This morning the Supreme Court of Canada released its decision in the matter of Communications, Energy and Paper Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. The decision is important in that it comments on the standard of review in a judicial review of an arbitration decision, and more important in [...]
This morning the Supreme Court of Canada released its decision in the matter of Communications, Energy and Paper Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. The decision is important in that it comments on the standard of review in a judicial review of an arbitration decision, and more important in that it does so in the context of an employer’s exercise of its management rights to implement a random alcohol testing program for workers employed in safety sensitive positions.
The ruling is a split decision of a full panel of all nine judges of the SCC. The majority decision, written by Madame Justice Abella, concluded that the decision of the arbitrator in striking down the employer’s random alcohol testing program was reasonable. As a result, the SCC allowed the appeal from the New Brunswick Court of Appeal. The minority of three judges found the arbitration board’s decision to be unreasonable. Most importantly, the minority found that the board appeared to apply a higher evidentiary standard to which the employer needed to demonstrate alcohol problems in the workplace. That standard, the minority found, was not supported by the body of arbitral jurisprudence and therefore the arbitrator’s decision was unreasonable.
Facts
Irving Pulp & Paper sought to implement a random alcohol testing program for its workers who were employed in safety sensitive work. The program would randomly select 10% of this workforce for testing on an annual basis. The program was established by the employer unilaterally. It was not a program established through collective bargaining. As a result, the employer relied upon the management rights clause of its collective agreement in order to establish and implement the program. A failure during testing could result in the discipline and possible dismissal of a worker.
The union challenged the program through a grievance. The board struck down the employer’s policy. In so doing, the board concluded that a balance between safety and privacy was necessary in the workplace. In order to justify the program, the employer was expected to demonstrate that there were “enhanced” safety risks and that there was a significant or serious problem of alcohol abuse in the workplace. The board found that the employer had failed to establish either of these elements and therefore the invasion of employee privacy resulting from the implementation of the random alcohol testing was not justified.
The board’s decision was overturned on judicial review on the basis that the decision was unreasonable. That decision was confirmed by the New Brunswick Court of Appeal.
Decision
The majority of the SCC focused on the reasonableness of the board’s decision. In assessing that reasonableness, the majority accorded the arbitration board a high degree of deference. They agreed that the employer had failed not only to demonstrate the significance of alcohol use as a problem in the workplace, but that the employer had failed to demonstrate that there was a meaningful safety risk associated with such use.
The minority, in its dissenting judgment, concluded that the board’s decision was not reasonable. It found that the standard of evidence expected of the employer was not consistent with that in the arbitral jurisprudence. That is, it was not necessary for the employer to demonstrate a “serious” and “significant” alcohol abuse problem in the workplace, but merely to demonstrate that there was “a” problem. The minority also attacked the reasoning of the board that required that the evidence of alcohol use should be casually linked to an accident, injury or near miss incident in the workplace. The minority indicated that it was unreasonable for an employer to have to wait for such an incident before taking steps to ensure safety, and concluded that this part of the board’s decision was “patently absurd”.
Analysis and Guidance for Employers
The decision may trouble many employers who maintain workplaces where safety risks are abundant and the need for workers to attend at work and perform safety-sensitive work in a non-impaired manner is critical. Taken at its highest, the majority decision appears to adopt the reasoning of the arbitration board that an employer must demonstrate evidence of significant or serious alcohol problems in the workplace and then also demonstrate that alcohol use must be causally linked to
an enhanced safety risk.
However, the decision can be seen as an acknowledgement that the decision of the board, though it might deviate from the body of arbitral jurisprudence (as suggested by the minority decision) still falls within a reasonable range of outcomes from which an arbitrator could have ruled. In other words, it is not merely open to the Court to substitute its own view on the evidence when the decision of an arbitrator (while not necessarily being the same decision the Court might have made) is nevertheless “reasonable”.
The minority, it appears, focused more on the need to ensure safety in a dangerous workplace. Its challenge to the board’s deviation from the evidentiary standard established in the arbitral jurisprudence suggests that another board who may have agreed with the minority’s view of the case could also have been seen to have made a “reasonable” decision. It is therefore difficult to assert with a high degree of confidence that a further arbitration decision would necessary follow the line of reasoning in the original decision in this case.
