Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 more Cases evaluation was unsatisfactory enough to have his pay increase held back. In a prog- ress review for the first half of 2011, there was a slight improvement, but by the end of the year Hogan's performance regressed again. Hogan also had attendance issues, which put pressure on other technicians who had to cover his assignments when he wasn't working. On Jan. 25, 2012, Rogers gave Hogan a letter of concern regarding his absenteeism. ere was no improvement, so a second letter of concern was given to him on March 22. Rogers gave Hogan an opportunity to use the employee assistance program (EAP), but Hogan declined. Rog- ers asked the EAP provider to contact Ho- gan to see if he had a medical condition that affected his attendance, but Hogan denied any such condition. Hogan was suspended for two weeks on July 30, 2012, for failing to complete work he had been assigned and had signed off on, which was a "significant breach of policy." On Sept. 4, Rogers gave Hogan a third let- ter of concern regarding his attendance and management met with him to discuss it. On Nov. 30, 2013, Hogan was charged for driving while under the influence of alcohol. He was scheduled to work the next day, but didn't report for duty. Hogan's wife called Rogers to say Hogan's licence had been sus- pended for three months, so Rogers put him on administrative leave without pay. e company indicated a valid driver's licence was essential to his job duties as stated in his letter of employment. Hogan's hearing was on March 4, during which his driver's licence was suspended for one year. He reported the decision to Rog- ers the next day. Rogers management and human re- sources department considered Hogan's disciplinary record and his poor perfor- mance review, which it felt didn't warrant a leave of absence. Since he was unable to perform his job duties and Hogan hadn't requested any accommodation, it was de- cided his employment would be terminated effective April 28, 2012. Hogan and the union grieved the dis- missal, arguing he had an addiction to alco- hol that should have been accommodated Hogan by assigning him to other work that didn't require a driver's licence or give him a one-year leave of absence. Shortly before the hearing, the union provided a written medical report diagnosing Hogan with al- coholism and noting his desire to overcome it through treatment. e union also said Rogers had some knowledge of Hogan's al- cohol dependency as it had been brought forward in the grievance process in the month following his dismissal. e arbitrator commented that the cir- cumstances required a balancing of in- terests between Rogers' need to maintain production and Hogan's need to retain his employment. Hogan had less than eight years' service with Rogers, which was rid- dled with poor attendance. Rogers gave Ho- gan notice that his attendance record was unacceptable and several opportunities to improve, but he didn't. It also asked him if there were medical reasons for his poor at- tendance but Hogan said there wasn't. Ultimately, Rogers terminated Hogan's employment because he couldn't do his job. With the information the company had at the time, it was a reasonable deci- sion and there was no discrimination be- cause Rogers wasn't aware of any addiction problem — particularly since Hogan said he didn't drink on the job and he worked alone with little direct supervision, said the arbitrator. "At no time did (Hogan) inform his em- ployer that he had a drinking problem even though he admitted at the hearing having discussed the matter with his family doctor on numerous occasions," said the arbitrator. "From a purely industrial relation perspec- tive, it would be difficult to conclude that the decision of the employer was unreasonable." e arbitrator upheld the dismissal. See Rogers Cable and Unifor, Local 875 (Hogan), Re, 2015 CarswellNat 76 (Can. Arb.). Worker denied having a medical condition « from alCoholism on page 1 cause she was dismissed for cause and in retaliation for attempting to enforce her employment standards rights. e Wilson, Berkhout, Partridge and Bray decisions are examples of a growing trend where human rights damages were award- ed in the context of wrongful dismissal ac- tions. ey send a loud message to employ- ers that should they subject their employees to adverse treatment in the workplace or refuse to accommodate their disabilities or childcare obligations, they would do so at their economic peril. Significant awards of damages, in the average amount of $20,000, re-affirm both the importance of human rights breaches by employers and the se- riousness of breaches of this nature. Argu- ably, if the award of damages was lower, it could have been counterproductive, as it would have trivialized the social impor- tance of the human rights' breaches. A cautionary note While the Partridge and Bray decisions clearly signify courts' willingness to award human rights damages in the context of wrongful dismissal actions, when it comes to the assessment of discrimination based on family status, the methodology the Fed- eral Court of Appeal employed in Johnstone should be preferred. Even though it primar- ily applies to federally regulated employers, Johnstone contains valuable lessons for pro- vincially regulated employers. For more information see: • Wilson v. Solis Mexican Foods Inc., 2013 CarswellOnt 13851 (Ont. S.C.J.). • Berkhout v. 2138216 Ontario Inc., [2013] O.J. No. 1125. • Johnstone v. Canada (Border Services Agen- cy), 2014 CarswellNat 1415 (Fed. C.A.). • Partridge v. Botony Dental Corp., 2015 CarswellOnt 576 (Ont. S.C.J.). • Bray v. Canadian College of Massage and Hydrotherapy, 2015 CarswellOnt 1232 (Ont. S.C.J.). Damages send message to employers « from human rights on page 3 AbOuT THE AuTHOR NiKOlaY cHsHERBiNiN Nikolay Chsherbinin is an employment lawyer at Chsherbinin Litigation in Toronto, and the author of The Law of Inducement in Canadian Employment Law. He can be reached at 416-907- 2587, nc@ nclaw.ca or by visiting www.nclaw.ca.

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