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British Columbia Employer Advisor

Keeping Employers Posted on Developments in Labour and Employment Law

Meeting the Duty to Accommodate – A Success Story

University of British Columbia reasonably accommodated researcher with severe mouse allergy

Posted in Accommodation, Discrimination, Human Rights
Kirsten Hume

The duty to accommodate is a difficult process because it is uncertain. Whether an employer has met its duty to accommodate under human rights law requires an individualized assessment on a case-by-case basis. In addition, the standard of “undue hardship” is a high and moving target, and will depend on the employer’s size, nature of operations, resources and other relevant factors. A recent decision, however, may have moved the target closer to “reasonableness” than “the point of undue hardship”.

In Wilcox v. University of British Columbia, the British Columbia Human Rights Tribunal dismissed a human rights complaint from a former research assistant who had developed a severe mouse allergy and was unable to perform the duties of her position. Dr. Wilcox was employed as a research assistant at the University’s Rederivation Facility and Animal Care Services. A core part of her duties (about 50%-70%) was to perform daily work with live mice, including maintaining colonies, administering hormone treatments, and testing blood samples. Unfortunately, Dr. Wilcox developed a severe allergy to mice and could no longer work with or around mice. The University was initially able to accommodate her in a temporary assignment which did involve any work with mice; but when that work, and subsequently her paid sick leave, ran out, she was placed on an unpaid leave of absence.

While Dr. Wilcox was on leave, the University searched for alternate vacant positions for which she was qualified and which did not involve working with or close to mice, including positions which would have been considered a promotion. The University only identified two positions during Dr. Wilcox’s leave that met these criteria, and provided these job postings to her. However, Dr. Wilcox did not apply for either one because she felt she was not qualified.

The University eventually decided to close the Rederivation Facility for financial reasons. It provided affected employees with notice of termination and, since Dr. Wilcox was on a leave of absence, she was provided with pay in lieu of notice of termination.

Dr. Wilcox alleged that she had been discriminated against on the basis of a disability when she was placed on an unpaid leave of absence and also alleged that the University did not meet its duty to accommodate because it conducted an unduly restrictive search for alternate positions. Dr. Wilcox also took the position that it was discriminatory for the University to provide her with pay in lieu of notice rather than working notice, as other employees were provided.

The Tribunal disagreed with Dr. WIlcox and dismissed the complaint. It found that Dr. Wilcox had no reasonable prospect of success in showing that she had suffered discrimination by being placed on an unpaid leave of absence after the end of her temporary accommodation. Since she was unable to work (and not otherwise eligible for any other paid leave of absence), continuing her employment on an unpaid leave of absence was not adverse treatment. The Tribunal also found that the University conducted a reasonable search for accommodations and was not obliged to displace another employee to create a vacancy for Dr. Wilcox or to create a tailor-made job for her. Simply put, an employer does not breach the Human Rights Code because it seeks to accommodate an employee with an available job. Further, the Tribunal found there was no reasonable prospect of Dr. Wilcox showing that the termination of her employment was related to her disability. The Rederivation Facility closed for financial reasons and all employees were affected. There was no adverse treatment in providing Dr. Wilcox with pay in lieu of notice instead of working notice, since she was unable to work at the facility at the time of the closure.

The most valuable part of the Tribunal’s decision, for employers, is the emphasis on “reasonableness” over “undue hardship”. In paragraph 83, the Tribunal went to some length to explain that the duty to accommodate does not extend, technically, “to the point of undue hardship”. Rather, the Supreme Court of Canada in Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536 (“O’Malley”) actually expressed the duty as a requirement for reasonableness “short of undue hardship”. In other words, the employer is obliged to accommodate within a range of reasonableness, which may well involve a measure of hardship, but not “undue” hardship. As stated by the Tribunal, “[t]o state the duty to accommodate extends ‘to the point of undue hardship’ implies a precision of measurement incongruous with the reasonableness standard expressed in O’Malley.”

This decision should give some hope to employers who make good faith and comprehensive attempts to accommodate employees with disabilities. While each case must be assessed individually and taking into account all relevant factors, an employer may meet its duty to accommodate if, after a comprehensive search, there are simply no available positions for which an employee is qualified and which fit with his or her medical limitations.

