Canada’s leading employment lawyer Howard Levitt covers the major cases of 2015 and explains how they’ll shape the year ahead.
While the law is rarely black and white, it’s often possible to predict the outcome of a case by analysing similar lawsuits from the past – that is until a shock ruling comes along, upending everything HR professionals have come to expect.
Leading labour and employment lawyer Howard Levitt told HRM that there have been four such cases in 2015. Here, he offers his expert explanation of what they mean moving forward.
Fredrickson v. Newtech Dental Laboratory
With the decision handed down in February, the Fredrickson case was the first of the year to change employment law as we know it.
According to Levitt, the case takes a fresh spin on the infamous 2014 case of Evans v. Teamsters, in which an employee lost his wrongful dismissal case because he didn’t accept his former employer’s offer of reemployment.
In the end, former-union worker Evans was only awarded damages for the period of time between his initial firing and subsequent job offer. In contrast, the Fredrickson case differs significantly.
In this case, employee Fredrickson was also offered reemployment after she filed for wrongful dismissal but since she had been ousted from the organization, Fredrickson had discovered that not only had her boss been recording their private conversations without informing her, he had also discussed confidential employment matters with a subordinate.
“The court said in that context, that she had reasonably lost trust in her employer and if a company acts in a way that the employee loses trust in them then the employee doesn’t have to come back to work,” said Levitt.
“The company was not able to deprive of her of her wrongful dismissal damages by offering her job back because it also acted in a way that was sufficiently reprehensible that she realistically said; ‘I’ve lost trust, I’m not returning,’” he told HRM.
“She didn’t return and she won her wrongful dismissal case.”
Drimba v. Dick Engineering
Next to make a major impact was the morose case between the estate of Christian Drimba and Dick Engineering, which concluded in March.
(Continued...) #pb#
Drimba v. Dick Engineering
Next to make a major impact was the morose case between the estate of Christian Drimba and Dick Engineering, which concluded in March.
“In this case, Christian Drimba was never actually fired,” reveals Levitt. “He was diagnosed with a terminal illness and died three months later – you’d think there’d be no wrongful dismissal damages there but the estate sued anyway.”
Remarkably, the estate won – but why?
According to Levitt, the case actually makes perfect sense.
“The court said that before Drimba died he became terminally ill, there was no prospect of him ever returning to the workplace and therefore the contract of employment was frustrated so he should have been paid severance,” explains Levitt.
The concept of “frustration,” Levitt says, is crucial to the case.
“Normally, here’s how the concept of frustration goes,” he explains.
“Generally, if you’re fired it’s a human rights breach as well as a wrongful dismissal – but if you’ve been sick for a long time and you’re never going to be able to return to work, the court says the contract has been frustrated.
“You don’t get fully blown wrongful dismissal damages but you get employment standards severance and termination pay,” he continued.
Levitt says past cases normally come down to employers arguing that a contract has been frustrated because that would mean the company only has to pay less dues.
“In this case, Christian Drimba was never fired, he got terminally ill and was never going to return to work. The courts looked back after at it and said the contract was frustrated at the point he became terminally ill so therefore they ruled Drimba had effectively been fired even though the company didn’t actually fire him by conduct.
As a result, Dick Engineering was forced to pay termination severance under the Employment Standards Act.
Wilson v. Atomic Energy
This May decision marked a huge change in the rights of federally regulated employees, says Levitt.
(Continued...) #pb#
Wilson v. Atomic Energy
This May decision marked a huge change in the rights of federally regulated employees, says Levitt.
“The Canada Labour Code governs federally regulated employers – those are banks, railways, airlines, telecommunication companies, interprovincial trucking – companies that have essentially national scale and are regulated by the federal government,” he explains.
“Employees covered by the Canada Labour Code – as opposed to say the Ontario Employment Standards Act or the B.C. Employment Standards Act – can either sue for wrongful dismissal or they can go and get their jobs back by applying to an adjudicator payed for by the government,” he continues.
“But when Wilson sued for wrongful dismissal saying a six-month severance package wasn’t enough, the Labour Canada adjudicator said ‘Well, they gave him notice and they gave him severance pay so we’re not going to accept it as a complaint.”
“That’s a huge change in the rights of federally regulated employees and this is a case that went to the federal court not just the adjudicator so it’s a case with serious potential for reducing the claims of federally regulated employees suing for reinstatement,” stressed Levitt.
Betts v. IBM
The most recent landscape changing decision came in August, and addressed employees’ obligations to comply with company medical leave policy.
“Betts was on medical leave, the second in five years, and he didn’t comply with IBM’s medical leave policy requiring him to submit his information so they fired him saying he abandoned his job,” reveals Levitt.
“Generally, employees on medical leave have more protection than others and generally you can argue that people fired during medical leave have more rights but this case said that it was a just dismissal,” he continues.
“By not complying with the company’s medical leave policy and not submitting the forms, that was cause for discharge in a situation that generally the court would not have found that to be cause for discharge in the past.”
