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Posts tagged: human rights lawyer

The Perils of Dismissing a Disabled Employee

By , July 12, 2016 1:08 pm

On June 30, 2016 the Ontario Court of Appeal (the “OCA”) released its decision in a case involving the dismissal of a disabled employee who earned about $ 22 000 per year. I wrote about the trial decision in April (see here for my blog post).

The OCA increased the damages the employer was ordered to pay from about $ 110 000 to about $ 245 000 which was basically the amount the person claimed in her Statement of Claim. One wonders if the OCA would have ordered the employer to pay more damages if the employee had sought more damages.

This decision is an evolution of the OCA’s 2014 Walmart decision which awarded an employee significant damages in addition to traditional wrongful dismissal damages. I have also written about the Walmart decision (see here).

The Facts

Ms. Strudwick worked for an employer that recruits individuals to participate in focus groups. She was paid $ 12.85 per hour and her duties involved data entry, and instructing recruiting staff.

In 2010, Ms. Strudwick became deaf. According to the trial judge: “…her employer’s attitude towards her and treatment of her became unconscionable. The plaintiff deposed she was constantly belittled, humiliated and isolated.” Among other things, the employer refused to accommodate her disability.

Damage Award

Wrongful Dismissal Damages

At the time she was terminated, Ms. Strudwick was 59 years old, had worked for almost 16 years, and held an administrative position. The trial judge ordered the employer to pay her a total of 24 months’ pay in lieu of notice and about $ 6000 in lieu of lost benefits during that time. This included twenty months pay in lieu of reasonable notice of termination and 4 months pay for bad faith termination or Wallace Damages. The OCA applied the traditional Bardal Factors and deferred to the trial judge and upheld the 24 month damage award which is the unofficial cap on wrongful dismissal damages.

Human Rights Damages

The judge awarded her $ 20 000 in general damages under the Ontario Human Rights Code. The OCA looked at court cases and Ontario Human Rights Tribunal cases including one of our cases and increased the damages to $ 40 000.

Damages for Intentional Infliction of Mental Stress

The judge concluded that the employer’s conduct caused Ms. Strudwick to suffer an adjustment disorder with mixed anxiety and depressed mood which required psychological treatment and ordered the employer to pay almost $ 19 000 for the cost of this treatment. The OCA increased this damage award to $ 35 294 including $ $5,000 to address Ms. Strudwick’s pain and suffering, and loss of enjoyment of life.

Aggravated Damages

The trial judge awarded Ms. Strudwick no aggravated damages. Taking all of the abuse Ms. Strudwick endured, the OCA decided to award her $61,599.82 damages after deducting the Wallace Damages she was awarded.

Punitive damages

The judge ordered $ 15 000 in punitive damages because he did not think the other damage awards adequately accomplished the objectives of “retribution, deterrence and denunciation.” The OCA increased this amount to $ 55 000.

I expect this decision will hasten the trend for employee side lawyers to claim non-traditional damages in wrongful dismissal cases. The OCA’s decision to increase the damage amount in four of the damage claims will likely mean that employee counsel will be seeking higher settlements in the future.

I will be interested to see if the employer appeals this decision to the Supreme Court of Canada (the SCC”) and if the SCC grants leave to appeal how the SCC will view this case in light of its 2008 decision in Honda.

Lessons to Be Learned

  1. Disabled employees have additional legal rights. Accordingly, employers should make themselves aware of these rights. For more information on the rights of disabled employees, click here.
  2. Any request for accommodation should be taken very seriously and failure to do so can result in significant legal damages. For information on the duty to accommodate, click here.
  3. Trying to force an employee to quit – especially a disabled employee – can result in additional legal damages.
  4. Judges have the discretion to order an employer to pay a sympathetic employee many different types of damages. For more information on different types of wrongful dismissal damages, click here.
  5. Always consult with an employment lawyer before terminating a disabled employee.

Common Employment Law Issues

By , February 23, 2016 8:38 am

I speak with human resources professionals every day about various employment law issues. This blog deals with five of the most common issues that arise in my practice.

Termination Pay

In many organizations, labour costs often account for more than 50% of the cost of doing business. Reducing head count is one way to reduce labour costs. I am often asked how to minimize the termination costs associated with an employee termination. There are many factors that an employment lawyer can take into account. In my experience, the more lead time you provide your employment lawyer about a potential termination the better. I have written about employee termination in earlier blogs.

