Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends public service but had their jobs eliminated by finding alternative employment when- ever possible. In addition, employees who were close to retirement were given an incentive — a cash payment based on their years of service — if they gave up their positions to employees whose jobs were being cut. is directive was incorporated into the federal govern- ment's various collective agreements. Any employee wishing to leave the public service could post her position on a government website — the process was called alternation — and management would decide if anyone applying was suitable. In 2012, Legros was 62 years old but she wasn't prepared to retire because she had taken extended medical leave from 2006 to 2009, during which she had lost income and incurred medical expenses. When the work- force adjustment directive was implement- ed, Legros was interested because the cash payment that could come from offering her position up for someone else to take could allow her to retire. However, Legros' manager refused her request, as it had been decided that Legros' position could be eliminated as part of the cost-cutting. Since it was assumed Legros was likely close to retirement, CBSA would allow her to work until she retired and then eliminate her position. Legros felt her position was too important to be eliminated, as she was the only policy analyst who drafted policies and she was in charge of several policy development files. She also had never indicated she intended to retire anytime soon so there was no end date for her position. On the recommendation of a union rep- resentative, Legros posted her position any- way, believing the collective agreement and the workforce adjustment directive allowed her to do so. When management saw it, they removed it from CBSA's website. However, in the few days of Legros' posi- tion being posted, she received about 15 ap- plications from federal employees in similar jobs who were being cut. She sent them to her manager, who informed the employees that the alternation of Legros' position had not been approved. Legros filed a grievance against the decision to deny the alternation and claimed she was being discriminated against because of her age. ere were many grievances filed regard- ing the workforce adjustment directive, and in April 2013, an adjudicator determined that there was nothing in the directive's wording that said a department could con- sider its future planning in the context of an alternation and a proposed alternation could only be blocked if the employee in the posi- tion in question had given notice of resigna- tion or retirement. Legros' union representative advised her of the decision and recommended she re- sume her alternation steps. Her manager was told by human resources that she had to review any applicants for Legros' position, but the manager still felt it would be prob- lematic as Legros' job was to be eliminated when she eventually retired. e manager reviewed the applicants but found none were qualified for the position, mostly because they didn't have experience developing and implementing policies and procedures governing CBSA real property management activities — a qualification that Legros hadn't been required to have when she started and wasn't in the official job de- scription. e manager decided it was im- portant because of the uniqueness of CBSA's real property, such as border controls. Manager refused to accept candidates for position Legros spoke to her manager on June 18, 2013, and was told her position would still be eliminated once she retired and it would be pointless to send her any more applications. CBSA took Legros' grievance to the final level of the grievance process and deter- mined that an alternation for her position could occur. However, Legros filed a second grievance as there was no acknowledgment that the agency had discriminated against her based on her age and her manager's at- titude made an alternation impossible — she didn't interview any candidates and never sent them the requirements of the position in advance. e Public Sector Labour Relations and Employment Board found that Legros' age played "a major role in the employer's de- cision" regarding alternation. Legros was identified as someone whose position could be eliminated soon as she would retire, but Legros had not indicated any plans to retire. is was "the stereotyped view of (Legros) as being of a certain age and retiring soon" that hinted at discrimination right off the bat, said the board. is was important be- cause the Supreme Court of Canada had es- tablished that "an employer's perception of a medical condition is just as important as the condition itself " and the same could be applied to another protected ground. e board also found that once the em- ployer considered Legros' grievance and de- termined that she was entitled to an alterna- tion, Legros' manager "did everything in her power to prevent one from taking place." e manager's failure to review the applicants and add an experience qualification that hadn't been in place for the position before showed "blatant bad faith" and was related to Legros' age, the board said. "(e manager) continued to view (Legros') position as one that she did not want to fill because, in her view, it would no longer be funded after (Legros) departed," said the board. "Once again, she was count- ing on (Legros) retiring, which she could not have contemplated with such certainty had (Legros) been 10 or 15 years younger. In other words, the benefit continued to be denied, and (Legros') age was certainly a factor." e board found the manager didn't allow the alternation because she was convinced Legros would retire soon — a decision based on Legros' age that was discriminatory. Be- cause CBSA allowed the manager to contin- ue to hold up the alternation, even after the grievance, warranted extra damages as well, the board said. CBSA was ordered to pay Legros $15,000 for the age discrimination to which she was subjected and another $10,000 of special compensation for pain and suffering and the denial of potential retirement with the incentive because of "the wilful and reckless refusal to adhere" to the workforce adjust- ment directive's principles. For more information see: • Legros c. Conseil du Trésor (Agence des services frontaliers du Canada), 2017 Car- swellNat 5897 (Fed. Public Sector Lab. Rel. & Emp. Bd.). 6 | December 6, 2017 Manager felt it was pointless to evaluate applicants « from MANAGER'S on page 1 tract that the employer reserves the right to bring employment to an end if the individual is "unsuitable in the employer's view" during the statutory or even longer probationary period accompanied by sufficient minimum payment to satisfy employment standards obligations is worthy of consideration. As always, these termination clauses should be carefully drafted. For more information see: • Howard v. Benson Group Inc., 2016 Car- swellOnt 5382 (Ont. C.A.). •Regan v. Chaleur Entrepreneurship Centre Inc., 154 NBR (2d) 361, 1994 CarswellNB (N.B. Q.B.). • Ly v. Interior Health Authority, 2017 Car- swellBC 37 (B.C. S.C.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com. « from ASK AN EXPERT on page 2 Suitability key for probationary period

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