A recap of the top cases and major legislative changes
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by Shreya Patel
With major legislative amendments made to the Employment Standards Act, Labour Relations Act, Occupational Health and Safety Act, Workplace Safety and Insurance Act; and precedent-setting decisions by the Courts, 2017 has been an important year for employers and employees. Here is a recap of our top cases and major legislative changes along with links to the original blog.
Top Labour and Employment Cases of 2017
1. Travel Time was not Work Time
Tradium Mechanical Inc. v Abdellatif Jaidane, 2016 CanLII 86508: In December 2016, Brian Silva of CCPartners successfully argued before the Ontario Relations Board on behalf of the applicant employer. The Board ruled that time spent by an employee travelling from home to the first job site of the day and back home from the last job site of the day in a company vehicle was commuting time and not time spent working for which the employer was required to pay. However, employers should note that in this case the employee was not obligated to take the company vehicle home, instead he was provided with the option to take the company vehicle home. Although not binding, employers should be mindful of the Ministry of Labour’s Travel Time Policy as it still suggests that commute time is time worked under certain circumstances. Read more here.
2. Just Cause Dismissal Upheld for Nurse Stealing Drugs from Employer Hospital
Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305: In January 2017, an Ontario arbitrator upheld the termination of a nurse because she was stealing narcotic drugs from her employer and patients. The arbitrator was convinced that the nurse’s addiction did not cause her to steal the drugs. The arbitrator noted that the nurse did not need to be on drugs while working and did not suffer from physical withdrawal symptoms while being treated for her addiction. Her termination was upheld, notwithstanding her drug addiction disability. Employers should be diligent, but also very careful, when disciplining employees dealing with possible addiction issues, and be sure to explore potential accommodation obligations for such employees. Read more here.
3. Employment Contract Termination Clause Struck for Excluding Benefits
Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158: In March 2017, the Ontario Court of Appeal determined the enforceability of a termination provision in a written employment contract. The Court ruled that the termination clause outright excluded employment benefits during the notice period and hence, was unenforceable. Employers should note that the Court’s finding in this case was not based on the fact that the contract failed to expressly provide for benefits continuation. Additionally, it is important to note that the Supreme Court of Canada denied leave in Oudin v. Centre Francophone de Toronto, where a termination provision was upheld despite the fact that it did not specifically set out every obligation owed to the plaintiff under the Employment Standards Act. Employers ought to be cautious in drafting enforceable termination provisions that are consistent with these decisions. Read more here.
4. Employment Contract Clause Denying Bonus to Terminated Employee Upheld
Kielb v. National Money Mart Company, 2017 ONCA 356: In March 2017, Susan Crawford of CCPartners successfully argued on behalf of National Money Mart. The Ontario Court of Appeal upheld a clearly worded bonus limitation and termination language that prohibited an employee from being entitled to bonus if not employed on the date of bonus payout. The employment agreement also provided examples of how this would work in an attempt to clarify the bonus plan. Employers can limit their liability upon terminating an employee with a clear and properly worded employment agreement. Read more here
5. Court of Appeal Upheld Just Cause Termination of Long Service Employee
De Jesus v. Linamar Holdings Inc. (Camcor Manufacturing), 2017 ONCA 384: In May 2017, the Ontario Court of Appeal upheld the termination of a long service employee who was negligent in his performance or duties and was dishonest with the employer. The employee, a production supervisor, failed to ensure that a production line was checked for defects. While the employee’s termination was upheld and the costs were awarded to the employer, employers should be aware that a just cause termination being upheld in Ontario is an exception and not the rule. Employers should ensure that they can bear the high onus of proving that the nature and severity of the dishonest conduct that resulted in a break down in the employment relationship. Read more here.