Employment Contracts

Not all employment contracts are created equal. If you are using an employment contract you obtained on the internet then you likely are getting what you paid for. I strongly recommend that every new hire be required to sign a properly drafted employment contract with an enforceable termination clause. It is an extremely powerful management tool and can significantly reduce your termination costs. Given changes in statute law and the common law, I suggest that you review your employment contract every year or two. Did you know that Ontario courts have recently concluded that certain termination clauses are not enforceable and in wrongful dismissal actions employees are routinely claiming their termination clause is not enforceable? I have written about employment contracts in earlier blogs.

Accommodating Disabled Employees

Over the last 2 or 3 years, I would say this is the fastest growing area in employment law – particularly employees with mental disabilities. On January 1, 2016 the Employment Standards under the Accessibility for Ontarians with Disabilities Act took effect. Among other things, it requires certain employers to prepare individual accommodation plans for an employee who seeks accommodation. In addition, I am seeing many human rights complaints alleging discrimination on the basis of mental disability. .I have written about disabled employees in earlier blogs.

An Employer’s Obligations under the Employment Standards Act Vis a Vis the Common Law

Many small employers think the Employment Standards Act (ESA) sets out its only obligations toward employees. For example, an employer is required to provide a minimum amount of notice of termination to employees under the ESA but unless an employee has signed a contract with an enforceable termination clause then the employee is generally entitled to “reasonable” notice of termination which is almost always more than the ESA minimums. Similarly, an employer is entitled to temporarily lay off an employee under the ESA but unless the employee has agreed that an employer has the right to temporarily lay her off in her employment contract then this kind of layoff is generally an employee termination which requires notice of termination. I have written about the ESA in earlier blogs.

Harassment Complaints

There are two kinds of harassment complaints. One is harassment under the Ontario Human Rights Code, such as sexual harassment. The other is workplace harassment under the Occupational Health & Safety Act. There are different obligations and legal exposure for each type of complaint. Accordingly, I suggest a different response to each kind of complaint. I do however recommend that an employer take all “harassment” complaints seriously and investigate them promptly. I have written about harassment complaints in earlier blogs.

 

For more than 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The Cost Of Terminating an Employee Who Has Recently Returned to Work Following a Pregnancy Leave

By , January 27, 2015 10:09 am

Pregnant employees have special rights under the Employment Standards Act and the Human Rights Code. And most judges are sympathetic to the problems that women face when they return to work following a pregnancy leave.

A recent case is a good example of what not to do when an employee returns to work following a pregnancy leave.

 

The Facts

Lee Partridge worked in a dental practice as an office manager working 9 to 5 four days a week. Originally she had been hired as a dental hygienist. Shortly before returning to work following a pregnancy leave the dentist told her that he would be scheduling her as a dental hygienist with fewer and different hours of work. After reminding the dentist of her legal obligations to reinstate her to the office manager position the dentist informed Ms. Partridge that she planned to schedule her to work after 5 pm as a hygienist which he knew would create child care problems for the returning employee. About a week after returning to work the dentist terminated Ms. Partridge’s employment after she refused to meet with the dentist unless a witness was present.

 

The Legal issues

1. Wrongful Dismissal

The dentist claimed she had just cause to terminate Ms. Partridge’s employment. The trial judge disagreed and concluded the employee was entitled to receive reasonable notice of termination. At the time of her termination, Ms. Partridge was 39 years old and had been employed for almost 7 years.  The trial judge awarded Ms. Partridge 12 months pay in lieu of reasonable notice. This is a longer notice period than one would expect in these circumstances. It is also surprising that a dental hygienist was unable to secure alternative employment for more than one year. In most labour markets, dental hygienists are in high demand however the judge concluded the employee’s job search was adequate.

2. Violation of the Employment Standards Act

The judge concluded there was a violation of Section 53 of the Employment Standards Act however the judge did not award any damages for this misconduct. Instead of filing a court action, Ms. Partridge could have filed a complaint under the ESA without the assistance of a lawyer and sought reinstatement, lost wages and damages for mental anguish but she elected to commence an action in the court instead.

