analyzed:

[78]…An arbitrator hearing a case in such a context must, as in any other case concerning a decision that results in a change in conditions of employment, determine whether the employer’s decision — to resiliate all the contracts of employment in this instance — is consistent with its past management practices or with those of a reasonable employer in the same circumstances.

To resolve this question, the Court makes it clear that an employer must be able to show that the decision to close a store was an authentic decision, not a “simulation” and consistent with its ordinary practice. The Court put it this way:

[82] If the employer wishes to avoid having the arbitrator accept the complaint filed under s. 59, therefore, it must show that the change in conditions of employment is not one prohibited by that section. To do so, it must prove that its decision was consistent with its normal management practices or, in other words, that it would have proceeded as it did even if there had been no petition for certification. Given that going out of business either in part or completely is not something that occurs frequently in any company, the arbitrator often has to ask whether a reasonable employer would, in the same circumstances, have closed its establishment: see Syndicat des travailleuses et travailleurs du Centre d’approbation de Nordia — CSN. Without suddenly becoming an expert in this regard, the arbitrator must also, therefore, above all else, be satisfied of the truthfulness of the circumstances relied on by the employer and of their significance.

Of particular importance in this decision was Wal-Mart’s failure to adduce evidence to counter the Union’s evidence that the decision to close the Jonquière store “was not consistent with the employer’s past management practices or with those of a reasonable employer in the same circumstances.”

The Jonquière decision is an important case for employers in all provinces of Canada. Indeed the Court specifically notes that there is an equivalent to s.59 of the Code in every province in Canada as well as at the federal level. Most significantly, the Court emphasizes that in the context of labour relations during the statutory freeze period, employers should tread carefully if considering the closure of a business.  Strong objective evidence will be required to show the closure was a decision made in the ordinary course of business. If there is evidence that the employer has departed from past or reasonable management practices, and the employer does not or cannot explain the departure, arbitrators have the remedial authority to make potentially significant orders for “reparation by equivalence” to reinstatement.

The case has been remitted to the arbitrator for a decision on the remedy. We will keep you posted.

 

 

Getting in the Spirit – BC Brings New Liquor Laws Into Force

Posted in Legislative Changes, Workplace Training
Ryley MennieWill Skinner

On June 20, 2014, the B.C. Government announced a host of new liquor laws that will be of interest to B.C. employers.  Regulations that came into force under Bill-15, also known as the Liquor Control and Licensing Amendment Act, 2014, amend the Liquor Control and Licensing Regulation to permit:

 

  • licensed establishments to vary drink prices and provide “happy hour” pricing at different times throughout the day; however, happy hour prices cannot go below prescribed minimums and must be set in advance;
  • businesses that retail or manufacture alcoholic beverages to market their wares in a broader range of venues (for example, retail liquor stores can now apply for permits entitling them to sell alcohol at food and beverage festivals for off-site consumption, and vintners, brewers and distillers can now apply to sell their beverages at farmers markets);
  • liquor primary establishments to allow parents to bring minors into their establishments for family dining before 10 p.m. (requiring designation by the General Manager ["GM"] of the Liquor Control and Licensing Board ["LCLB"] as a “Family Foodservice” establishment); and
  • Family Foodservice establishments (along with others approved by the GM of the LCLB) to hire minors to work in their establishments in positions where they do not sell or serve alcoholic beverages.

You can learn more about the LCLB’s list of recently implemented policy directives here.

While the new laws reflect a loosening of provincial rules regarding the service and selling of alcohol, compliance will still be strictly enforced.  Employers operating Family Foodservice establishments, in particular, will have to pay close attention to scheduling and ensure all employees are aware of the limits on work performed by minors.

The recent amendments are but a few of the intended changes to B.C.’s liquor regime.  Among other things, new and varied training requirements for the serving and selling of alcohol are on the horizon, which employers will want to ensure are quickly and diligently implemented for compliance purposes.

We will keep you apprised of further developments.

 

 

The B.C. Civil Resolution Tribunal and Online dispute resolution: Will it work for your business?