For employers who wish to establish mandatory random drug and alcohol testing for workers in safety sensitive positions, it would be wise to approach this issue in a manner that would survive the highest level of scrutiny. In particular, an employer should consider the following:
- Adoption of a drug and alcohol testing program that is developed with the involvement and endorsement of the union.
- Establishing detailed evidence about the safety-sensitive nature of the workplace, generally, and specific jobs within that workplace specifically. As part of this review, the employer should be able to demonstrate the likely effect of a drug or alcohol impairment on the ability to safety perform work in each position that is targeted by the testing program.
- Establishing detailed evidence about the “problem” of alcohol and drug use in the workplace. To the extent that there is evidence linking such use to safety incidents, that evidence should be clearly established and relied upon in the development of a policy.
The cost of developing and implementing effective drug and alcohol testing programs is significant. It is important that employers carefully construct the programs so as to withstand a challenge such as in Irving Pulp & Paper. Programs and policies that are already in place should be scrutinized to ensure that they meet the standard supported by
the SCC in this decision.
The CCP team has considerable experience drafting and reviewing such policies, in assessing safety risks and balancing safety and privacy considerations in the crafting of a policy, and on advising employers regarding appropriate discipline in the event of failed test. Consider consulting a CCP lawyer prior to developing such a policy or program, or in reviewing the programs that you currently have in place.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
Lodvico Cavan v. Royal Bank of Canada demonstrates the benefit of using appropriately drafted employment policies and consistently applied practices to enforce critical company values.
Facts
Mr. Cavan was a financial planner with 26-years of service with his employer, the Royal Bank of Canada (“RBC”). From the start of Mr. Cavan’s employment in [...]
Lodvico Cavan v. Royal Bank of Canada demonstrates the benefit of using appropriately drafted employment policies and consistently applied practices to enforce critical company values.
Facts
Mr. Cavan was a financial planner with 26-years of service with his employer, the Royal Bank of Canada (“RBC”). From the start of Mr. Cavan’s employment in March of 1985 until June of 2011 he had a spotless record with no complaints about his performance. In June of 2011 RBC received an order from the Ontario Superior Court to freeze Mr. Cavan’s personal bank accounts due to allegations filed with the court that he engaged in fraud against an Ontario hospital with his friend Denis Burella, an employee of the hospital, through three entities owned by Mr. Cavan in 2000. RBC complied with the court order and conducted its own investigation of Mr. Cavan’s conduct.
RBC ultimately terminated Mr. Cavan’s employment but did not do so based on any of the allegations that he participated in fraud against the hospital. Instead, the bank terminated Mr. Cavan’s employment because he breached RBC’s own code of conduct by not disclosing his relationship with three businesses owned by him and that he carried out a series of transactions for a close personal friend without accord for standard operating procedures.
Mr. Cavan was provided with the company policies and signed and declared through a company form on a periodic basis that he understood the code of conduct and had no outside interests from those he had reported. Mr. Cavan reported renting out a portion of his basement but did not report any of the three entities registered to his name.
Mr. Cavan filed a complaint for unjust dismissal seeking damages under the Canada Labour Code. RBC took the position that Mr. Cavan was terminated with cause. Specifically, that Mr. Cavan’s dishonesty was a breach of the code of conduct and severed the trust relationship.
Decision
Adjudicator J. McNamee found that Mr. Cavan knew, or ought to have known, that he had an obligation to disclose his outside business activities for which he received a monetary benefit as well as his personal relationship with Mr. Burella. Further, in coming to the conclusion that Mr. Cavan breached the RBC’s code of conduct the adjudicator relied heavily on Mr. Cavan’s regular declaration that he did not have any outside business relationships that could interfere with his role at the Bank.
In determining that the breach of the code of conduct was serious enough to justify the termination of employment Adjudicator McNamee took into account the following facts:
a) Mr. Cavan’s breach “was not a momentary aberration or single mistake of judgment, but the course of conduct which he deliberately embarked”;
b) Mr. Cavan exhibited poor judgment and good judgment was an essential element of his position;
c) Mr. Cavan did not suffer any greater degree financial hardship than any other employee that loses a job; and,
d) Mr. Cavan failed to accept any personal responsibility for the events that led to his termination.
