Employment and labour seminar presentations (October 21, 2014)

Dentons Canada LLP

Take your kids (problems) to work day:Accommodating family status in the workplace

21 October 2014

Jeffrey P. Mitchell

Partner

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Family status – What’s the status?

• Human rights legislation in most provinces protects employees against discrimination on the basis of “family status”

• Great deal of recent litigation, with variety of approaches:• Initial (2004 BCCA Campbell River decision): discrimination only found when “a change in a term or

condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee” – high threshold

• Emerging: Lower threshold, which finds “prima facie” discrimination based on a legal parental obligation; focuses more on undue hardship

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Johnstone v. Canada Border Services Agency 2014 FCA 110 (CanLII) and Seeley v. Canadian National Railway 2014 FCA 111 (CanLII)

• Two cases dealing with requests to accommodate family status of two workers

• Johnstone: Collective Agreement had unpredictable, rotating shift schedule

• Seeley: Collective Agreement provided that employees had to be willing to work at a different terminal on 30 days’ notice

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Johnstone and Seeley: Federal Court of Appeal

• Johnstone:• Had two young children, and a spouse that worked at CBSA

• Had trouble with full-time rotating shift schedule because of childcare issues, and asked for accommodation, being a fixed schedule

• CBSA’s accommodation – she move to part-time with fixed schedule

• Seeley:• Also had two young children, and a spouse that worked at CN

• Was told to move from Alberta to Vancouver

• She asked to remain on layoff until position in Alberta opened up, because couldn’t find childcare in her town and didn’t want to disrupt children by a move

• Employment terminated due to refusal to report

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• Federal Court of Appeal rejected Campbell River approach, and held that in order to make out a prima facie case of family status discrimination, the individual advancing the claim must show:

(i) that a child is under his or her care and supervision;

(ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice;

(iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and

(iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.

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• BUT - Federal Court of Appeal recognized the limits:

“Voluntary family activities, such as family trips, participation in extracurricular sports events, etc. do not have this immutable characteristic since they result from parental choices rather than parental obligations. These activities would not normally trigger a claim to discrimination resulting in some obligation to accommodate by an employer….”

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Johnstone: Federal Court of Appeal

• CBSA argued that there was no obligation, as the family status obligation was not triggered at all

• Court of Appeal found, on basis of its test, that prima facie case was made out, particularly given evidence of Johnstone’s unsuccessful attempts to find alternative child care (family/friends/licensed day care), and difficulty that rotating shifts presented

• Since CBSA denied the obligation, it did not make an undue hardship argument, and the Court of Appeal upheld the following remedies:

• CBSA cease its discriminatory practice

• CBSA consult with the Canadian Human Rights Commission to develop plans/policies

• CBSA compensate Johnstone for lost wages and benefits

• $15,000 for pain and suffering

• $20,000 for “wilful and reckless” conduct

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Seeley: Federal Court of Appeal

• CN argued that Seeley had failed to make reasonable efforts to meet her childcare obligations, and disputed whether the recall to the different site was “more than trivial”. Relied on the following:• Seeley chose to live in a place where there was no childcare available, which

was a personal choice

• Seeley had decided not to bring her children to Vancouver, where more childcare would be available

• Court of Appeal:• CN’s argument fails, since it did not respond in a meaningful way to Seeley’s

requests for information about where in the city she would be assigned, her hours of work or the housing that was available

• Move from Alberta to Vancouver definitely “more than trivial”

• Discrimination made out, then looked at nature of accommodation

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Seeley: Federal Court of Appeal

• Court of Appeal:• No reasonable accommodation – extending date for her to report did not go far

enough

• CN had accommodated employees with other restrictions (disabilities or elder care responsibilities) in various ways, such as exemptions from reporting and setting up “home terminals”, which were not considered for Seeley

• Could not rely on Collective Agreement provisions, since no evidence that Union was engaged and objected

• Tribunal’s remedies upheld:• Reinstatement• Lost wages• $15,000 for pain and suffering• $20,000 for CN’s “reckless conduct”

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Clark v. Bow Valley College 2014 AHRC 4 (CanLII)

• Ms. Clark was a nursing instructor, whose child was born on January 2, 2010, seven weeks premature

• Towards the end of 2010, Ms. Clark learned she was on the schedule to start back on January 10, 2011

• Because of the early birth, Ms. Clark had mistaken her return to work date

• Ms. Clark said she couldn’t start until February 1 because she couldn’t get child care, and offered to use up her vacation time

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• Employer refused, saying:• Collective Agreement only provided for 52 weeks of leave;

• She requested vacation less than two weeks prior to the commencement of classes;

• Students needed one instructor for consistency;

• There was a shortage of nursing faculty, and it was unable to locate coverage;

• There were two day cares that were a possibility; and

• Her husband could look after the child.

