CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS JANUARY 22, 2014 Constructive : In This Issue ASK AN EXPERT: Reclaiming overpayments 2 Should I stay or should I go? • Time allowed to review contract Employee claims becoming commonplace CASES AND TRENDS: No cause where employee’s wife 3 deposited employer’s funds

| BY RITU MAHIL | when David Potter was appointed as the CASE IN POINT: Executive Director of New Brunswick Employer not at fault 4 “SHOULD I STAY or should I go?” may be Legal Aid Services Commission. for failure to accommodate the question an employee asks himself During his term, Potter had a number when he faces a diffi cult working en- of complaints made against him by staff YOU MAKE THE CALL: vironment and considers fi ling for con- and his relationship with the commis- Manager or dispatcher? 8 structive dismissal. sion’s board of directors deteriorated. At Constructive dismissal is when an this point, both parties began discussing employer indirectly encourages an em- a mutually acceptable way of bringing ployee to resign by failing to comply his contract to an end. with the contract or one- In January 2010, Potter went on sick Angry worker sidedly changing the employment terms leave and was asked not to return until without the employee’s prior consent. further direction from the commission. didn’t have intent It is distinguished from an ordinary His and benefi ts were contin- because it is the employer ued. Two months later, he fi led an ac- to quit: Board that initiates changes to the terms and tion against the commission, claiming conditions of the . he had been “constructively dismissed,” Put bluntly, it is when the employer meaning the commission had effectively AN ONTARIO EMPLOYER has been ordered makes the working conditions com- changed the employment contract with- to fork over termination pay after assum- pletely intolerable for the employee with out providing reasonable notice. ing a worker quit her following an the intention of “swaying” the employee argument with her boss. to resign instead of outright fi ring him. Rita Oomen worked for Oomen’s Once the employer has changed the It is advisable for an Glass, a supplier of glass products such terms and conditions of the employ- as windows and mirrors to residential ment contract, the employee must fi le employer who is unsure and commercial customers in Kingston, for constructive dismissal within a 90- whether employees Ont. The company was owned by her day time period from when the changes will be recalled to work out cousin, Joe Oomen, and Rita began her took place for the case to be admissible employment there on Dec. 11, 2006. in the courts. The extent of an employ- the various outcomes of the . While employed with her cousin’s er’s failure to meet its contractual obli- company, Rita Oomen had personal gations and time taken to deliberate also problems to deal with, including health affect the likelihood the employee will The commission said claiming con- issues and diffi culties in her relation- win a constructive dismissal case. structive dismissal was incorrect and ship. These problems led to errors that PM40065782 To put this in context, common exam- essentially meant Potter had resigned. cost Oomen’s Glass both money and ples of changes to an employee’s work- The commission subsequently stopped goodwill with its customers. ing conditions include: his salary and benefi ts. At this point, the Joe Oomen discussed these problems • Reduction in the employee’s powers or case went to court. and their effects on the business with duties that involve a signifi cant loss of The court found Potter was not con- Rita, but he chose to continue employ- the employee’s prestige and status as structively dismissed and, by commenc- ing her because she was family. Joe later a result of reorganization in reporting ing legal action, Potter had effectively testifi ed any other employee with similar arrangements. resigned. In October 2013, the Supreme performance issues would have been ter- • Threats of dismissal or demotion and Court of Canada granted a leave of ap- minated earlier. unfair suspensions. peal for the case — it has yet to hand On March 14, 2012, Rita called Joe on • Signifi cant reduction in working hours, down its fi nal decision. the phone. They started to have a heated salary or employee benefi ts. The Potter case demonstrates that em- argument in which they yelled at each For the past two years, the Supreme ployers must exercise caution when dis- other. Two other employees who were in Court of Canada has seen a notable in- missing employees. There can be a fi ne the offi ce overheard the argument and crease in constructive dismissal cases. line between constructive dismissal and testifi ed that, after Rita hung up, she A recent example includes the case of an employee’s resignation. said she was going to quit. One co-work- Potter vs. New Brunswick (Legal Aid Ser- vices Commission), which began in 2006 Continued on page 6 Continued on page 7 January 22, 2014