Lessons for Employers
Well drafted policies make it far easier for employers to justify the dismissal of an employee with cause and do well to protect company values. It is particularly useful to set out employee codes of conduct that outline potential conflicts as well as employee obligations. Further, regularly revisiting these policies and having employees acknowledge in writing that they continue to meet their obligations under the policy will only further serve to protect the employer.
Had RBC failed to implement and revisit their policies with Mr. Cavan they would have faced a far more difficult case when terminating this 26 year employee with an otherwise unblemished record of performance.
The CCP team has considerable experience drafting and reviewing employment policies, determining whether there is “just cause” and advising on appropriate discipline in all given circumstances. Consider consulting a CCP lawyer prior to dismissing an employee and/or implementing your employment policies.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
We often hear clients talk about their “probationary employees”. More times than not, however, we have to deliver the bad news that the employer did not create an enforceable probation period as a term of employment when they hired the employee. Unlike the unionized world where collective agreements almost always contain probationary language, non- union [...]
We often hear clients talk about their “probationary employees”. More times than not, however, we have to deliver the bad news that the employer did not create an enforceable probation period as a term of employment when they hired the employee. Unlike the unionized world where collective agreements almost always contain probationary language, non- union employees are not subject to an automatic probation period. Absent an express term in an employment agreement or a well communicated workplace policy, non-union employees with less than three months’ service are entitled to common law notice of dismissal even where provincial employment standards statutes may not require the employer to pay statutory termination pay.
We have blogged previously about the value of employment agreements for non-union employees. One of the benefits of a written contract or a hiring letter is that the employer can include specific language about the probationary status of the employee that includes the length of the probation period, the right to extend the probationary period if the employer needs more time to assess the employee’s suitability and the employer’s notice obligations if the employee is dismissed during the probation period.
While the CCP team always recommends written employment agreements or hiring letters as a “best practice”, a workplace policy confirming a probation period can also be relied on to demonstrate that the employee is, in fact, on probation during the first 3 or 6 months of their employment. It is important to ensure that the employee reads and acknowledges the policy before they start working. While many employers have probation policies, these are often not presented or communicated to the employee until after they start working. This can be problematic from an enforceability standpoint so if an employer wants to rely on a policy it is critical that the policy be provided to the employee before they start so the employee is aware of the probation status and can’t later say that it wasn’t part of the “bargain” they agreed to when becoming an employee.
The potential liability for not having a probation clause in an employment agreement or policy can be substantial. Depending on the employee’s position and whether the employee was hired away from secure employment, dismissing in the first three months can often cost an employer more than a dismissal after a year or two from a common law perspective.
The lawyers at CCP can assist employers in drafting effective probationary language for employment contracts and hiring letters as well as provide advice on potential liability when an employer decides to exit a short service employee where there is no probation clause.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
An Ontario court recently overturned a labour arbitration award that reinstated an employee who sexually harassed two co-workers. The employee (“Mr. Haniff”) worked as a mail room clerk for the employer. A female cleaner (the “Complainant”) reported to the employer that Mr. Haniff entered an elevator with her and tried to kiss her. She alleged [...]
An Ontario court recently overturned a labour arbitration award that reinstated an employee who sexually harassed two co-workers. The employee (“Mr. Haniff”) worked as a mail room clerk for the employer. A female cleaner (the “Complainant”) reported to the employer that Mr. Haniff entered an elevator with her and tried to kiss her. She alleged that after she pushed him away that he grabbed her buttocks. The Complainant informed the employer that this type of behaviour had been occurring for four to five years and that she wanted it to stop.
When confronted with these allegations, Mr. Haniff did not deny the incident and instead claimed he had obtained consent to behave in that manner. The Complainant denied having provided Mr. Haniff any such consent.
Mr. Haniff was terminated after the employer completed an investigation of the alleged incident. The union filed a grievance on behalf of Mr. Haniff requesting that he be reinstated. The grievance proceeded to arbitration.
