Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | May 13, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com ASK THE EXPERT on page 6 » Asking an employee for information for family status accommodation Question: I understand there are limits to what medical information an employer can request when examining options for accommodating a disability, but are there limits to what information can be requested from an employee requesting family status accommodation? Asking a work-at-home employee to work at the of ce Question: If an employee is hired for a work-at-home position, could it be considered constructive dismissal if the employer decides after a while that it wants the employee to work at the offi ce every day? Answer: Constructive dismissal occurs when a unilateral act of the employer breaches the employment contract and the breach is reasonably regarded as having made a signifi cant change in an essential term. e question whether an employer's unilateral act amounts to constructive dis- missal in any given set of circumstances is described in Potter v. New Brunswick (Legal Aid Services Commission) as a "highly fact- driven exercise." In the circumstances raised here, the em- ployer could be found to have constructively dismissed the employee if it was an express or implied term of the employment contract that the employee be entitled to work from home. However, if the arrangement was merely an indulgence on the part of the em- ployer or a temporary or trial arrangement, subject to unilateral change by the employer, there would be no breach of contract and no right to claim constructive dismissal. If no written contract exists or the location for performance of the work is not expressly addressed in a written contract, the employee would need to establish that the parties in- tended to confer a contractual right on the employee to work from home. Her ability to do so would depend on the facts. However, the case law does provide some indication of what would be involved in doing so. In Smith v. Viking Helicopter Ltd., it was held that an employer has the right to deter- mine the location at which work is performed in the absence of contrary contractual intent. e court held that an employee has no vest- ed right to work at a particular location and must expect "reasonable dislocations … in- cluding the place where it is to be performed." Smith involved the transfer of an employer's operations from Ottawa to Quebec for eco- nomic reasons. An employee who refused to move because of his Ottawa roots and con- nections was found to have resigned and not to have been constructively dismissed. e appellate court pointed out that the trial judge had erred by treating the employee's personal situation as refl ecting terms of his employment. In Rasanen v. Rosemount Instruments Ltd., the Ontario Court of Appeal held that an em- ployee had not been constructively dismissed when he was transferred from Toronto to Calgary following a corporate reorganization. Although the employee had legitimate per- sonal reasons for remaining in Toronto, those reasons could not be imposed on the employ- er to prevent it from operating reasonably in the conduct of its business. In Brown v. Pronghorn Controls Ltd., the Alberta Court of Appeal held that an employ- ee had resigned when he refused to accept a transfer from Red Deer to Sedgwick, a two- hour drive away. Although there was no ex- press contractual term stipulating a location for performance of the employment contract, the court found an implied term allowing the employer to relocate the employee. In con- cluding that the employee had no contractual Answer: As with any request for reasonable accommodation of an employee's protected characteristics, the nature of the accommo- dation sought will determine the informa- tion to which the employer will be entitled. e case law generally requires that an em- ployee provide suffi cient information to establish a need for accommodation and to allow the employer to craft and implement an appropriate solution. As with disability accommodation, privacy concerns may re- strict the employer's entitlement to informa- tion but, generally speaking, an employer will be entitled to information that is reason- ably necessary to fulfi ll its obligations. e most common requests for family status accommodation involve confl icts be- tween childcare and employment obligations, although eldercare obligations have also been considered. e case law addressing an em- ployer's duty of reasonable accommodation of such obligations has not defi ned any pre- cise limits on the information the employer may request in assessing the nature and ex- tent of its duty in these contexts. However, the most recent authoritative test for discrimination in relation to childcare obligations at the present time, from the Fed- eral Court of Appeal decision in Johnstone v. Canada (Border Services Agency), requires an employee to establish: (i) a child is under her care and supervision; (ii) the childcare ob- ligation at issue engages the individual's legal responsibility for that child, as opposed to a personal choice; (iii) she has made reasonable eff orts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfi llment of the childcare obligation. As the employer's duty to accommodate arises only in the event that these elements are met on the facts, an employer would rea- sonably be entitled to suffi cient information to allow it to conclude that its duty was trig- gered on the facts and how that duty might best be met. ere will obviously be cases where an em- ployee claims accommodation on the basis that a family member's disability necessitates her absence. If an awareness of the family member's condition and prognosis could be shown to be a necessary and appropriate as- pect of the employer's decision, there is no reason to conclude that its request for that in- formation could be refused by the employee with impunity. In the fi nal analysis, the ques- tion of what information the employer may demand in any particular case will depend on the nature of the request for accommodation and the information reasonably required to both substantiate and fulfi l the employee's ac- commodation needs. As always, requests for information should be documented; employees should be advised of the reasons for requiring the information requested and the consequences of a refusal (such as the impossibility of determining an appropriate accommodation); and any infor- mation obtained from the employee should be shared only with those who need access to it in dealing with the accommodation re- quest. There could be constructive dismissal if it was an express or implied term of the employment contract for the employee work from home. If it is a trial arrangement, there would be no breach of contract

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