Canadian Employment Law Today

March 24, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Office perks in a hybrid workplace Question: If an employer offers certain perks for employees in the office (free food and drink, activities with rewards, etc.), could it be held liable for discrimination against remote employees? Answer: It is very unlikely that an employer would be be liable for discrimination by of- fering some perks to in-office employees and not offering them to their remote employees. Discrimination is an action or decision resulting in unfair or negative treatment of a person based on a ground protected by hu- man rights legislation. Human rights protect- ed grounds vary among Canadian jurisdic- tions. Work location or environment is not a protected ground, but that is not necessarily the end of the matter. An employer will have to consider why it is that the negatively af- fected remote employee is working remotely. If the employee is working remotely as an accommodation due to a protected charac- teristic, the question will arise as to whether all the circumstances of the remote work constitute an appropriate accommodation. We know that employers have the duty to ac- commodate to the point of undue hardship; however, the accommodation offered must be appropriate. Inherent in this expectation for accommo- dation is the need for employers treat their employees equitably but not necessarily the same. Given that the remote work environ- ment is, by definition, different from an in- office work environment, employees should expect there to be some differences, regard- less of whether they are working remotely as an accommodation or simply by choice. While remote employees may miss out on some of the in-office perks, they do not have to commute or worry about parking, they have full access to a kitchen and a fridge and they have significantly more control over the setup of their work environment along with many other "perks" that in-office workers do not have. Accommodative measures come with an inherent trade-off. In this instance, while the employee may be able to do their work in an environment that well suits their individual, protected needs, it does not mean that they will have access to all the same perks as their co-workers, just as their co-workers do not have access to the remote workers' accommo- dations. Nonetheless, if the perks are mean- ingful, an employer would be well advised to consider providing them to the employee who is remote working as part of a human rights accommodative measure, if they can be, without causing undue hardship. Answer: As a general rule, and regardless of the emotional proclivity of the employee, the mere act of termination does not create a cause of action, provided that the employee was given reasonable notice of their termina- tion. The Supreme Court of Canada's classic statement from Honda Canada Inc. v. Keays was: "The normal distress and hurt feelings re- sulting from dismissal are not compensable." There are, however, some situations where the conduct of the employer could result in a longer notice period and/or additional post- termination damages. Reasonable notice is meant to give the em- ployee a reasonable opportunity to seek new employment (Evans v. Teamsters Local Union No. 31). What constitutes a "reasonable" amount depends, of course, on a myriad of factors in the specific circumstances of the employee and their employment, including age, length of service and the availability of alternative employment. However, if the employer does anything to impede the employee's job search, including acting in a way that was so callous that the employee became unable to seek alterna- tive employment or had their professional reputation damaged to the point of reduced labour-market attractiveness, the length of notice that will be deemed to be "reason- able" may be extended. The ability to avoid these situations is well within the control of employers and care should be taken by the employer to ensure that these situations are avoided when terminating an employee. Where an employer terminates an employ- ee in such a way that it causes the employee to suffer mental distress, a court may award that employee with additional damages. These damages are only recoverable, however, if the mental distress arose from the manner of termination, including a failure to give rea- sonable notice, rather than the simple fact that they were terminated. This is true even if the employer anticipated that the act of ter- mination would cause mental distress to the employee or that the employee would bear additional stress from the difficulty of find- ing alternative employment, so long as the employer does not perpetuate that distress by terminating the employee in a way that is un- fair or in bad faith (Nelson v. Champion Feed Services Inc.; Trask v. Terra Nova Motors Ltd.). Courts have also awarded damages where terminated employees have suffered mental distress as a result of an employer's "wanton or reckless breach of the employment con- tract." This has been found in cases where, in the course of termination, employers have made unfounded allegations of dishonesty, lack of competence or just cause that is un- supported by evidence, where they failed to give reasons for the termination, where em- ployment was terminated over the phone while the employee was sick or otherwise incapacitated, where they failed or refused to give references and where the termination was abrupt and insensitive (Jivrag v. Calgary (City); Rahemtulla v. Vanfed Credit Union). Ultimately, if an employer terminates an employee with reasonable notice and in a way that is fair and not hindering that employee's ability to seek or gain alternative employ- ment, it is unlikely that the employee would have a cause of action against the employer, regardless of their emotional proclivity. This does not mean, however, that the employer should not take extra care to ensure that par- ticularly emotional employees are provided with reasonable notice taking into account their individual characteristics. For more information, see: • Honda Canada Inc. v. Keays, 2008 SCC 39 (S.C.C.). • Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (S.C.C.). • Nelson v. Champion Feed Services Inc., 2010 ABQB 409 (Alta.Q.B.). • Trask v. Terra Nova Motors Ltd., 1995 CanLII 9836 (N.L. C.A.). • Jivrag v. Calgary (City), 1986 CanLII 1701 (Alta. Q.B.). • Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (B.C. S.C.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert with Brian Johnston Canadian HR Reporter, 2021 2 | | March 24, 2021 March 24, 2021 STEWART MCKELVEY, HALIFAX Avoiding stress caused by manner of dismissal Question: How can an employer avoid crossing the line between an employee's normal distress at being fired and additional stress caused by the manner of dismissal, particularly if a dismissed employee is known to be emotional?

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