The document summarizes key employment law updates from a presentation given in January 2014. It discusses several court cases related to human rights, reasonable notice of termination, just cause for dismissal, and temporary layoffs. Specifically, it highlights an employee who was reinstated and awarded damages 9 years after wrongful termination, an employer's duty to accommodate family status, factors affecting reasonable notice periods, the obligation of employees to mitigate damages, and cases related to dismissing employees for cause for inappropriate or dangerous workplace conduct.

1. Employment Law Update
HRPA York Region
January 14, 2014
Presented by
Stuart E. Rudner

2. Overview
Human Rights
 Employee Reinstated 9 years
after termination
 Employee awarded damages
under
Human Rights Code
 Employer’s duty to
accommodate: Family Status
Reasonable Notice
 no ‘rule of thumb’
 Changing impact of age and
position
 Failure to mitigate can
reduce notice period
 Mitigation & Termination
Clauses
 Deductibility of pension benefits
Just Cause Update
Extraordinary Damages arising out
of dismissal
Duty to Investigate
Temporary Layoffs

3. EXTENSION OF HUMAN RIGHTS
LEGISLATION INTO THE WORKPLACE
HRPA Employment Law Update 2013

4. Employee Reinstated 9 years after
termination (with full back pay)
 Employee developed a generalized anxiety disorder; subsequently diagnosed with
PTSD. Problems were a reaction to the stressful nature of her job. She feared that
if she made a mistake with asbestos removal she could be held personally liable
under the Ontario Health and Safety Act.
 Tribunal found the employer liable for failing to accommodate the applicant and,
in particular, for failing to consider her other options available in the workplace –
even if they arose while she was receiving LTD benefits
 Record-setting human rights case: award worth over $450,000
 Reminders for employers:
– Substantial liability can flow from breaches of the Code where an applicant is
insistent on his/her right to reinstatement
– The awards for injury to dignity, feelings and self-respect continue to creep
higher
Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440

5. Wrongful dismissal: Employee
awarded damages under
Human Rights Code
 Discrimination and accommodation cases can be raised in wrongful
dismissal cases
 First Ontario court decision to award damages under the Human Rights
Code
 Trial judge awarded $20,000 in general damages after finding that the
employee’s ongoing back problems and related requests for
accommodation were a factor in the employer’s decision to terminate
 Only evidence of impact of termination on employee was that she “was
shocked, dismayed and angered” by the employer’s pre-termination letter
and she experienced “loss of dignity and loss of feelings of self-worth” in
relation to the same letter
Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799

6. Employer’s duty to accommodate:
Family Status
 Childcare needs can trigger the duty to accommodate an employee’s
family status
 Can require rearranging shifts / work hours
 Must be legitimate need – doesn’t mean all parents can choose hours
 Onus on employee to show need
 Employers cannot dismiss requests for accommodation out of hand
 Will apply to elder care, similar needs as well
 For any accommodation request
 onus is on employees to provide detailed information
 Employees are not entitled to dictate their preferred form of
accommodation
 The employer can assess all options and determine if any are viable.
Canada v. Johnstone, 2013 FC 113

7. REASONABLE NOTICE
HRPA Employment Law Update 2013

8. There is no ‘rule of thumb’ for reasonable
notice
 Court affirms that employers who use 1 months' notice per
year of service do so 'at their own peril’
 Simple way to avoid the difficulty of determining what
“reasonable notice” is in a particular situation — use a
termination clause in an employment agreement in order to
clearly establish how much notice will be required
 This allows both parties to avoid the unnecessary time and
legal fees involved in assessing the notice period, negotiating,
and potentially litigating the issue
Capital Pontiac Buick Cadillac GMC Ltd. v. Coppola,
2013 SKCA 80

9. Factors affecting reasonable notice
 There is recent jurisprudence suggesting that,
if anything, the “position/character of
employment” is today a factor of declining
relative importance.
Di Tomaso v. Crown Metal Packaging Canada LP,
2011 ONCA 469
9

