Canadian Employment Law Today

June 26, 2013

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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CELT June 26 2013.qxp:celt 467.qxd 13-06-17 10:36 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS JUNE 26, 2013 Harassed transgendered worker gets 8 months' pay Employer insisted on treating worker transitioning to female as a man until sex change was complete | BY JEFFREY R. SMITH | AN ONTARIO company and one of its employees must pay $22,000 plus eight months' back pay for the harassment and wrongful dismissal of an employee who was transitioning from a male to a female, the Ontario Human Rights Tribunal has ruled. Marie Vanderputten worked for Seydaco Packing Corp., a manufacturer of folding cartons and boxes in Mississauga, Ont., as a general labourer. She was HUMAN hired in August 2003, at which time she lived as a man and went by the name of Tony. Vanderputten was sometimes disciplined for misconduct such as making a racial remark to a co-worker, throwing product and failing to control her anger. In February 2006, she was actually fired but was rehired when she asked for her job back. However, more discipline followed, including a one-week suspension for throwing a piece of wood and swearing at a co-worker. She was also cited for attendance issues and listening to a portable music player with both earphones, contrary to company policy. Male worker began living as a woman In 2008, Vanderputten began preparing for sex reassignment surgery, so she took hormones and began dressing as a woman. Seydaco plant employees wore gender-neutral jumpsuits they changed into at work and Vanderputten wore women's clothes and makeup before changing. She requested permission to wear open-toed shoes and skirts but this In T h is I s s u e ASK AN EXPERT: Lump sum or salary continuance? • Termination versus layoff CASES AND TRENDS: Denny's settles foreign worker class action suit 2 3 was refused for safety reasons. Vanderputten didn't advise Seydaco of her transition or request any modifications initially, and the employer only became aware of it when Vanderputten began wearing women's clothing to work in 2008. The company indicated gender didn't matter as long as the employee was doing her job, and said it would consider Vanderputten a male until there was legal or medical documentation showing otherwise. Vanderputten said she RIGHTS wanted to start using the women's washroom, but Seydaco reiterated that it considered her a man until she had the sex change and could prove she was female. She was told the same with regards to the change room. Vanderputten asked the plant manager to modify her shift so she could change alone without male employees around. She later testified many coworkers called her names and posted notes and comments about her on the bulletin board. The plant manager denied being told of specific incidents but called a general meeting to say that kind of behaviour was unacceptable. Afterwards, employees were required to sign a code of conduct and ethics that included a prohibition of discrimination "for racial, sexual or religious reasons." Seydaco was also concerned that Vanderputten's problems with anger management escalated such situations. Management felt much of what Vander- AN ADJUDICATOR has quashed five-day suspensions given to three Canada Border Services Agency (CBSA) trainers for wearing their full uniforms and firearms to a restaurant when they went out to dinner. Cathy Christenson, John Jacques and Bruce Machacynski were use-offorce and firearms instructors for CBSA based in Ottawa. They were among the first group of such trainers for the CBSA. As part of their training by the RCMP, they were instructed on a policy on the wearing of protective and defensive equipment that stated officers leaving a point of entry or CBSA office for personal business, meal breaks or rest period were required to "remove their defensive equipment and properly store it." A second version of the policy in 2007 indicated it applied to "all border services officers and inland enforcement officers, investigators, intelligence offi- Continued on page 6 Continued on page 7 CASE IN POINT: Employers have some leeway in changing employee duties 4 YOU MAKE THE CALL: TELUS discovers technician's sketchy past 8 Policy against firearms on breaks didn't include everyone: Adjudicator

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