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The Ontario Labour Relations Board has decided an important arbitral case focused on a request for pre-hearing production of information from an employer. The case, North Bay General Hospital v. Ontario Nurses’ Association 2011, was decided on October 13, 2011, and holds key lessons for employers and lawyers across Canada.

Case overview

A hospital employee faced complaints of workplace harassment from co-workers, and the hospital imposed discipline on him. The employee’s union subsequently filed a grievance with the labour relations board. The hospital retained the services of an independent outside investigator, Kevin Robinson, who was also a practising lawyer. Upon completion of the investigation, the hospital sent a letter to the employee advising him of the conclusion that he had engaged in a pattern of “bullying and/or harassing behaviour” in contravention of the hospital’s workplace harassment policy.

The grievor was told that the hospital was issuing him a written warning that harassing and bullying conduct will not be tolerated in the workplace. The hospital further advised the grievor that he would be demoted forthwith from the position of charge nurse.

The union, the Ontario Nurses Association, brought a grievance against the hospital alleging a violation of the collective agreement. The union expressed the view that the discipline was unjust and was in retaliation for the grievor’s past union activities. The union brought an application to the board for pre-hearing production of written communications and materials used in Robinson’s investigation. The hospital asserted that these communications were not relevant and, most importantly, were protected by solicitor-client privilege.

Legal questions under review

The arbitrator addressed two main questions in her written decision:

1. Does solicitor-client privilege apply in the case where a lawyer is acting on behalf of a client as a third-party investigator?
2. To what extent should written communications related to a workplace harassment investigation be made available to the grievor/union?

Solicitor-client privilege

As noted by the arbitrator in this case, solicitor-client privilege exists to enable a person to receive legal advice in a confidential manner. The hospital’s claim of solicitor-client privilege was predicated on the fact that Robinson was a lawyer. In noting that Robinson was retained by the hospital as an independent investigator, the arbitrator stated:

I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer. There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.

In reaching this conclusion, the arbitrator stated that she saw no reason to distinguish between a third-party investigator and in-house internal investigator if the purpose for which they were retained was the same. Accordingly, Robinson’s communications with the hospital pursuant to the workplace harassment investigation were found not to be protected by solicitor-client privilege.

While not explicitly cited in this case, the arbitrator’s conclusions are in accord with the Supreme Court of Canada decision Solosky v. The Queen [1980], which states:

It is not every item of correspondence passing between solicitor and client to which privilege attaches, for only those in which the client seeks the advice of counsel in his professional capacity, or in which counsel gives advice, are protected.

In arriving at this position, the Supreme Court of Canada relied in part on Wigmore where the modern meaning of solicitor-client privilege was thus defined:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.

The arbitrator’s conclusion on the application of solicitor-client privilege in this case is consistent with these positions in that Robinson was acting in the capacity of a third-party investigator when gathering information and writing up an investigation report, and not in his capacity as a lawyer.

Relevant test for disclosure

Both the hospital and the union petitioned the board to apply different legal tests for the disclosure of the hospital’s investigation file and related materials in this case. Somewhat predictably, the hospital proposed a narrow test while the union put forward a more expansive test.

In deciding to apply a narrower test for disclosure, the arbitrator concluded:

I observe that while the parties disagree as to the applicable test for disclosure, I have, without making any determination in that respect, applied the more narrow test of relevance advocated by the Employer.

The union’s right to access the full investigation report

The union’s original request to view the workplace harassment investigation report in full was rejected by the hospital on the grounds that the investigation report as a whole is not relevant, as the hospital is not relying on the report in the arbitration. The hospital also submitted that it would not be calling Robinson as a witness, but would instead call each of the individuals involved in the harassment incidents.

The arbitrator found that the hospital had already relied upon the investigation report in formulating a course of discipline and issuing a written warning to the grievor. As noted by the arbitrator:

The letter written to the Grievor clearly references [the investigation report] as the basis for the Hospital’s decision to impose discipline in this case. There is no indication the Hospital conducted its own investigation and was basing the disciplinary action on knowledge it gained separate and distinct from the investigation.