Temporary Foreign Workers: New Fees and Regulatory Changes

Posted in Human Capital, Immigration, Legislative Changes, Temporary Foreign Worker Program
Christopher McHardy

We previously posted on the public outcry over and the federal government’s commitment to revising the Temporary Foreign Worker Program (“TFWP”) here and here .

New fees and regulatory changes for the TFWP are set to take effect on February 21, 2015. Our colleagues in Montréal have published a helpful article to help employers understand how these new fees and regulatory changes may impact their engagement with the TFWP. The full text of the article can be read here.

In light of the scrutiny the TFWP has been experiencing of late, this may not be the last set of changes we see in the near future and we’ll be sure to report on further developments as they arise.

SCC Orders Parliament to Reconsider RCMP Labour Relations

Posted in Labour Relations, Legislative Changes
Ryley Mennie

Until last Friday, the Royal Canadian Mounted Police was Canada’s only police force that was legislatively prohibited from unionizing. On January 16, 2015, the Supreme Court of Canada ruled in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, that the exclusion of RCMP members from the definition of “employee” under the Public Service Labour Relations Act (Canada) [PSLRA] and the Staff Relations Representative Program (“SRRP”) infringed on RCMP members’ freedom of association under s.2(d) of the Charter of Rights and Freedoms.  This decision overrules the Court’s previous decision in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989.

The Court held that, although the SRRP purported to provide a scheme of labour relations that met the requirements of s.2(d), the SRRP is an organization that RCMP members did not choose, do not control and requires them to work within a structure that is part of the RCMP management organization.  As such, it does not provide the meaningful and independent choice of process for collective bargaining that is necessary to meet the purposes of s.2(d). The Court further held that the exclusion of RCMP members from the collective bargaining scheme under the PSLRA could not be justified under s 1 of the Charter.

Despite the Court’s finding of unconstitutionality regarding the PSLRA and the SRRP, the Court did not go so far as to say that the RCMP must be permitted to unionize under the PSLRA.  In keeping with its ruling that s.2(d) guarantees a process and not a specific outcome, the Court allowed that “Parliament remains free to enact any labour relations model it considers appropriate to address the specific context in which members of the RCMP discharge their duties, within the constitutional limits imposed by the guarantee enshrined in s. 2 (d) and s. 1 of the Charter.”

The Court granted Parliament 12 months to address its decision. We will report on Parliament’s measures when they are announced.

 

McCarthy Tétrault Labour and Employment Group Welcomes Kirsten Hume

Posted in Awards and Recognitions, Welcome
Christopher McHardy

We are very happy to announce that Kirsten Hume has joined McCarthy Tétrault’s Vancouver office as counsel in its Labour and Employment group.

Kirsten has a wealth of experience practicing Labour and Employment law and has advised and represented employers on a wide range of employment-related matters, including:

 

  • disability, accommodation and related human rights issues, and defending employers from human rights complaints;
  • dismissal of employees, with and without just cause, and representing employers in actions for wrongful and constructive dismissal;
  • drafting and preparation of employment agreements, policies and other workplace documents;
  • complex jurisdictional issues related to long-term disability and other benefits provided in accordance with collective agreements;
  • medical arbitration, litigation and labour relations board applications related to disability benefit entitlement under trusts and collective agreements;
  • workers’ compensation issues such as fraudulent claims, changes in industry classification and bullying and harassment;
  • injunctions and contempt rulings restraining illegal conduct in labour disputes; and
  • workplace investigations into allegations of harassment and defamation.

Kirsten is a regular speaker at industry and continuing legal education conferences, and is co-author of “An Employer’s Guide to Dismissal” (Canada Law Book, 2007) and the periodical “IMPACT Labour Law & Management Practices” (Canada Law Book, 2010-2014).

Kirsten received a BA from the University of Queensland, Australia in 1994 and her LLB from the University of British Columbia in 1998, and was called to the British Columbia bar in 1999.

Please join us in welcoming Kirsten to McCarthy Tétrault’s Vancouver L&E group and stay tuned for her contributions to our various publications and other initiatives.

Set for Success: Defining Performance in 2015

Posted in Performance Management
Donovan Plomp

Our colleague in Ontario, Melissa Kennedy, recently posted a helpful article about establishing, evaluating and managing employees’ work performance. As 2014 draws to a close, revisiting, and potentially, re-evaluating the performance management program in your workplace is a good idea and Melissa’s article is a great place to start. We reproduce her post below:

As we set to embark upon the year’s end, now is an appropriate time to begin goal setting and implementing employee performance objectives for the new year. Establishing clear expectations which are tied to the overall mission and vision of the organization, and which are aligned with and cascaded from senior leadership, will ensure that employees understand their role and value within the organization, and will work to continually motivate them throughout the year.

