Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.
Issue link: https://digital.hrreporter.com/i/772161
CANADIAN HR REPORTER January 23, 2017 6 NEWS ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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(prices subject to change without notice) ONTARIO LAWYER'S PHONE BOOK 2017 PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com September 14, 2016 Wrongful dismissal damages — Bonus entitlement BY RONALD MINKEN FOR some workers, a bonus makes up a signifi cant portion of their remuneration. For others, a bonus is something that may or may not be provided by their employee at specifi c times of the year — such as Christ- mas, for example. Often, an employee who is dismissed without cause will ask whether her entitle- ment to wrongful dismissal damages will in- clude a component for lost bonuses. Compensation for wrongful dismissal can include an amount for a bonus which the employee would have been entitled to re- ceive during the notice period. In the absence of an employment agree- ment specifying to the contrary, the question is whether the bonus has become an essen- tial component of the employee's remunera- tion or whether it is essentially a gift — to be delivered at the employer's sole discretion. A recent decision of the Ontario Court of Appeal, Paquette v. TeraGo Networks Inc., dealt with this issue. When Trevor Paquette was fi red by Tera- Go Networks, the dismissed employee and his former employer could not agree on a severance package. Paquette brought a sum- mary judgment motion to determine the pe- riod of reasonable notice and damages. e motions judge awarded notice at 17 months and based damages on salary and benefi ts that Paquette would have earned during the 17-month notice period. e motions judge did not award damages for bonuses, because the employer's bonus plan required an em- ployee to be "actively employed" at the time the bonus was paid. Paquette appealed that decision on the issue of whether the motion's judge made a mistake in not including compensation for lost bonuses. e Ontario Court of Appeal allowed the appeal. e motion judge erred in focusing on the Nurse fi red for forcing care on resisting care home resident Intentions were good but nurse made a mistake forcing protesting resident to have a shower, resulting in injuries to resident BY JEFFREY R. SMITH AN ARBITRATOR has upheld the dismissal of a registered practical nurse at an Ontario long- term care home after a resident suff ered injuries after resisting care and the nurse failed to fi le an incident report. Chester Posada was a regular part-time reg- istered practical nurse (RPN) at Bendale Acres, a long-term care home operated by the City of Toronto. He was hired in September 2008 and worked in the behavioural response unit, a locked area housing cognitively impaired residents who could act out. On Aug. 20, 2014, Posada was working in the unit with three other staff members. One of the patients, an 86-year-old man referred to as TS, suff ered from dementia and several other affl ic- tions that required him to be on blood thinners. e blood thinners increased TS' susceptibility Intoxicated, dishonest -- and reinstated with full pay pg.3 Employe ignored sunset clause in collective agreement CREDIT: LIGHTHUNTER/SHUTTERSTOCK Getting ready or legalized marijuana pg. 4 Employers will have to treat employee use somewhat differently -- but still as an intoxicating substance ASK AN EXPERT pg. 2 Employee harassment outside work ACTIVE on page 7 » EMPLOYER on page 6 » with Stuart Rudner Canadian Employment Law Today is an indispensable tool in keeping managers, business owners, trade unions, HR professionals and law firms up-to-date on the latest developments in employment law. As a subscriber you will learn the strategies and techniques that enable businesses to devote more of their focus to productivity and profitability. COMPLY WITH THE LATEST EMPLOYMENT LEGISLATION To order your subscription call 1.800.387.5164 | 416.609.3800 www.employmentlawtoday.com/subscribe Subscribe today for only $299 Order No. 20612-17 e store manager requested medical evidence to support Misetich's ongoing absence from work and that she had "taken all reasonable steps to self-accom- modate and/or resolve the con- flict created by the parent." But Misetich said the request was insulting and offensive, and she would not share her parent's con- fidential medical information. Eventually, Misetich was ad- vised her failure to co-operate may be viewed as insubordination and put her employment in jeop- ardy. Finally, when Misetich failed to show up for scheduled shifts or provide further medical documen- tation, her employment was termi- nated for job abandonment — so she claimed discrimination with respect to employment because of family status. In the end, Misetich's ability to provide evening meals for her mother was not adversely affected by the requirement to work days, evenings and weekends, found Jennifer Scott, vice-chair of the Human Rights Tribunal of On- tario. As a result, the employee failed to establish discrimination, so it was not necessary to consider the issue of accommodation. Previous case law But in looking at the case, Scott cited the well-known 2014 Feder- al Court of Appeal case in Canada (Attorney General) v. Johnstone, which held that the ground of family status in the Canadian Hu- man Rights Act includes the sta- tus of being in a parent-child rela- tionship, as well as the obligations that flow from that relationship. "Different courts and admin- istrative decision-makers have applied different tests for family status discrimination and within that ground, different tests for childcare and eldercare," she said. "is was done because of the real concern that not every nega- tive impact on a family obligation, or conflict between a family and work obligation, is discriminatory. I agree with that concern. Where I part ways with these decisions is the notion that there is a different test for family status discrimi- nation than for other forms of discrimination." The test for discrimination should be the same in all cases, said Scott: "An applicant must establish that he or she is a member of a pro- tected group, has experienced ad- verse treatment, and the ground of discrimination was a factor in the adverse treatment. There is no principled basis for developing a different