At the Arbitration, Arbitrator Weatherill accepted as fact that Mr. Haniff’s actions amounted to sexual harassment and sexual assault, that the Complainant had not consented to any of Mr. Haniff’s conduct, that Mr. Haniff had committed similar acts of harassment to another cleaner despite being asked not to, and that he ought to have known that his actions were improper. Despite these findings of fact, the Arbitrator ordered Mr. Haniff’s reinstatement and substituted a suspension for his termination.
The Arbitrator made this order based seemingly on another cleaner’s ability to get Mr. Haniff to stop sexually harassing her by threatening him with violence, on the fact that the complainant was a strong woman who could stand up for herself and on a statement made by the complainant that she did not want Mr. Haniff to be terminated.
The Employer sought judicial review of the arbitration award. The Divisional Court determined that the Arbitrator’s decision did not fall within a range of possible acceptable outcomes that were defensible in light of the facts and the law and set aside the arbitration award with respect to Mr. Haniff’s reinstatement, while upholding the Employer’s decision to terminate Mr. Haniff.
The Divisional Court found that the factors considered by Arbitrator Weatherill when making the determination to reinstate Mr. Haniff were irrelevant and represented “a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace”. The Court held that the decision to terminate Mr. Haniff was in no way the complainant’s and her statement should have had no impact on the Arbitrator’s decision. Further, the Court held it was not the responsibility of employees to protect themselves from being sexually harassed or assaulted by being strong or threatening violence on harassers.
The court stated that it is employers who are responsible for ensuring their employees are not exposed to that type of behaviour and that the legislature has reinforced that obligation with the introduction of Bill 168 dealing with violence and harassment in the workplace. If Mr. Haniff were reinstated, the employer could not ensure a workplace free from sexual misconduct as required under Bill 168. In this regard, the court stated “without this evidence [of remorse] neither the employer nor the arbitrator could have any assurance that if Mr. Haniff were reinstated, he would not continue pose a threat to the Complainant and other employees”.
It is important to note that the court made clear that not every case of sexual harassment or assault leads to a discharge. There are instances where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the spectrum of this type of conduct.
The lawyers at CCPartners can assist employers with determining whether an employee’s misconduct is worthy of termination in both union and non-union settings.
Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725 (CanLII) can be found HERE.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
One element of unionized employment which distinguishes it from typical individual employment is that the normal remedy for a union member who is unjustly dismissed is reinstatement, while an individual employee in a non-union setting will likely receive only monetary damages in the same situation. Principles of labour law recognize the inherent value in a [...]
One element of unionized employment which distinguishes it from typical individual employment is that the normal remedy for a union member who is unjustly dismissed is reinstatement, while an individual employee in a non-union setting will likely receive only monetary damages in the same situation. Principles of labour law recognize the inherent value in a collective bargaining job, and arbitrators therefore strive to reinstate unjustly terminated workers.
It is a rare occasion for an arbitrator to find that a unionized worker was terminated without just cause, and then to award damages in lieu of reinstatement, but a recent arbitration decision demonstrates the appropriate circumstances for that outcome.
In C.U.P.E. Local 1487 and The Scarborough Hospital, 2013 CanLII 16383 (ONLA) the Grievor was a 52 year old plumber with under 6 years of seniority, and a clean disciplinary record. The Grievor complained that a co-worker had made a threat against his physical safety but the employer was unable to substantiate the complaint. A number of people in the workplace got involved in an ongoing investigation and the situation generally. The Grievor went off on stress leave, and once medically cleared, the Employer attempted to return him to work. However, based on his views that the Employer had failed to properly investigate his claims, and fearing for his security, the Grievor refused. By this time the Employer had become entirely distrustful of the Grievor and his version of events, and vice-versa.
The Employer concluded that since the Grievor had, in their estimation, been perpetually dishonest since the time of his initial complaint, and was making serious false claims against the Employer, the employment relationship had been damaged beyond repair. Accordingly, the Hospital terminated the Grievor for just cause.
The parties entered into a long and costly arbitration during which the Grievor testified that there had essentially been a conspiracy perpetrated against him by members of management, the union, and his colleagues. While the Arbitrator ultimately decided that the Hospital did not have just cause to terminate the Grievor, he also rejected the Grievor’s position that the Employer had been deliberately acting against him. In the circumstances, the Arbitrator held that it was appropriate to substitute a suspension for the termination. However, he refused to reinstate the Grievor and ordered compensation to be agreed between the union and the employer. In rejecting the Grievor’s request for reinstatement, the arbitrator noted:
“… more than two years later he has not been able to get past the deep feelings of injustice, persecution, and conspiracy which have afflicted him …
… Meyer is entitled to his opinions and I do not suggest that he has been wrong in his perception about everything which has happened. What however I am certain about is that the interests of no one, including him, will be served by his return to the Hospital. …”
It is only in the most extraordinary circumstances that an unjustly dismissed employee will not be reinstated to work. Such situations typically require an irreparable breakdown of the employment relationship in which neither party would stand to benefit from reinstatement.
The lawyers at CCPartners are experienced in advising employers in unjust dismissal complaints and can help you determine the appropriate course of action considering, for example, the likelihood of a terminated employee being reinstated.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
In recent years the doctrine of constructive dismissal – a type of wrongful dismissal whereby the employee claims the employer has fundamentally altered the terms and conditions of employment without the employee’s consent – has been altered by a few key decisions. Most notably, the decision of the Supreme Court in Evans v. Teamsters [...]
In recent years the doctrine of constructive dismissal – a type of wrongful dismissal whereby the employee claims the employer has fundamentally altered the terms and conditions of employment without the employee’s consent – has been altered by a few key decisions. Most notably, the decision of the Supreme Court in Evans v. Teamsters Local Union No. 31 was a positive change for employers as it now requires employees, to mitigate any damages by continuing to work for that employer in all but the most extreme cases.
While on a smaller scale, the recent decision of the British Columbia Supreme Court in Meyers v. Chevron Canada Limited is also encouraging for employers as it indicates a willingness of the Court to look objectively at the employer’s reorganization and not focus solely on the subjective view of the affected employee.
After working for one of their contractors for three years, Warren Meyers first joined Chevron Canada Limited’s IT Department in 1994. Starting as a Local Area Network Administrator, he changed jobs several times within the IT Department, although not every move necessarily came with a pay increase. By July, 2010 Mr. Meyers was the Applications Development Team Lead – a working supervisor position with three employees and two contractors reporting to him, but that still required significant contributions from Mr. Meyers in the non-supervisory aspects.
At that time Chevron underwent a massive restructuring in response to the global financial crisis. Where before the IT Department’s various resources serviced different departments headquartered around the world, the new structure would have all IT services centralized in Canada and called for the elimination of two-thirds of all the jobs in the IT Department. All of the previous conditions were eliminated and new positions created; as part of the process all new positions were assigned pay grades within Chevron’s regular pay grade system, and IT employees were asked to select positions for which they would like to apply from within the appropriate pay grade.
Mr. Meyers selected (among others) the position of Business Analyst. However, when told he would not be supervising any employees and would not have the same budgetary responsibilities as he had previously enjoyed in the Team Lead position, Mr. Meyers argued that he was being demoted and therefore being constructively dismissed, notwithstanding that his salary, benefits and bonus programs would not change.
In denying his claim of constructive dismissal, Justice Gerow said that she did not think the fact that Mr. Meyers would not directly supervise employees rendered this, objectively, a demotion, saying at paragraph 45 of the decision:
…I am not satisfied that there should be a term implied into Mr. Meyers’ employment contract preventing Chevron from varying the subject matter of Mr. Meyers’ management responsibilities. In my view, the evidence does not support the view that the parties contemplated that Mr. Meyers’ role was so rigidly defined. As noted above, Mr. Meyers’ supervisory role had diminished over time. An employer requires some latitude to structure the affairs of its operation, and such an inflexible term would shift the balance too far in favour of the employee.
Justice Gerow went on to say that even if the changes did constitute a breach of such a term in the employment contract, the changes did not go to the root of the contract, as there was not a “dramatic qualitative change” in his duties. This result is a positive one for employers because it focuses on the objective analysis and not on the employee’s own perception, which is common in constructive dismissal cases.
It is important to note that every claim of constructive dismissal must be considered on its own specific facts: in this case the employer followed a very structured process and could demonstrate objectivity. Likewise, where an employer has proper employment agreements in place they will have much greater success in defending against not just constructive dismissal claims but all types of wrongful dismissal.
Consider contacting the CCP Team if you are contemplating or undergoing organizational change, in order to ensure you don’t end up exposed to constructive dismissal claims.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
In a previous post we advised provincial employers how to navigate return-to-work issues under the Employment Standards Act following maternity/parental leave. Federal employers, however, find themselves facing different issues as the language in the Canada Labour Code (the “Code”) is not identical to the language in its provincial counterpart. In a recent decision [...]
In a previous post we advised provincial employers how to navigate return-to-work issues under the Employment Standards Act following maternity/parental leave. Federal employers, however, find themselves facing different issues as the language in the Canada Labour Code (the “Code”) is not identical to the language in its provincial counterpart. In a recent decision Adjudicator Randi Abramsky clarified federal employers’ obligations in respect of employees on maternity/parental leave who are scheduled to return to work following a reorganization by the employer.
The Code provides that following a leave, an employee on maternity or parental leave shall be reinstated in the same position he or she occupied prior to the leave. If the employer cannot reinstate the employee to the same position for valid reasons, the employer shall reinstate the employee in a comparable position. The Code also provides that non-unionized employees may make a complaint of unjust dismissal under the Code (which is different from the common law wrongful dismissal), but that such complaint will not be considered if the dismissal was due to a lay off or because of the discontinuation of a function.
In Moday v. Bell Mobility Inc., [2013] C.L.A.D. No. 48 Margaret Moday, a 13-year employee who was on maternity leave was advised that her position was discontinued as a result of a reorganization of her employer, Bell Mobility. She was given a severance package that exceeded the requirements of the Code. She was not returned to her former position at the end of her leave, nor was she returned to a comparable position.
Ms. Moday filed a complaint of unjust dismissal. Bell Mobility defended the complaint by stating that the reorganization resulted in the discontinuance of Ms. Moday’s function and that, therefore, the adjudicator should not consider her complaint. Adjudicator Abramsky agreed, and dismissed Ms. Moday’s complaint, finding that her right of reinstatement after maternity and parental leave does not take complete precedent over her employer’s right to reorganize the workforce. Bell Mobility was able to show that its reasons for discontinuing Ms. Moday’s position were bona fide and not a sham to deprive her of her statutory rights. As a result, she was dismissed for legitimate business reasons and did not have a claim to either her pre-leave position or a comparable position.
Employers may sometimes feel that they are prevented from making legitimate business decisions surrounding an employee’s position while he or she is on maternity or parental leave. Clearly, at least for federal employers, such is not the case if the decision is a legitimate business decision. Employers, however, are well advised to ensure that the fact that an employee is on leave does not in any way factor into the decision.
The lawyers at CCPartners regularly provide employers with strategic advice on return-to-work issues. Please contact any member of our team for assistance.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
There are two important updates on Occupational Health and Safety for this year:
1) Safety Blitz Schedule
Spring is in the air – and so is the Ministry of Labour’s new Safety Blitz schedule. Interestingly this year, these inspections will not only be under the Occupational Health and Safety Act but under the Employment [...]
There are two important updates on Occupational Health and Safety for this year:
1) Safety Blitz Schedule
Spring is in the air – and so is the Ministry of Labour’s new Safety Blitz schedule. Interestingly this year, these inspections will not only be under the Occupational Health and Safety Act but under the Employment Standards Act as well. Inspections will be starting in May 2013 and employers in Ontario should be ready.
2) Mandatory Health and Safety Training Program
It is anticipated that on or before July 1, 2013, the Ministry of Labour (MOL) will file a new Regulation on worker and supervisor awareness training programs that would come into effect on January 1, 2014.
How can you be ready for that Program? There are three steps that you can take now:
i) Ensure that you have the Mandatory awareness poster in your workplace. This poster was mandatory as of October 1, 2012 and can be downloaded from the MOL website;
ii) Review and train to the Worker Health and Safety Awareness Workbook and Employer Guide that is also available on the MOL website; and
iii) Review and train to the Supervisor Health and Safety Awareness Workbook and Employer Guide also available on the MOL.
As always, should employers need assistance on any of these initiatives the lawyers at CCP are available to assist you.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
In the recent arbitration decision of Tonolli Canada Limited v. United Steelworkers, and its Local 9042, Arbitrator G. T. Surdykowski upheld the just cause discharge of the grievor Mr. Frank Marsiglia from Tonolli Canada Limited (“Tonolli”) for repeated health and safety violations.
Tonolli is a unionized workplace that recycles lead acid batteries within a 140,000 [...]
In the recent arbitration decision of Tonolli Canada Limited v. United Steelworkers, and its Local 9042, Arbitrator G. T. Surdykowski upheld the just cause discharge of the grievor Mr. Frank Marsiglia from Tonolli Canada Limited (“Tonolli”) for repeated health and safety violations.
Tonolli is a unionized workplace that recycles lead acid batteries within a 140,000 square foot facility. Lead and other substances found in the facility are designated substances under the Occupational Health and Safety Act (“OHSA”) and as such Tonelli must have a designated substance program for handling materials, for employee protective equipment and for monitoring levels of lead in employee blood. Further, the company monitors air quality and requires all that enter the facility to wear personal protective equipment (“PPE”).
Mr. Marsiglia was employed by Tonelli for 37 years. His last position held prior to dismissal was Flagman though he previously worked for the company as a Lead Hand. On April 30 and May 1, 2012, Mr. Marsiglia was not wearing his appropriate PPE as required by the employer and the OHSA. Arbitrator Surdykowski was satisfied by the evidence that Mr. Marsiglia’s conduct was willful. The Arbitrator was clear, however, that these relatively minor instances would not on their own constitute “just cause” for discharge but that the dismissal had to be evaluated in the context of the employee’s employment record. Specifically, Mr. Marsiglia was subject to the doctrine of culminating incident;
“The doctrine posits that, once proved, even a minor incident of misconduct opens the employee’s entire relevant record to arbitral review, and that if that record demonstrates that the employee is beyond rehabilitation, and the arbitrator is not satisfied that it is just and reasonable in all the circumstances to substitute a lesser penalty and reinstate the employee, the discharge will be sustained.” (at para. 71)
Mr. Marsiglia’s recent health and safety transgressions were among seven (7) incidents of misconduct in “a year-long journey of disciplinary misadventure” which included sleeping on the job, unsafe operation of a loader and other incidents of failing to wear PPE. Further, Arbitrator Surdykowski found that the grievor did not offer an adequate apology or accept responsibility for his actions. As such, the Arbitrator dismissed the grievance and found no fault in the Employer’s position that it had done all that it could, and that it had enough of Mr. Marsiglia.
Significance to Employers
This decision is valuable because it bolsters the position that health and safety violations and other types of misconduct can be enough to justify dismissal even when influential factors such as advanced age and lengthy service are considered. The decision reinforces the position that employees have responsibilities and obligations to their fellow employees and the company with respect to health and safety. Further, the decision acknowledges that employers are entitled to some deference in the “discipline ballpark”.
Lastly, this decision ought to be contrasted with Plester v. PolyOne Canada Inc. (PolyOne”), an Ontario Court of Appeal decision in the non-union context. In PolyOne the employee committed the serious safety violation of not locking out a machine before trying to fix it. The significant differences between PolyOne and this case were that the employee only had minor incidents of discipline which occurred over 6 years earlier, the employer had not responded to similar health and safety infractions with just cause dismissals and the trial judge determined that the employee-employer trust relationship had not been strained enough to justify dismissal. As such, the longer an employee works without incident, the more deplorable a single violation must be in order to justify dismissal “with cause”.
Consider contacting the CCP Team if you have further questions regarding this article or when dealing with issues surrounding workplace misconduct, health and safety infractions and appropriate disciplinary responses to same.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
As trusted advisors to employers, we are often called upon when a non-union employee is about to be dismissed without cause to give advice on what the period of reasonable notice or pay in lieu of notice obligations are in relation to that dismissal. Absent an employment agreement, non-unionized employees are entitled to “common law [...]
As trusted advisors to employers, we are often called upon when a non-union employee is about to be dismissed without cause to give advice on what the period of reasonable notice or pay in lieu of notice obligations are in relation to that dismissal. Absent an employment agreement, non-unionized employees are entitled to “common law reasonable notice” if they are being dismissed without legal cause. Anyone who has gone through this exercise appreciates that there are no fixed rules and “reasonable notice” will depend on a number of factors including length of service, age, position held, as well as other factors that could impact the employee’s ability to find alternate employment. In many cases, employers mistakenly believe that their obligations are limited to the minimum statutory notice and severance requirements set out in provincial or federal employment standards legislation. Too often, employers are shocked to learn that their liability could be as much as one month’s salary for every year of service rather than one week’s salary as anticipated. Alternatively, many employers believe that if an employee has been employed for less than three months, they are considered probationary and employment can be terminated without notice. They are understandably frustrated when they learn that unless the employee executed an employment agreement that provides for a probation period or there is a communicated employment policy setting out a probation period, these employees are entitled to the same notice as any other employee within the organization (and in some cases significantly more if they are senior, older employees).
There is little doubt among those who practice in this area that a well drafted employment agreement is one of, if not the most, valuable investments an employer can make in reducing liability at the point of dismissal. Whether it is a 10 page formal employment agreement or a two page hiring letter, employment contracts can create certainty and flexibility for employers at the point of dismissal. An enforceable employment agreement can mandate a three month probation period where notice is not required if the employee proves to be “unsuitable”, can preserve the employer’s right to temporarily lay-off without triggering a constructive dismissal and can set out exactly what an employee is entitled to in terms of notice, benefit continuation and the continuation of other “perks” (car allowance, bonuses, RRSP contributions and the like) when the employee is dismissed without cause.
The key to using an employment agreement effectively, however, is ensuring that the agreement is legally enforceable. The following tips should be kept in mind when making an employment agreement a condition of employment for a new hire:
- If the termination provision provides only for the minimum statutory entitlements, the contract must clearly communicate that the employee is not entitled to any additional payments. Without this language, courts have held that the contract is ambiguous and permits additional common law payments/entitlements.
- Employees must be provided with the employment agreement prior to starting employment in order to ensure there is proper legal consideration for the agreement. Employment agreements provided on the first day of employment or after employment are often held to be unenforceable by courts on the basis that the employer has not given anything to the employee in exchange for the employment agreement once employment commences.
- Related to this issue is the obligation to give the employee an opportunity to seek independent legal advice (“ILA”) prior to executing the agreement. An employment agreement provided to an employee on the first day of work for execution will likely not be enforceable because the employee has been deprived of his/her right to seek ILA. While employers are not required to ensure an employee gets legal advice, they must provide the employee with enough time to do so.
- Employers must refrain from making representations that the termination or probation provisions of the contract will not be enforced. In an attempt to secure a candidate, employers will often tell employees “not to worry” about the termination provisions. These representations will void those provisions if an employer then seeks to enforce the contract terms down the road after the work relationship has soured and the employee has been dismissed.
- The Employer must make sure that the employee has the ability to understand the terms of the employment agreement. If, for example, English is not the employee’s first language and it is clear that the ability to read and understand English is an issue, an employer should consider having the agreement translated into the employee’s first language.
- An employment agreement that does not comply with minimum statutory rights and obligations are not enforceable. For example, a contract that provides for two weeks’ notice for dismissal without cause will not be compliant with most provincial employment standards legislation once an employee has been employed for more than two years. An agreement that permits a dismissal for cause if an employee is absent for any reason for more than 7 days will not comply with provincial and federal human rights legislation and the employer’s obligation to accommodate disabilities or other protected grounds.
It is strongly recommended that legal advice be obtained before using an employment agreement template as changes in the law and employment legislation can impact the enforceability of hiring letters and contracts. The lawyers at CCPartners are experienced in the drafting of enforceable employment agreements that comply with legislative obligations and court decisions.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.
Topics
- CCP News and Events (6)
- Construction Labour Relations (1)
- Employment Litigation (54)
- Employment Standards (13)
- Human Resources Support Services (48)
- Human Rights (25)
- Labour Relations (21)
- Occupational Health and Safety (25)
- Pay Equity (1)
- Privacy (7)
- Uncategorized (1)
- Workplace Safety and Insurance (13)
- Wrongful Dismissal (27)
