Canadian Employment Law Today

January 8, 2014

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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CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS Ontario court uses power to award human rights damages Fired employee gets $20,000 in rare case of human rights damages as part of wrongful dismissal claim in court PM40065782 | BY JUSTIN TETRAULT | IN 2008, the Ontario Human Rights Code was overhauled in an effort to make the process of remedying human rights abuses faster and more efficient. Part of those amendments allowed individuals to seek human rights damages as part of a civil action and gave judges the same powers as the Human Rights Tribunal to award remedies for code infringements. In practical terms, these amendments allowed an employee who files a lawsuit for wrongful dismissal to include a human rights claim as part of a civil action, rather than having to commence multiple proceedings in different forums. From 2008 until 2012, there had not been a single reported decision in which a judge used this new power. In 2013, however, there were two. First, in March a small claims court judge — in Berkhout v. 2138316 Ontario Inc. — awarded $15,000 in damages to a female employee who had been fired for complaining about being sexually harassed by her manager. More recently, in October, damages for breach of the code were awarded in Wilson v. Solis Mexican Foods Inc., a decision which provides important lessons for employers and HR professionals. Employee dismissed after reporting back problem In Wilson, Patricia Wilson, began her employment with Solis on Jan. 4, 2010, as assistant controller. She later moved to the position of business analyst. Things appeared to be working well between Wilson and Solis. In November 2010, she had a performance review in which she was graded satisfactory or better in each category. However, on Dec. 16, 2010, Wilson advised Solis' human resources manager that she was suffering from a back problem. Despite Wilson's JANUARY 8, 2014 In This Issue ASK AN EXPERT: Illness during probation • Doctor's note requirement 2 CASES AND TRENDS: $80,000 to long-term employee for constructive dismissal 3 CASE IN POINT: When layoff becomes termination: Getting it right 4 recent positive performance evaluation, within five days of that meeting Solis management met and decided it was "time to consider that (Wilson) may not be suited to (Solis)." Wilson continued to work for Solis until early March 2011, when she was forced to take time off because of her ongoing back problems. During her medical leave, she kept Solis updated about her status and on March 28, 2011, she provided a note from her physician that stated she was medically fit to start a graduated return to work. Solis rejected this plan, stating in a letter that it required her to be "capable of returning to full-time hours and full duties before making the transition back to the workplace." On April 12, 2011, Wilson provided anther note from her doctor which stated she was capable of returning to full-time hours, but needed some limited accommodation. Solis rejected this plan, stating it would not accept Wilson back in the workplace until she could return to her full-time hours and full duties. One month later, Solis terminated Wilson's employment without cause, citing corporate restructuring. In considering Wilson's claim for damages under the code, the court accepted that an employer's decision to terminate an employee needs to be only in part based on an employee's disability to justify a damage award. In Wilson's circumstances, the court found her ongoing back problem was a "significant factor" in the decision to terminate her employment, relying on the fact the company's attitude changed immediately after she informed it about her back condition and that Solis had improperly and disingenuously insisted on Wilson making a complete recovery before AN ONTARIO WORKER who changed her retirement date is not entitled to a retirement package that was approved the day after she retired, an arbitrator has ruled. Pat Lake worked for Weetabix of Canada, a breakfast cereal manufacturer based in Cobourg, Ont. Lake joined Weetabix as a full-time employee on Oct. 1, 1995, but, by 2012, personal health issues were taking a toll. These issues led to her decision to retire. On Sept. 10, 2012, Lake submitted a written notice of her intention to retire effective Oct. 26 — two days before she would be getting married. A month later, Lake's mother told her she would be arriving for the wedding on Oct. 25 and asked to be picked up at the airport. Lake made a request to Weetabix's HR manager to take Oct. 24 through 26 off. The HR manager suggested that, since Lake was requesting three days off in her final week of work, Lake should move her retirement date up a week to Oct. 19. Lake agreed and the change was made. Meanwhile, Weetabix and the union were negotiating a new collective agreement. One of the issues under discussion was an exit package for people considering retirement. Though it had been discussed for some time, there was no timetable for when it would be finalized. On Continued on page 6 Continued on page 7 YOU MAKE THE CALL: Don't cross this employee 8 Employee retired day before new package approved

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