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• Ms. Clark rejected the suggestions and refused to return, because:• Her husband worked part-time;

• One of the two daycares would have required her to transport the child in her car, and the car seat would not fit;

• The other daycare was “transitory”, and her child had reduced immune system, so it was not appropriate.

• She was deemed to have resigned when she did not return on January 10

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• Adopted same four-step test as was used in Seeley and Johnstone

• Tribunal:

“What is noticeably absent from all of the communications between Bow Valley representatives while this circumstance was unfolding is ANY discussion about Ms. Clark's childcare challenge. At no time do they ask Ms. Clark to attend a meeting to see if something could be worked out, or to further understand the nature of her concerns.”

• Discrimination made out:

• Lost wages from the termination date until the date she became re-employed (4 months); plus

• $15,000 as general damages for injury to dignity.

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Duty to accommodate: Best practices

• Threshold questions to ask:

• Does the request engage a prohibited ground/make out a prima facie case?

• Do you have sufficient information to justify the accommodation claimed?• What efforts has the person made?• What options can you suggest?• For how long is the accommodation needed?

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• Engage the employee in discussions – he/she has an obligation to facilitate accommodation by:• Providing information so that the need for accommodation is clearly justified,

and the restrictions clearly outlined

• Advising/answering questions as to what attempts he/she has already made to avoid the need for a workplace accommodation

• Making suggestions as to accommodation that he/she thinks are suitable

• Accepting “reasonable” (even if not perfect) accommodation

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• Keep Records of every step in the process:• Validate the need to accommodate, and the nature of the “family

obligation”• List options considered• Why the options were not viable, either from the employee’s

perspective or your perspective:• Cost• Disruption to organization• Disruption to other employees

• The Tribunal will not accept “impressionistic” responses; it looks for hard facts

Dentons Canada LLP 17

Jeffrey P. MitchellPartner, Dentons Canada LLPD +1 416 863 [email protected]

October 21 2014

Thank you

mailto:[email protected]

How to avoid getting charged:Recent trends in Ministry of Labour prosecutions

October 21, 2014

Dentons Canada LLP

Chelsea RasmussenAssociate

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Employment Standards Act


Employment standards violations

October 21 2014

• Employment standards violations may be discovered through:• A “blitz”• A complaint filed under the ESA• A targeted inspection


Top 5 ESA complaints in 2013 and 2014 :

October 21 2014

The top five complaints in 2013 and 2014 were:

1. Unpaid wages

2. Vacation pay/vacation time

3. Termination pay

4. Public holidays / public holiday pay

5. Overtime pay

Dentons Canada LLP Document reference # 22

Top 5 ESA violations discovered during targeted inspections in 2013 and 2014:

00 Month 2013

The top 5 ESA violations discovered during targeted inspections in 2013/14 were:

1. Public holidays/public holiday pay

2. Record keeping

3. Overtime pay

4. Vacation pay/vacation time

5. Hours of work: excess daily or weekly

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Blitz: retail services

00 Month 2013

• Only 24 employers out of 118 were compliant with the ESA

• Compliance enforcement:• 215 Compliance Orders issued• 40 Part 1 Tickets issued• 1 Order to pay wages issued

• Most common monetary violation: public holiday pay

• Most common non-monetary violations: excess hours, vacation pay and record keeping


Consequences of non-compliance

00 Month 2013

Consequences of non-compliance with the ESA include:

• Compliance order

• Order to pay

• Ticket with fine

• Notice of contravention

• Prosecution


Prosecutions and convictions

October 21 2014

• The Ministry of Labour initiates about 400 ESA prosecutions per year.

• Convictions can result in:• For individuals:

• a fine of up to $50,000; and/or • imprisonment for not more than 12 months

• For corporations, a fine up to:• $100,000 for a 1st offence;• $250,000 if one previous offence; and• $500,000 if more than one previous offence.