The union’s right to access additional documents related to the investigation

The union alleged that the hospital’s actions in disciplining the employee were motivated by the employee’s past union activities. In an effort to prove this position, the union requested:

• Production of all communications and correspondence related to the full range of incidents relied upon by the employer in establishing the veracity of any allegations of harassment
• Access to documentation in the personnel file of the chief complainant pertaining to discipline imposed following a previous complaint in which the employee was involved

In granting the union’s requests, the arbitrator expressed the view that the union was entitled to consider all actions taken by the hospital that could show whether any decisions were motivated in some way by the employee’s past union involvement.

The arbitrator went on to state:

The Union also seeks production of the personnel file and employment record of the chief complainant, C.B., in this case. The Union notes that part of its case is an assertion that C.B.’s complaint in this case is motivated by an earlier complaint against C.B., which led to the discipline of C.B.. The Grievor was involved in that complaint. The Union clarified it seeks only the documents which relate to that discipline. I am of the view those documents are relevant, as they directly speak to the workplace and interpersonal history between C.B. and the Grievor.

Case disposition

The arbitrator ordered the hospital to provide the following documentation to the union:

• All emails, notes of conversations and other correspondence between Robinson and the hospital’s human resources personnel, and the VP of Surgery and Maternal/Child Care Centres, relating to Robinson’s role as investigator of the incidents
• All documents in the personnel and employment file of C.B. relating to the discipline imposed in respect of the complaint in which the employee was involved
• All communications and correspondence relating to the incidents in the case at hand

Summary and key insights

This case offers a number of important considerations for employers and lawyers.

It appears doubtful that a lawyer retained for the purpose of investigating a complaint of workplace harassment or violence can claim the protection of solicitor-client privilege.

In light of the conclusions reached in this case, employers would be prudent to clearly demarcate and separate the functions of investigative analysis and legal analysis. Common sense would seem to dictate that the investigation findings should be collected, collated and analyzed as a distinct first step. In the event that legal analysis is required, the subsequent engagement of internal or external legal counsel to offer legal interpretation and guidance would more distinctly fall under the protection of solicitor-client privilege.

This finding raises important questions about the extent to which the solicitor-client privilege protection can be applied to other corporate fact-gathering initiatives undertaken by lawyers, such as the conduct of a workplace risk assessment (as required in Ontario under the Bill 168 amendments to the Occupational Health and Safety Act).

Employers should be prepared to disclose investigation reports and related documentation to a grievor and his or her union representative(s) in the event the reasonableness of actions taken by the employer following the investigation are in dispute. This may include not only the full investigation report, but details of communications between the investigator and other workplace parties involved in the investigation (e.g., human resources, supervisors, managers, etc.).

It is worth noting that, despite applying the narrower test for disclosure advocated by the hospital, the arbitrator came to the conclusion that, on the facts of this case, the union was entitled to access a wide range of communications and correspondence connected to the harassment investigation conducted by the employer.

Conclusion

The arbitrator’s findings in this case should be considered in the context of the growing codification of the employers’ obligation to prevent, control and respond to workplace harassment. In Ontario, for example, the Bill 168 amendments to the Occupational Health and Safety Act mandate specific requirements to be followed by employers including a responsibility to investigate incidents and complaints of harassment.

The inevitable result of more far-reaching workplace harassment legislation within some Canadian jurisdictions is an increase in the overall number of harassment in the workplace complaints. As a corollary, employers are forced to conduct an ever-increasing number of harassment investigations and in so doing, must carefully navigate new laws such as the Bill 168 amendments.

This case provides important new considerations that Canadian employers should interpret and apply with appropriate care and attention to their workplace investigations process.

David Hyde
David Hyde & Associates

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You are an employer that has just received a harassment complaint from an employee. The complaint is against a valued employee who you do not want to lose. But you are also worried that you will be faced with an expensive human rights complaint or lawsuit. What do you do?

Below I discuss two decisions of the Human Rights Tribunal of Ontario. In Szyluk, the employer failed to properly investigate and respond to harassment allegations. In Shreve, the employer complied with its legal duties to investigate and respond.

By comparing and contrasting the approach taken by each employer, we can derive best practices when responding to harassment complaints.

