Stuart presented at the Canadian Mining HR Leadership Conference in April 2014.

1. Canadian Mining HR Leadership
Conference
April 24, 2014
Presented by
Stuart E. Rudner

2. What’s been happening?
• Childcare obligations recognized as being within definition of family status
• Reinstatement and 9+ years of lost wages
• Human rights damages awarded in civil court
• Long-standing principles questioned
– Temporary layoffs ok
– Cant dismiss employee accused of misconduct
• Age and character of position less relevant
• Termination clauses questioned
– Benefits
– mitigation
• Deductibility of pension benefits explained
• Just cause cases continue
• Social media – Er right to search
• Courts confirm Ee duty in search for accommodation
• AODA – duty to inquire during hiring process

3. HUMAN RIGHTS

4. 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

5. 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

6. 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

7. Ee duty to participate in
accommodation
• Robinson v Edmonton (City)
• Susan Robinson was employed by the City of Edmonton as a bus driver. She suffered from
environmental urticaria, a severe allergy that caused reactions such as hives and facial swelling
when she was exposed to fumes such as perfume or diesel.
• Robinson was required to take antihistamines, which caused drowsiness and made it unsafe for her
to carry out her duties.
• As a result, she was often absent from work and went on periods of short-term disability (STD)
leave.
• information came to light that Robinson’s medical condition could be accommodated if she were to
drive an LRT train, which may mitigate her exposure to fumes. Her application for LTD was denied
based on those grounds. There was documentation to show that the city acted on the information
from the insurer and began pursuing the necessary arrangements to have Robinson return to work
as the driver of an LRT train.
• Following the telephone call, Robinson resigned.
• The Alberta Human Rights Tribunal found that the city could have provided clearer communication
detailing its accommodation efforts, but that the employee still knew or ought to have known that
the city wanted to pursue the LRT option, and Robinson’s resignation effectively prevented the city
from further fulfilling its duty to accommodate. The Alberta Court of Queen’s Bench upheld the
tribunal’s finding that Robinson elected to abandon the accommodation process and found no
failure of the city to meet its duty to accommodate.

8. WRONGFUL DISMISSAL

9. 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

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. 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
11

12. 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.)

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. 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

16. 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

17. 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

18. JUST CAUSE

19. 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

20. 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)

21. 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

22. Where do Ers go wrong?
• Not treating requests for accommodation
seriously
– Dismissing request as unreasonable
– Not properly considering potential accommodation
• Letting human rights creep into dismissal decision
– dismissing @ wrong time
– Ie while employee on leave
• Letting human rights creep into hiring decision

23. Dismissing Ee on Leave
• Eeson leave, or are planning to take leave, can be dismissed like anybody else.
However, they cannot be dismissed because of the leave or the underlying rea
son for it.
• Parent v. Spielo Manufacturing
Incorporated, the evidence revealed the employer had made the decision to di
smiss the plaintiff as a result of its unhappiness with her performance. Howev
er, before the decision was implemented, she went on leave. The employer de
cided to hold off on dismissing her until she returned to work, which
it did promptly upon her return. She then filed a claim and alleged there were
ulterior motives for the dismissal.
• Ultimately, the court found the employer had demonstrated legitimate reason
s for its decision to dismiss, and that the dismissal was entirely unrelated to
the leave. As a result, it ruled in favor of the employer.
•

24. Balancing Rights
• not difficult to imagine the evolution from that situation to one where an employee refuses to work in a cubicle, or on a team with, for
example, colleagues that are black, Jewish, gay, lesbian, or any other group. As a society, we would never tolerate such a request in a vacuum. What
makes it acceptable when it is made in the name of religious freedom?
• Essentially, this comes down to a question of competing rights, as both religion and gender are protected grounds under human
rights legislation. However, before one even gets to the point of balancing rights, one must assess whether the request for accommodation is legitim
ate. In this case, as reported in the press, the student made the request in the name of religious freedom, but did not mention a specific religion.
• If such a situation were to be brought before the human
ights tribunal, or a court, the first issue to address would be the legitimacy of the request and, in that regard, courts have adopted a "sincerity of beli
ef" test. In other words, individuals making the request do not have
to objectively prove it is required by their religion. Rather, they must prove they sincerely believe that it is. This makes sense, given that religious lead
ers within the same religion will often disagree as to what their laws require. While the test is subjective, there must be some objective element to it,
in the sense that it should be difficult if not impossible for anindividual to satisfy the test if the request is completely outlandish and unsupported by
existing religious interpretations.
• Employees should remember that when they need accommodation, no matter what type, they have an obligation to make the request and also to pr
ovide sufficient information to allow their employer to assess what must be accommodated, and the potential accommodations that exists. As courts
have made clear, accommodation is a two-
way street and employees cannot simply submit a bald request and then refuse to provide further information. When I work with employees, I assist
them in preparing a package of appropriate information that will, in turn, assist the employer in assessing accommodation options.
• Treat accommodation requests seriously
• For employers, it is incumbent upon you to treat any request for accommodation seriously. In the childcare obligations case referenced above, the ev
idence revealed that the employer had not taken the request for accommodation seriously, in the way that it would if the request related to a disabili
ty.
• When I advise employers, I caution them that just because a request may seem to be outlandish, they should not dismiss it out
of hand as doing so can expose them to significant liability if it is found that the request for accommodation was legitimate and they refused to consi
der it. When we determine a request for accommodation is legitimate, we can then go on to assess the available information and the accommodatio
n options. I work with employers to document their efforts in this regard, as human
rights tribunals and courts will be quite critical of employers that respond by stating, simply, that "We can't do that."
• Even if that is
the ultimate conclusion, it will be incumbent upon the employer to document its efforts to consider any potential accommodation and assess its viabi
lity.
•

25. Balancing discipline & accommodation
• Mr lube case
• Rob Ford

26. AODA Employer Requirements
• Develop accessibility policies and a plan to outline how they
will comply with the regulation
• Incorporate accessibility when they procure goods, services
and facilities
• Incorporate accessibility features (public sector) or consider
accessibility (private sector) when designing or buying self-
service kiosks
• Train staff and volunteers so that everyone who provides
goods or services on their behalf understands the:
– Integrated Accessibility Standards Regulation and its
requirements, and
– Ontario Human Rights Code (as it relates to people with
disabilities)

27. (a) Make hiring accessible
• Include information about accommodations for
applicants with disabilities in the job posting
• Call applicants directly or speak to them in
person
• Keep interview formats flexible so that
applicants of all abilities can participate
• Include the company’s policy on accommodating
employees with disabilities in the offer letter to
successful applicants so they know the
organization’s policies

28. Stuart E. Rudner
srudner@rudnermacdonald.com
www.rudnermacdonald.com
Twitter: @CanadianHRLaw
LinkedIn: Connect with me, join the
Canadian HR Law Group and visit the Rudner MacDonald Page
Blog: Canadian HR Law
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