Posted in Litigation
Christopher McHardyJulia Bennett

This fall, British Columbians will have a new option for resolving small claims disputes. The new Civil Resolution Tribunal will use a mix of online platforms, telephone, videoconferencing, mail and in some cases, in-person meetings, to resolve small claims matters under $25,000 and certain strata disputes. The Tribunal provides a multi-stage process designed to reach mutual agreement at negotiation and case management stages, with the power to make final decisions if resolution cannot be achieved. Nominal fees will be charged to enter the process, escalating as the involvement of the Tribunal escalates. The ultimate goal of this Tribunal is to enhance access to justice by providing a forum for cost-effective, speedy, and informal resolution of disputes with the use of minimal resources.

How the Tribunal will operate:

In order to use the Tribunal, the parties to a dispute must both consent to an online negotiation process. The negotiations are monitored by the Tribunal but led by the parties, with the goal of reaching a mutually acceptable settlement. If no agreement is reached within a certain time, the negotiation phase ends. The parties then have the option of agreeing to start a “case management” phase which involves active facilitation by a Tribunal case manager. Consent from all parties (except strata corporations) is required to enter this phase, including an agreement to be bound by a final order of the Tribunal if case management fails. Unlike the current small claims model, final decisions will typically be made based on evidence and arguments submitted online, and only rarely through an in-person hearing.

The claims the Tribunal can deal with: small claims under $25,000 and some strata issues

The Tribunal will hear small claims matters up to a maximum value of $25,000.  A party must abandon the amount of a claim above $25,000 if they want to use the Tribunal’s services to resolve their claim. The Tribunal cannot deal with any constitutional issues or claims against the government, and may decline to decide matters involving the B.C. Human Rights Code.

The Tribunal will also hear strata disputes between the owners or tenants of strata properties and strata corporations for a wide variety of issues, except matters that affect land or more significant matters in a strata complex, such as allegations of conflict of interest.

What does this mean for BC employers?

Given the current method and delays involved in resolving small claims disputes, the Tribunal offers a way for businesses and individuals to resolve minor employment disputes in a quicker and more convenient manner. The Tribunal may be particularly appropriate if the importance and amount of a dispute do not justify the time and costs of a more formal court process, and both parties are comfortable using technology to resolve the dispute.

However, there are certain aspects of the new Tribunal which parties should be aware of before proceeding. First, once a Tribunal proceeding has begun, neither party can start a new court proceeding or other adjudicative process until the dispute is resolved or the Tribunal refuses the claim. Any current court proceedings or other administrative processes involving the claim will have to be put on hold for the duration of the dispute resolution process. Second, claims should be made and defended with the same attention and care as in a traditional court process because the Tribunal’s final order, once filed with the B.C. Supreme or Provincial Court, will be binding as though it were an order of that court. In addition, the Tribunal can order an unsuccessful party to pay the successful party’s costs. Third, although you may still consult a lawyer as part of the process, all parties will be self-represented before the Tribunal.

Despite these concerns, the Tribunal is at the vanguard of the ‘brave new world’ of online dispute resolution, and will assist in ensuring that dispute resolution processes are proportionate to the amounts and issues involved.  We will keep you updated once the Tribunal starts its work.

Employer’s Potential Liability in Class Action for Employee’s Breach of Privacy A Good Reminder For All

Posted in Employee Obligations, Litigation, Privacy
Ryley Mennie

A recent decision of the Ontario Superior Court of Justice highlights the increasing focus on (and potential liability arising from) customers’ and clients’ privacy rights and the importance for employers to properly monitor the activities of their employees. Additionally, while the decision comes from Ontario, which, unlike British Columbia, has endorsed the tort of “intrusion upon seclusion”, it also raises questions about whether British Columbia courts will eventually recognize the tort.

Evans v The Bank of Nova Scotia was a decision regarding the certification of a class action that involved a bank employee who admitted to accessing and stealing personal information from 643 of the bank’s clients for fraudulent purposes. Two of those clients – Michael and Crystal Evans - were named as representative plaintiffs in the class action alleging vicarious liability against the bank for a number of causes of action, including the tort of intrusion upon seclusion, endorsed by the Ontario Court of Appeal in 2012.

The court certified the class action, finding that the bank had created the opportunity for its employee to abuse his power by allowing him unsupervised access to clients’ personal information without installing any monitoring system and that there was a significant connection between the risk created and the employee’s wrongful conduct.