Director jailed and companies fined after failing to pay employees

October 21 2014

• R. v. Blondin, 2012 ONCJ 826 (CanLII)• A director ignored 113 separate orders to pay $125,000 in unpaid

wages to employees • The director was jailed for 90 days and the company was fined

$280,000


Fitness club operator and director fined $130,000 for employment standards violations

October 21 2014

• Between June 2009 and September 2010, 38 current and former employees of the fitness club filed claims with the Ministry of Labour over wages not being paid in a timely fashion

• The investigation revealed the claimants were owed a total of roughly $75,000

• The fitness club was fined $100,000 for failing to pay wages owed to employees

• A director of the company, was fined $30,000 for the same violation

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ESA: How to avoid getting charged

October 21 2014

• Be cooperative with ESA officers

• Take all complaints seriously

• Ensure careful record keeping

29Dentons Canada LLP

Occupational Health and Safety Act

October 21 2014


Proactive inspections

October 21 2014

Factors considered by MOL when identifying a workplace for a proactive inspection include:

• The number and severity of past lost-time and non-lost-time workplace injuries, including the associated costs

• Compliance history

• Hazards inherent to the work

• New businesses

• Size of businesses

• Specific events or incidents (e.g., Critical injuries or fatal injuries, or injuries due to violence)

• The presence of young, new or otherwise vulnerable workers


What does an inspector look for?

October 21 2014

• All required postings are up

• Health and safety programs and policies

• Internal responsibility system — self reliance

• Training requirements ⁄ deficiencies

• Record of injuries, including musculoskeletal disorders (MSDs)

• Occurrence and record of workplace violence

• Attention to young worker health and safety

• Workplace–specific sector hazards


Blitz: new and young workers (Industrial)

October 21 2014

Sector Name Orders Issued Stop Work Orders Issued

Requirements Issued

Workplaces Visited

Retail 2,119 37 37 608

Restaurants 1,248 12 4 275

Tourism, Hospitality and Recreational Services

710 4 8 208

Food, Beverage and Tobacco

659 6 2 139

Wood and Metal Fabrication

641 28 14 123

Wholesalers 444 12 21 144

Vehicle Sales and Service

425 11 4 86

Industrial Services 277 10 6 86

Government 218 7 1 80

Automotive 174 6 1 64

Dentons Canada LLP

OHS prosecutions and penalties

• OHSA convictions in Ontario at six-year low

• 780 convictions in 2013/14, down from 1,303 in 2008/09

• Convictions can result in:• For individuals:

• a fine of up to $25,000; and/or • imprisonment for not more than 12 months

• For corporations:• a fine of up to $500,000

October 21 2014

Dentons Canada LLP

OHS prosecutions – corporations

Figure 2

Convicted after trial4%

Acquitted after trial2%

Pleaded guilty and negotiated fine with MOL

62%

Withdrawn-other party convicted

17%

Withdrawn-no other party convicted

9%

Pleaded guilty and let the court decide the amount of

fine6%

October 21 2014

OHS prosecutions

• Dentons study (Ontario):

• - 68% of charged corporations pleaded guilty

• - 36% of charged supervisors and workers pleaded guilty

• - only 6% of corporations fought charges through trial

• - 2/3 of those were found guilty of at least one charge

• - 82% of incidents/accidents that resulted in charges produced at least one conviction

See full study at www.occupationalhealthandsafetylaw.com

Dentons Canada LLPOctober 21 2014

http://www.occupationalhealthandsafetylaw.com/


Examples of recent convictions

21 October 2014

• Failure to comply with inspector’s orders - $110,000 fine

• Failure to provide adequate information, instruction and supervision with respect to avoiding trip hazards - $50,000

• Failure to ensure floor was kept free from hazards - $90,000 (young worker injured)


OHS: How to avoid getting charged

21 October 2014

• Ensure all postings are up

• Ensure all employees have completed the mandatory safety training (and the training records are easily accessible)

• Ensure the joint health and safety committee is meeting regularly, and immediately address hazards that are identified

• Treat inspectors respectfully

Thank you

Chelsea RasmussenAssociate, Dentons Canada LLPTel: (416) 862-3464E-mail: [email protected]

© 2013 Dentons. Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices.

Feeling demoted?Understanding constructive dismissal and how to best protect your organization.

