Canadian HR Reporter

Canadian HR RepoRteR January 26, 2015 emPloymeNt lAw 9 terminated. e court denied the complain- ant's review request seeking great- er compensation and upheld the tribunal's decision in its entirety. Since the complainant sought monies from the tribunal that she would have obtained under the termination provisions of the ESA, the court noted that a com- plaint made to the tribunal under the Human Rights Code was not a replacement or substitute for all other claims or actions. e decision, therefore, dem- onstrates the importance of em- ployers challenging the venue for dealing with different employ- ment issues. Dennis v. Ontario Lottery and Gaming Corp., 2014 CarswellOnt 9687 (Ont. S.C.J.). is case is a good example of just how difficult it is for employers to establish what is known as "after- acquired just cause." OLG initially dismissed the em- ployee on a without-cause basis and offered a settlement. Shortly thereaf- ter, and prior to the em- p l o y e e r e c e i v - ing the set- tlement money (but after the employee had executed the settlement documents), OLG discovered the worker "bor- rowed," without approval, nearly $1,000 from the employer's social committee. e employee's in- volvement in the social commit- tee was voluntary. OLG rescinded the settle- ment and took the position the employee's termination was for "after-acquired cause;" that is, facts they learned after the initial termination. In response, the em- ployee brought an action for en- forcement of the settlement. The Ontario Superior Court allowed the employee's action for several reasons including, in large part, the fact that the employee's involvement in the social commit- tee was not an essential condition of her employment and the em- ployer's investigation into the al- legations of theft was inadequate. Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.). As family status issues gain in prominence, this decision of the Federal Court of Appeal is an im- portant one. Here, the Canada Border Service Agency refused an employee's request for a fixed schedule in order to allow her to provide child care. The court held the re- fusal to ac- c o m m o - date the r e q u e s t c o n s t i - tuted dis- cr imina- tion on the basis of fam- ily status. In arriv- ing at this decision, the Court of Ap- peal reformulated the test for discrimination on the basis of "family status." While there still exist different "tests" for the application of fam- ily status obligations, the court made it clear that simple refusals will not satisfy the duty to accom- modate, particularly as it relates to scheduling requests. Decision No. 2157/09, 2014 CarswellOnt 6239 (Ont. W.S.I.A.T.). In a challenge to the constitution- ality of the mental stress claim pro- visions (section 13 of the Ontario Workplace Safety and Insurance Act (WSIA)), the Ontario Work- p l a c e S a f e t y and In- s u r a n c e A p p e a l s Tribunal conclud- e d that the pro- visions in the leg- islation infringed the right to equal- ity g uarante e d by the Charter of Rights and Free- doms because it treated mental and physical claims differently. The tribunal found the infringe- ment arbitrary and not justified by section one of the charter. is decision has enormous implica- tions for employers, particularly given the historical dif- ficulty in proving benefit entitlement for mental health- related issues under the WSIA. And giv- en the prominence of mental health issues in the work- place, challenging and litigating these types of cases under workers' compen- s a t i o n l e g i s l a t i o n c a n b e c o s t l y a n d time-consuming. However, there may be an issue as to whether or not a claim for mental stress filed under the act will foreclose any civil litiga- tion claims. Stay tuned. Blackberry Limited v. Marineau-Mes, 2014 CarswellOnt 3522 (Ont. S.C.J.). Here, the employee's employment agreement obligated him to pro- vide six months' advance written notice of his resignation. Contrary to his contractual obligations, the employee provided only two months' written notice. In response, the employer applied to the Ontario Superior Court of Justice for a declaration the employee was ob- ligated to provide six months' prior written notice of his resignation. The court agreed with the employer. Practically, in- sisting on a period of notice for an employee who no longer wishes to be employed may not be optimal, but as a method of keeping the employee from competing, it might serve to be quite helpful. Lorenzo Lisi practises employment and labour law at Aird & Berlis in To- ronto. For more information, call (416) 863-1500 or visit www.airdberlis.com. toP 10 < pg. 5 Family status issues gain prominence in 2014 Examine labour relations using a more strategic and collaborative approach Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Whether you are a labour relations professional, HR practitioner or a business leader, Out of the Mist: Understanding Canadian Labour Relations Strategy will inspire you to think strategically about labour relations. Using Zen Buddhism as a theme, the authors take you on a journey through the theory behind labour relations strategy. You'll learn how to describe labour relations strategies, predict the success of different strategies, and choose appropriate strategies for various circumstances. You'll find thought-provoking insight on unions, the collective bargaining process, and alternatives to the current adversarial model. The authors review the dynamics of workplace conflict, focusing on collaborative approaches and union/management partnerships. And they also discuss union-free workplaces and the strategies used to keep them this way. Out of the Mist: Understanding Canadian Labour Relations Strategy is a call-to-action for a shared value approach to labour relations, one that focuses on collaborating to find solutions that work for multiple stakeholders. This approach drives competitive advantage and supports a sustainable future for your community. Order # 986402-65203 $89 Softcover approx. 342 pages October 2014 978-0-7798-6402-7 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00223RB-A46485 New Publication Canadian Labour Reporter Special Report Out of the Mist: Understanding Canadian Labour Relations Strategy Hugh Secord and Sue Mackintosh, Oakbridges Labour Relations Strategists Credit: michaeljung/Shutterstock Credit: Christian Delbert/Shutterstock Credit: Lightspring/Shutterstock Credit: Stylus photo/Shutterstock

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