A performance management program should be proactive and specific. Goals and objectives should be aligned with the individual’s duties; ensuring that they are challenging, but reasonable, and not so overly aggressive that they be unattainable and seemingly discourage and demotivate the employee. Performance management programs provide an appropriate foundation to the organization’s succession planning efforts and oversight of the talent pipeline. Performance objectives can also be tied to the annual merit or variable compensation structure, to further encourage and drive results.

It is important that manager’s continually check in to ensure that employees are on track with meeting the established performance objectives; a good practice is to meet periodically throughout the year and for a formal mid-year review, to determine whether performance is on target to achieve goals and objectives. This proactive approach will ensure that any inefficiencies or shortcomings are met with support, guidance and clear direction; modifying or revising targets, where necessary.

If employee performance is continually of concern and below expectations, it is important to promptly address this with the individual and document accordingly. Where appropriate, the development of a performance improvement plan (PIP) can seek to correct employee behaviour and get them back on track; formal disciplinary action may be necessary in particular circumstances where the employee is not actively participating in improving their performance. Should it be necessary to end the employment relationship, the organization will be in a good position, having demonstrated their due diligence in managing the employee’s performance.

‘Unlike’ – Social Media Gaffes Not Cause To Dismiss Communications Manager

Posted in Termination
Christopher McHardy

Lack of Warnings about inappropriate online posts was fatal to employer’s case

As more people use social media to communicate in and out of the office, social media posts by employees are increasingly a concern for employers. In a recent case, the International Triathlon Union (“ITU”) dismissed its Senior Manager of Communications, Paula Kim, because of negative posts she made on her personal blog and social media accounts.  In Kim v. International Triathlon Union, the British Columbia Supreme Court found there was no just cause for her dismissal because she had not been clearly warned that her communications put her employment in jeopardy.

Ms. Kim was considered the “voice of ITU”. She was responsible for liasing with the media and writing materials for ITU’s website, press releases, newsletter and Facebook account.  Ms. Kim also kept a personal blog where she posted about her life, and had two Twitter accounts, one personal and one with the handle “Paula Kim ITU” where she posted about triathlon matters. ITU did not have any social media, communication or internet policies or a written contract with Ms. Kim, but Ms. Kim later stopped using the “Paula Kim ITU” account when requested by ITU.

Ms. Kim’s employment was terminated after she made a series of tweets on her personal Twitter account and wrote a blog post about her manager. Ms. Kim posted several tweets after an ITU-related event, including:

  • “I wonder if other IF congresses have as much propaganda as ours…” and
  • “surprisingly fun congress after-party last night. probly [sic] only time I’ll see so many Eboard members hungover & lamenting those tequila shots”.

She also wrote a series of tweets during a triathlon event in which she publicly supported some athletes over others, such as:

  • “will prob get in trouble for this but i dont care; team tactics failed. the 6 medallists were on podium.” [sic] and
  • “all that talk about brownlees intentionally trying for gold all seems a bit arrogant now…because Gomez was solid in silver position”.

The latter tweets resulted in a formal complaint to the ITU by the Chief Executive of the British Triathlon. Other members of the international triathlon community also wrote complaints about Ms. Kim’s unprofessional behaviour and communications. The last straw was a post Ms. Kim made on her personal blog, in which she compared a workplace disagreement with her manager about her annual vacation to abuse she had suffered as a child.

The ITU did not speak with Ms. Kim about the tweets, complaints or blog post. But, shortly after these events, Ms. Kim’s employment was terminated.  She was told at the time that she was being dismissed because her communication style was not in line with ITU. However, the ITU later alleged that it had just cause to dismiss Ms. Kim because of her unprofessional and insubordinate social media and blog posts.

