Canadian HR Reporter

CANADIAN HR REPORTER January 25, 2016 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW Notable employment law cases of 2015 Dress codes, accommodation, construc- tive dismissals and severance pay were just some of the issues covered in notable employment law cases in 2015. Here are 10 decisions covered by Canadian Em- ployment Law Today and Canadian HR Reporter featuring notable elements employers should be aware of. Rogers Cable and Unifor, Local 875 (Hogan), Re, 2015 CarswellNat 76 (Can. Arb.). is was a case where an em- ployer wasn't required to accom- modate an employee with an ad- diction. An arbitrator upheld the dismissal of a New Brunswick worker who lost his driver's li- cence because of a conviction for drunk driving. e employee had a string of performance and attendance is- sues. e employer gave him an opportunity to use the employee assistance program (EAP), but the employee declined. e EAP pro- vider asked the employee if he had a medical condition t h a t a f - fected his attendance, but the em- ploye e de- nied any such condition. e employ- ee was charged with driving while under the influence of al- cohol and his driver's licence was suspended for one year, leading to the employer dis- missing him. The employee argued he had an addiction that should have been accommo- dated, but the arbitrator found the employer dismissed the em- ployee because he couldn't do his job. With the information the employer had at the time, it was a reasonable decision and there was no discrimination because the employer wasn't aware of any addiction. Wilson and Atomic Energy of Canada Ltd., Re, 2015 CarswellNat 64 (F.C.A.). A federally regulated employer dismissed an employee and gave him six months' severance pay. e employee fi led a complaint pursuant to the Canada Labour Code, alleging he was unjustly dismissed. An adjudicator fol- lowed precedent in fi nding the employee was unjustly dismissed, but the Federal Court overturned the adjudicator's decision. e Federal Court of Appeal affi rmed the Federal Court's de- cision, fi nding that if Parliament intended to divert from the com- mon law and prevent dismiss- als without cause, it would have done so explicitly. It also pointed out that there are notice and sev- erance pay provisions within the code, so it made sense that Par- liament didn't intend to prevent federal employers from having the same rights as other non- unionized employers in the coun- try with regards to common-law notice. Until this decision, employers governed by the Canada Labour Code were pretty much unable to dismiss employees without cause. Going forward, it looks like such employers can choose to dismiss an employee without cause, so long as they give reasonable no- tice or pay in lieu of. Keenan v. Canac Kitchens, 2015 ONSC 1055 (Ont. S.C.J.). is case out of Ontario remind- ed employers that determining whether someone is an employee or an independent contrac- tor depends on the nature of the relationship, not the contract. A married couple was em- ployed by Canac Kitchens in the early 1980s. Canac eventu- ally informed them they would no longer be employees but rather independent contractors. Canac would set the rates and pass along money for the install- ers, while paying the couple on a piecework basis. Canac drafted a subcontractor agreement stating "as a subcontractor of Canac, you will devote full-time attention to the business of Canac and shall report to Canac's installation manager." The couple worked almost exclusively for Canac for more than 20 years. They continued to receive employee discounts, wore shirts with Canac logos, had Canac business cards, mobile phones provided by Canac, and an offi ce at Canac's location. In 2009, Canac informed the couple it was closing its opera- tions and their services would no longer be required. e court found the couple's relationship with Canac favoured a finding that they were "dependent con- tractors" due to "a high level of exclusivity" with the company and signifi cant economic dependence. Canac "maintained effective control of the business" and the couple was almost completely depen- dent on Canac, de- spite its attempts to distance itself from the employment relationship. This case is a good example of the relatively new, in- between level of em- ployment relation- ship featuring a de- pendent contractor. MS Equipment v. CEP, Local 707, 2015 CarswellAlta 385 (Alta. Q.B). This Alberta case continued the trend set by the landmark 2014 case of Johnstone v. Canada (Border Ser- vices Agency) dealing with accom- modation of employee parental obligations. A single mother with two chil- dren was an apprentice welder. Her fi rst-year position had shifts of "seven days on and seven days off with rotating tours of days and nights" so she had to use childcare. e worker requested her hours be changed to straight day shifts since she was fi nding it diffi cult to balance her childcare needs. e employer denied the request and the union fi led a grievance claim- ing discrimination. An arbitrator found that fam- ily status included childcare re- sponsibilities and the employer's rule that welders must work night shifts "has the eff ect of imposing a burden on (the worker) due to her childcare responsibilities that is not imposed upon welders who do not share her status." e appeal court agreed that the choice to become a working parent "(does) not negate a claim of discrimination" and it was rea- sonable to expect employers to develop rules and policies that help share the burden of family responsibilities and not impede the "full participation in