Canadian Employment Law Today

with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2017 2 | August 16, 2017 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Redundancy during disability leave Question: If an employee is on disability leave but her job becomes redundant, what must an employer do to terminate the employee without risking discrimination? Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Answer: An employer must always be care- ful when it is considering the dismissal of an employee who is on disability leave. Human rights statutes in all Canadian jurisdictions prevent an employer from discriminating against or dismissing an em- ployee on the basis of protected grounds, which include physical disability and mental disability. To succeed with a human rights complaint, an employee must establish that she was dismissed or otherwise treated ad- versely, that she has a protected characteris- tic (a physical or mental disability), and there was a link or nexus between the adverse treatment and the protected characteristic. Where an employee files a human rights complaint on the ground that she was dis- missed while on disability leave, the eviden- tiary burden will usually shift to the employ- er to establish that the employee's disability had nothing to do with the decision to ter- minate the employee's employment. If the human rights tribunal or commission finds that the dismissal was connected in any way to the employee's disability or disability leave, the employer will be found to have vio- lated the statute. Where an employer closes its operation and dismisses all of its employees including those on disability leave, there should be no basis for a human rights complaint. But in a redundancy situation, where an employer terminates only part of its workforce, it will be important for the employer to establish that its decision regarding the positions or employees who were declared redundant was not in any way influenced by disability- related considerations. In Morris v. Bri sh Columbia Railway Co., the B.C. Human Rights Tribunal awarded significant damages to a former BC Rail manager, after finding that the employer's decision to terminate his employment as part of a restructuring was influenced at least in part by his disability. e tribunal stated: "I accept BC Rail was, throughout the late 1990s, engaged in ongoing restructur- ing and downsizing. But at the same time I find that at least some part of BC Rail's motivation in choosing Mr. Morris as a tar- get of that downsizing was the fact that he was disabled. His disability played a role in BC Rail's decision-making in at least three ways. One, it affected his performance, which led to Ms. Deveaux's dissatisfac- tion with his performance and her desire not to have him as part of her team. Two, it played a role in his refusal to take on the SAP Project work which was offered to him in an attempt to provide him with some fur- ther employment. And three, the fact that his disability might recur and require him to make a future disability claim, thereby exposing BC Rail to future liability, was a factor in BC Rail's decision to terminate his employment, rather than offer him contin- ued employment in some other capacity." A similar conclusion was reached in McK- enna v. Atlas Anchor Systems (B.C.) Ltd. ere, the employer made a decision to reduce its workforce from 36 to 20 employees for eco- nomic reasons. e complainant — who was on disability leave — was one of the employ- ees who was declared redundant. e BC Human Rights Tribunal found that although the employer had some legitimate reasons for including the complainant in the group selected for termination (which included the fact that he was neither productive nor well-liked by his co-workers), the employ- ee's disability played a part in the employer's decision to select him for termination, and accordingly the employer had breached the Human Rights Code. Employers must also be mindful of the risk that terminating an employee who is on disability leave may lead to a court action TERMINATION on page 11 » Harassment by Non-employees Question: How should an employer handle harassment of an employee by a non-employee over whom the employer has little control, such as a customer or supplier? Answer: Under occupational health and safety legislation, an employer has a duty to provide a safe workplace. is duty includes the obligation to protect its employees from workplace hazards. In many jurisdictions, it is now expressly recognized that workplace hazards can include bullying and harassment. In Brit- ish Columbia, for example, every employer must establish a policy that prohibits bully- ing and harassment in the workplace, and contains effective procedures for dealing with bullying and harassment incidents and complaints. e policy procedures must ensure a reasonable response, aim to fully address the incident, and ensure future bul- lying and harassment is prevented or mini- mized. Every employer must also provide each employee with training on its bullying and harassment policy. Employers also have an obligation under human rights legislation to prevent sex- ual harassment and harassment on other grounds that are statutorily protected, such as race, sexual orientation, place of origin, and political belief. In most cases, the respondent in a harass- ment complaint will be an employee over whom the employer has control. If the em- ployer determines after investigation that one or more of its employees has engaged in harassment, it will have the ability to take appropriate corrective action, which may in- clude discipline or discharge. However, what can an employer do when an employee complains that she is being ha- rassed by a customer, supplier or another third party over whom the employer does not have the same level of control? Because the employer has an obligation to provide a safe workplace and to protect its employees from harassment on protected grounds, it must not turn a blind eye to the harassment and declare that there is nothing it can do. Rather, the employer should con- duct an investigation into the alleged harass- ment, and if it determines harassment has occurred, take reasonable steps to prevent its employees from being exposed to the workplace hazard. is may include such ac- tion as: sending a demand letter to the third party; removing or banning the third party from its property; refusing to conduct fur- ther business with the customer or supplier; demanding that the customer or supplier as- sign a different representative to the employ- er; or moving the complainant to a different department. An employer who fails to take such steps may find itself exposed to liability. Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com.

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