The bank argued that a class action proceeding was inappropriate for 35 of the plaintiffs because they were residents of British Columbia or New Brunswick – two provinces that have declined to endorse the tort of intrusion upon seclusion (see our previous posts with respect to British Columbia here and here). The judge’s comments in Evans highlight the developing nature of this tort and raise the question of whether courts in British Columbia may endorse it as a cause of action in the future:

[26]          The tort of intrusion upon seclusion has only recently been recognized by the Ontario Court of Appeal and is settled in Ontario. However, until the matter is ultimately decided at the Supreme Court of Canada, I find that the law in Canada is not settled on this issue. While the Courts in British Columbia and New Brunswick have not as of yet recognized the tort of intrusion upon seclusion, I was not given caselaw to suggest that they have definitively shut the door on this cause of action…

Although BC courts have not “as of yet” recognized the tort of intrusion upon seclusion, given the court’s acknowledgment of potential vicarious liability in Evans for breach of privacy, the decision is a good reminder to BC employers (where we have a statutory cause of action for breach of privacy) of the importance of maintaining an adequate monitoring system for employees who have contact with personal information.

Aside from the implications of the decision with respect to the tort of intrusion upon seclusion in Ontario, given the potential liability that arises from certifications of class actions and the increasing focus on privacy rights generally, developments in these areas of the law should be of interest to employers in every province, particularly if employees have ready access to personal information.

We will be sure to keep you updated.

Wal-Mart (Still) Pays High Price for Failing to Investigate Employee’s Complaint

Posted in Discrimination
Ryley Mennie

Our colleagues in Ontario recently published a blog post on a decision of the Ontario Court of Appeal involving Wal-Mart that is of interest to employers. The case is a good reminder of the importance of properly implementing and following a comprehensive investigation procedure in response to employee complaints of discrimination and/or harassment.

Saskatchewan: New Hotbed of Labour Law?

Posted in Employment Standards, Labour Relations, Unions, Wage and Hours
Rosalie Cress

With brand new labour and employment legislation, and a major case before the Supreme Court of Canada, Saskatchewan seems to be the current ‘centre of the action’ in Canadian labour law.

Constitutional Right to Strike?

On May 16, 2014, a very significant labour law appeal – Saskatchewan Federation of Labour v. Saskatchewan, from the Saskatchewan Court of Appealwas argued before the Supreme Court of Canada. The Saskatchewan Federation of Labour and other unions argued that two pieces of provincial legislation violated employees’ right to freedom of association protected by the Canadian Charter of Rights and Freedoms. The statutes:

  1. introduced restrictions on the ability of public sector employees who provide essential services to go on strike; and
  2. changed existing labour legislation to make it somewhat more difficult for unions to be certified as bargaining agents, and to expand the scope of permissible communications between employers and employees.

The challenge to the Saskatchewan legislation could have important implications in British Columbia. First, the challenged Saskatchewan legislation has significant parallels to British Columbia’s labour laws. British Columbia employers will find familiar the Saskatchewan legislation’s limits on public sector employees who provide “essential services” to strike, the requirement for a secret ballot vote for a union to be certified, and the scope of permissible employer communications. If these aspects of the Saskatchewan statutes are unconstitutional, we can expect changes to British Columbia labour laws as well.

Second, the appeal raises the larger issue of whether there is a constitutionally protected “right to strike” in Canada. The Saskatchewan Federation of Labour argued that constitutionally protecting the right to strike is a natural extension of the Court’s previous decisions that freedom of association includes a right to collective bargaining.

In our view, constitutionally protecting a right to strike would grant the highest protection available under the law to what is only one model of collective bargaining. Full-fledged strikes are only one way to resolve a bargaining impasse. Workers in British Columbia and other provinces who are governed by essential services regimes are freely able to associate and engage in (mostly) functional collective bargaining relationships with their employers. Constitutionally protecting a right to strike is unnecessary, potentially disruptive to existing collective bargaining regimes in many provinces, and inconsistent with the Supreme Court’s past decisions. You see the arguments before the Court here, and read the submissions of the parties and (many) intervenors here.

No matter how the Court decides the issue, its decision will have significant implications for employers and unions in Canada. We keep you updated when the Supreme Court issues its decision.

