Important Decisions from 2013 Employment Law Cases
I have selected some important employment law cases and their decisions that were released in the past year for your reading pleasure. Enjoy!
1. Court decisions
Human rights damages ordered in a wrongful dismissal action
Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
This was the first Ontario court decision to award an employee damages for a violation of the Human Rights Code in a wrongful dismissal action. The 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. The only evidence of the impact of this termination on the 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.
I suspect most adjudicators under the Code would have awarded the employee a lower general damage amount. In any event, lawyers will be watching to see whether trial judges or adjudicators under the Code are awarding higher general damage awards.
When does a workplace become poisoned to a point that it constitutes constructive dismissal?
General Motors of Canada Limited v. Johnson, 2013 ONCA 502 (CanLII)
In this case, Ontario’s Court of Appeal concluded: “Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated. The plaintiff bears the onus of establishing a claim of a poisoned workplace….except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.”
This decision may make employees think twice about quitting and claiming a poisoned work environment. If an employee is wrong then she receives no termination pay.
2. Human Rights Decision
Human rights adjudicator orders nine (9) years back pay
Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440
In this case, the Human Rights Tribunal of Ontario reinstated a unionized employee to her position nearly 9 years after her termination (with full back pay) after concluding the employer school board failed to accommodate the employee’s disability. In coming to this decision, the Adjudicator concluded: “…I find that the applicant has searched assiduously for alternative work, although she has only been able to find casual and part-time employment. The loss of full-time employment has affected and will continue to affect her financially going forward until retirement.”
The fact that the employee was unionized was relevant. In particular, “..The Supreme Court of Canada has confirmed, in the arbitral context, that, “[a]s a general rule, where a grievor’s collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered. Departure from this position should only occur where the arbitration board’s findings reflect concerns that the employment relationship is no longer viable.”
I suspect lawyers representing employees will argue that this kind of remedy should be available to non-union employees. We shall see if adjudicators have an appetite for this argument. If so, I predict that settlements at mediations where the applicant is still unemployed will increase significantly.
3. Arbitration decision
Employee ordered to pay back termination pay because she breached confidentiality provision of settlement agreement
Globe and Mail v. Communications, Energy and Paperworkers Union of Canada, Local 87-M, Southern Ontario Media Guild (Jan Wong Grievance)
In this case, the arbitrator ordered a former employee to repay the full amount of a settlement after finding that she breached the confidentiality obligation contained in the settlement agreement which stated in part” …the parties agree not to disclose the terms of this settlement…” Should this provision be breached then she “…will have an obligation to pay back to the Employer all payments paid to (Her)”
In the past, these clauses were difficult to enforce; now employees breach these kind of provisions at their peril. There is no reason why the courts can’t follow this approach if an employee breaches a similar term in a settlement agreement in connection with a wrongful dismissal action.
4. Arbitration decisions deciding human rights issues
Accommodating an employee on the basis of family status
Communications, Energy, and Paperworkers Union, Local 707 v SMS Equipment Inc 2013 CanLII 68986 (ON LA)
This decision addressed the legal obligation of an employer to accommodate a grievor’s request to be permitted to work straight day shifts, rather than rotating day and night shifts, on the basis that rotating day and night shifts discriminate against her due to her status as a single mother.
Employers will not be happy with this decision. Decision makers have adopted three different approaches to this issue and it is currently extremely difficult for employers to know far they need to go to accommodate employees on the basis of family status.
Random drug testing policy for safety sensitive position struck down
Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34
The Supreme Court concluded: “ In a workplace that is dangerous, employers are generally entitled to test individual employees who occupy safety sensitive positions without having to show that alternative measures have been exhausted if there is “reasonable cause” to believe that the employee is impaired while on duty, where the employee has been directly involved in a workplace accident or significant incident, or where the employee is returning to work after treatment for substance abuse.” Otherwise, random drug testing for employees in safety sensitive positions is generally not permitted.
In this case: “There were eight documented alcohol-related incidents at the mill from April 29, 1991, to January 11, 2006.”…” the expected safety gains to the employer in this case were found by the (original decision maker) to range “from uncertain . . . to minimal at best”, while the impact on employee privacy was found to be much more severe.” The court found random drug testing policy to be unenforceable.
This decision reinforces the conventional wisdom that it is extremely difficult for an employer to justify random drug testing.
If you have any employment law questions, please contact Doug MacLeod at 416 317-9894 or [email protected]
In February 2017, after a 40 day trial, an Ontario trial judge ordered the RCMP to pay Peter Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in legal costs. In doing so, the trial judge recognized the tort of harassment. For my blog on...read more
Wrongful Dismissal Update: How to Reduce Termination Pay for Employees Who Earn Variable Compensation
Some employees receive a large percentage of their total compensation in variable compensation. A much litigated issue is whether the employer is required to pay variable compensation to a terminated employee during the applicable notice period and if so how is this...read more
An arbitrator who upholds a grievance can reinstate the employee, or order the employer to pay the employee damages. In a 2018 arbitration case, Arbitrator Surdykowksi decided how to calculate damages for an employee who was not reinstated. Facts Dr. Bernard was a...read more