6. Supreme Court of Canada Upheld Termination of Employee for Cocaine Use
Stewart v. Elk Valley Coal Corp., 2017 SCC 30: In June 2017, the Supreme Court of Canada upheld the Alberta Tribunal’s decision which held that the employer was correct in terminating a mine operator that tested positive for cocaine following a workplace incident. The Supreme Court of Canada found it critical that the termination letter did not cite his addiction as a factor in the termination and that the Policy was crafted in such a way that both a casual user and addict would be terminated. Employers should be cautious in terminating employees with a proven addiction to alcohol or drugs as it likely will be viewed as having a disability pursuant to the human rights legislation. Going forward, employers should diligently draft employment agreements that effectively balance their duty to accommodate employees for their addiction against their right to dismiss an employee that is impaired. Read more here.
7. Random Drug and Alcohol Testing Justified and Allowed…For Now
Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313: In September 2017, the Alberta Court of Appeal upheld Suncor’s random drug and alcohol testing for workers in safety-sensitive positions at various sites in northern Alberta. The Court of Appeal concluded that there was sufficient evidence of a substance problem to justify random drug and alcohol testing, even in light of the privacy concerns inherent in such random testing. It was emphasized that while in certain workplaces there could a reason to distinguish between the evidence of substance abuse by unionized and non-unionized employees, in this case the evidence was that all employees (unionized, non-unionized and contractor employees) worked side-by-side in an integrated workforce. Hence, it was not reasonable to draw an arbitrary distinction between evidence of substance abuse problems in the workplace specific to unionized employees. While, this is helpful to employers in a safety sensitive workplace seeking to curb dangerous behaviour in the workplace, employers should consult the CCP team before implementing or acting on such tricky policies. The Union recently obtained an injunction stopping Suncor’s random testing. The Union has also appealed the Alberta Court of Appeal’s decision to the Supreme Court of Canada. The team at CCPartners continues to monitor the appeal and will update you on any forthcoming developments. Read more here.
8. Directors Avoid Jail Time in OHSA Conviction
R v. New Mex Canada Inc.: In September 2017, Karen Fields of CCPartners successfully appealed on behalf of New Mex Canada Inc. The Appeal Court of Justice significantly reduced fines for the corporate accused and incarceration of the two Directors was overturned. In his decision, the Appeal Judge considered the size of the company, scope of the economic activity, potential or actual harm to workers, maximum penalty set in legislation and deterrence. Employers should be proactive in addressing health and safety issues in the workplace, and recognize that prison sentences are a possible consequence of failing to keep a safe workplace. The team at CCPartners can help you implement these proactive measures and ensure that your workplace is in compliance with the Occupational Health and Safety Act. Read more here.
9. Management Rights Affirmed by Supreme Court of Canada
Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55: In November 2017, the Supreme Court of Canada affirmed that management rights for unionized employers must always be exercised reasonably and consistently with the collective agreement. The collective agreement between the Employer and the Association of Justice Counsel was silent on standby duty but specified that the Employer retained all management rights and powers that had not been modified or limited by the collective agreement. The Employer revised the standby system, even though it was not addressed in the collective agreement. The Supreme Court of Canada agreed with the arbitrator in holding that the mandatory standby directive was neither reasonable nor fair. Assessing the reasonableness of an employer’s policy includes a well-established approach towards balancing interests of both parties and the policy’s impact on employees. Employers should ensure that their unilateral implementation of a policy or directive is within its reasonable exercise of management rights. Read more here.
10. Human Rights Complaint Made Against a Different Employer
British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62: In December 2017, the Supreme Court of Canada held that employees may bring discrimination complaints against the employees of a different employer. The Supreme Court interpreted the British Columbia Human Rights Code to mean that discrimination was prohibited against employees whenever that discrimination has a sufficient nexus with the employment context, including discrimination by co-workers, even when those co-workers have a different employer. The Supreme Court further sets out a test for determining whether discriminatory conduct has a sufficient nexus within the employment context. Since the Ontario Human Rights Code is very similar to the Human Rights Code of British Columbia, employers should be aware that they could be responsible for discrimination against workers who are not their employees. Read more here.
With major legislative amendments made to the Employment Standards Act, Labour Relations Act, Occupational Health and Safety Act, Workplace Safety and Insurance Act; and precedent-setting decisions by the Courts, 2017 has been an important year for employers and employees. Here is a recap of our top cases and major legislative changes along with links to the original blog.
Top Labour and Employment Cases of 2017
1. Travel Time was not Work Time
Tradium Mechanical Inc. v Abdellatif Jaidane, 2016 CanLII 86508: In December 2016, Brian Silva of CCPartners successfully argued before the Ontario Relations Board on behalf of the applicant employer. The Board ruled that time spent by an employee travelling from home to the first job site of the day and back home from the last job site of the day in a company vehicle was commuting time and not time spent working for which the employer was required to pay. However, employers should note that in this case the employee was not obligated to take the company vehicle home, instead he was provided with the option to take the company vehicle home. Although not binding, employers should be mindful of the Ministry of Labour’s Travel Time Policy as it still suggests that commute time is time worked under certain circumstances. Read more here.
2. Just Cause Dismissal Upheld for Nurse Stealing Drugs from Employer Hospital
Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305: In January 2017, an Ontario arbitrator upheld the termination of a nurse because she was stealing narcotic drugs from her employer and patients. The arbitrator was convinced that the nurse’s addiction did not cause her to steal the drugs. The arbitrator noted that the nurse did not need to be on drugs while working and did not suffer from physical withdrawal symptoms while being treated for her addiction. Her termination was upheld, notwithstanding her drug addiction disability. Employers should be diligent, but also very careful, when disciplining employees dealing with possible addiction issues, and be sure to explore potential accommodation obligations for such employees. Read more here.
3. Employment Contract Termination Clause Struck for Excluding Benefits
Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158: In March 2017, the Ontario Court of Appeal determined the enforceability of a termination provision in a written employment contract. The Court ruled that the termination clause outright excluded employment benefits during the notice period and hence, was unenforceable. Employers should note that the Court’s finding in this case was not based on the fact that the contract failed to expressly provide for benefits continuation. Additionally, it is important to note that the Supreme Court of Canada denied leave in Oudin v. Centre Francophone de Toronto, where a termination provision was upheld despite the fact that it did not specifically set out every obligation owed to the plaintiff under the Employment Standards Act. Employers ought to be cautious in drafting enforceable termination provisions that are consistent with these decisions. Read more here.
4. Employment Contract Clause Denying Bonus to Terminated Employee Upheld
Kielb v. National Money Mart Company, 2017 ONCA 356: In March 2017, Susan Crawford of CCPartners successfully argued on behalf of National Money Mart. The Ontario Court of Appeal upheld a clearly worded bonus limitation and termination language that prohibited an employee from being entitled to bonus if not employed on the date of bonus payout. The employment agreement also provided examples of how this would work in an attempt to clarify the bonus plan. Employers can limit their liability upon terminating an employee with a clear and properly worded employment agreement. Read more here
5. Court of Appeal Upheld Just Cause Termination of Long Service Employee
De Jesus v. Linamar Holdings Inc. (Camcor Manufacturing), 2017 ONCA 384: In May 2017, the Ontario Court of Appeal upheld the termination of a long service employee who was negligent in his performance or duties and was dishonest with the employer. The employee, a production supervisor, failed to ensure that a production line was checked for defects. While the employee’s termination was upheld and the costs were awarded to the employer, employers should be aware that a just cause termination being upheld in Ontario is an exception and not the rule. Employers should ensure that they can bear the high onus of proving that the nature and severity of the dishonest conduct that resulted in a break down in the employment relationship. Read more here.
6. Supreme Court of Canada Upheld Termination of Employee for Cocaine Use
Stewart v. Elk Valley Coal Corp., 2017 SCC 30: In June 2017, the Supreme Court of Canada upheld the Alberta Tribunal’s decision which held that the employer was correct in terminating a mine operator that tested positive for cocaine following a workplace incident. The Supreme Court of Canada found it critical that the termination letter did not cite his addiction as a factor in the termination and that the Policy was crafted in such a way that both a casual user and addict would be terminated. Employers should be cautious in terminating employees with a proven addiction to alcohol or drugs as it likely will be viewed as having a disability pursuant to the human rights legislation. Going forward, employers should diligently draft employment agreements that effectively balance their duty to accommodate employees for their addiction against their right to dismiss an employee that is impaired. Read more here.
7. Random Drug and Alcohol Testing Justified and Allowed…For Now
Suncor Energy Inc. v Unifor Local 707A, 2017 ABCA 313: In September 2017, the Alberta Court of Appeal upheld Suncor’s random drug and alcohol testing for workers in safety-sensitive positions at various sites in northern Alberta. The Court of Appeal concluded that there was sufficient evidence of a substance problem to justify random drug and alcohol testing, even in light of the privacy concerns inherent in such random testing. It was emphasized that while in certain workplaces there could a reason to distinguish between the evidence of substance abuse by unionized and non-unionized employees, in this case the evidence was that all employees (unionized, non-unionized and contractor employees) worked side-by-side in an integrated workforce. Hence, it was not reasonable to draw an arbitrary distinction between evidence of substance abuse problems in the workplace specific to unionized employees. While, this is helpful to employers in a safety sensitive workplace seeking to curb dangerous behaviour in the workplace, employers should consult the CCP team before implementing or acting on such tricky policies. The Union recently obtained an injunction stopping Suncor’s random testing. The Union has also appealed the Alberta Court of Appeal’s decision to the Supreme Court of Canada. The team at CCPartners continues to monitor the appeal and will update you on any forthcoming developments. Read more here.
8. Directors Avoid Jail Time in OHSA Conviction
R v. New Mex Canada Inc.: In September 2017, Karen Fields of CCPartners successfully appealed on behalf of New Mex Canada Inc. The Appeal Court of Justice significantly reduced fines for the corporate accused and incarceration of the two Directors was overturned. In his decision, the Appeal Judge considered the size of the company, scope of the economic activity, potential or actual harm to workers, maximum penalty set in legislation and deterrence. Employers should be proactive in addressing health and safety issues in the workplace, and recognize that prison sentences are a possible consequence of failing to keep a safe workplace. The team at CCPartners can help you implement these proactive measures and ensure that your workplace is in compliance with the Occupational Health and Safety Act. Read more here.
9. Management Rights Affirmed by Supreme Court of Canada
Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55: In November 2017, the Supreme Court of Canada affirmed that management rights for unionized employers must always be exercised reasonably and consistently with the collective agreement. The collective agreement between the Employer and the Association of Justice Counsel was silent on standby duty but specified that the Employer retained all management rights and powers that had not been modified or limited by the collective agreement. The Employer revised the standby system, even though it was not addressed in the collective agreement. The Supreme Court of Canada agreed with the arbitrator in holding that the mandatory standby directive was neither reasonable nor fair. Assessing the reasonableness of an employer’s policy includes a well-established approach towards balancing interests of both parties and the policy’s impact on employees. Employers should ensure that their unilateral implementation of a policy or directive is within its reasonable exercise of management rights. Read more here.
10. Human Rights Complaint Made Against a Different Employer
British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62: In December 2017, the Supreme Court of Canada held that employees may bring discrimination complaints against the employees of a different employer. The Supreme Court interpreted the British Columbia Human Rights Code to mean that discrimination was prohibited against employees whenever that discrimination has a sufficient nexus with the employment context, including discrimination by co-workers, even when those co-workers have a different employer. The Supreme Court further sets out a test for determining whether discriminatory conduct has a sufficient nexus within the employment context. Since the Ontario Human Rights Code is very similar to the Human Rights Code of British Columbia, employers should be aware that they could be responsible for discrimination against workers who are not their employees. Read more here.