Canadian Employment Law Today

STEWART McKELVEY HALIFAX 2 | July 17, 2019 with Brian Johnston Ask an Expert Have a question for our experts? Email jeffrey.smith@habpress.ca. Canadian HR Reporter, 2019 Answer: Employers do not have to consult with the victim, but consultation would help to mitigate a substantial risk of being found liable for constructive dismissal by re-hiring the harasser. e recent Colistro v. Tbaytel Ontario Court of Appeal decision centered on a mid- sized company's decision to re-hire an ex- ecutive who had been dismissed for sexual harassment a decade prior. e court held that the single act of re-hiring the harasser constituted constructive dismissal of his former victim, despite attempts made by the company to accommodate the victim and the significant intervening time between the harasser's termination and re-hire. e court noted that constructive dis- missal can occur in two ways: • An express or implied term of the employ- ment contract is breached and it is deter- mined to be sufficiently serious. • e employer's conduct more generally shows an intention not to be bound by the contract making continued employment intolerable. On the facts of Colistro, the Court found the second type of constructive dismissal had occurred. It is noteworthy that the par- ticular victim had been diagnosed with post- traumatic stress disorder and, due to the re- hire, was medically unable to work. As with every constructive dismissal case, Colistro was a fact-specific decision. At a conceptual level, however, the decision likely signals an increasingly liberal application of the constructive dismissal test going forward. It serves as a warning for employers that, in the wake of the #MeToo era, employers need to be mindful that they have an obligation to ensure a harassment-free workplace not only at the investigative and policy-enforcement stage, but during the hiring process as well. For more information see: • Colistro v. Tbaytel, 2019 ONCA 197 (Ont. C.A.). Brian Johnston, Q.C., is a partner with Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewart- mckelvey.com. Ask an Expert Rehiring former employee previously fired for harassment Question: If an employee is terminated for harassing another employee and years later the harasser applies for a job with the same employer, does the employer have to consult with the victim before rehiring the harasser? Service time for employee transferring to different franchise location Question: If an employee transfers to a new franchise location with a different owner, is the employee's service time carried over? Answer: When it comes to assessing rea- sonable notice under Canadian employment law, the "employer" is not the franchise — it's the franchise owner. If an employee transfers from one franchised location to another, the law does not impute the employee's service from the first location to the second. However, this does not necessarily mean that the employee's time spent at the first location is meaningless. In the context of a transfer, past service is relevant if it is ac- knowledged by a new employer, or if the em- ployee in question was induced to leave one workplace for another. While the nature of a franchise can be conducive to these situ- ations occurring, they can take place in any workplace, franchised or not. e recent Ontario Court of Appeal deci- sion in Brake v. PJ-M2R Restaurant Inc. is a good example of a franchised employer ow- ing increased reasonable notice to an employ- ee whose past service at another location had been acknowledged. e case involved the dismissal of an employee who moved from a Corner Brook, NL, McDonald's location to a Kanata, Ont., location after seven years. From the outset of the employee's tenure in Kanata, she was treated as if she had seven years' expe- rience at the new location. Ultimately, upon termination after another 13 years at Kanata, the seven prior-acknowledged years counted towards reasonable notice, when she was awarded 20 months' notice. While any employer can choose to ac- knowledge past service, it may be more common in franchised workplaces because of the transferability of job-related skills and the similarity in workplace structure. e Brake decision highlights potential reper- cussions in doing so. Similar repercussions can result from in- ducing an employee to transfer workplaces. is occurs with sought-after employees both inside and outside the context of a franchise. However, as the Ontario Superior Court pointed out in the well-known Jack- son v. Makeup Lab Inc. decision, induce- ment is more likely to be found when an em- ployee's position with an inducer is the same as it was with the inducee. e similarities in workplace structures within a franchise in- crease the likelihood that when an employee is recruited to a new location, her job de- scription will remain constant. Franchised employers should exercise caution when recruiting employees from within the fran- chise "umbrella." e take-away for employers should be that, when it comes to reasonable notice for transfers, franchised workplaces may be dif- ferent from non-franchised in fact, but not in law. is is unlikely to change. Even the U.S. "Joint Employment" movement — which sought to have all workplaces under a given franchised umbrella declared joint employers — has been nixed by a 2018 appeal decision (Browning-Ferris Industries Inc. v. National Labor Relations Board). In Canada, nothing of the sort has gotten off the ground. For more information see: • Brake v. PJ-M2R Restaurant Inc. 2017 ONCA 402 (Ont. C.A.). • Jackson v. Makeup Lab Inc, [1989] O.J. No. 1465 (Ont. H.C.). • Browning-Ferris Industries Inc. v. Na- tional Labor Relations Board, No. 16- 1028 (D.C. Cir. 2018 - U.S.) Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as reprisals for wrongful dismissal suits, workplace violence for healthcare workers, and the discriminating implications of uninformed assumptions. You can view the blog at www.employmentlawtoday.com.

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