Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2018 hallway. Horner confronted the co-worker about it and he denied doing it intention- ally. He then told her to "take a pill," which caused Horner to believe the supervisor had told others she was taking medication for depression. She reported the incident to her supervisor. Two days after the incident, Horner need- ed to get into a drawer that the co-worker was standing in front of. She asked the co- worker several times to move out of the way, but the co-worker angrily said to her "can you not wait?" Horner explained she needed in the drawer, but didn't like the way the co- worker was looking at her. Upset, Horner went to her supervisor and said she should go home. e supervisor responded by sa- luting her and saying "goodbye." Horner felt she wasn't being taken seri- ously, so she spoke with the owner of Supe- rior Coatings on Dec. 22, 2016. She said she needed some time away from work because of what was going on in the workplace and business was slow at that time of year any- way. She suggested a temporary layoff, but the owner said he couldn't do that. e own- er suggested Horner take the next day off — which was the store's last day open for the year — and said they would "figure this out in the new year." Before Horner left the store, the owner asked her if he laid her off and the co-work- er with whom she was having difficulties wasn't there, would she come back? Horner responded in the affirmative and the owner acknowledged it. However, six days later, on Dec. 28, Horn- er found a termination letter dated Dec. 22 and signed by the owner stuck in the back door of her house. e termination letter stated that she had been terminated with cause because of her conduct. e letter said Horner, while trying to access the drawer, had lost her temper and "angrily ranted" against the co-worker while the co-worker was serving a customer. e letter claimed Horner had been reprimanded for similar unprofessional conduct in the past and this was the final straw. Since Superior Coatings characterized the termination as for-cause, no notice or pay in lieu was provided. Horner said she was "devastated" over being terminated, since the owner had told her they would figure it out in the new year. It triggered her depression and she sank into a "good deep hole" that she couldn't get out of. Following the termination, Horner saw her doctor in January 2017. e doctor di- agnosed her with acute depression and pre- scribed a higher dosage of medication. How- ever, the medication had side effects such as nausea and fatigue. She suffered from acute anxiety, isolated herself from friends and family, and lost 30 pounds. She was unable to work but her claim for employment insur- ance was denied because she had been ter- minated for cause, though she received 15 weeks of employment insurance sick ben- efits. Horner sued Superior Coatings for wrongful dismissal, discrimination in em- ployment based on gender and disability, intentional infliction of mental suffering and emotional distress, aggravated damag- es for the manner of dismissal, and punitive damages for the "callous and high-handed conduct" of Superior Coatings that includ- ed false allegations of misconduct and just cause for dismissal. e court found there was no evidence that Horner's depression was a factor in her termination. She only told her supervisor about it, and her co-worker's "take a pill" comment wasn't proof he or anyone else was aware of it. Horner also acknowledged that she didn't know whether she told the store's owner about her depression, so it was unlikely her condition was a factor in her termination. As a result, the court found no discrimination in employment coming out of Horner's termination. However, the court saw differently when it came to how Horner was treated. Despite what the termination letter said, Horner had not been warned of any misconduct and had no idea her job was in jeopardy. ere was no evidence of misconduct that amounted to just cause, so as a result Superior Coatings was ordered to pay Horner three months' pay in lieu of notice — $10,000. e court also found Horner was harassed in the workplace and the employer, rather than investigating, terminated her employ- ment. is conduct on the store's part was "malicious, oppressive and high-handed and must be deterred," said the court. As a result, the court determined $10,000 in punitive damages were appropriate as deterrence for similar conduct by an employer in the future. In addition, the court found the owner's conduct in terminating Horner after telling her they would figure things out in the new year by putting a letter in her back door was "cowardly" and aggravated Horner's pre- existing depression. is warranted another $20,000 in aggravated damages, said the court. e court denied Horner's claim for dam- ages for intention infliction of mental suffer- ing and emotional distress stemming out of the harassment by the co-worker, as it felt that while it was inappropriate for the work- place, it didn't rise to the level of intentional infliction of mental suffering. Horner's de- pression came out of the manner of her ter- mination and not the harassment, the court said. Including costs, Superior Coatings was ordered to pay Horner a total of $45,500 for wrongful dismissal, the harassment she experienced at work, and the way she was treated in her dismissal. See Horner v. 897469 Ontario Inc., 2018 CarswellOnt 372 (Ont. S.C.J.). Canadian Employment Law Today | 7 More Cases Worker entitled to 3 months' notice of termination « from FIRED WORKER on page 1 time spent on call is not considered "work." If an on-call employee is provided with a cell phone or other mobile device, the on-call hours are not considered "work" because the employer has not required the employee to stay at a designated location. But if the em- ployer places restrictions on the employee's location or activities during on-call hours, that time may be considered "work." For ex- ample, an on-call employee who is expected to report within a few minutes of being con- tacted will likely be considered to be at work. In Alberta, if an employer requires an employee to wear a uniform or monitor ra- dio calls then on-call hours are considered "work." In Ontario, recent amendments to the Employment Standards Act will require employers, after Jan. 1, 2019, to pay most on-call employees for at least three hours, re- gardless of whether they are called in. Once an on-call employee receives a call, she is generally entitled to be paid at least the daily minimum hours set out in employment standards legislation. If the employee an- swers several calls that together do not total the daily minimum, she is only entitled to be paid the minimum. If on-call hours are con- sidered compensable "work," the employee is entitled to be paid overtime if her total hours trigger overtime pay provisions. For example, if a British Columbia employee completes an eight-hour shift and remains on call at a designated location for two hours, she will be entitled to be paid overtime rates for the on- call hours. In unionized workplaces, an em- ployee's entitlement will generally be deter- mined by the the collective agreement. In the absence of specific language in the collective agreement, an employee will generally have no claim to compensation for on-call hours, unless her activities are sufficiently restricted or she performs work for the employer. Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. On-call workers « from ASK AN EXPERT on page 2

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