In MenuPalace.com Corp. v. Saladino, Answer: While there is no hard and fast a deduction from an employee’s rule, three business days is generally ac- Ask an for vacation days taken but which had cepted as a fair and reasonable amount not yet been earned did not violate the of time. Expert ESA. The vice-chair explained that s.13 There are a few purposes served by was not intended to prevent an employer giving a potential employee time to re- with Brian from recovering a recent overpayment of view an employment contract. First, and Wasyliw wages, stating: perhaps fundamentally, it’s the fair thing “Section 13 of the act signifi cantly lim- to do. However, it is also wise to do so Sherrard Kuzz, Toronto its when an employer can make a deduc- from a business perspective. Canadian tion from an employee’s wages. How- courts have long recognized the rela- Have a question for our experts? ever, this provision is not so prescriptive tionship between an employer and pro- Email [email protected] that it prevents the employer from sub- spective employee is typically not one of sequently recovering an overpayment of equal bargaining power. As such, if an this nature, provided the deduction oc- employer seeks to rely on the terms of a curs within a reasonable period of time. written employment contract — often at The act is concerned with ensuring that the time of termination — the employer employees are paid all the wages they must demonstrate the contract is lawful Reclaiming overpayments have earned. Section 13 is designed to and the employee entered into it freely, prevent an employer from recovering, voluntarily and with an understanding due to clerical errors through a deduction, amounts of its meaning, having had time to seek that are unrelated to wages. Recovering advice as to its meaning. a recent overpayment of wages, as is the Allowing an employee time to care- Question: If an employee’s paycheque case in this instance, cannot be consid- fully review a contract can be critical to was too much due to a clerical error, can ered a “set-off” or deduction from wages demonstrating the employee either un- the employer reduce the subsequent pay- that is subject to section 13 of the act.” derstood the contract or had the chance cheque to even it out? The employee has Employers should be cautious about to obtain advice as to its meaning. This a set salary and regular pay . applying these principles too broadly. is why it is also often prudent to include A clear mistake due to a clerical error is in the contract a statement that the em- Answer: Yes. In the case of a clerical er- to be distinguished from other circum- ployee was afforded the opportunity to ror, the employer can deduct the over- stances where an employer may wish to and was encouraged to seek indepen- payment from the subsequent pay- make a payroll deduction. For example, dent legal advice. cheque so long as the reconciliation of where an employer decides to pay an em- the overpayment is done within a rea- ployee during a when sonable amount of time after discovering not required to do so, the employer can- Extending the probationary the overpayment. not later characterize the payment as an In Ontario, s. 13 of the Employment “overpayment” and deduct the amount period is problematic since Standards Act (ESA) places specifi c limi- from the employee’s wages. employment is continuous while tations on the ability of an employer to Where the issue is not a clerical er- make deductions from employee wages. ror — for example, where a loan to the An employer shall not deduct or with- employee needs to be repaid — then the At a minimum, three business days is hold wages except in the following cir- employer would require a clear written a reasonable time frame for a potential cumstances: as required or authorized acknowledgement from the employee employee to avail herself of the benefi t by statute, pursuant to a court order, or regarding a specifi c amount or formula of a contract review (whether by the with the employee’s written authoriza- to repay the money from wages. Failing employee or with independent coun- tion (including the precise amount or such an acknowledgement, it would be sel). Should an employee wish to sign formula to calculate the amount of the necessary to commence legal proceed- the contract immediately, without the deduction). ings seeking repayment of the money. benefi t of a review period, the employer However, none of those exceptions ap- Finally, in a workplace where the em- should resist this and consider ways to plies to the scenario posed in the ques- ployee’s relationship with the employer encourage slowing down the process. In tion above. So how can the employer is governed by a collective agreement, appropriate circumstances, this might make the deduction? The answer comes it will be important to review the agree- include making a fi nancial contribution from case law and an examination of the ment for applicable language, if any. towards the employee having the con- purpose of legislation such as s. 13 of the tract reviewed by independent counsel. ESA. Particularly where the potential liability Section 13 is designed to prevent an would be signifi cant if the employer was employer from unilaterally recovering later unable to rely on the contract lan- amounts through a payroll deduction. guage. A fi nancial contribution might be For example, a dispute between employ- Time allowed to review a small price to pay toward solidifying er and employee over an unpaid loan the enforceability of the contract. cannot result in the employer simply de- employment contract Finally, it is important to have the con- ducting the disputed sum from the em- tract signed by the new employee before ployee’s payroll. the employee commences her fi rst day However, in the scenario posed above, Question: How much time is appropriate at work. If the contract is signed after the employee was overpaid through a to allow for a new hire to look over an work has already commenced it is pos- clerical error. Accordingly, the amount in employment contract or seek legal ad- sible the employee could later argue she dispute was never owed to the employee vice before signing? What should an em- was not given anything identifi able in and is therefore not to be regarded as ployer do if the employee wants to sign wages payable. right away? Continued on page 6

