Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 7 More Cases 21 years of service deserves more than statutory minimum notice: Court A COURT has awarded an Ontario worker 16 months' notice after the worker was paid statutory minimums in the wake of her dis- missal after 21 years of service. Cherrie Fermin, 52, started work with In- tact Financial Corporation in August 1994 as a claim adjuster in Mississauga, Ont. She moved to various similar jobs during her time with Intact, eventually achieving an intermediate-level claims representa- tive position. Her duties included inves- tigating routine and moderately complex losses, evaluating claims, ensuring prompt and equitable settlement of claims, negoti- ating with claimants, lawyers and adjusters to settle claims up to $25,000, documenting claims files, customer service, and keeping up-to-date on Intact's insurance products, services and techniques. Intact terminated Fermin's employment on Nov. 24, 2015, after 21 years of service. e company gave her eight weeks' pay and benefits along with 21 weeks of severance pay — equal to the minimum notice require- ments under the Ontario Employment Stan- dards Act, 2000. Intact also provided Fermin with career transition counselling, such as access to online courses, a job-search ser- vice, social media networking strategies, and networking opportunities. Fermin sued for wrongful dismissal, claiming the statutory minimum notice wasn't enough for someone with her ser- vice and position. She argued she deserved between 19 and 21 months' notice, or pay in lieu of. After her dismissal, Fermin applied to 77 positions and participated in six telephone interviews. She used the counselling servic- es offered to her and met with a consultant to discuss job search strategies, in addition to searching work sites and applying to recruit- ment agencies. Intact's human resources consultant pro- vided Fermin with 58 job postings for work- ers of varying experience, and Fermin applied to 12 of them. However, she wasn't successful on any of them. During part of this time, Fer- min was ill and took some "recovery time" to come to terms with her dismissal. Intact acknowledged that, since there were no contract provisions limiting Fermin's no- tice entitlement, she was entitled to more than the statutory minimum. However, the company argued that she had been in a "mid- level administrative" position with no mana- gerial or supervisory responsibilities. It also argued Fermin didn't take reasonable steps to mitigate her damage, as she didn't apply to all the positions its HR consultant passed on to her. Intact's position was that Fermin shouldn't get more than 15 months' notice. e Ontario Superior Court of Justice found that Fermin's job wasn't strictly ad- ministrative, as she had a certain level of re- sponsibility in investigating, evaluating, and settling claims up to $25,000. She also had to know "the intricacies of policy endorse- ments as well as fault determination rules" for determining fault and recommending coverage. As a result, the court determined Fermin's position was "a mid-level technical position" that would deserve notice on the high end. e court also disagreed with Intact's ar- gument that Fermin failed to mitigate her damages with a passive job search. She used the services the company offered her and it wasn't necessary for her to apply for every position available, said the court. It was reasonable for Fermin to take some time to deal with the emotional impact of being dismissed from a long-term job, and to restrict her job search to areas with a rea- sonable commute time, especially since she already lived in an area with a "large employ- ment marketplace," the court said, adding that not every position Intact passed along to her would have met her financial and geo- graphical needs. "e mitigation efforts need not have been perfect, or even to the standards of a human resources professional, just reasonable," said the court. "I am not satisfied that any of the positions suggested by (Intact) to which she did not apply would have resulted in compa- rable employment had she applied." Intact was ordered to pay Fermin 16 months' pay and benefits in lieu of notice, minus what the company had already giv- en her and any amounts earned by Fermin since her dismissal. Since this period was still ongoing, the court ordered the funds to be held until the end of the notice period and be reduced by any employment income earned by Fermin in that time. See Fermin v. Intact Financial Corp., 2016 CarswellOnt 14523 (Ont. S.C.J.). Mitigation efforts need not be perfect, just reasonable. prior disability caused or contributed to the compensable accident, or if the period re- sulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the ac- cident employer …to the (second injury and enhancement fund)." An appeals resolution officer denied the employer's claim, finding there was no evi- dence of a pre-existing condition that caused or contributed to the accident. e employer appealed to the tribunal. e tribunal noted one of the purposes of the fund was to encourage employers to hire workers with disabilities, since they would be provided with financial relief if a pre- existing condition aggravated or prolonged a worker's disability. e policy document governing the fund defined "pre-existing disability" as "an underlying or asymptom- atic condition which only becomes manifest post-accident." e tribunal also pointed out that the policy manual document allowed full relief of a claim's cost when "a prior non-work-re- lated condition is the cause of the accident." e tribunal's medical liaison office pro- vided a paper on obstructive sleep apnea, which outlined details of the condition and stated that patients with it were two to three times more likely to be in motor vehicle ac- cidents, as it caused or exacerbated cognitive deficits. e tribunal mentioned the difference between an underlying condition affecting the severity of an injury and one affecting the injury-causing accident itself. In the former circumstances, relief for the employer would not be warranted. But in the latter, under the policy, the employer is entitled to relief. e tribunal found it was likely that the worker's accident was caused by his obstruc- tive sleep apnea. e condition itself wasn't compensable, but the injuries the worker suffered while working were. As a result, the employer was entitled to 100 per cent cost relief for the worker's claim from the second injury and enhancement fund. e employer's appeal was allowed and the appeals resolution officer's decision overturned. See Decision No. 2296/16, 2016 CarswellOnt 15764 (Ont. Workplace Safety & Insurance Trib.). « from EMPLOYER on page 1 Underlying condition caused accident

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