3. Violation of the Human Rights Code

The judge concluded the dentist discriminated on the basis of family status because she scheduled Ms. Partridge to work until 6 pm on some days and awarded Ms. Partridge $ 20 000 in general damages for a violation of the Human Rights Code. This finding is a little surprising because Ms. Partridge’s kids did not have special needs, her husband was self-employed and he, extended family and neighbours could care for the children between 5 pm and 6 pm. In addition she could use paid childcare available during this time. The facts of this case were much different than the recent Federal Court of Appeal case the judge relied upon.

 

Lessons to Be Learned:

1. At the end of a pregnancy leave, an employee has the right to return to the position most recently held by the employee if it still exists or to a comparable position, if it does not. If the position still exists then an employer should generally obtain the employee’s agreement before assigning her to a different position.

2. Terminating an employee shortly after returning from a pregnancy is generally a very bad idea. The employee can commence no cost legal proceedings under the Employment Standards Act and the Ontario Human Rights Code. In addition, trial judges are generally sympathetic to new mothers and will often exercise their discretion to help these employees. When determining “reasonable” notice a trial judge has broad discretion. In this case, I suspect most employment lawyers would have advised Ms. Partridge that she was entitled to up to 7 months notice of termination particularly given her age and the availability of comparable employment given her education and experience. This trial judge awarded 12 months.

3. This is the second time – to my knowledge – that a judge has awarded general damages for a violation of the Human Rights Code in a wrongful dismissal case. The judge concluded the employer discriminated on the basis of family status. In both cases the amount was $ 20 000. In neither case did the judge give detailed reasons explaining how the judge arrived at this amount. In both cases, the court did not refer to or apply the case law that the Ontario Human Rights Tribunal has developed over the years when deciding on an appropriate damage award. I do not think most adjudicators would have found that there was a violation of the Code on the basis of family status.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

 

Ignoring the Elephant in the Room: The Cost of Not Asking an Employee with a Disability if She Needs Accommodation

By , October 28, 2014 11:38 am

The Question

One of the questions employers ask me is, “If I think someone has a disability, do I have to ask whether the person needs accommodation?”

 

When the Question Can Arise

This question can arise when an employer believes an employee has an alcohol or substance abuse addiction.

It can also arise when an employer believes an employee has a mental illness.

 

The Law

Under the Ontario Human Rights Code an employer is required to accommodate a disabled employee unless his or her needs cannot be accommodated without undue hardship on the employer considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

However, the Code does not explicitly require an employer to ask a disabled employee whether he or she requires accommodation.

 

The Ontario Human Rights Commission “Policy on preventing discrimination based on mental health disabilities and addictions.”

On the flip side, Section 13.6.1 of the Policy called “Duty to inquire about accommodation needs” states in part: “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a mental health disability or addiction by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation.”

 

Cases decided under the Ontario Human Rights Code

A number of adjudicators appointed under the Ontario Human Rights Code have also concluded that in certain circumstances an employer does have a common law duty to ask the employee whether he or she needs accommodation.  For example, in a case decided earlier this year, an adjudicator wrote:

I conclude that the (employer) initially failed in its procedural duty to accommodate in that, despite knowledge of the nature of the applicant’s disabilities, …, the applicant’s supervisors did not initiate any inquiry as to whether the applicant needed accommodation.” Sears v. Honda of Canada Mfg., 2014 HRTO 45 (CanLII),  In this case, the adjudicator issued a number of orders against the employer including an order to pay a former employee $35,000 in general damages to compensate for injury to his dignity, feelings and self-respect.

 

Lessons to Be Learned:

An employer cannot turn a blind eye to an employee who shows objective signs of being disabled. This might be an employee who is suffering from panic attacks at work.

What constitutes knowledge of a disability will be decided on a case by case basis.

Supervisors should take on an active role here. They need to know that the employer is obliged to ask a disabled employee whether any accommodation is needed and accordingly should receive training on this issue. Training should include examples of what to look for in terms of identifying a disability. Supervisors should also be instructed to notify the person who is responsible for accommodating disabled employees at the workplace when an employee shows objective signs of being disabled.

For those interested in finding out more information about managing disabled employees, I am co-chairing a program on Managing Disabled Employees on November 3, 2014. To register for this seminar click here.

 

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions concerning your obligations towards disabled employees or employer obligations in general, you can contact him at 416 317-9894 or at [email protected]

 

Family Status Accommodations – for times when babies need tending and parents need mending (Part 1)

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By , June 10, 2013 6:27 pm

What are the legal ” family status ” issues involved when a single mother asks for time off to care for her sick child. What about when an only child asks for a reduced work week to care for an elderly parent?

Discriminating on the basis of family status has been illegal in most Canadian jurisdictions for many years. Recently, the courts and adjudicators have been called upon to decide the scope of an employer’s obligation to accommodate on the basis of family status.

In these cases, an employee generally asks to miss work (or change his/her hours) to care for a child or a parent and the employer refuses.

In reality, most work obligations interfere with parental obligations and employees make arrangements for their charges, such as daycare, temporary health care workers or spousal support. The issue in these cases is deciding on when a parental obligation trumps a work obligation. There needs to be some mechanism to deal with a request for flexibility in working arrangements to allow employees to take care of their family. To this end, a two-tier test has been developed.

The Dilemma

Most work obligations interfere with parental obligations. The issue in these cases is when does a parental obligation trump a work obligation?

If work obligations always trump parental obligations then a parent could never prove discrimination. If parental obligations always trump work obligations then an employer would always be required to accommodate the employee’s request.

The Two-Part Legal Test

1. Generally, an employer has no duty to accommodate an employee unless the employee can prove a prima facie case of discrimination. Most family status cases have focused on whether the employee has proven a prima facie case.

2. Once an employee has proven discrimination then the employer has a duty to accommodate unless it causes undue hardship.

Kevin MacNeill and Kristine Taylor presented interesting papers on this issue at Ontario Bar Association seminars held on June 7 & 13, 2013, respectively. Both speakers identified three different interpretations of family status discrimination.

The Three Approaches

It will be difficult for employers to know what obligations exist until the Supreme Court of Canada decides how to reconcile these three different lines of cases.

The Narrow Approach

The “Narrow (British Columbia) Approach” deals with a change in a term of employment (i.e. a change in an employee’s hours of work) which results in a serious interference with a substantial parental or other family duty or obligation. The B.C. Court of Appeal stated: “… in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case (of discrimination)”. Under this approach, it is difficult for an employee to prove a human rights violation if an employer has refused to accommodate him/her.

The Broad Approach

Under the “Broad (Federal) Approach” the federal court has rejected the B.C. approach. Canadian Human Rights Tribunal decisions have also specifically rejected the B.C approach and ruled that it is not incumbent upon the employee to prove serious interference with a substantial parental or other family obligation.

The Middle Approach

In the Power Stream case, an arbitrator rejected both the B.C. and Federal approaches and adopted the “Middle Approach”. Arbitrator Jesin set out five factors that should be considered when deciding whether an employee has made out a prima facie case of discrimination including (i) what prompted the adverse effect on the employee; that is, a change in a term of employment, or a change in the employee’s personal circumstances? and (ii) what efforts has the employee made to self-accommodate? A 2012 decision of the Ontario Human Rights Tribunal which considered accommodation for elder care also rejected the B.C. approach.

The Duty to Accommodate

Once the employee proves discrimination the employer must accommodate the employee’s request unless it causes undue hardship. It is essential that the employer satisfy both the procedural and substantial aspects of the duty to accommodate. An employer has a positive duty to inquire and assess an accommodation request on a case-by-case basis.

What is an Employer To Do?

At the moment, it depends on where the request for accommodation is made.  British Columbia employers have the least onerous obligations and federally regulated employers appear to have the most onerous obligations.

Regardless of an employer’s jurisdiction, an employer should carefully review the factual background surrounding each employee’s accommodation request. Thereafter the employer and employee should collaboratively explore possible solutions together.

Given the aging population and our burdened health care system, I expect the number of requests for family status accommodation will increase in the future. As soon as a single approach to defining this legal obligation is identified, I also anticipate that most requests for family status accommodation will be addressed quickly.

If you have any questions about responding to employee requests for accommodation because of family status, please contact the MacLeod Law Firm at 1 (888) 640-1728 or at [email protected]. To subscribe to our blog for employers, click here

 

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