Another year has passed and that means it is time to reflect back and consider some developments in employment law that we witnessed in 2014. It was not an earth shattering year in the employment law field in Canada. There were certainly many decisions reached across the country dealing with wrongful dismissal, breach of human rights, non-competition covenants and a range of other topics. But the number of decisions that really changed the law was limited. That being said, I have highlighted a few cases and other employment law developments that are worth summarizing. I have provided the links to my original blog articles where they are cases that I wrote about.
This case is not completely over since there is a still a potential labour arbitration pending. Moreover, the case was not adjudicated. It was settled. However, it created a great deal of discussion in the employment law world and for that reason it is worth including. What are the key points to think about?
A. Unionized employees will have an incredibly difficult time launching wrongful dismissal or other employment law related cases in the court system. The proper venue for these cases is labour arbitration hearings. For the most part, dismissed unionized employees must file a grievance.
B. Egregious personal conduct, even off-hours conduct, can be cause for dismissal, particularly if at least some of it spills over into the workplace or into workplace related events. Employers will need to pay careful attention to allegations of improper personal conduct and should address and deal with these matters before they become unmanageable.
C. Taking an extremely aggressive approach to employment law litigation is simply not always the best strategy for plaintiffs.
There may still be more on this in 2015 as Canadians follow Ghomeshi’s criminal proceedings and his labour arbitration case. The high profile nature of the dispute warrants its inclusion on a list of interesting developments.
The Ontario Court of Appeal awarded more than $400,000 to an employee who had been subjected to humiliating treatment in the workplace. It is still rare in Canada to see these types of awards. Although the amount of the trial judgment was reduced considerably, this case is still a significant weapon in the arsenal of decisions upon which abused employees and their counsel will rely. It remains to be seen whether large scale punitive and aggravated damages become more commonplace in Canada. Employees facing humiliating workplace conduct and bullying bosses have additional legal options to consider in light of this decision.
In this key case, the Federal Court of Appeal looked at the issue of “family status” under human rights legislation and concluded that family status includes childcare responsibilities and similar family care obligations. This means that an employee with childcare responsibilities may, in certain circumstances, be entitled to protection and accommodation under applicable human rights legislation. The Court set out a number of criteria that must be met and tried to make it clear that not every employee with some child care responsibilities will be able to request accommodation. However, many employers are trying to deal with the issues pro-actively and are finding ways to accommodate the needs of employees with child care and elderly care responsibilities.
Although I originally discussed this in 2013, the adjudicator’s decision was upheld in 2014 and Jan Wong was left facing a significant award as well as an award of legal costs. The case illustrates a few points:
A. The difficulty of proceeding in any kind of dispute in a unionized workplace without the backing and support of the union;
B. The seriousness of confidentiality provisions in a settlement. Employees who sign confidentiality provisions in settlements with their former employers can expect to face repercussions if they breach these provisions. In some cases, a breach can mean a requirement to pay back to the employer the full amount of the original settlement.
5. Fulawka v. Bank of Nova Scotia (Originally 2012 Ontario CA)
The Bank of Nova Scotia reached a settlement of a class action lawsuit with a group of bank employees claiming entitlement to overtime pay. This settlement means that as many as 16,000 employees of the Bank of Nova Scotia could be entitled to overtime pay for overtime hours worked during the time period 2000 to 2013. The affected employees were required to submit their claims by October 2014. The case is a significant illustration of the availability of class actions to deal with widespread policies of large employers that may affect many different employees. It is also which has caused employers and employees to examine their overtime hours and overtime policies. Just because an employee is paid a salary does not mean that the employee can be required to work uncompensated overtime hours.
2014 Blog Posts – Selected Highlights
As well as they the key cases and issues set out above, I have highlighted a few of my blog posts from the past year. In case you missed any of these, you might find them interesting:
It was not considered wrongful dismissal where a package of marijuana was delivered to an employee at his workplace. The employee claimed that he knew nothing about the pot and that it wasn’t his…Fascinating reading.
The B.C. Court of Appeal upheld a very onerous non-compete provision for a veterinarian. The clause prohibited a vet from setting up a practice within 25 miles of her employer’s clinic, for a period of 3 years. It included huge financial penalties that would become payable in the event of a breach. Surprisingly, the B.C. Court of Appeal upheld this clause.
In this blog post, I have set out some things to consider when facing a dismissal situation.
This post deals with aspects of employment contracts that can and should be negotiated.
Discussion of a recent Ontario Human Rights Tribunal decision addressing allegations of a poisoned work environment.
For 2015, I will aim to put up one or two new posts a month and I hope to send out an email update quarterly, or so.
Wishing everyone a Happy New Year.