10. The aging workforce
 End of mandatory retirement: people are working
longer --> There are Wrongful dismissal claims by
workers in their 70s and 80s!
 Ontario Superior Court of Justice: “I do not think
there is a place in this social reality for an automatic
presumption that persons should or would naturally
retire on reaching senior age.”
Filiatrault v. Tri-County Welding Supplies Ltd., 2013
ONSC 3091
10

11. Mitigation: Failure to mitigate can
reduce notice period
 Courts can (and will) penalize employees who don't look for work
 Employers should keep themselves aware of opportunities that former
employees may be qualified for, and document those in order to be in a
position to challenge their mitigation efforts.
Legge v. TEKSmed Services Inc., 2013 ONSC 5543
 In another case, an employee claiming unjust dismissal did not commence
his job search until 12 weeks after termination.
 Court held that the time lapse was unreasonable and reduced the notice
to which he would be otherwise entitled by eight weeks.
Walter Bustos v. Celestica International Inc., 2005 CanLII 24598 (O.N. S.C.)

12. Obligation to mitigate: conduct of a
reasonable person under the same
circumstances
• Quebec Court of Appeal recognized limits to a terminated employee's duty to mitigate damages
• 75 year old Employee, employed for 38 years, was given 2.5 months notice of termination
• Employer offered all of its employees the possibility to go work for another company. Employee refused
offer – due to his age & the distance to travel, and brought a claim.
• Court: refused to reduce the amount of the compensation in lieu of notice of termination owed to the
employee:
– it was not unreasonable for the employee to reject employer’s offer. The considerable travel distance
involved would have added a great burden
– even if employee had actively sought employment during the notice period awarded to him (i.e. 7
and a half months) his efforts would have ended in failure. Thus, no causal link between the
compensation which the employer was required to pay and the employee’s breach of the obligation
to mitigate his damages
Levy c. Standard Desk Inc., 2013 QCCA 1473

13. Mitigation & Termination Clauses
 Employment contract provided that the employee
would be entitled to six months of notice, or pay in lieu
thereof, in the event he was dismissed on a without
cause basis.
 No mention of mitigation
 Within weeks of the dismissal, employee obtained new
employment with comparable compensation.
 Ontario Court of Appeal: If employment contract
contains a termination clause, employee will not be
required to mitigate his or her damages by seeking new
employment unless the clause specifically says so
Bowes v. Goss Power Products Ltd., 2012 ONCA 425

14. How dusty are your employment
contracts?
 Employer sought to enforce termination clause
 Termination clause provided for pay in lieu of notice of termination, but did not
provide for continuation of benefits
 Although the employer did, in fact, continue employee’s benefits during notice
period, by failing to require it, the contract provided for less than the Employment
Standards Act, 2000 and was therefore unenforceable.
 As a result, common law requirement of reasonable notice applied:
 If employment contract fails to comply with the minimum requirements of
employment standards legislation, presumption of reasonable notice has not
been rebutted
 any attempt to contract out of the minimum standards required by the
legislation renders a contract provisions providing for lesser benefits “null and
void.”
 If a clause in an employment contract is rendered “null and void” by operation
of employment standards legislation, then it is null and void for all purposes,
and cannot be used as evidence of the parties’ intention to displace the
common law presumption of reasonable notice
Stevens v. Sifton Properties Ltd., 2012 ONSC 5508

15. Deductibility of pension benefits
 Issue: whether the pension benefits received should be deducted
from entitlement to severance pay
 Benefits received from a defined benefits plan should not be
deducted from wrongful dismissal damages otherwise payable
 It would be unfair for an employer to benefit by dismissing an
employee it knew had fully vested pension entitlements, thereby,
reducing their obligation to provide termination pay
 Employers: be cautious before taking the position that any form of
income received by a dismissed employee can be deducted from
the amount to be paid for severance
 Employees: be mindful of the law regarding mitigation, and
remember that termination pay is not an absolute right
IBM Canada Limited v. Waterman, 2013 SCC 70