The court disagreed. The court found that, even though Ms. Kim was an experienced communications professional, ITU could not establish just cause because it had not given Ms. Kim any clear warnings that her communications were putting her employment in jeopardy. To the contrary, the court noted that Ms. Kim had received mixed messages from the ITU, including an increase in her salary and continuing in her position, even after the controversial posts. The Court said (at para. 221):

…even had I found that the social media posts amounted to an accumulation of misconduct and that the October 5th blog was the tipping point supporting the plaintiff’s termination for cause, I find that ITU cannot rely upon cumulative cause as a ground for the plaintiff’s termination because ITU did not give the plaintiff an “express and clear” warning about her performance relating to the social media posts, and a reasonable opportunity to improve her performance after warning her.

In the absence of just cause for her dismissal, the court awarded Ms. Kim five months’ pay in lieu of notice as damages.

In our view, the lessons for employers from this case are clear:

  1. Communicate your expectations. Employers should ensure that all employees – even those who ‘should know better’ – understand what is expected of them. This can be done effectively through written policies, such as a social media or similar policy or employee handbook, provisions in the employee’s contract, or through other types of communication and training.  If employers do not clearly communicate their expectations for employees’ conduct, especially when such conduct occurs outside of work (such as on personal social media or blogs), it will be more difficult to establish just cause when employees do not meet those expectations.
  2. Do not ignore a performance problem.  If an employer has concerns or receives complaints about an employee’s performance, the employer should address them directly and promptly with the employee, investigate as necessary to find the facts, and, if appropriate, issue clear warnings when an employee’s performance is unacceptable and may lead to his/her termination. You can read more about dismissing an employee for poor performance in our previous post here.

Bill To Amend Definition Of ‘Sex’ Under BC Human Rights Code Passes First Reading

Posted in Discrimination, Human Rights, Legislative Changes
Ryley Mennie

Private member’s Bill M 211-2014, titled Gender Identity and Expression Human Rights Recognition Act, passed first reading in the BC Legislature on November 20, 2014. If eventually given royal assent, the bill will amend the definition of ‘sex’ under the Human Rights Code to include “gender identity” and “gender expression”.

The full text of the bill can be read here. We will be sure to keep you updated as this bill makes its way through the Legislature and of its impact on human rights law in the province.

Court of Appeal Affirms Employee Has No Duty to Mitigate Contractual Severance

Dismissed employee was entitled to full contractual severance notwithstanding her failure to mitigate

Posted in Murphy's Laws of HR, Termination
Donovan Plomp

Many employers attempt to define an employee’s right to compensation upon dismissal by having clear, enforceable termination provisions in their employment contracts. But what happens if the dismissed employee is offered re-employment shortly after termination and fails to accept it? Is she still entitled to the full contractual severance amount?

The Court of Appeal, in its recent decision Maxwell v. British Columbia, confirmed the answer is yes: a dismissed employee was found to be entitled to the full amount of contractual severance and did not have to mitigate her damages by accepting an offer of new employment.

In this case, Ms. Maxwell was employed by the British Columbia College of Teachers as their director of certification. She was employed under an employment contract which stated that she was entitled to an “all-inclusive payment in lieu of notice” equivalent to a month of salary and benefits per year of service (plus additional amounts if she was employed longer than nine years or was over 50 years old) if her employment was terminated without cause.

Effective January 9, 2012, the College was dissolved by the province and replaced by the Teacher Regulation Branch (the “Branch”). On December 1, 2011, Ms. Maxwell was offered employment with the new Branch, but she did not accept it. Instead, she contended that she was entitled to the full severance amount and related benefits under her employment contract.

The College and Province declined to pay Ms. Maxwell’s severance, arguing, among other things, that she had failed to mitigate any damages caused by the termination of her employment when she declined the Branch’s offer of new employment.

The trial judge and the Court of Appeal both disagreed. The Court found that, when a contract provides for a specific severance payment upon termination, a dismissed employee is entitled to that amount and is not required to mitigate his or her damages by seeking or accepting new employment. The Court of Appeal put it this way (at para. 27):

Where a contract provides for the effect of termination, generally the provisions of the contract prevail. Recourse to the common law is not required.  In some circumstances, the contract may require mitigation, but where it does not the innocent party is entitled to what was agreed. The guilty party is not entitled to graft onto the bargain struck by the parties additional terms that dilute or modify the entitlement of the innocent party.

The case is a good reminder about the importance of carefully drafted termination provisions. If they want to preserve the employee’s duty to mitigate, employers should ensure that any contractual termination provisions which require a severance payment (and which exceeds minimum statutory standards) include an express obligation on the employee to seek and obtain reasonable new employment as a condition of the payment.