Szyluk v. United Food Commercial Workers, Local 1000A (June 23, 2009)

Mr. Gure, a union steward made derogatory remarks about native employees at a union meeting. Ms. Szyluk, another union steward immediately left the room and complained to the union. The union discussed the matter with Mr. Gure, who later apologized for his remarks and refrained from making similar remarks thereafter.

Ms. Szyluk was not satisfied. She escalated her complaint to the union vice president, and advised that she had taped the remarks. The union conducted an investigation, and concluded that no further remedial action was necessary because the remarks were made in a light-hearted manner, were not intended to cause offence, and Mr. Gure had already apologized and refrained from making further remarks.

The union had a harassment policy which prohibited discrimination or harassment on the basis of grounds protected under the Human Rights Code. The policy also provided that complaints would be investigated, those involved would be interviewed, and a resolution sought. However, the union did not require all stewards to undergo training on the Code or the policy.

Ms. Szyluk filed a human rights application at the Human Rights Tribunal of Ontario. The Tribunal awarded damages to Ms. Szyluk on the basis that the union’s failure to sufficiently investigate and resolve the complaint, and failure to train staff and union stewards on the Code and the policy, constituted unlawful discrimination under the Code. The Tribunal also ordered the union to train staff and stewards on the Code and the policy.

Why the investigation and resolution were insufficient?

The Tribunal said it would consider the following when deciding if a response to harassment allegations was sufficient: (i) The response must be prompt; (ii) There must be corporate awareness that the conduct complained of is prohibited; (iii) The matter must be dealt with seriously; (iv) There must be a complaint mechanism in place; (v) The respondent must act so as to provide a healthy environment; and (vi) The respondent must communicate its actions to the complainant.

The Tribunal found that the union failed to meet condition (i) when it waited until Ms. Szyluk produced a tape recording before initiating an investigation. The union failed to meet conditions (ii) and (iii) because it concluded that the comments were light-hearted and acceptable, and because the union had not required its staff and stewards to receive training on the Code and the policy. Finally, the union failed to meet condition (v) because it dismissed the complaint as resolved without implementing further training or other measures to provide a healthy environment.

Shreve v. Windsor (City) (February 21, 2013)

Mr. Shreve had made a number of informal and formal complaints to the City of Windsor’s management, and had even gone as far as to contact senior public officials like the mayor and by contacting the Ontario Human Rights Commission.

He filed a human rights complaint because he believed that those prior investigations and complaints had yielded either non-committal or ineffective responses. Mr. Shreve alleged that there was a poisoned work environment that either the City created or condoned through inaction. He asserted several instances during which he endured severe, pervasive and offensive language based on race, colour and ethnic origin at the hands of his co-workers, and that management’s response was insufficient.

In the first of three incidents, Mr. Shreve complained that a co-worker recounted a comedy skit by Dave Chappelle, which among other things, included reference to the word “Nigger”. The employer responded by immediately posting a notice reminding employees that such language and content was unacceptable in the workplace, and contrary to the City’s diversity policies. That notice was also sent to employees with their paystubs.

The City then had employees undergo diversity training, which is where the second alleged incident occurred. While discussing the difference between acceptable conduct in and outside the workplace, the trainer gave the example that a co-worker could be a member of the KKK in their free time, provided they did not discuss their personal views in the workplace.

In the third incident giving rise to the complaint, Mr. Shreve alleged that a co-worker had used the word “Nigger” when discussing Detroit Mayor Kwame Kilpatrick. That employee had been suspended for five days without pay, management had spoken to the employees involved and that further training had been requested for the employees in that location.

Why the investigation and resolution were sufficient?

The Tribunal found: (i) That the City Had a comprehensive policy in place that was disseminated widely in the workplace; (ii) That when complaints were raised, investigations commenced promptly and persons concerned were interviewed; (iii) That discipline was imposed when appropriate; and (iv) That retraining on the workplace diversity and inclusion policies took place within a reasonable amount of time.

In other words, the City in Shreve took every step that the UFCW failed to take in Szyluk.