16. JUST CAUSE
HRPA Employment Law Update 2013

17. Urinating on colleagues: Just Cause?
 Officer charged with four counts of discreditable conduct, all arising on the same night while
the he and the complainant officer were at a police safety training course:
– he urinated on another officer who was lying in bed
– he pushed that same officer into the wall while walking past him
– he used profane, abusive or insulting language about that same officer
– he confined that same officer to his assigned room and would not let him leave
 Offences happened over a 15 minute period, after the officer and others had been drinking
and the complainant had gone to bed
 Law Enforcement Review Board found that it could not be said that the officer’s character
was so flawed that he was unfit to continue as a police officer, and determined the penalty of
dismissal was disproportionate.
 Alberta Court of Appeal: Just Cause
 The court took into account the special nature of a police officer’s employment and that
police officers are, in many respects, subject to different standards of conduct and a
higher level of workplace discipline than ordinary employees
Edmonton Police Service v. Furlong, 2013 ABCA 121

18. Setting colleagues on fire: Just cause?
 As a prank, an employee set fire to some fabric hanging from the back of co-
worker’s safety vest. Although he extinguished the flame, the vest reignited. The
co-worker was unaware that his vest had been set on fire
 When the safety vest reignited, a customer smothered the flames with his hands.
As a result, the customer suffered burns and blisters to his hands
 The employee immediately apologized to the customer and his co-worker
 The employer failed to see the humour in the prank. He was terminated for cause.
His actions were determined to be a breach of the company’s safety management
system, its written safety manual, and its “zero-tolerance” policy towards
horseplay.
 British Columbia Labour Arbitrator: No just cause
– Part of the employer’s “zero tolerance” safety policy provided that, “horseplay
“is forbidden and may result in disciplinary action”
– Employee’s actions were not malicious - he was “careless”, “stupid”
Dryco Drywall Supplies Ltd v Teamsters Local Union No 213,
2013 CanLII 7695 (BC LA)

19. Assaulting colleagues: Just cause?
 Teacher dismissed after she verbally and physically assaulted a colleague,
after suspecting her colleague of carrying on an affair with her husband
 Had an unblemished record and this was an isolated event
 Immediately sought anger management treatment
 She was charged and later pled guilty to common assault
 Just because an employee engages in misconduct, it does not necessarily
mean they can be fired
 Employers: use a “contextual approach” when considering summary
dismissal
– assess the egregiousness of the offence and all relevant factors, such
as the employee`s length of service, disciplinary record, the nature of
the position and degree of trust required, and any mitigating
circumstances
Gunville-McCallum and Ballantyne, Re

20. Can you package someone out instead
of investigating misconduct?
 Investigations becoming more important
 Recent decision suggests employers may not be entitled to
terminate without cause in order to 'side-step' the duty to
investigate
 Ontario Superior Court of Justice:
“it is a triable issue whether the employer adopted the
procedure intentionally to side step the criteria for fair
treatment of an employee against whom cause is alleged”
 When an employee is alleged to have engaged in misconduct,
employers are expected to investigate before taking
disciplinary action
Brownson v. Honda Canada Mfg., 2013 ONSC 896

21. Temporary lay offs: Do employers have
the right due to a
shortage of work?
 Recent decision appears to give employers facing financial difficulties more
flexibility
 Employee had been temporarily laid off and claimed to have been
constructively dismissed
 However, the court wrote as follows:
"In my view, there is no room remaining at law for a common law claim for a
finding of constructive dismissal in circumstances where a temporary layoff
has been rolled out in accordance with the terms of the ESA.”
 In this case, the layoff did not comply with the terms of the Employment
Standards Act; for that reason, the layoff was found to be a constructive
dismissal
 However, if it had complied, then based upon the wording above, the court
would have concluded differently
Trites v. Renin Corp., 2013 ONSC 2715

22. Stuart E. Rudner
srudner@rudnermacdonald.com
647.255.3100
Downtown & York Region locations
www.rudnermacdonald.com
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