Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends 6 | March 30, 2016 Later that week, on Nov. 18 or 19, Opp told another administrative assistant at MLC that she had just learned she was preg- nant and was worried because she had just started her employment with the firm. She also told the co-worker she had informed Leslie Mackoff, the senior partner of MLC, and wondered if it would affect her employ- ment. e co-worker doubted it and said MLC would probably hire a temporary em- ployee when she went on leave. On Nov. 27, Opp went to lunch with three other MLC employees and told them she had just discovered she was pregnant a few days earlier. One of the employees, a parale- gal, told Opp she should inform the senior paralegal who was also the manager of sup- port staff at her earliest convenience. e paralegal later told the manager herself. Opp eventually told the senior paralegal about her pregnancy on Dec. 12, saying that she had gone to the hospital during a three-day absence from the office on Dec. 1 to 3 and found out then she was pregnant. She expressed concern about how the MLC partners would react to the news but the se- nior paralegal told her "that is not how this firm works," they had at least five women take maternity leave and all five were still employees. Opp said she would inform the partners shortly. Employee's story revealed to be false A couple of days later, the senior paralegal learned that Opp had told another admin- istrative assistant of her pregnancy back on her second day of employment and also spoke to the associate lawyer who had heard Opp discuss her pregnancy on her first day of work a month earlier. Around the same time, Opp met with Les- lie Mackoff, the senior partner, and told him that when she had been ill on Dec. 1 to 3 she had learned she was pregnant. Mackoff felt something was amiss about her story but he congratulated her and returned to work. e following day, Mackoff mentioned his conversation with Opp to the senior paralegal, who told him the story wasn't true. e senior paralegal told Mackoff of Opp's revelations to her co-workers in No- vember, including in the elevator on her first day of work and her stated intention to not inform the firm until later. Mackoff spoke with the other employees with whom Opp had spoken regarding her pregnancy and confirmed she had known she was pregnant on her first day of work. Her fabricated story about finding out she was pregnant in early December made him concerned over whether she would act hon- estly in other situations, such as if she made a mistake in a legal file and would try to cov- er it up or swear a false affidavit. Mackoff and the senior paralegal decided to terminate Opp's employment on Dec. 22, 2014. Mackoff made it clear to Opp that her termination "had nothing to do with pregnancy and everything with her willing- ness to concoct a falsehood and how that negatively impacted my ability to trust her judgment and her honesty." Opp indicated she understood the reason for termination, but later filed a complaint against MLC for discrimination based on physical disability, sex, and family status. MLC requested Opp's medical records, which showed she tested positive for preg- nancy on Nov. 3, 2014, and did not visit the hospital during the period of Dec. 1 to 3. It then applied to dismiss the complaint on the basis it didn't have grounds to succeed. Opp confirmed she didn't visit the hospi- tal, but said she didn't recall referring to her sick time on those days in her conversation with Mackoff. She also said she had been assured by her co-worker that her employ- ment was secure, so she wouldn't have had any reason to make up a story about when she learned she was pregnant. Her reason- ing for not announcing her pregnancy to her employer until mid-December was that she wanted to wait until she was confident she wouldn't have a miscarriage, as she had suf- fered two previous miscarriages. e tribunal found that Mackoff had no reason to fabricate a story that Opp told him she found out she was pregnant while off sick on Dec. 1 to 3. Mackoff had sent a letter to the senior paralegal following Opp's ter- mination confirming the circumstances and his actions and accounts were consistent. Opp couldn't explain why Mackoff would make such a story up, said the tribunal. "In suggesting, rather than plainly stating, that the aforesaid conversation did not take place, Ms. Opp is essentially suggesting that either Mr. Mackoff was mistaken or that he deliberately fabricated the aforesaid conver- sation in order that he could terminate her employment because she was pregnant," said the tribunal. "It is doubtful that Mr. Mackoff would be mistaken respecting the content of the Dec. 12 conversation when he reiterated it to the senior paralegal on Dec. 16, only four days later." e tribunal noted that there were at least five MLC employees who had taken maternity leave and were still employees of the firm, giving Opp no reason to fabricate a story, as she did. It disagreed with Opp's claim that the short period of time from when she revealed her pregnancy and her termination meant that the pregnancy was a factor in the termination. "It seems likely to me that the tribunal would accept at a hearing of this matter that MLC has provided a reasonable, non- discriminatory explanation for the decision to terminate Ms. Opp's employment," said the tribunal in dismissing Opp's complaint. For more information see: •Opp v. Mackoff Law Corporation, 2016 CarswellBC 168 (B.C. Human Rights Trib.). Employee had no reason to fabricate story « from DISMISSAL on page 1 lating to workplace PTSD prevention plans. is information may be published. Practical considerations for employers Most, though not all, first responder em- ployers are Schedule 2 employers for the purpose of the WSIA. A Schedule 2 em- ployer does not operate under the collective liability insurance principle, but instead is directly responsible for the full cost of ac- cident claims filed with and managed by the Ontario Workers Safety and Insurance Board (WSIB). As the likely result of Bill 163 will be an increase in successful PTSD claims from first responders, the cost of worker's compensation coverage for Sched- ule 2 employers is expected to rise. In addi- tion, because the bill will apply retroactively, an employer may find itself having to bear the claim costs resulting from past PTSD diagnoses or absences only now attributed to PTSD. In light of the foregoing, and in anticipa- tion of the passage of Bill 163, employers could consider the following proactive steps to minimize risk and related worker's com- pensation costs: • Review existing training and support for first responders to minimize the potential for PTSD in the first place. • Successful return to work is the most effec- tive way to minimize claim costs. Accord- ingly, consider each claim critically and, as soon as possible, provide suitable modified duties and meet all accommodation re- sponsibilities in order to return workers to the workplace. • Carefully review any related past claim or appeal that may be covered by Bill 163. Consider the medical information in the WSIB claim file or tribunal case record to ensure a prior PTSD diagnosis fits within the current DSM-5 criteria. If not, and a claim is brought under the amended act, take steps to ensure the "Bill 163 presump- tion" is not applied. Increased cost of coverage likely « from PROPOSED on page 3

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