Canadian Employment Law Today

April 26, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, a Thomson Reuters business 2017 ough the first stage of new the daycare business required setup before July 2015, the contract set out the start date of Davies' employment as July 1. As a result, she did some preparation work before she started getting paid — including discussions with the local health authority, paperwork, and recruitment advertising. Davies brought a significant amount of educational materials, equipment, and furniture that were property of her Daisy Chain business. e new daycare business, called Lady- bird Montessori Learning Academy, was li- censed and opened in September 2015. In January 2016, Davies received two emails from a representative of Du that ex- pressed concern about expenses, enrolment, and how much time Davies spent doing banking. Du's wife — who had been teaching ballet at the Shineray-owned daycare facility, was asked to take over Ladybird's banking. On March 30, 2016, Shineray terminated Davies' employment. Her letter of termina- tion explained that she had failed to provide organized reports and failed to achieve more than one-half of the promised revenue. As a result, Ladybird had lost more the $130,000 since it had opened. Davies was ordered to return all relevant documents, materials, in- ventory, and assets by April 5. Davies was shocked and met with Du that day, but the termination proceeded. Afraid that Shineray was already remov- ing her access to email and the facility, she brought some friends and a U-Haul truck to Ladybird that evening and took all the ma- terials and equipment that were property of her business, Daisy Chain. Finding itself short of materials, Lady- bird sent a letter signed by Du to parents of the daycare's children saying the situation was "due to the sudden resignation of Sian Davies and the disappearance of our school equipment." Davies sued for breach of a fixed-term contract and aggravated and punitive dam- ages. e court found that, while the contract called Davies an independent contractor, the offer was for "employment" and Shineray controlled most aspects of her job. e reali- ty was that "Davies was hired as an employee and the contract, which is between her and Shineray, is a contract of employment," said the court. e court also found that the termination clause clearly stated that Davies was entitled to three months' notice regardless of wheth- er the termination was for cause or not. As a result, it didn't matter whether Shineray had established just cause — but the court noted that although Shineray referred to $130,000 in losses in the termination letter, it provid- ed no evidence supporting that figure. e court also determined that the January 2016 emails to Davies expressing concerns were vague and didn't constitute a warning that her employment was in jeopardy. Even if it was, Davies wasn't given enough time to im- prove before her termination, the court said. e court ordered Shineray to pay Da- vies three months' pay in lieu of notice — as stipulated in the termination clause, which allowed the company to terminate the con- tract before its five-year fixed-term elapsed. Since Davies was paid $5,000 per month un- der the contract, she was owed $15,000 in termination pay. e court also found that Shineray mis- represented the reason for Davies' departure and essentially accused her of stealing equip- ment that didn't belong to her in the letter to parents. is was "untruthful, misleading and unduly insensitive, constituting conduct made unfairly and in bad faith" that shocked Davies and cause her mental distress. In ad- dition, Davies actions in quickly clearing out equipment that belonged to her was fuelled by the company itself when it abruptly and wrongfully terminated her, the court said in ordering Shineray to pay another $30,000 in aggravated damages, for a total award of $45,000. See Davies v. Canada Shineray Suppliers Group Inc., 2017 CarswellBC 520 (B.C. S.C.). Canadian Employment Law Today | 7 More Cases « from FIRED DAYCARE on page 1 Worker took her own equipment after firing that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) that the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation. Under this test, the employee does not need to show "serious interference" with family obligations before the duty to accommodate will arise. It is well established that an employee who seeks accommodation must participate ac- tively and cooperatively in the accommoda- tion process, and must assist the employer in its search for an appropriate accommo- dation: Renaud v. Central Okanagan School District No. 23. e employee's duty to assist will include providing the employer with the information it needs to make a proper as- sessment of the requested accommodation. An employee's duty to provide necessary information is often discussed in cases in- volving disability-related accommodation requests, where the employer needs medical information to evaluate the employee's need for accommodation, and the specific accom- modations that are medically required. In these situations, although medical informa- tion is ordinarily private and confidential, it is acknowledged that employers can require access for legitimate purposes such as inves- tigating appropriate accommodations. e employer is entitled only to the information it needs to discharge its duty to accommo- date, and it must ensure that such informa- tion is accessed only by employer represen- tatives who need to see it, is protected from disclosure, and is properly secured. While an employee generally cannot be disciplined for failing to provide required medical informa- tion, an unreasonable failure to co-operate in the process may bring the employer's duty to accommodate to an end. Similarly, an employee who seeks accom- modation on the basis of family status must provide the employer with the information it needs to evaluate the request and determine the accommodations that are necessary. De- pending on the circumstances, this could include information regarding such mat- ters as the ages of the employee's children, the existence of any special needs affecting their care, the employment circumstances of the employee's spouse, the employee's financial situation, the availability of other family members to assist with childcare, etc. e individual circumstances of each situa- tion must be assessed, so the employer can balance its obligations under the applicable privacy legislation and the duty to accom- modate. For more information see: • Campbell River & North Island Transi- tion Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.). • Johnstone v. Canada (Attorney General), 2008 CarswellNat 661 (F.C.A.). • Renaud v. Central Okanagan School Dis- trict No. 23, 1992 CarswellBC 257 (S.C.C.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ « from ASK AN EXPERT on page 1 Ask an Expert The employer told parents Davies had resigned and taken school equipment

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