New Labour and Employment Standards

It is not every day that a province will completely overhaul their employment and labour legislation, which is why the Saskatchewan’s recent enactment of the Saskatchewan Employment Act (“SEA”) is big news. The SEA is an effort by the Saskatchewan government to modernize employment and labour legislation in the province. It consolidated what were previously 12 pieces of legislation such as the Assignment of Wages Act, Labour Standards Act, Occupational Health and Safety Act 1993, and Wages Recovery Act. Some of the highlights include:

  • Minimum wage tied to Consumer Price Index. The minimum wage will be increased to $10.20 by October 1, 2014 and annual increases will be indexed to the Consumer Price Index.
  • Interns are covered. Interns who perform work which would normally be performed by an employee, or who are being trained, must be paid at least the minimum wage.
  • Flexible hours arrangements. Employers can now implement modified work arrangements (averaging agreements) similar to other provinces without having to first obtain an authorization from the Director of Labour Standards. Even without a modified work arrangement, full-time employees can work a flexible schedule of 10 hours per day for 4 days a week without incurring overtime. Also, like in other provinces, employers and employees can now agree to bank overtime hours for time off in lieu of overtime pay.
  • More time off for retail workers. Retail employees who work more than 20 hours a week in a workplace with more than 10 employees (and do not work under a modified work arrangement) must receive 2 consecutive days off per week. When possible, one of those days should be a Saturday or Sunday.
  • New Leaves. The SEA creates 4 new protected leaves of absence for employees: Organ donation leave; Citizenship Ceremony Attendance leave; Critically Ill Child leave; and Crime-Related Child Death or Disappearance leave. In addition, employees are eligible for protected maternity, parental and adoption leave earlier, after 13 weeks’ service instead of 20.
  • Resignation Notice. Employees are required under the SEA to give their employer at least 2 weeks notice of their intent to resign if they have been employed for 13 or more weeks.
  • Increased Fines. Employers may face higher fines for violating the SEA – up to $50,000 for violating labour standards, and up to $1.5 million for violating occupational health and safety standards.

Employers which operate in Saskatchewan should review their contracts, policies and practices to ensure they comply with the new SEA. We will keep you updated on any further issues which arise out of the recent changes in Saskatchewan.

 

No Anonymity for Grievors

BC Labour Board rules that grievors and witnesses should be identified in labour arbitration decisions

Posted in Labour Relations, Privacy, Unions
Donovan Plomp

The Labour Relations Board has upheld BC Arbitrator Stan Lanyon’s decision in Sunrise Poultry Processors Ltd. v. United Food and Commercial Workers, Local 1518 (discussed previously here) that the names of grievors and witnesses should, as a general rule, be published in labour arbitration awards.

The union argued that British Columbia’s Personal Information Protection Act (PIPA) prohibits the disclosure of the names of grievors and witnesses in labour arbitration awards without their consent. In the union’s view, the increasingly easy public access to arbitration awards because of sophisticated internet search engines and free legal websites like Canlii mean that individuals who participate in grievance arbitrations face more significant privacy invasions than in years past.

However, the Board agreed with Arbitrator Lanyon that, like court proceedings, labour arbitration decisions should be ‘open’ to public scrutiny. Labour arbitrations are not purely private dispute resolution processes and, absent overriding privacy interests, there is a public interest in having access to them. Relevant personally identifying information in the decision should be published.

That said, both Arbitrator Lanyon and the Board acknowledged that some personal information is sufficiently private that it should not be included in published arbitration decisions. Arbitrators will exercise their discretion not to include or to anonymize:

  • information which can easily be misused, such as birthdates, social insurance numbers, and residential addresses;
  • sensitive personal information, such as health and medical information, marital status, sexual orientation, religion and political beliefs, which is not necessary to explain the decision’s reasons; and
  • personal information which could identify individuals who have been subject to abuse, or to otherwise protect minors and innocent third parties.

In short, the status quo remains. But, the decision highlights just one of the ways in which, like the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 (discussed previously here), long-standing practices in labour relations can come into conflict with new or evolving privacy rights.

“Control and Dependency Define the Essence of Employment”, SCC Rules

Focus is on substance, not form

Posted in Age, Discrimination, Human Rights, Independent Contractors, Litigation
Ryley Mennie

The Supreme Court of Canada released a highly-anticipated decision for professional partnerships, employers and employees today in McCormick v Fasken Martineau DuMoulin LLP.   We commented previously on the facts of the case and the history of proceedings to the British Columbia Court of Appeal here.