October 21, 2014

Dentons Canada LLP

Matthew CurtisAssociateWith assistance from Andy McDonnell, Articling student


What is constructive dismissal?

21 October 2014

• “Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract, and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Since the employer has not formally dismissed the employee this is known as ‘constructive dismissal’. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet his obligations and is therefore terminating the contract.”

• – Justice Gonthier, Farber v. Royal Trust Co [1997], Supreme Court of Canada.

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• Constructive dismissal usually results from a unilateral change in the working conditions and/or environment of an employee

• Not every change to an employee’s working conditions and/or environment will lead to a claim in constructive dismissal: changes must be fundamental to, or “go to the root” of the employment agreement, and the decision to make these changes must have been taken unilaterally by the employer

• The Courts in Ontario have found that in employment agreements there is an implied term that the employer will refrain from making substantial changes to the duties and role of an employee without agreement of the employee, such that those changes would result in a fundamental breach of contract

21 October 2014 Dentons Canada LLP

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Examples of changes that can lead to a constructive dismissal claim:

• Demotion (this may be subject to the duty to mitigate damages)

• Changing or reassigning job duties / responsibilities

• Changing reporting status

• Reducing or changing hours of work

• Substantially reducing salary or hourly wage

• Loss or material reduction of a benefit or bonus plan

• Geographic transfers

• Imposing a suspension or lay-off (unsettled law in Ontario)

21 October 2014 Dentons Canada LLP Document reference #11285783

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• Liability for constructive dismissal is the same as for regular dismissal:• Under employment / labour standards act

• Under contract / common law


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Leading case law

• Farber v. Royal Trust Co. [1997] SCC:

• Farber promoted a number of times over 15 years, and was eventually promoted to the position of regional manager

• In this role he supervised and administered twenty one offices directly.• His remuneration was made up of a guaranteed salary, commissions and

benefits, such that in 1983 he earned $150,000.• In 1984 Farber was informed by Royal Trust Co. that his position was being

eliminated as part of a major restructuring• Royal Trust Co. offered Farber a lesser position within the organization. The

position offered was as manager of the least successful Quebec branch• Under the new role Farber would receive a reorientation allowance of $40,000

but no base salary, and his commission rate would drop• Farber refused to accept the offer and brought a claim in damages for

constructive dismissal


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Leading case law

• Farber v. Royal Trust Co. [1997] SCC Continued:

• The Supreme Court found while there was no bad faith in that Royal Trust Co. needed to reorganize its hierarchical structure, the company nevertheless unilaterally altered the essential terms of the employment contract

• The change involved a significant demotion and far less favourable terms of income, to the point that had Farber accepted the terms his income would be halved

• Farber remains the leading case on constructive dismissal in Canada


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Leading case law

• Evans v. Teamsters, Local 31, [2008] SCC:• Plaintiff worked as business agent in Union office for over 23 years. • Incoming Union President sent the plaintiff a letter, which purported to

terminate his employment• Of note was that the termination letter did not contain any reference to

working through the notice period• Over a period of time in which the defendant continued to pay the salary of

the plaintiff, both parties counsel were in constant communication however no resolution was reached

• The employer then sent a letter stating that if the plaintiff did not return to work the balance of his notice period, the employer would treat that as just cause for dismissal and allege that the plaintiff had failed to mitigate his damages

• The plaintiff replied that he would return to work provided that the employer withdrew its termination letter, which was something the employer was not prepared to do


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Leading case law

• Evans v. Teamsters contd.:

• The Supreme Court of Canada stated that a plaintiff has the same duty to mitigate his or her damages in constructive dismissal cases, as in any other wrongful dismissal cases

• The Court stated, “Where an employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would have accepted such an offer”

• The critical element is that an employee is not obliged to mitigate his or her damages by working in an atmosphere which is hostile, embarrassing, or humiliating

• The test for determining whether the workplace environment has become so toxic so as the reasonable employee would not return to mitigate their damages, is an objective one requiring the court to consider all of the circumstances


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Leading case law

• Farwell v. Citair Inc.(General Coach Canada), [2014] ONCA

• The Plaintiff was 58 years old and had 38 years of service with the Defendant having built a position of authority and respect. The Defendant purported to transfer him from the position of Vice President of Operations to his previous role as Purchasing Manager

• The Defendant’s reasoning for the reorganization was that the Plaintiff did not have the required expertise in the line of products they wished to develop

• As a Purchasing Manager, the Plaintiff would be reporting to his previous direct subordinate

• The Plaintiff’s income, however, would remain substantially similar (the material difference being the treatment of discretionary bonuses)


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Leading case law

• Farwell v. Citair Inc.(General Coach Canada) contd.

• The Ontario Court of Appeal empathized with the employer’s argument that the decision to transfer the employee was taken due to economic considerations and no bad faith was present, but it dismissed the employer’s appeal due to what it described as an “insurmountable” obstacle, stating that:• “To paraphrase Evans, the Appellant's mitigation argument presupposes

that the employer has offered the employee a chance to mitigate damages by returning to work. To trigger this form of mitigation duty, the Appellant was therefore obliged to offer Mr. Farwell the clear opportunity to work out the notice period after he refused to accept the position of Purchasing Manager and told the Appellant that he was treating the reorganization as constructive and wrongful dismissal”

• Farwell makes it clear that in such situations an employer must reiterate to the employee who has alleged constructive dismissal that the altered terms of employment remain available to be accepted for mitigation of damages


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• A well-drafted employment contract or offer letter is an effective tool to provide an employer with the degree of flexibility it needs

• Get agreement from employee that the employer can make reasonable changes to terms of employment in the future

• Outline termination provisions in the contract. Termination provision must meet or exceed the Employment Standards Act, 2000

Employment contracts offer protection for employers


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Description of employee compensation

• Confirm only starting salary – any future salary adjustments will be made at the sole discretion of the employer

• When describing current group benefits, make it clear that plan is subject to employer’s right to amend or discontinue benefit plans, or change carriers, from time to time, with or without advance notice

• Refer to “eligibility to participate”, not entitlement

• Where appropriate, reference the terms and conditions of the underlying plans, or the employer’s policies, as amended from time to time (e.g. vacation policy)

Employment contracts – key provisions


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Description of employee compensation

• When describing incentive, commission or bonus plans, refer to only the current year’s plan

• Again, make it clear that eligibility to participate in the plans and any applicable targets are subject to the terms and conditions of the plan as replaced, amended or revised by employer from time to time

• Be careful: a specific list of benefits = contractual entitlement



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• Include acknowledgement that changes to job title, reporting relationship, duties and responsibilities shall not constitute a constructive dismissal

• Confirm that termination provision shall remain in full force and effect, notwithstanding any other changes to terms and conditions of employment

• Make sure that employment contract or offer letter is presented to the candidate, and is signed back, prior to commencement of employment



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• Keep the employment contract or offer letter fresh

• You can implement changes for existing employees in an offer of continued employment

• Make sure that employee receives consideration in exchange for signing new offer (i.e. promotion, salary increase, signing bonus, new bonus or benefit)

• Give employee time to review and seek advice

• If there are key changes, review them with employee (and retain proof that you did)

Update your employment contracts


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• Before implementing change, develop a proactive communications strategy

• An effective strategy has two objectives:

1. reducing litigation risk

2. managing overall employee stress and anxiety that can lead to lower productivity

• Give sufficient advance notice: Wronko case

• Always communicate motive – if you are choosing to implement measures to save jobs, say that

Be proactive in your communications


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• Employees are generally risk-averse:

• Lose job – no income

• All or nothing case

• If lose, must pay own lawyer and organization’s lawyer

• Court may say you should have stayed to mitigate

Practical considerations


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• Your best protection is a well-drafted employment offer or contract that gives you flexibility

• Have existing employees sign updated offers in exchange for consideration to reflect current terms

• When making changes to existing employment terms, be proactive in communicating to employees – and never forget motive

• Reiterate to an employee who has alleged constructive dismissal that the altered terms of employment remain available to be accepted for mitigation of damages.

Best practices – in summary


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• Plan ahead – build in the time you need to give advance notice before rolling out any changes

• Get back a signed acknowledgment from employees when implementing changes - and keep those on file

• Confirm that a restructuring plan is consistent with defined business objectives

Best practices – in summary


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Thank You


Matthew CurtisAssociate, Dentons Canada LLPD +1 416 367 [email protected]

The preceding presentation contains examples of the kinds of issues companies dealing with Employment and Labour could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.

Dentons Canada LLP

Employment and labour seminar presentations (October 21, 2014)

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Transcript of Employment and labour seminar presentations (October 21, 2014)