Lessons for employers

To minimize liability, and to promote and ensure compliance with the Code generally, employers should:

• Investigate complaints promptly after they are made;
• ensure that all employees are aware of relevant human rights and harassment policies;
• treat all complaints seriously and investigate them pursuant to the relevant policies; and
• have a procedure in place that:
  • advises employees to whom they can make complaints;
  • includes an investigation mechanism;
  • includes a process for deciding how complaints will be resolved; and
  • advises the complainant what action has been taken to resolve the complaint.

Harassment complaints can happen in the best of workplaces. You should not delay your response in hopes that the situation will resolve itself. This will usually only heighten the risk of legal liability. A prompt and decisive response to a complaint will often help defuse the situation and reduce whatever legal risks may be present. When faced with a harassment complaint, prompt, effective steps to investigate and respond can be the difference between a complaint handled internally and one that leads to protracted litigation. How can you prepare your organization to best respond?

Find out at the 2013 Ontario Employment Law Conference, where employment lawyer Jeremy Schwartz will get you up to speed on:

• How to manage complaints of harassment between co-workers and between employees and management
• How to conduct an effective investigation
• What the courts and tribunals are saying about employers’ obligations to prevent and respond to harassment
• Strategies for implementing appropriate responses, including counselling and discipline

So what are you waiting for? This is a whole lot of good advice from knowledgeable professionals! Register for the 2013 Employment Law Conference—and Learn the latest!

Stringer LLP
www.stringerllp.com

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Image: freedigitalphotos.net | nattavut

Bill 168 added a number of provisions to the OHSA relating to workplace violence and harassment. Interestingly, Bill 168 did not establish a free standing right for a worker to be free from workplace harassment. Instead, the legislation included a number of provisions which required the employer to implement a mechanism whereby workers could complain about harassment and to develop a protocol to investigate and respond to such complaints.

In Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) (“Conforti“), the Board commented that since the OHSA did not include a right to for a worker to be free work from workplace harassment, it did not likely have the power to hear cases from workers alleging that they were subject to a reprisal as a result of making a harassment complaint. The Board held that only a very narrow range of fact situations would come within the ambit of section 50 for the purposes of harassment (such as cases where the employer refused to create a harassment policy which allowed workers to report incidents). The Board has since followed the approach taken in Conforti in a number of other cases.

However, the Board has now signalled a potential departure from the reasoning in Conforti and the cases which followed it. In Ljuboja v Aim Group Inc, 2013 CanLII 76529 (ON LRB), the worker alleged he was employed by an agency which placed him on a series fixed term contracts in a supervisory role at an automotive plant. During a meeting, the worker alleged that another supervisory employee harassed him when the employee made a number of profanity laden comments directed at him.

The comments did not include a threat of physical violence. The worker made a harassment complaint to the management of the plant and his employment was terminated shortly thereafter. The worker contends that his termination was motivated at least in part because of the fact he filed a harassment complaint. The agency and the automotive plant denied the allegations and sought dismissal of the worker’s complaint without a hearing largely on the basis of the Board’s reasoning in Conforti.

Somewhat surprisingly, the Board chose not to follow the approach discussed in Conforti. The Board acknowledged that the OHSA does not include a free standing right to be free from harassment. However, it noted that the OHSA requires employers to develop and maintain a program to implement the workplace harassment policy and that the policy must provide a mechanism for workers to report harassment.

The Board held that since the OHSA requires a mechanism for workers to report harassment, taking an adverse action against an employee for doing so could potentially amount to a reprisal within the meaning of section 50. The Board refused to dismiss the case on a preliminary basis. It should be noted that the Board also noted that section 50 cases will rarely focus on the actual harassment itself and will be confined to an analysis of whether the worker suffered a reprisal as a result of filing a complaint. The Board also stated that complaints relating to the method of investigation or the ultimate result of the investigation will rarely be successful.

There is no question that the outcome of this case is disappointing for employers and opens another potential forum for workers to pursue litigation in the harassment context. We agree with the reasoning of the Board in Conforti that the absence of an explicit right in the OHSA to be free from workplace harassment ought to serve as a bar to pursuing reprisal cases in this context. It is still possible (although not likely in our view) that other Vice-Chairs will continue to follow Conforti.