2 Published by Canadian HR Reporter, a Thomson Reuters business 2014 CANADIAN EMPLOYMENT LAW TODAY No cause where employee’s spouse deposited employer’s funds in joint account Employee mistakenly thought cheque was for expenses and took it home, but employer didn’t believe him

| BY RONALD MINKEN | and, unable to verify this, believed the to making the decision to terminate an employee to be lying. employee for cause. THE ALBERTA COURT of Queen’s Bench The employer felt Winfi eld could no While improper conduct and dishon- has determined that an employee should longer be trusted and, despite Winfi eld esty can, in some instances, justify the not have been terminated for cause after promptly repaying the employer, he was termination of an employee for cause 24 years of service when it was discov- terminated for cause due to the employ- and without notice, this will not always ered a missing cheque had been depos- er’s belief he had either stolen money be the case. ited by the employee’s common law when the cheque was deposited or was The alleged misconduct must be pro- partner into the couple’s joint account. dishonest when confronted with the fact portionate to the disciplinary measure James Winfi eld, 55, was a commis- that the cheque had been deposited into that is imposed. It will likely be more sioned sales representative who had been his personal account. diffi cult to terminate a long-term em- employed with Pattison Sign Group in Ed- ployee who had a good work record for monton for 24 years without incident. cause as these factors will add a broader Shortly before termination, Winfi eld context to the misconduct in question. had been recognized with a bonus for After termination, the employer his overall performance and achieving Impact of decision on employees sales exceeding $34 million during his discovered it actually did owe Employees should be aware that a sin- years of service. The employee received expenses to (the worker) gle incident of misconduct may not be the bulk of his earnings by direct deposit, and another cheque had been enough for an employer to establish the although he was always reimbursed for existence of grounds to terminate for business expenses incurred in the per- correctly issued to him on the same cause. Further, if an employee has en- formance of his duties by cheque. These day as the erroneous cheque. gaged in misconduct and is confronted cheques would be left by the employer by her employer, it is likely best for the on the employee’s desk in an envelope. employee to honestly admit to the mis- conduct. Cheque mistakenly left After termination, the employer dis- Failure to do so may demonstrate a on worker’s desk covered it actually did owe expenses to level of dishonesty that may, in itself, One day, a cheque payable to the com- Winfi eld and another cheque had been justify the employee’s termination for pany’s Edmonton offi ce where Winfi eld correctly issued to him on the same day cause due to a breakdown of the em- worked was mistakenly left on his desk. as the other cheque. This was likely for- ployment relationship and level of trust. The employee assumed the cheque was warded to Winfi eld in the same envelope to reimburse him for his business ex- as the other cheque by mistake. FOR MORE INFORMATION SEE: penses and did not notice it was not is- • Winfi eld v. Pattison Sign Group, 2013 sued to him. A series of errors CarswellAlta 1948 (Alta. Q.B.). He took the cheque home and left it Justice K.G. Nielsen determined that a for his partner to deposit into their joint series of errors, which included errors account, as she was responsible for their made by the employer, had led to the About the Author fi nances. When the employer realized employer’s cheque being deposited into the cheque was missing and investigat- Winfi eld’s account. Ronald Minken ed the matter, it discovered the cheque The judge evaluated all of the circum- had been deposited by the employee’s stances, including the length of Win- partner. fi eld’s service and his good work record, When the employer confronted Win- and concluded there was “no clear, co- fi eld, Winfi eld confi rmed there was ad- gent and convincing evidence establish- ditional money in his account that was ing deceitful conduct on the part of Mr. unaccounted for and tried to explain how Winfi eld on a balance of probabilities.” the cheque was deposited into his per- Accordingly, the employer should sonal account. Winfi eld also mentioned not have terminated Winfi eld for cause he was entitled to outstanding business and the judge determined that the em- expenses and suggested these be offset ployee was properly entitled to 18 months’ Ronald S. Minken is a senior lawyer and against the money to be returned to the notice. mediator at Minken Employment Lawyers, employer. an employment law boutique located in Winfi eld then promptly repaid the em- Impact of decision on employers Markham, Ont. He can be reached at www. ployer. The employer investigated Win- Employers should make sure they care- MinkenEmploymentLawyers.ca. Ron grate- fi eld’s prior expense reports and found fully review all of the facts and the fully acknowledges Sara Kauder and Kyle no errors. It also considered Winfi eld’s broader context, including an employee’s Burgis for their assistance in preparation of comment that he was owed expenses work record and length of service, prior this article.