In short, McCormick, a partner at a large law firm, claimed that the mandatory retirement provision in the partnership agreement was discriminatory and contravened the Human Rights Code.  The case was eventually heard by the British Columbia Court of Appeal, which concluded that McCormick could not be both a partner and an employee of the partnership. The Supreme Court of Canada upheld the result in the Court of Appeal, but disagreed with the lower court’s following conclusion:

There can be no doubt that in Canadian law, a partnership is not a separate entity from its partners, and a partner cannot be an employee of, or employed by, a partnership of which he is a member.

The Court held that the Court of Appeal focused too much on the legal form of a partnership, rather than its substance. Rather, in determining whether an employment relationship exists, “control and dependency define the essence of an employment relationship for purposes of human rights legislation”. In assessing control and dependency, the test is:

[W]ho is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations? The more the work life of individuals is controlled, the greater their dependency and, consequently, their economic, social and psychological vulnerability in the workplace…Ultimately, the key is the degree of control and the extent to which the worker is subject and subordinate to someone else’s decision‑making over working conditions and remuneration.

The Court found that, as an equity partner in the law firm, Mr. McCormick had significant control over his working life, including:

  • an ownership interest in the firm;
  • sharing of the partnership’s profits and losses; and
  • participation in management, which included his ability to vote on and implement workplace policies, including the firm’s mandatory retirement policy.

In addition, the Court found that Mr. McCormick benefitted from other control mechanisms in his relationship as an equity partner, including:

  • the right to vote for and stand for election to the firm’s board;
  • the duty of other partners to render accounts;
  • the right not to be subject to discipline or dismissal;
  • the right, on leaving the firm, to his share of the firm’s capital account; and
  • the protection of only being able to be expelled by a special resolution.

Ultimately, the Court saw Mr. McCormick “as someone, in control of, rather than subject to, decisions about workplace conditions”.

With the large and liberal interpretation that is given to human rights legislation, and the definition of “employment” in particular, parties to human rights complaints often find that application of discrimination in employment provisions in human rights legislation can be something of a moving target. We expect that employers and employees alike will benefit from the Court’s guidance that the essence of the employment relationship is defined by control by, and the resulting dependency on, another entity regarding the terms and conditions of employment.

 

Duty to Accommodate Child Care Obligations? The Federal Court of Appeal Weighs In

The Federal Court of Appeal takes a “broad” approach to family status discrimination – with limitations – in two recent decisions

Posted in Accommodation, Discrimination, Employee Obligations, Family Status, Human Rights
Rosalie Cress

What is an employer’s duty to accommodate an employee’s child care obligations? This topic continues to be a hot one in the workplace, as employers try to balance the need to retain talent and ensure a productive workplace.

Part of the problem is that “family status” is not defined in either the British Columbia Human Rights Code or the Canadian Human Rights Act. As a result, different approaches to what family obligations, if any, are protected by human rights legislation have emerged in various Canadian jurisdictions. As we have discussed in previous posts here and here, the British Columbia Court of Appeal has taken a more narrow approach to protecting family obligations under human rights legislation (the so-called “Campbell River” approach), compared to other tribunals and the Federal Court.

However, the Federal Court of Appeal’s recent decisions in Johnstone and Canadian Human Rights Commission v. Attorney General of Canada, 2014 FCA 110  and Canadian National Railway Company v. Seeley and Canadian Human Rights Commission, 2014 FCA 111  seem to suggest that Canadian jurisdictions may not be so far apart after all.

Both the Johnstone and Seeley cases involved mothers of young children who requested relief from a workplace schedule or assignment which would have left their children without adequate child care. Ms. Johnstone and her husband both worked as full-time employees for CBSA and were required to work rotating shift schedules with no predictable pattern. After having children, Ms. Johnstone requested a fixed work schedule to accommodate her child care obligations. Although the CBSA had accommodated other full-time employees with medical issues with fixed work schedules, it declined to do so for Ms. Johnstone and, instead, offered her part-time work, which would have negatively affected her benefits, pension and promotion opportunities.

Ms. Seeley and her husband were also employed by the same employer, this time Canadian National Railway. Ms. Seeley requested an exemption when she was asked to report to Vancouver to cover a labour shortage, claiming that there would be no child care arrangements available during her absence in the small town where they lived. CN did not approve Ms. Seeley’s request and eventually terminated her employment because of her failure to report to work in Vancouver.