However, it seems that the Board is now open to hearing this type of case and this presents another legal risk when terminating an employee who has made a harassment complaint. We note the Board has the power to decline to hear a section 50 case even if the worker makes allegations which could be considered a reprisal. We expect that the Board will decline to hear a significant number of these cases if another forum (i.e., the Human Rights Tribunal, an arbitrator or a Court) could actually deal with the merits of the harassment complaint itself.

Employers must appreciate that the “sky is not falling” as a result of this decision. The reality is that terminating an employee who filed a harassment complaint has always been a risky endeavour from a litigation perspective and this decision simply adds another potential risk to the legal minefield. Employers who are terminating employees in these circumstances must be able to prove that the termination was not motivated in any manner by the harassment complaint. In order to prove the termination was not a reprisal, clear evidence of another reason for the termination will be required.

Stringer LLP
www.stringerllp.com

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Employer on the hook for outstanding wages

The vice-chair of the Ontario Labour Relations Board confirmed that when an employer failed to pay vacation pay in a timely manner, the employer violated the Employment Standards Act. In addition, it confirmed that the employer is obliged to pay wages to an employee even if the employee refuses to give the employer his or her social insurance number.

Proposed AODA customer service changes

When the Accessibility Standards Advisory Council/Standards Development Committee was formed in 2013, one of its first orders of business was to review the Customer Service Standard as required under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). The council has proposed several changes to the Customer Service Standard and is asking interested stakeholders for feedback.

Harassment complaint was not the reason for termination, thus reprisal complaint dismissed

After an employee allegedly complained of harassing conduct by his superior and was dismissed, he filed a reprisal complaint under the Occupational Health and Safety Act. The alternate chair of the Ontario Labour Relations Board who heard the complaint ruled that the employer did not engage in a reprisal because the reasons for the dismissal had nothing to do with the termination. In addition, the employee’s harassment complaints were all concerned with his boss’s management style and were never formalized.

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Q: I had a formal complaint given to me yesterday about one of our male employees regularly looking at one of our female employees in a “creepy way.” She said “a leering look.” The female employee does not want her name mentioned, but does the male employee not have a right to know who is submitting a formal complaint against him? I take this very seriously, and just want to make sure that I handle this in a proper/legal way. Can you give me some advice/suggestions?

To view the answer, click on the question above.

Employee properly fired for workplace violence threats, despite his mental disability

In the following matter, the trial judge concluded that the employer did not engage in discriminatory conduct under Ontario’s Human Rights Code when it fired its employee. The trial judge reasoned that the employer was not aware of the employee’s mental disability and had no indication of it until after he was terminated for cause.

Current and upcoming minimum wage

In British Columbia the minimum wage is increasing on September 15, 2016.

The post Three popular articles this week on HRinfodesk appeared first on First Reference Talks.

“Bob is harassing me.”

Your spidey senses should be tingling, because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.

Here are three questions to consider when someone makes a harassment complaint.

1. Is the person being “harassed’ within the meaning of the law?

Under the Ontario Human Rights Code (the “Code”) harassment is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

Effective September 8, 2016, under the Occupational Health and Safety Act (the “OHSA”) workplace harassment will be defined as (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.

Note the similarities in the definitions of harassment under the two laws. Prior to 2010 an employee could be harassed as long as it wasn’t because of one of 16 personal characteristics such as sex, race, disability, and sexual orientation. Thereafter the definition of harassment was significantly expanded in the workplace, but an employee could not generally collect damages for a violation of this expanded definition of workplace harassment. Effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under the OHSA.

2. Is an employer required to investigate a harassment complaint?

Under the Code, there is no explicit duty to investigate a harassment complaint, however some adjudicators under the Code have concluded that an employer does have a duty to investigate and have ordered employers to pay additional damages to employees for failure to conduct an adequate investigation. I suggest that all employers introduce a no-discrimination policy with a written complaint process and that complaints be investigated.

Effective September 8, 2016, an employer will have a duty to investigate harassment complaints, including sexual harassment complaints, under the OHSA.

3. Sexual harassment: A special kind of harassment?

An employee who has been sexually harassed can commence legal proceedings in at least three legal forums, namely:

I. An application Under the Code

The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. The Ontario Human Rights Tribunal can award significant damages under the Code. In a 2015 decision, an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150,000 in general damages.

