It is an established principle in labour law that an employer cannot impose more than one penalty for the same offence – but what constitutes a penalty? That was the issue at the heart of Collège Boréal, an arbitral award released on July 23, 2015, where an employee appeared to receive two sanctions for the same event.

The grievor was tasked with accompanying college students at a hockey tournament in Toronto, where several incidents involving alcohol consumption and on-ice altercations took place. Upon returning to the College, the grievor failed to disclose these events. After meeting with his supervisor, he was advised, by email, that a note would be placed on his employee file due to his lack of judgment. Roughly two weeks later, the grievor was placed on administrative suspension, and terminated shortly thereafter.

During the hearing, the employer argued that the supervisor’s email did not constitute discipline, and therefore, the College was not barred from imposing a subsequent penalty – in this case termination. In assessing whether the email constituted discipline, Arbitrator Kathleen O’Neil applied “an objective interpretation”, without “placing emphasis on the intention” of the supervisor. The email was deemed disciplinary and therefore, the employer was barred from imposing a second disciplinary sanction for the same events. The Arbitrator nonetheless added supplemental discipline for events that were not properly covered by the email.

The grievor was ultimately reinstated.

OPSEU, Local 672, was represented by Wassim Garzouzi of Raven, Cameron, Ballantyne & Yazbeck LLP.

In a recent arbitral award, Arbitrator Goodfellow confirmed that the cancellation of two full-time employee’s shifts during temporary slowdowns constituted a layoff within the meaning of the collective agreement. The Arbitrator agreed with the Union, CUPE, Local 139, that the cancellation of shifts was a layoff because it involved a reduction in a full-time employee’s hours of work below the permissible level in the collective agreement. Under this award, the parties agreed to a protocol to use in such circumstances in the future.

CUPE, Local 139 was represented by Wassim Garzouzi and Amanda Montague-Reinholdt of Raven, Cameron, Ballantyne & Yazbeck LLP.

On April 1, 2016, Morgan Rowe spoke to CBC Radio about a recent decision by the Human Rights Tribunal of Ontario that accepted that miscarriage is a disability. In its decision, rendered on March 14, 2016, the Tribunal rejected an employer’s request to have a Human Rights Code complaint dismissed on the basis that the employee had failed to establish the existence of a disability. Morgan represented the employee in the case before the Tribunal.

Morgan’s interview with CBC Radio is available here. CBC has also reported Morgan’s interview here.

On August 21, 2015, an Adjudicator of the Public Service Labour Relations and Employment Board reinstated two long service Parks Canada employees who were terminated for entering a restricted area at a National Park site and swimming in an underground cave pool that contained an endangered species of snail. While Adjudicator Gobeil was satisfied that the grievors had entered the premises knowing that they should not have and swam in the protected habit of the endangered snails, she rescinded the terminations. In determining that termination was not an appropriate sanction, Adjudicator Gobeil considered the 30 years of service of one of the grievors and the 14 years of service of the other grievor. In addition, both grievors had clean disciplinary records and the termination resulted from a single, unplanned incident.

The grievors were reinstated effective the date of the decision.

The grievors were represented by Wassim Garzouzi of RavenLaw.

Employment lawyers are frequently asked to predict the length of reasonable notice that a court would award to an employee who has been terminated without cause. There is no set formula that applies to all cases, but lawyers have historically relied on the fact that, barring exceptional circumstances, courts generally don’t award more than 24 months’ notice. However, in Keenan v Canac Kitchens Ltd, the Ontario Court of Appeal recently cast doubt on that assumption by upholding an award of 26 months of reasonable notice, in a case without any identified exceptional circumstances.

Background

This was a claim by two very long-service employees. Mr. Keenan worked for Canac Kitchens since 1976, and his wife joined him in that work in 1983. Both plaintiffs performed supervisory roles for many years, and were the “face” of the company, acting as Canac’s representatives. From the start of their employment until 2007, they worked exclusively for Canac. As work slowed down, in 2007, they began to also perform work for a competitor. In 2009, they were both let go.

There were two key issues in the action for wrongful dismissal: whether the Keenans were dependent or independent contractors, and, if they were dependent contractors, what period of reasonable notice were they entitled to upon termination. On the first issue, the trial judge found that the Keenans met all the criteria to be considered dependent contractors, and were therefore entitled to reasonable notice. (For more information on dependent contractors, see: “Are you an employee, independent contractor or dependent contractor?”) On the second issue, the trial judge held that 26 months’ notice was reasonable in the circumstances, and therefore awarded $125,000 to the Keenans. Canac Kitchens appealed on both issues.

Ontario Court of Appeal’s Judgment

In its judgment rendered on January 26, 2016, the Ontario Court of Appeal upheld both aspects of the trial judgment. Regarding the length of reasonable notice, the Court held that there was no basis to interfere with the trial judge’s award, given the relevant factors for calculating reasonable notice:

Lawrence Keenan and Marilyn Keenan worked for Canac for approximately 32 and 25 years respectively.  Together, their average length of service was 28.5 years.  They were 63 and 61 years of age at the time of termination.  They held supervisory, responsible positions in which they oversaw the installation of Canac’s products and met with Canac’s customers as its representatives.  For over a generation, they were Canac’s public face to the outside world.  Over a period of approximately thirty years – the entirety of their working lives – the Keenans’ income had come from Canac and they relied on that income to support themselves and their family.  Even during the approximately two years that they provided some services to Cartier, a “substantial majority” of the Keenans’ work continued to be done for Canac.  These circumstances justify an award in excess of 24 months and I see nothing wrong in the trial judge’s finding that 26 months’ notice was reasonable.

Opening the door for longer periods of reasonable notice?

Conventional wisdom in employment law has long been that employees are unlikely to receive awards of reasonable notice in excess of 24 months. By upholding a judgment of 26 months’ notice, the Court of Appeal has arguably opened the door for larger awards in wrongful dismissals involving older, long-service employees. This judgment could have significant implications for future cases, particularly in light of the aging workforce in Canada. Employees whose circumstances support it can now potentially pursue claims beyond what was previously thought to be a ‘ceiling’ of 24 months’ notice. Employment lawyers and workers’ advocates will closely watch this development in future cases, to determine whether this is part of a larger trend towards longer notice periods.

For more information about calculating reasonable notice, see: “What is reasonable notice?”

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On November 30, 2015, in Attorney General of Canada v PSAC, 2015 FCA 273, the Federal Court of Appeal dismissed the Government’s appeal of the decision of the Federal Court rendered last year. The case dealt with Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

The Court of Appeal adopted the approach of the Federal Court judge, and held that an employer does not have unfettered discretion to determine whether a workplace violence complaint warrants an independent investigation: “I agree with the Respondent that allowing the employers to conduct their own investigations into complaints of work place violence and to reach their own determination as to whether such complaints deserve to be investigated by a competent person would make a mockery of the regulatory scheme and effectively nullify the employees’ right to an impartial investigation of their complaints with a view to preventing further instances of violence.”

The Court found that employers can only decline to appoint a competent person to investigate if it is plain and obvious that the complaint does not raise allegations of workplace violence on its face. The Court emphasized that the “employer has very little discretion in this respect.” This judgment affirms the right of employees to an impartial investigation when they experience psychological harassment or other forms of violence in the workplace.

The appeal was argued by Andrew Raven of RavenLaw. You can read about the Federal Court decision about the case in our blog.

On March 10, 2016, Kim Patenaude will be presenting a bilingual advanced seminar on the Duty to Accommodate at Health Canada on behalf of REACH Canada. REACH has offered lawyer referrals and public education for individuals living with disabilities since 1981.  Ravenlaw is a long-term, proud supporter of REACH and its mission to improve the quality of life for citizens with disabilities.

RavenLaw is proud to sponsor an event on the Public Service Alliance of Canada’s struggle for pay equity, co-hosted by PSAC, the Workers’ History Museum, and the University of Ottawa Human Rights Research and Education Centre. The event will take place on December 10, 2015 at the University of Ottawa Alumni Hall, beginning at 5:30 pm for the English event and 7:30 pm for the French event. The event will tell the story of the PSAC pay equity struggle, with questions and answers, as well as entertainment provided by the Just Voices Choir.

In a recent decision, an adjudicator of the Public Service Labour Relations and Employment Board found that the Parole Board of Canada failed to accommodate an employee’s disability, contrary to the Canadian Human Rights Act.  This decision provides important confirmation that employees with mental health concerns must be accommodated by their employers up to the point of undue hardship.

Background

A grievance was filed by Line Emond, a statistics and data quality manager at the Parole Board of Canada, due to emotional stress caused by her fear of a co-worker. The medical evidence presented at the hearing revealed that the grievor’s fear was real and the emotional stress caused by the co-worker’s presence affected her ability to work. She had requested accommodation from her employer permitting her to work anywhere except in the same building as her co-worker.  While the employer offered to move her to an office on a separate floor with additional security, the grievor’s treating physicians agreed that the employer’s proposal was insufficient as the grievor would continue to feel unsafe. The medical evidence demonstrated that this emotional stress affected her memory, concentration and her ability to function normally.

Board’s Decision

In a decision rendered on January 25, 2016, Adjudicator Linda Gobeil allowed Ms. Emond’s grievance. The Adjudicator found that the grievor suffered from a disability or incapacity: the emotional stress suffered by the employee amounted to a disability that triggered the employer’s duty to accommodate. The Adjudicator further found that the employer failed in its duty to provide reasonable accommodation. The Adjudicator found that the employer’s proposed solution was not a reasonable one, and it was reasonable to expect the employer to be able to locate a workspace in another location for the employee. The employer was ordered to find a workspace in another building for Ms. Emond, and Ms. Emond also received compensation for the lost wages and benefits during her time on long-term disability.

As counsel for the grievor, Kim Patenaude, of RavenLaw, told the Ottawa Citizen, the Adjudicator’s decision “has the potential to broaden an employer’s responsibility to provide accommodation” and is a win for employees with disabilities, especially those with mental health concerns.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]