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 | October 28, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Changing a new hire's start date Question: Once a job candidate accepts an employment offer, would delaying the start date be a breach or fundamental change in the employment contract? Answer: Delaying the start date of an em- ployment contract could be a fundamental change amounting to constructive dismissal. Whether it would be such a change would depend on the circumstances. e Supreme Court of Canada recently clarifi ed the law relating to constructive dismissal in its decision in Potter v. New Brunswick Legal Aid Services Commission. It confi rmed that constructive dismissal could occur in two ways: a unilateral change that substantially changes an essential employ- ment term, or conduct of the employer that indicates an intention to no longer be bound by the contract. In establishing the fi rst form — a substantial alteration of an essential term — it must be shown that a reasonable person in the same situation as the employee would have felt the essential terms of the em- ployment contract were being substantially changed at the time the breach occurred. Although constructive dismissal typi- cally involves changes to an employee's compensation, work assignments or place of work, it is certainly not limited to those circumstances. If a fi rm start date can be regarded as an essential term on the facts, a substantial alteration of that term could constitute a constructive dismissal. In Horvath v. Joytec Ltd., an employee had accepted a job off er with a start date of either Dec. 1 or Jan. 2 and a promise from the new employer to provide a fi rm date by the end of October. Subsequent discussions indicated that a start date of Jan. 2 was most likely. In November, the employee resigned her existing employment eff ective mid-Decem- ber and informed the new employer by tele- phone that she had done so. Although there was some dispute as to what transpired in the Is nicotine addiction a disability? Question: When an employee is addicted to drugs or alcohol it can be considered a disability. Can an addiction to smoking be considered a disability requiring accommodation? Answer: Although the question has not been recently addressed in case law, nico- tine addiction has been found to be a dis- ability requiring accommodation in the past. is fi nding was made in the context of a union grievance challenging a workplace policy that imposed a complete smoking ban everywhere on the employer's property. In Cominco Ltd. v. United Steelworkers of America, Local 9705, the union did not object to the part of the policy that banned smoking indoors, conceding that environ- mental tobacco smoke posed health risks to both smokers and non-smokers in enclosed areas. However, it challenged the extension of the ban to outdoor areas. It contended that this aspect of the smoking ban unrea- sonably intruded on personal life choices, did not protect any legitimate employer in- terest and off ended the prohibition against discrimination on the basis of disability in the British Columbia Human Rights Code. e union asked that aff ected employees be accommodated by rescinding the ban on outdoor smoking. Although the arbitrator did not impose the solution proposed by the union, or any other form of accommodation, he did fi nd that some of the Cominco workers were disabled for human rights purposes. e evidence before him indicated that nico- tine was highly addictive and both nicotine addiction and withdrawal were addressed in the Diagnostic and Statistical Manual of Mental Disorders. While nicotine did not impair function to the same degree as alco- hol or drugs, it did have long term disabling eff ects, including withdrawal symptoms that could signifi cantly impair normal function. e workers found to be disabled as de- fi ned by the code were those heavy smokers who experienced serious withdrawal due to their inability to smoke during the time they were required to stay on company property. In reaching this conclusion, the arbitrator declined to follow McNeill v. Ontario (Min- istry of the Solicitor General & Correctional Services, a 1998 decision involving a charter challenge by an inmate of a correctional in- stitution to a smoking ban at the institution. e court held that nicotine addiction was not a disability under the equality provisions of the Charter of Rights and Freedoms. Although noting that the cases did not raise identical issues because of the diff erent legislation involved, the arbitrator identi- fi ed several fl aws in the court's decision. e court appeared to have found that nicotine addiction could not be a disability because of its temporary nature, despite the fact that many recognized disabilities were tempo- rary and capable of being overcome. As well, the court had not had the benefi t of expert medical evidence on the issue of nicotine ad- diction. Finally, it did not seriously address the concept of disability, suggesting instead that the inmate address the adverse eff ects of the smoking ban by staying out of trouble. It is diffi cult to fault the arbitrator's analy- sis or his criticism of some of the reasoning in McNeill. However, the courts that have rejected nicotine addiction as a disability under the charter, including McNeill, R. v. Ample Annie's Itty Bitty Roadhouse, and Yel- lowknife (City) v. Denny, have done so on the basis that it does not interfere with a person's eff ective physical, social and psychological functioning in the same way as alcohol or narcotics addiction. is is a valid distinc- tion that might hold sway in a human rights context in some future case. It must also be remembered that proof of a disability alone does not trigger a duty to accommodate. Discrimination must fi rst be found. In Cominco, the employer's policy was found to have discriminated against heavily addicted employees by forcing them to endure the daily eff ects of withdrawal and by exposing them to discipline, up to and including discharge, if they were unable to control their addiction. e sheer size of the employer's property prevented employees from getting away for smoke breaks during their shifts. Clearly, this set of facts would not be present in every case. Because the arbitrator did not decide the issue of accommodation, it is not clear whether steps taken by the employer — smoking cessation programs provided to employees and spouses, nicotine replace- ment therapy and ongoing counselling — would have satisfi ed its obligations in the particular circumstances before the arbitra- tor. However, by analogy to other addiction- related disabilities, an employer might also have been required to tolerate relapses and absences and implement graduated return- to-work programs in individual cases to ac- commodate particular employees. It is unlikely that the range of accom- modations would include condonation of smoking in most working environments, given the statutory and regulatory bans that have been implemented in most jurisdic- tions, the rights of other workers to demand smoke-free workplaces and the interests of employers in promoting employee health. DELAY on page 7 »

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