II. A complaint under the OHSA

An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The employer has no obligation to pay the complainant any damages if the investigation concludes she was harassed. The only obligation is to investigate and report back to the person.

III. An action in Ontario’s Superior Court

An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision, a judge awarded a former employee over $300,000 damages in connection with sexual harassment/assault in the workplace.

Lessons to be learned

1. If an employee claims she is being harassed, find out whether she is claiming illegal harassment within the meaning of the Code, or the OHSA.
2. If it is harassment because of a personal characteristic then the employer should commence an investigation under its human rights policy. If it is harassment within the meaning of the OHSA, including sexual harassment, then the employer should commence an investigation under its OHSA policy. In my experience, many employers have a workplace harassment policy but do not have a written complaint process under this policy. Such a policy is mandated as of September 8, 2016. If you are one of these employers, it’s time to prepare such a policy!
3. Make sure that your organization’s internal complaint process(es) for harassment complaints comply with the OHSA, and the Ontario Human Rights Tribunal’s jurisprudence on what constitutes an adequate investigation.
4. Investigate the complaint quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties etc.
5. Investigations into workplace harassment complaints need not be time consuming or expensive but they should be completed. A properly trained internal investigator should be able to conduct most investigations quickly at little or no out of pocket cost.

The post OHSA workplace harassment amendments to take effect September 8, 2016: Are you ready? appeared first on First Reference Talks.

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Bill to enhance CPP introduced, part 2

On October 6, 2016, the federal government introduced Bill C-26, An Act to amend the Canada Pension Plan, the Canada Pension Plan Investment Board Act and the Income Tax Act, to enhance the Canada Pension Plan. Upon receiving royal assent, the legislation will provide for the making of additional contributions by employers and employees, phased in over a five year period, beginning in 2019; reaching an additional contribution rate of one percent by 2023.

It’s all in your head! When should you report a head injury

When should you report a head injury? Immediately! Any delays in reporting the injury and seeking medical attention may cause a WSIB adjudicator to determine that there is no proof of injury and deny the claim. (In PDF)

Shoan v. Attorney General: Five lessons learned the hard way

In the following case, a former employer argued that an investigation, after an internal harassment complaint, had violated the basic principles of procedural fairness and natural justice. Justice Zinn, who presided over the case, agreed.

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Once upon a time, employees did not sign employment contracts with termination clauses and employment lawyers fought over the appropriate “reasonable” notice period. In 2017, however, employees now claim in addition to wrongful dismissal damages, human rights damages, moral or Wallace damages, punitive damages, and damages for the intentional infliction of mental stress.

By way of example, this blog discusses a recent case decided by a judge of Ontario’s Superior Court after a 27–day trial.

Doyle v. Zochem Incorporated, 2016 ONSC 3199

In this case, a 44–year–old female supervisor with 9 years’ service was fired without any notice of termination. She earned a salary of about $85,000, worked in a male dominated workplace, and her termination came shortly after filing a harassment complaint. After her termination, the employee spiralled into depression. She applied for short–term disability benefits but even though the employer’s doctor supported the claim the Company denied it.

In an 82–page decision, the judge awarded the terminated employee three different types of damages.

Wrongful dismissal damages

The court concluded the employer should have provided the employee with 10 months notice of termination and ordered the employer to pay her over $80,000 in damages, which was equal to the remuneration she would have received during this period (including pension contributions, and profit share) less the termination pay and severance pay she received after her termination.

Moral damages or Wallace damages

The judge ordered the employer to pay the employee $60,000 because of manner of the termination. The Company’s managers were extremely insensitive at the time of her termination; they were cold and brusque and she was not given a reason for her termination. In addition, the judge concluded, among other things, that the Company’s response to the short–term disability claim was insensitive.

Human rights damages

The judge ordered the employer to pay the employee $25,000 because of how it responded to her harassment claim, including a faulty one–day investigation into it.

Damages for the intentional infliction of mental stress

The judge concluded that even though a manager harassed and demeaned the employee knowing she suffered from depression, she did not intend to cause the employee mental stress and therefore he did not award the employee damages for this claim.

Lessons to be learned

1. Employers should make a reasonable attempt to settle these kinds of cases before litigation is commenced. In this case, the employer made a six month “take it or leave it” offer which was clearly less than her wrongful dismissal damages. I shudder to think about the legal costs associated with a 27–day trial.
2. Employers have an obligation to act in good faith, including at the time of termination. There is no reason to be insensitive to an employee at the time of termination. Doing so will only open up the employer to unnecessary additional legal liability.
3. Employers have an obligation to conduct an adequate investigation into a human rights or harassment complaint. An investigation into a sexual harassment complaint should be conducted by someone who is adequately trained. Failure to do so will only open up the employer to unnecessary additional legal liability.

The post Wrongful dismissal update: More kinds of damages being ordered appeared first on First Reference Talks.

Given the elimination of mandatory retirement years ago, employees are working for longer periods of time and well into their 60s and some into their 70s. Age has always been one of the key Bardal factors, in addition to title, length of service and compensation, that courts use to determine an appropriate common law notice period. In the recent case of Ozorio v. Canadian Hearing Society, 2016 ONSC 5440, Justice O’Marra confirmed that an employee’s age remains a significant factor in determining a common law notice period.

The post Employee’s age justifies wrongful dismissal damages of 24 months appeared first on First Reference Talks.

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Do you need to complete a T2200 for employees?

A T2200, Declaration of Conditions of Employment, is a Canada Revenue Agency form that an employer completes and gives to the employee when an… Click here to read the rest of the article

When an employee is terminated without cause and offered a package that is very modest, but otherwise compliant with the employment contract, a common first step for his or her lawyer will be to see if the contract can be set aside. If the contract can be declared void, the employee can try to pursue the typically much greater common law damages. There are several grounds upon which courts have set aside either the full contract or at the least, the termination provision. This blog post will focus on the issue of signing the contract prior to the start date.

The post Contract enforceability: Signing the employment contract prior to the start date appeared first on First Reference Talks.

“The relationship between employee alcohol use and work is complex. In Ontario, there are specific legal obligations which apply, and employers must exercise caution. Without a proper understanding of their legal obligations, employers face a… Click here to read the rest of the article

A recent BC Supreme Court decision finding a fast food employee was wrongfully dismissed and entitled to aggravated damages has been making newspaper headlines across the country. In Ram v. Michael Lacombe Group Inc. (c.o.b. Burger King and Burger… Click here to read the rest of the article

“The Supreme Court of British Columbia recently reiterated that while probationary clauses can be useful to employers, they also impose obligations on employers to which they would otherwise not be subject.”

Many employers find it necessary to… Click here to read the rest of the article

The recent decision of Misetich v. Value Village Stores Inc. reaffirms that family status accommodation under the Human Rights Code (“the Code”) is a joint obligation, involving both the employee and employer.

Background

The applicant, Ms. Misetich,… Click here to read the rest of the article

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Employee dismissed for not submitting doctor’s note in timely fashion

The Ontario Superior Court of Justice found that a 14–year employee’s failure to provide a doctor’s note for her absences in … Click here to read the rest of the article

Photo: Government of Canada website

On March 22, 2017, Canada’s Finance Minister Bill Morneau tabled the Liberal Government’s Federal Budget 2017, Building a Strong Middle Class, which includes various measures affecting payroll, and an abundant a… Click here to read the rest of the article

“With home repairs, there is risk in DIY. Similarly, employment agreements require the input of an expert. If you’re not an employment lawyer, don’t try this (i.e. drafting or revising an employment agreement) at home.”

I have spent many lazy Sat… Click here to read the rest of the article

With news almost every week of another marijuana dispensary raided by the police, Ontarian’s have asked, can the Ministry of Labour enforce employment standards (i.e. notice of termination, overtime, etc.) in favour of individuals who work at these criminal enterprises? In short, yes. There is simply no exemption in the Employment Standards Act (“ESA”) which exempts […]

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Last week we hosted an online event called “Are you a fit for a workforce analytics pureplay?” In it, we explored the Workforce Analytics PurePlay and provided 7 questions to ask yourself to see if you/your company is a fit for this approach to HR an… Click here to read the rest of the article