Canadian Employment Law Today

CELT June 26 2013.qxp:celt 467.qxd 13-06-17 10:36 AM Page 6 June 26, 2013 Worker was involved in many disciplinary incidents ...continued from page 1 putten complained about as harassment stemmed from incidents she caused. This was aggravated by her refusal to stick to doing the jobs she was assigned and making co-workers uncomfortable by asking about "female issues." The plant manager testified he received many complaints from other employees about her, which resulted in Vanderputten receiving a letter of reprimand on Feb. 4, 2010, about her "verbal harassment" of other employees. Dismissal following altercation at work On May 4, 2010, Vanderputten dropped a skid while cleaning up — which wasn't part of her assignment — and a co-worker called her a vulgar name followed by an insult related to her gender transition. The co-worker claimed Vanderputten threw the skid and it was she who used the derogatory term. Vanderputten reported the incident and both workers were suspended. The co-worker was reprimanded and Vanderputten's employment was terminated for not following orders to do her job and aggressive behaviour. Vanderputten ASK AN EXPERT ...continued from page 2 claim constructive dismissal, unless layoffs are permitted by the express terms of the employment contract or by wellestablished practice in the workplace. Courts have ruled this conclusion is not affected by statutory provisions that appear to permit temporary layoffs. In Collins v. Jim Pattison Industries Ltd., the B.C. Supreme Court ruled the temporary layoff provision in the Employment Standards Act merely prescribes the maximum duration of a layoff where the employment contract provides for a right to lay off the employee. According to the court, where an employment contract is silent on the issue of layoff, a layoff is deemed to be a termination warranting pay in lieu of notice. 6 filed a human rights complaint for harassment, a poisoned work environment and a discriminatory dismissal. The tribunal found Seydaco management consistently gave "little or no consideration" of Vanderputten's perspective when she complainted about harassment. Given the "extremely vulnerable position and general prejudice" faced by transgendered people, the tribunal found the failure to accept Vanderputten's accounts as truthful was at least in part due to the fact she identified as a transgendered person. This was also the case in the culminating incident, where it was more likely the co-worker used the discriminatory term towards Vanderputten, since it had been used by others around the workplace, said the tribunal. The tribunal also found being subjected to harassing comments about her gender identity, Seydaco's insistence she be treated as a man until she provided proof of her sex change, and the company's failure to investigate and respond reasonably to her complaints created a poisoned work environment for Vanderputten. Since this harassment and environment was based on her gender identity and expression — which are now protected under the Ontario Human Rights Code — it constituted prohibited discrimination. And since the culminating incident that led to Vanderputten's dismissal involved discrimination based on her sexual identity, it played a part in her dismissal, said the tribunal. The tribunal noted Vanderputten had problems with following directions and controlling her anger, resulting in several instances of discipline that "appear to have been warranted." However, some of it was likely a reaction to her work environment, and workplace misconduct is not a justification for harassment and discrimination, said the tribunal. "Even those who are not model employees or who have acted inappropriately themselves are entitled to a harassment-free workplace," said the tribunal. Seydaco was ordered to pay Vanderputten $22,000 for injury to dignity feelings and self-respect, with the co-worker involved in the altercation jointly liable for $1,000 of it. In addition, Seydaco was ordered to pay her eight months' salary and to implement a human rights policy. See Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (Ont. Human Rights Trib.). A similar conclusion was reached in Style v. Carlingview Airport Inn, where the court found the temporary layoff language in Ontario's employment standards legislation "does not affect common law rights and obligations regarding dismissal and constructive dismissal." These decisions were distinguished by the Alberta Court of Appeal in Vrana v. Procor, where the Alberta Court of Queen's Bench found an employee on layoff cannot bring an action for constructive dismissal until the expiry of the statutory 60-day period. The decision was reversed on appeal, but on different grounds. Nevertheless, the B.C. and Ontario approach has subsequently been followed in Alberta, in Turner v. Uniglobe Custom Travel Ltd., suggesting a consistent approach across jurisdictions. In most jurisdictions, the best way to ensure an employer has the right to lay off its non-union employees temporarily is a carefully drafted layoff provision in its employment contracts. CELT CELT For more information see: ■Tull v. Norske Skog Canada Ltd., 2004 CarswellBC 1860 (B.C. S.C.). ■ Russo v. Kerr Bros Ltd., 2010 CarswellOnt 8373 (Ont. S.C.J.). ■Collins v. Jim Pattison Industries Ltd, 1995 CarswellBC 276 (B.C. S.C.). ■ Style v. Carlingview Airport Inn, 90 OAC 83 (Ont. Gen. Div.). ■Vrana v. Procor, 2003 CarswellAlta 137 (Alta. Q.B.). ■ Turner v. Uniglobe Custom Travel Ltd., 2005 ABQB 513 (Alta. Q.B.). Colin G.M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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