test." e test for family status dis- crimination has become, perhaps inadvertently, higher than for other kinds of discrimination, she said. "For example, in Johnstone, the Court of Appeal held the child- care obligation at issue must en- gage the individual's legal respon- sibility for the child, as opposed to a personal choice. e Court of Appeal stated the obligations that are covered are those that a parent cannot neglect without engaging his or her liability. In other words, to neglect those obligations would result in legal sanctions." But caregivers may have obliga- tions that may not emanate from their legal responsibilities, and are still essential to the parent-child relationship, she said, so "to limit human rights protection to legal responsibilities imposes an undu- ly onerous burden on applicants." Some cases have "conflated the test for discrimination and ac- commodation," said Scott. "I do not agree that in order to prove discrimination, an applicant must establish that he or she could not self-accommodate the adverse im- pact caused by a workplace rule." Assessing the impact of the im- pugned rule is done contextually and may include consideration of the other supports available, said Scott. And while this may appear to be akin to considering whether an applicant can self-accommo- date, it is different in a fundamen- tal way, she said. "Requiring an applicant to self-accommodate as part of the discrimination test means the ap- plicant bears the onus of finding a solution to the family-work con- flict; it is only when he/she cannot that discrimination is established. is is different than considering the extent to which other sup- ports for family-related needs are available in the overall assess- ment of whether an applicant has met his/her burden of proving discrimination." Legal analysis e tribunal seemed to indicate the bar was set too high in Johnstone, said Andrew Cogswell, associate at CCPartners in Brampton, Ont. "ey seemed to take the stance that self-accommodation shouldn't be a stand-alone step or stand- alone requirement as to whether or not discrimination exists, but that it should be part of overall contextual analysis of what type of impact the employment rule has on the individual. So, for example, if an employee has very little self- accommodation options available, then of course the rule will have a greater impact on them." Someone who is seeking fam- ily status accommodation related to eldercare may have to reach a higher standard than someone for childcare, said Cogswell, "and that doesn't make sense in the spirit of human rights legislation." The tribunal's view was that the Johnstone decision created a separate test or process for fam- ily status accommodation and discrimination versus other types of discrimination, said Heather Cameron, an associate at Norton Rose Fulbright in Ottawa. "e tribunal is saying, on an almost literal reading of the John- stone decision, the obligation to self-accommodate happens at the beginning, and the obligation to participate in the accommoda- tion process and that onus on the employee is at the beginning and is part of the assessment of wheth- er or not discrimination even oc- curs. But it should be treated more like other types of discrimination where it's an assessment of wheth- er or not the person's member- ship in that group and that their individual need is impacted — participation, for example, in the workplace is being impacted, that there's that kind of conflict." e tribunal really disagreed on the role self-accommodation plays when it is determining whether there is prima facie case of dis- crimination, said Giovanna Di Sauro, an associate at Filion Wake- ly orup Angeletti in Toronto. "(It) said employees are not re- quired to self-accommodate and… suggested that the Johnstone test may be conflating accommodation with the test for discrimination." At the same time, the tribunal said it will consider the extent to which other supports may be available to the applicant, she said. "e problem is that we don't really know what that means in practice right now." e human rights tribunal also said it will assess the impact of the rule contextually, said Di Sauro, "so that's where the tribunal starts departing from recent case law because the tribunal said it will not require employees to estab- lish that they cannot 'self-accom- modate.' And the tribunal will also look at these responsibilities in a broad way, so it will not simply fo- cus only on legally mandated care obligations, which is what was seen in the Johnstone test." What makes this case different from a lot of the case law on this issue is it deals with eldercare ac- commodation and that is some- times harder to pinpoint than childcare accommodation, said Cameron. "What the human rights tribu- nal was saying, in part, was that the idea that it engages a legal responsibility more than a per- sonal choice is harder to define when you're looking at eldercare responsibility versus childcare responsibility." ere's still the matter of per- sonal choice, said Cameron. "It can't be that every obligation someone has in a parent-child or familial relationship could ground a claim for discrimination or ac- commodation on the basis of fam- ily status… there has to be some sort of need or responsibility or something that's more than just a personal choice that's being af- fected. It just doesn't necessarily have to go as high as the legal ob- ligations with respect to that care- giver relationship." The ruling suggests workers may be able to more easily estab- lish family status discrimination, said Cogswell. Rather than the is- sue flowing from a legal responsi- bility, it can flow from the nature of the relationship. "The decision-maker there is really trying to draw the distinc- tion between what might be an ex- tremely vital family obligation but might not rise to the level of a legal obligation, which explains the issue she took with the Johnstone test of the accommodation only being re- quired if the applicant had a legal obligation, which is much easier to attach to a child than a parent. And most parties agree, whether it's the employee side or employer side, it makes sense we don't have a whole slew of different tests, but ultimate- ly both sides are looking for a bit more certainty of what tests we're going to stick with." Was bar set too high in Johnstone case? FAMILY STATUS < pg. 1