Supreme Court of Canada Gives Quick Win To BCTF On Parental Benefits

Posted in Benefits, Compensation, Pensions, Human Rights, Labour Relations, Litigation, Unions
Christopher McHardy

The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.

The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that it only provided supplemental employment benefits (“SEB”) to a birth mother for pregnancy leave or parental leave. That is, birth mothers could qualify for the SEB during either pregnancy leave or parental leave; birth fathers and adoptive parents could of course only receive the SEB during parental leave. In any case, birth mothers, birth fathers and adoptive parents were eligible for a total SEB of 17 weeks.

The arbitrator held this constituted discriminatory and unequal treatment because birth mothers could not qualify for parental leave SEB if they received the pregnancy leave SEB, even though these leaves are for different purposes. The arbitrator did not opine on the appropriate remedy for the discrimination, because the parties were engaged in collective bargaining and could determine themselves how best to remedy the offending provision of the collective agreement in light of the arbitrator’s decision.

The B.C. Court of Appeal decision held that the arbitrator had erred in finding discriminatory or unequal treatment. In fact, birth fathers had been brought into the SEB scheme in earlier versions of the collective agreement in order to provide equal treatment for all parents. The court concluded that the distinction between the purpose of pregnancy/maternity leave and parental leave was not material and that, since the collective agreement provided the same SEB benefit to birth mothers, birth fathers and adoptive parents, there was no unequal treatment.

The Supreme Court of Canada made quick work of the BCTF’s appeal, ruling from the bench that the B.C. Court of Appeal’s decision could not be sustained and reinstating the decision of the arbitrator. In its following written decision, the Court held simply:

The Court of Appeal erred in failing to give deference to the Arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits. The Arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy. The appeal is allowed with costs and the Arbitrator’s award is restored.

What does this mean for employers? First off, it bears repeating that the arbitrator did not make any remedial order, expecting that the parties would resolve it following the grievance decision. Accordingly, the state of the law remains simply that employers cannot discriminate in the provision of benefits on the grounds protected under the Human Rights Code. Employers should review their leave and benefit policies and any applicable agreements to ensure that birth mothers are afforded access to benefits that are available to mothers and parents.

Of concern to employers is the fact that the BCTF mutually bargained this benefit and its terms with the Employer.  Having struck this deal with the Employer, it seems the BCTF should be equally liable for any discrimination against birth mothers.  For this reason, beware of concession bargaining where a union appears to be offering a concession that it could turn around and challenge as soon as the collective agreement is settled.

Holiday Parties – Keep the Season Jolly

Posted in Discrimination, Human Rights, Occupational Health and Safety, Workplace Training
Ryley Mennie

Our colleague in Toronto, Melissa Kennedy, recently posted about the joys and legal perils of workplace holiday parties. Her post is an excellent reminder of best practices every employer should undertake to make sure that a holiday party does not lead to less jolly legal consequences. We reproduce Melissa’s post below.

 

With the holiday season fast approaching, many organizations are in the midst of planning their annual holiday parties, meant to recognize the culmination of a year of hard work by employees and celebrate the holiday season. Although this time of year is marked with celebration and provides for a valuable team building opportunity, it can also bring with it particular obligations and potential liabilities for an employer. When planning and hosting a holiday party, there are a number of factors that an organization must consider in order to reduce liabilities and take every precaution reasonable to ensure the health, safety and protection of its employees. These include:

1. Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes; accordingly, it is important to limit the in-take of alcohol by guests. This can be achieved by setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); and/or providing a controlled number of drink tickets per guest.

2. Transportation

Ensuring that there are transportation options available to employees, following the conclusion of a holiday party is very important, especially where alcohol has been served. A good practice is to pre-arrange transportation with a local taxi company, either by ensuring that there are taxis on standby and/or providing taxi chits to employees following the conclusion of the event. In some cities there are designated driver services available whereby a licensed operator will drive an individual and their vehicle home when they are unable to drive themselves.

3. Discrimination

Given the abundance of faiths, religious denominations and practices that an organization’s employees may affiliate themselves with, it is important to ensure that holiday parties remain non-denominational in nature. This will ensure that no employee is made to feel excluded and will eliminate the likelihood of a Human Rights violation and subsequent claim.

4. Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour by individuals. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party. This will ensure that employees are mindful of their actions towards others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged.

5. Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities. Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback. Moreover, assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities.