1
Top Ten Employment Law Developments
Denyse Boulet & Jennifer Emmans
2
10 – Tsakiris v. Deloitte & Touche, 2013 ONSC 4207
• Deloitte had business travel and expense
reimbursement policy – exp...
The Decision
• Termination for just cause not upheld
• Not repeat conduct – different issues with claims
• Employer could ...
Why it Matters?
• Another example of the risks associated with
terminating employees for “just cause”
• Employer had to pa...
9 – Bernier v. Nygard International Partnership,
2013 ONCA 780
• Manager terminated, 54 years old, 13 years of service
• T...
The Decision
• 18 months reasonable notice awarded
– 1999 Employment Agreement invalid – violated ESA
– 2007 Amendment nev...
Why it Matters?
• Termination provisions must be valid – cannot
provide less than ESA
• Amendments to employment agreement...
8 – MacKinnon v. Celtech Plastics Ltd.,
2012 HRTO 2372
• Machine operator worked for Celtech:
– 35 years, 67 years of age,...
The Decision
• Discrimination found
• Treatment of Applicant had sufficient connection
to age
• “Proxies” for age can incl...
Why it Matters?
• Age discrimination can occur where
employees treated differentially based
on years of experience; salary...
7 – General Motors of Canada v. Johnson,
2013 ONCA 502
• Employee had refused to attend training by
Johnson - Johnson felt...
The Decision
• Trial judge found Johnson was victim of racist
behaviour, poisoned work environment, and
constructive dismi...
Why it Matters?
• Employers are often held responsible for
employee stress and mental anguish in the
workplace
• An import...
6 – Globe and Mail v. Communications, Energy and
Paperworks Union of Canada (Jan Wong Grievance),
• Wong terminated by Glo...
The Decision
• These statements were found to breach
confidentiality clause
• Pursuant to the terms of the settlement
agre...
Why it Matters?
• Confidentiality clauses in settlement
agreements will be upheld where:
– the agreement is entered into v...
5 – Wilson v. Solis Mexican Foods Inc.
2013 ONSC 5766
• Action brought under the Ontario Superior Court
of Justice for 1) ...
The Decision
• Despite restructuring, judge found decision to
terminate employee based in whole or in part
on disability
•...
Why it Matters?
• This is the first decision in Ontario where a
court has awarded human rights damages in
a wrongful dismi...
4 – Communications, Energy and Paperworks Union,
Local 707 v. SMS Equipment, 2013 CanLII 68986
• Grievor was single mother...
The Decision
• Family status includes childcare responsibilities
• Grievor adversely impacted by work scheduling
rules - p...
Why it Matters?
• We are seeing more and more cases in this area
in the last year or two
• Yet another case confirming tha...
3 – Musoni v. Logitek Technology Ltd.,
2013 ONCA 622
• Plaintiff was dismissed by employer
• Paid 2 weeks notice in compli...
The Decision
• Court found that reasons for termination irrelevant
since notice was provided
• Notice satisfied employment...
Why it Matters?
• Recent decisions in this area have found that
termination provisions must
– A) provide for benefits
– B)...
2 – Communications, Energy and Paperworks Union of
Canada, Local 30 v. Irving Pulp and Paper Limited,
2013 SCC 34
• Irving...
The Decision
• Supreme Court found that employers are not
allowed to conduct random alcohol tests in
workplace unless:
– E...
Why it Matters?
• Supreme Court has placed tight restrictions on
circumstances that will justify alcohol testing
• Test wi...
1 - IBM Canada Ltd. V. Waterman,
2013 SCC 70
• Waterman was dismissed without cause,
provided with 2 months notice:
– 65 y...
The Decision
• Supreme Court found that Waterman was entitled to
both his full salary and benefits for 20 months, as well
...
Why it Matters?
• Binding decision: pension benefits are a form of
deferred compensation – they have already been
earned a...
32
Denyse Boulet
Gowling Lafleur Henderson LLP
Barristers & Solicitors
160 Elgin St. Suite 2600
Ottawa, ON K1P 1C3
Direct ...
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Employment & Labour Law: Top Ten Employment Law Developments

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Employment & Labour Law: Top Ten Employment Law Developments

  1. 1. 1 Top Ten Employment Law Developments Denyse Boulet & Jennifer Emmans
  2. 2. 2 10 – Tsakiris v. Deloitte & Touche, 2013 ONSC 4207 • Deloitte had business travel and expense reimbursement policy – expenses reported within 60 days; fraud cause for immediate dismissal. • Senior manager routinely defaced receipts to obscure date or time of expense; charged personal expenses to client accounts • Given warning and placed on probation • More receipts then submitted by manager – Over a year old contrary to policy; – Attendees of meals not related to charged client file
  3. 3. The Decision • Termination for just cause not upheld • Not repeat conduct – different issues with claims • Employer could have rejected dated receipts • Further, more specific warnings or instructions on use of non-client mandate codes could have been undertaken – Not uncommon to charge business development to client files in anticipation of transferring to new client file; – Such charges not generally charged to clients ultimately anyway • Did not show untrustworthiness or lack of probity sufficient to constitute just cause
  4. 4. Why it Matters? • Another example of the risks associated with terminating employees for “just cause” • Employer had to pay 10 months reasonable notice at common law
  5. 5. 9 – Bernier v. Nygard International Partnership, 2013 ONCA 780 • Manager terminated, 54 years old, 13 years of service • Terminated and provided with minimum Employment Standards Act (“ESA”) notice: – Original 1999 employment agreement provided for 30 days – “Amendment” to agreement in 2007 provided for minimum ESA notice – Employer policy of ESA minimum notice • Plaintiff brought summary judgment claiming 18 months reasonable notice
  6. 6. The Decision • 18 months reasonable notice awarded – 1999 Employment Agreement invalid – violated ESA – 2007 Amendment never signed by manager – “Policy” not binding on manager • Summary judgment allowed – no genuine issues for trial • Since only 6 months had passed, remainder of 18 months notice to be paid into trust – plaintiff to account for any income earned
  7. 7. Why it Matters? • Termination provisions must be valid – cannot provide less than ESA • Amendments to employment agreements must be properly implemented • Minimum ESA requirements are not positively regarded by courts • Put best evidence forward on summary judgment – courts won’t give the benefit of the doubt and send to trial
  8. 8. 8 – MacKinnon v. Celtech Plastics Ltd., 2012 HRTO 2372 • Machine operator worked for Celtech: – 35 years, 67 years of age, $60-$65,000 annually • Laid off for 5.5 months, then called back to work • Subjected to long hours, unreasonably high standards, heavy labour and harassment by supervisor – eventually quit • Alleged that Celtech purposely drove him to quit in order to avoid having to pay him notice or severance
  9. 9. The Decision • Discrimination found • Treatment of Applicant had sufficient connection to age • “Proxies” for age can include: – High number of years of service – Higher salary as related to experience • $27,000 awarded for injury to dignity, feelings and self-respect 9
  10. 10. Why it Matters? • Age discrimination can occur where employees treated differentially based on years of experience; salary • Employers should be aware of proxies for grounds of discrimination 10
  11. 11. 7 – General Motors of Canada v. Johnson, 2013 ONCA 502 • Employee had refused to attend training by Johnson - Johnson felt refusal was racially motivated • GM conducted investigations and found that conduct was not racially motivated • Johnson came to view workplace as poisoned and took medical leave • After 2 years, Johnson cleared to return to work but refused positions available, GM deemed him to have resigned.
  12. 12. The Decision • Trial judge found Johnson was victim of racist behaviour, poisoned work environment, and constructive dismissal • Court of Appeal overturned trial decision on all counts • Johnson may have believed he was victim of racism, perception may have led to stress and mental anguish, but facts did not support claims
  13. 13. Why it Matters? • Employers are often held responsible for employee stress and mental anguish in the workplace • An important appellate level case showing that an employee’s subjective experience will not be enough to find discrimination where there is no objective evidence to support it
  14. 14. 6 – Globe and Mail v. Communications, Energy and Paperworks Union of Canada (Jan Wong Grievance), • Wong terminated by Globe and Mail and brought action • Settlement reached between parties – subject to confidentiality clause • Three years later, Jan Wong published a memoir which stated that: – “I can’t disclose the amount of money I received.” – “I’d just been paid a pile of money to go away…” – “Two weeks later a big fat check landed in my account” – “Even with a vastly swollen bank account…”
  15. 15. The Decision • These statements were found to breach confidentiality clause • Pursuant to the terms of the settlement agreement, Jan Wong had to pay back the amount of the settlement to the Globe and Mail
  16. 16. Why it Matters? • Confidentiality clauses in settlement agreements will be upheld where: – the agreement is entered into voluntarily, – the terms are clear and unambiguous; and – the agreement is not unconscionable
  17. 17. 5 – Wilson v. Solis Mexican Foods Inc. 2013 ONSC 5766 • Action brought under the Ontario Superior Court of Justice for 1) wrongful dismissal, and 2) discrimination under Ontario Human Rights Code • Employee had good performance until back issues required time off work • Employer insisted employee must be capable of full time hours and duties upon return • Not willing to accommodate sitting, walking, standing • Employee stayed on medical leave, and was eventually terminated due to restructuring
  18. 18. The Decision • Despite restructuring, judge found decision to terminate employee based in whole or in part on disability • Back issues were “significant factor” in decision • Restructuring was used as opportunity to terminate • $20,000 awarded under Code • 3 months reasonable notice for wrongful dismissal
  19. 19. Why it Matters? • This is the first decision in Ontario where a court has awarded human rights damages in a wrongful dismissal action
  20. 20. 4 – Communications, Energy and Paperworks Union, Local 707 v. SMS Equipment, 2013 CanLII 68986 • Grievor was single mother of two • Rotating schedule – seven days off, seven days on – blocks rotated between day and night shifts • On weeks working nights, either stayed up during day, or had to hire childcare for 24 hours so she could sleep: – Too expensive – Not comfortable with children in childcare that long • Asked for accommodation based on so that she could work exclusively day shifts – employer refused
  21. 21. The Decision • Family status includes childcare responsibilities • Grievor adversely impacted by work scheduling rules - put in position of having to choose between family responsibilities and work • Discrimination found by Arbitrator based on family status – employer could not show undue hardship in accommodating different schedule • Accommodation ordered
  22. 22. Why it Matters? • We are seeing more and more cases in this area in the last year or two • Yet another case confirming that employers must accommodate real family responsibilities to the point of undue hardship
  23. 23. 3 – Musoni v. Logitek Technology Ltd., 2013 ONCA 622 • Plaintiff was dismissed by employer • Paid 2 weeks notice in compliance with employment agreement and ESA • Employment agreement stated simply that: – 15 days notice provided by either party to terminate – No mention of benefits • Plaintiff conceded that he had read, agreed to and signed agreement – it was valid and in force • Plaintiff challenged only employer’s basis for termination
  24. 24. The Decision • Court found that reasons for termination irrelevant since notice was provided • Notice satisfied employment agreement and ESA • Did not question validity of employment agreement • Upheld by Court of Appeal 24
  25. 25. Why it Matters? • Recent decisions in this area have found that termination provisions must – A) provide for benefits – B) not be capable of interpretation contrary to ESA REGARDLESS of what is actually paid to employee on termination: – Stevens v. Sifton Properties (2012 ONSC 5508) – Wright v. Wunderman (2011 ONSC 4720 • Unclear whether this case will result in changes to recent law
  26. 26. 2 – Communications, Energy and Paperworks Union of Canada, Local 30 v. Irving Pulp and Paper Limited, 2013 SCC 34 • Irving developed random alcohol testing policy for employees in safety-sensitive positions • One employee selected for testing grieved the policy – there was no serious problem of alcohol abuse in the workplace (8 incidents in 15 years)
  27. 27. The Decision • Supreme Court found that employers are not allowed to conduct random alcohol tests in workplace unless: – Employer can demonstrate problem with use or abuse of alcohol or drugs in workplace; – There is reasonable cause to test an employee; – An incident has occurred where alcohol may be a factor and testing is required as part of investigation ; – Part of an agreed rehabilitative program, return to work conditions after disability related to alcohol; – Negotiated testing as part of collective bargaining agreement
  28. 28. Why it Matters? • Supreme Court has placed tight restrictions on circumstances that will justify alcohol testing • Test will apply to both drug and alcohol testing • Unclear how this will apply to non-unionized settings
  29. 29. 1 - IBM Canada Ltd. V. Waterman, 2013 SCC 70 • Waterman was dismissed without cause, provided with 2 months notice: – 65 years old, 42 years of service • Had vested interest in defined benefit pension plan • Sued for wrongful dismissal – awarded 20 months with no deduction of pension payments during notice period • Supreme Court considered whether pension payments should reduce the damages payable during period of reasonable notice
  30. 30. The Decision • Supreme Court found that Waterman was entitled to both his full salary and benefits for 20 months, as well as his pension • Found that pension was like private insurance, and not compensation, and therefore should not be deducted • Waterman had earned pension during years of service, and therefore had rights in the pension akin to property rights • Employers should not be incentivized to terminate pensioned employees over non-pensioned employees
  31. 31. Why it Matters? • Binding decision: pension benefits are a form of deferred compensation – they have already been earned and therefore will not be deducted from pay in lieu of reasonable notice • Employers may want to include clauses in employment agreements which prevent employees from “double dipping”, although it will remain to be seen if they will be upheld in court
  32. 32. 32 Denyse Boulet Gowling Lafleur Henderson LLP Barristers & Solicitors 160 Elgin St. Suite 2600 Ottawa, ON K1P 1C3 Direct Tel: 613.783.8824 Email: denyse.boulet@gowlings.com Jennifer Emmans Gowling Lafleur Henderson LLP Barristers & Solicitors 160 Elgin St. Suite 2600 Ottawa, ON K1P 1C3 Direct Tel: 613.786.0161 Email: jennifer.emmans@gowlings.com Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Moscow ● Beijing ● London

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