Canadian Employment Law Today

October 25, 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 Canadian Employment Law Today | 7 More Cases with an HR representative, who told him Umlauf had complained to HR about being asked to perform training duties she felt were outside the scope of her job description. HR assessed the situation and determined that the manager's directions for Umlauf to conduct training were reasonable. e man- ager and HR met with Umlauf and informed her of this and told her there was no evidence to support a claim of harassment. ey also said she was expected to work as part of a team, which meant she had to work with her co-workers as directed, including providing training or support when necessary. Umlauf insisted her position didn't include training and support on SAS, so HR offered to review its findings and explain them to Umlauf, inviting her to take notes. Umlauf declined to do so and left the meeting. Umlauf continued to refused to work with her colleague on the SAS issue — in fact, she told the colleague to give her one week's no- tice is she wished to meet with her, despite the fact the hospital's environment was in- formal where people could walk into others' offices to consult when necessary. Umlauf 's manager arranged a telephone call with HR and his supervisor to discuss the fact that Umlauf wasn't working as di- rected, despite an additional email from him telling Umlauf to work with her colleague on the SAS issue and saying he would re- duce her workload if necessary to help the colleague. e manager believed Umlauf 's employment should be terminated because of this continued defiance. In the meantime, Umlauf took her com- plaint to the hospital's interim president and CEO and said she should be compensated for doing work outside her job description. e president and CEO referred her back to the HR department, so the vice-president of HR and director of HR met with her on June 6 and reiterated their determination that Umlauf needed to follow her manager's directions. HR followed up with an email outlining what was said at the meeting and saying that the investigation into her allega- tions of harassment found none. e day after the meeting, June 7, Umlauf emailed her colleague — copied to her man- ager — saying that she was too busy to work on the SAS issue. She repeated her belief that she shouldn't be helping her colleague with her work. e same day, her manager termi- nated her employment for failing to demon- strate suitability for her position. Umlauf filed a complaint saying she was terminated for exercising her right under the Ontario Occupational Health and Safety Act to complain about workplace harassment. e board noted that Umlauf 's termination came shortly after her harassment complaint and the ensuing investigation, which raised concerns. However, it found that Umlauf 's continued failure to take direction provided the hospital with reason enough to terminate her employment. Umlauf was a probationary employee who continued to refuse to follow instructions and work collaboratively with her colleagues — evidenced by reports from her colleague that Umlauf refused to work with her and made it difficult to meet with her — which made her unsuitable for continued employment, the board said. e board also found that the hospital took Umlauf 's complaint seriously, properly investigated it, and properly notified her of its decision and reasons. Given Umlauf 's conduct, her complaint didn't factor into the hospital's decision to dismiss her, said the board in dismissing her complaint. See Umlauf v. Scarborough Rouge Hospital, 2017 CarswellOnt 14748 (Ont. Lab. Rel. Bd.). Worker considered training to be 'extra work' « from HARASSMENT on page 1 struction. His employment was terminated prior to the end of his probationary period. ereafter, Southwell was diagnosed with a disability which may cause body odour and flatulence. He filed a complaint with the British Columbia Human Rights Tribu- nal alleging discrimination in employment. CKF took the position it had no prior knowl- edge of Southwell's disability, there was no evidence of a disability at the time of the ter- mination, and the decision to terminate was not based on personal hygiene but rather on performance issues. e tribunal agreed with CKF and dismissed the complaint. A similar result was reached in Von Bloe- dau v. Transcom Worldwide (North Ameri- ca) Incorporated. roughout his two-year tenure as a customer service agent, Von Bloedau was the subject of repeated com- plaints from coworkers regarding his body odour. He received progressive discipline in- cluding coaching, verbal and written warn- ings, and suspensions. With each disciplinary notice, Von Bloe- dau was told of the requirement to practice proper hygiene as part of a professional and respectful workplace. He was also reminded an individual's scent could be caused by fac- tors including diet, hygiene or medical is- sues, and given suggestions how to address his odour issues — such as bringing a change of clothes after bicycling in extreme heat. Von Bloedau was also invited to — but did not — provide medical documentation if his odour was caused by a medical condition. Eventually, Von Bloedau's employment was terminated and he filed a complaint with the Ontario Human Rights Tribunal alleging discrimination. However, unlike the previ- ous case, Von Bloedau's complaint was not framed as an issue of disability discrimina- tion but rather as discrimination based on the protected ground of gender. Von Bloe- dau alleged his predominantly female col- leagues had a stronger perception of body odour, and that as a "sweaty male" he was held to a different standard for body odour than his female counterparts. e tribunal disagreed, finding there was no evidence of a violation of the Ontario Human Rights Code on the basis of gender or otherwise. Practical tips for employers ese decisions remind us that personal hy- giene can and should be addressed like any other health, safety or human rights issue in the workplace. To minimize the risk associ- ated with personal hygiene issues, consider the following practical tips: • Have and consistently enforce a personal hygiene policy which makes clear appro- priate personal hygiene is a condition of employment. • Respect the worker's dignity by ensuring any discussions about body odour take place in private, in a respectful manner. • Inquire and provide the worker an opportu- nity to explain any factor that may contribute to body odour, including a medical condition. • Where the employee discloses, or it rea- sonably ought to be known, personal hy- giene is related to a disability or another protected ground under human rights leg- islation (e.g., religious observance), con- sider reasonable accommodation. • Document all disciplinary steps including coaching, warnings, letters, and meetings. • If all else fails, termination of employment may be an appropriate option. For more information see: • Southwell v. CKF, 2017 CarswellBC 991 (B.C. Human Rights Trib.). • Von Bloedau v. Transcom Worldwide (North America) Incorporated, 2014 HRTO 67 (Ont. Human Rights Trib.). Ashley Brown is a lawyer with Sher- rard Kuzz LLP, a management-side employ- ment and labour law firm in Toronto. Ashley can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www. Poor hygiene « from WORKPLACE OFFENCES on page 3

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