“Those are the cases of the year that have changed the law in big and little ways,” concludes Levitt, urging employers to consider the repercussions as they move into 2016.
More like this:
How to train a dragon (in the office)
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Leading labour and employment lawyer Howard Levitt told HRM that there have been four such cases in 2015. Here, he offers his expert explanation of what they mean moving forward.
Fredrickson v. Newtech Dental Laboratory
With the decision handed down in February, the Fredrickson case was the first of the year to change employment law as we know it.
According to Levitt, the case takes a fresh spin on the infamous 2014 case of Evans v. Teamsters, in which an employee lost his wrongful dismissal case because he didn’t accept his former employer’s offer of reemployment.
In the end, former-union worker Evans was only awarded damages for the period of time between his initial firing and subsequent job offer. In contrast, the Fredrickson case differs significantly.
In this case, employee Fredrickson was also offered reemployment after she filed for wrongful dismissal but since she had been ousted from the organization, Fredrickson had discovered that not only had her boss been recording their private conversations without informing her, he had also discussed confidential employment matters with a subordinate.
“The court said in that context, that she had reasonably lost trust in her employer and if a company acts in a way that the employee loses trust in them then the employee doesn’t have to come back to work,” said Levitt.
“The company was not able to deprive of her of her wrongful dismissal damages by offering her job back because it also acted in a way that was sufficiently reprehensible that she realistically said; ‘I’ve lost trust, I’m not returning,’” he told HRM.
“She didn’t return and she won her wrongful dismissal case.”
Drimba v. Dick Engineering
Next to make a major impact was the morose case between the estate of Christian Drimba and Dick Engineering, which concluded in March.
(Continued...) #pb#
Drimba v. Dick Engineering
Next to make a major impact was the morose case between the estate of Christian Drimba and Dick Engineering, which concluded in March.
“In this case, Christian Drimba was never actually fired,” reveals Levitt. “He was diagnosed with a terminal illness and died three months later – you’d think there’d be no wrongful dismissal damages there but the estate sued anyway.”
Remarkably, the estate won – but why?
According to Levitt, the case actually makes perfect sense.
“The court said that before Drimba died he became terminally ill, there was no prospect of him ever returning to the workplace and therefore the contract of employment was frustrated so he should have been paid severance,” explains Levitt.
The concept of “frustration,” Levitt says, is crucial to the case.
“Normally, here’s how the concept of frustration goes,” he explains.
“Generally, if you’re fired it’s a human rights breach as well as a wrongful dismissal – but if you’ve been sick for a long time and you’re never going to be able to return to work, the court says the contract has been frustrated.
“You don’t get fully blown wrongful dismissal damages but you get employment standards severance and termination pay,” he continued.
Levitt says past cases normally come down to employers arguing that a contract has been frustrated because that would mean the company only has to pay less dues.
“In this case, Christian Drimba was never fired, he got terminally ill and was never going to return to work. The courts looked back after at it and said the contract was frustrated at the point he became terminally ill so therefore they ruled Drimba had effectively been fired even though the company didn’t actually fire him by conduct.
As a result, Dick Engineering was forced to pay termination severance under the Employment Standards Act.
Wilson v. Atomic Energy
This May decision marked a huge change in the rights of federally regulated employees, says Levitt.
(Continued...) #pb#
Wilson v. Atomic Energy
This May decision marked a huge change in the rights of federally regulated employees, says Levitt.
“The Canada Labour Code governs federally regulated employers – those are banks, railways, airlines, telecommunication companies, interprovincial trucking – companies that have essentially national scale and are regulated by the federal government,” he explains.
“Employees covered by the Canada Labour Code – as opposed to say the Ontario Employment Standards Act or the B.C. Employment Standards Act – can either sue for wrongful dismissal or they can go and get their jobs back by applying to an adjudicator payed for by the government,” he continues.
“But when Wilson sued for wrongful dismissal saying a six-month severance package wasn’t enough, the Labour Canada adjudicator said ‘Well, they gave him notice and they gave him severance pay so we’re not going to accept it as a complaint.”
“That’s a huge change in the rights of federally regulated employees and this is a case that went to the federal court not just the adjudicator so it’s a case with serious potential for reducing the claims of federally regulated employees suing for reinstatement,” stressed Levitt.
Betts v. IBM
The most recent landscape changing decision came in August, and addressed employees’ obligations to comply with company medical leave policy.
“Betts was on medical leave, the second in five years, and he didn’t comply with IBM’s medical leave policy requiring him to submit his information so they fired him saying he abandoned his job,” reveals Levitt.
“Generally, employees on medical leave have more protection than others and generally you can argue that people fired during medical leave have more rights but this case said that it was a just dismissal,” he continues.
“By not complying with the company’s medical leave policy and not submitting the forms, that was cause for discharge in a situation that generally the court would not have found that to be cause for discharge in the past.”
“Those are the cases of the year that have changed the law in big and little ways,” concludes Levitt, urging employers to consider the repercussions as they move into 2016.
More like this:
How to train a dragon (in the office)
2030: when the 9-5 will finally die?
Are your managers damaging engagement?