the work- force" of working parents. Gatien v. Canada (Attorney General), 2015 CarswellNat 1195 (F.C.). e Federal Court took a page out of the Supreme Court of Canada's decision in Keayes v. Honda Can- ada and found mental stress dam- ages should be based on whether they were foreseeable, rather than arising out of a separate action- able wrong. A government worker had dif- fi culty with a problem employee but her appeals for the higher-ups to do something went unheeded. ings came to a head in a physi- cal altercation and the worker went off work for psychological stress. When she was back, the problem employee — who had been transferred — was allowed to come back to get her belong- ings so the worker built a barri- cade to prevent her return. She was then suspended for 10 days for her actions. e Public Service Labour Re- lations Board reduced the sus- pension to an oral reprimand but found the excessive suspension could not lead to damages for mental suff ering because it was not a "separate actionable course of conduct." ough the Federal Court didn't award stress damag- es either, it said it was current law that aggravated damages for men- tal stress were based on reason- able foreseeability, as established in Keayes, and didn't require an independent actionable wrong. Potter v. New Brunswick (Legal Aid Services Commission), 2015 CarswellNB 87 (S.C.C.). e law surrounding construc- tive dismissal has changed con- siderably over the past few years. e Supreme Court of Canada weighed in on the issue when it determined an employee had been constructively dismissed when his employer suspended him with pay indefi nitely. The employee had a seven- year contract with Legal Aid of New Brunswick. After almost four years, the employee and the employer tried to negotiate a settlement whereby the employer would buy out the balance of the contract if the employee resigned. e employer, without informing the employee, decided that if an agreement was not reached by a specifi ed date, it would request the lieutenant-governor in council revoke the appointment. When the deadline passed, the employer sent a letter to the employee informing him his em- ployment was suspended with pay. The Supreme Court con- cluded the employee had been constructively dismissed due to the fact the suspension was a uni- lateral change to the employment contract, entitling the employee to damages for the balance of the contract. While this case is fact-specif- ic, it helps clarify the two-step test the Supreme Court used to evaluate claims of construc- tive dismissal: whether there is a unilateral change in the contract and whether a reasonable person would perceive the change as an essential term of the contract. Garda Security Screening Inc. and UFCW, Local 175 (Ciccone), Re, 2015 CarswellOnt 9906 (Ont. Arb.). While accommodation is a two- way street, in this case, the em- ployee didn't co-operate with the employer's accommodation eff orts, relieving the employer of its duty. The company in charge of screening passengers at an On- tario airport discovered one of its screening offi cers was colour- blind, which wasn't allowed by minimum vision requirements. A company imple- mented accom- modation pro- cedures to allow the officer to continue work- ing but removed his duties at the X-ray machine. The officer re- fused to sign the proper paper- work, arguing he had done a fi ne job with the X- ray machine for years and he had passed all the re- quirements. Al- lowing the offi cer to work on the machine was against regulations and policy, so the company termi- nated his employment. The arbitrator found that it didn't matter if the offi cer could operate the X-ray machine, as once the company became aware of his vision defi ciency, it couldn't allow him to continue under regu- lations. e arbitrator also found the offi cer's employment wasn't threatened because of his dis- ability, nor was he discriminated against. His dismissal was for fail- ure to let the company place him in an accommodated position. Stewart v. Elk Valley Canadian Union of Public Employees, Local 1767 and B.C. Assessment Authority, 2015 CarswellBC 2268 (B.C. Arb.). is case out of B.C. is an example not only of a sensible approach to a dress code, but the importance of a clear and consistent policy not just for dress codes, but for any workplace rule. The B.C . Assessment A u t h o r - ity (BCAA) a d o p te d a w o r k p l a c e attire policy applicable to all employees in its head and field offices . e policy rec- ognized staff worked in "a variety of en- v i r o n m e n t s " when conducting field visits, so it couldn't provide direction for ap- propriate dress in every work situa- tion. It provided a guideline, stating "it is our expecta- tion that employees will come to work wearing ap- propriate and professional attire. Common sense, reasonableness and good judgment should prevail when selecting work attire that is appropriate for the intended activity and in accordance with WorkSafe BC and any other safety considerations." After management in some lo- cal offi ces tried to ban jeans and shorts, the union filed a com- plaint. An arbitrator noted that dress standards evolved in local offi ces individually and employees dressed according to their circum- stances. Under the new policy, there was still no specifi c prohibi- tion. But when certain managers tried to limit the freedom given to employees in the policy, it wasn't reasonable and inconsistent with the BCAA's overall policy. Jeff rey R. Smith is the editor of Cana- dian Employment Law Today.

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