In both decisions, the Court expressed its preference for a broader approach to family status discrimination. But, it emphasized that human rights laws only protect employees’ child care needs, not preferences. The Court developed a four-part test to distinguish between what is a child care need protected by human rights law, and a child care preference, which is not. We set out the Court’s test in more detail below, but first, what does this decision mean for BC employers?

While the Campbell River approach remains the law for provincially regulated employers in BC, we recommend that both federally and provincially regulated employers take a flexible, informed approach to accommodating an employee’s family obligations. On a practical level, in addition to managing legal risks, accommodating an employee’s reasonable child care obligations may help employers recruit and retain talent. While each case will depend on the facts, we recommend the following general approach to managing employees’ work/life conflicts:

  • Don’t jump to a conclusion or rush to a solution. Gather all the relevant information about the employee’s and your organization’s needs, and encourage the employee’s (and union’s) participation in finding a solution that works for both parties.
  • Consider whether you are dealing with a family obligation or a family preference; similarly, assess the extent to which the workplace rule interferes with the family obligation, and if the rule can modified or changed without incurring significant cost or disruption.
  • Consider all the options available and, if possible, offer a reasonable accommodation.
  • Follow up with the employee and others to assess whether the employee’s needs have changed, the anticipated duration of the accommodation, and any modifications necessary to make it work.
  • When in doubt, seek legal advice.

As described above, the Court established a four-part test which a federally regulated employee must meet to make a case of family status discrimination and trigger an employer’s duty to accommodate.  The employee must show:

  1. A parental obligation: The employee is the parent of the child, or otherwise responsible for the child’s care and supervision.
  2. A legal obligation:  The employee’s child care obligation engages his/her legal responsibilities to the child, rather than a personal family choice. This means that interference with a parent’s ability to attend a child’s sports game or parent/teacher meeting would not likely constitute discrimination, but requiring a parent to leave a young child alone without adult supervision would.
  3. Reasonable efforts: The employee must show that he/she has made reasonable efforts to meet child care and workplace obligations through reasonable alternative solutions – including childcare providers, family, and others –and that no solution was readily accessible.  For example, Ms. Johnstone investigated numerous regulated and unregulated child care providers near her home and her work and inquired with family members, but no one could provide child care during Ms. Johnstone’s unpredictable work schedule. It is important to note, however, that an employer will have to fully communicate workplace requirements so that an employee can investigate alternative solutions.  In Seeley, the Court found that CN did not provide enough information about the work assignment in Vancouver for her to assess whether her child care needs could be met, including the assignment’s estimated duration, location, her shifts, and housing arrangements.
  4. Real interference:  The workplace rule in question interferes with the child care obligations in a manner that is more than trivial or insubstantial. While the Court did not elaborate on this fourth and final factor, we can assume, for example, that being five minutes late to pick up a child from daycare once a week would not trigger an employer’s duty to accommodate.

We will continue to keep you posted on any further developments on this developing area of law.

 

 

What Do Your Policies Say About Termination?

… and does it matter?

Posted in Damages, Employment Standards, Termination, US vs.Canadian Employment Law, Wrongful Dismissal
Donovan Plomp

Many employers have policies about termination, and specifically about what an employee is entitled to if terminated without cause.  It is a good idea to try to manage the cost of terminations, but it needs to be done properly to be effective.

Oliver v. Sure Grip Controls is a recent case where a termination policy was reviewed.  The employer tried to limit its liability by reference to the policy set out in the employee handbook.  The employer had gone to the trouble of having the handbook reviewed and signed by the employee, but the handbook included this underlined statement:

I understand that the Sure Grip Controls Inc Management Team Handbook is not a contract of employment and should not be deemed as such.

The court decided that the employer, by its own words in the handbook, had defeated its argument that the handbook limited the employee’s rights on termination.

It is not clear where the statement came from, but we often see such statements in employment policies that originate in the United States.  There, such a statement is used to ensure that employment remains “at will” with the employer retaining the right to terminate an employee at any time without notice or compensation.  That does not work for Canadian employers where the obligation is to provide reasonable notice in the event of termination without just cause.  That obligation can only be modified by an enforceable contract that meets minimum employment standards set by statute.  In other words, a Canadian employer that wants its termination policies to be binding should not have anything like the statement above.

It is possible to have a policy that manages an employer’s liability for termination without just cause, but it is always better to have a clear contractual provision to that effect.  You can find a discussion of these issues in our 2013 Client Conference materials here.