Published by Canadian HR Reporter, a Thomson Reuters business 2014 3 January 22, 2014 CASE IN POINT: ACCOMMODATION Employer not at fault for failure to accommodate Employee promised to improve attendance but employer wasn’t aware of the extent of employee’s depression

BBACKGROUNDACKGROUND ALL EMPLOYERS have a duty to accommodate employees or have an illness or disability. The duty to accommodate doesn’t always mean the employee must be kept around, but it does mean an employer must investigate all of its options — such as modifi ed job du- ties, a different job posting or shorter hours — to determine if it’s possible to accommodate to the point of undue hardship. If it’s not possible to accommodate the employee without causing undue hardship, or harm to the business, then the employer may not have to keep the employee around. However, an important part of investigating accommodation options is for the employer to have the information it needs to make such a determination. The employee has role in providing such information on her accommodation needs, particularly in letting the employer know accommodation is required in the fi rst place. If the employer doesn’t know the extent of the disability, it can’t fulfi l its duty to accommodate.

| BY JEFFREY R. SMITH | she would be late for various reasons Medication and side effects — such as a fl at tire or a toothache, for A NOVA SCOTIA employer failed to prop- from illness caused depression example. The manager of the rink kept erly investigate accommodation options In 2006, the employee suffered from an- a record of the absences and in none of before it terminated an employee due to other serious illness that required sur- them did the worker indicate the ab- excessive but innocent absenteeism, an gery. After the surgery, her depression sence was due to fatigue or depression. arbitrator has ruled. worsened. In September 2006, a physi- Management was aware the employee The employee worked for the Cape cian in the municipality’s occupational was dealing with serious health issues Breton Regional Municipality in Nova health services division — who was re- and accommodated these absences Scotia doing payroll, accounts payable sponsible for determining the fi tness of based on medical information it received and rentals at an ice rink. For the fi rst employees to return to work — noted pertaining to the employee’s needs with- few years of employment with the mu- the employee was depressed, had de- out discussing the specifi c nature of the nicipality, she had no attendance issues creased energy, a lack of concentration employee’s illness. at work. Her hours were somewhat fl ex- and decreased interest as a result of her ible in that if she missed time she could medication and treatment. Concern about employee’s absenteeism make it up by working weekends or He recognized that she had a “major The manager spoke with the employee . However, in 2004, the employ- depressive disorder” and should con- on several occasions about her absen- ee was diagnosed with cancer, which tinue taking medication while seeing a teeism and stressed to her that it made made it necessary for her to take time psychologist with the aim of returning things diffi cult when she wasn’t at work off work to have it treated. her to work. on time. The illness required extensive treat- In March 2007, the municipality’s phy- Whenever it happened, other payroll ment that took more than one year. sician and the psychologist felt it was in staff had to fi ll in and cover her duties, There were extreme side effects which the employee’s best interest to return to which caused “considerable hardship” made the employee sick, and the drugs work on March 19, but in an “ease back” in the workplace. Because the absences she took caused depression. The em- situation where she would start with were sporadic and came with little no- ployee received long-term disability part-time duties and gradually work her tice, the municipality couldn’t simply (LTD) benefi ts while she was treated for way back to full-time. The municipality replace her as it would if she were off the illness for nearly two years. was unaware of the nature of the employ- for some time. As a result, work would When the employee returned to work, ee’s depression and followed the medical often pile up and not get taken care of she discovered her department had directions that related only to the em- in a timely manner and other workers moved to a different arena with a differ- ployee’s ability to perform in the work- became frustrated. ent workplace regime that didn’t have place. There were no further instructions Both the manager and the union vice- the fl exibility of her previous workplace. regarding limitations or the need for any president told the employee she needed Since the employee wasn’t fully recov- accommodation. The employee resumed to be punctual to avoid diffi culties in the ered from her medical ordeal, she was full-time duties in June 2007. workplace. The employee replied that frequently exhausted and felt stressed Over the next four years, the employ- she thought she could handle things in the new workplace. After several ee continued to work full-time but often and she wouldn’t miss time in the fu- months back on the job, she began to arrived late. In many cases, the employ- suffer from depression. ee called in to notify the municipality Continued on page 5

4 Published by Canadian HR Reporter, a Thomson Reuters business 2014 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: ACCOMMODATION

Employee said she would be on time going forward

Continued from page 4 which came out after the dismissal isn’t Employer didn’t know extent relevant to the determination of cause. ture. The employee mentioned her is- of health issues However, though the municipality sues with depression but reiterated that While its workplace and other workers wasn’t aware of the extent of the she could handle it. were affected by the employee’s absen- employee’s health issues and therefore The employee missed 41 days of work teeism, the municipality had no specifi c was unable to fully accommodate her, in 2008 and 29 the following year, along medical information on her medical the arbitrator found dismissal wasn’t the with four unpaid leave days and many condition and the impact of her depres- right course of action. vacation days taken in lieu of sick days. sion on her absenteeism, since it had “I do not see in the (Nova Scotia In 2010, she took 10 unpaid leave days only been given information relevant to human rights legislation) as intending and more than 20 vacations days taken her fi tness to work — common practice to take away any rights which the in lieu of sick days. In addition, she in such circumstances. (employee) may have with respect to missed more than three months with an accommodation simply because that a workers’ compensation claim from information, through no fault of the a work-related accident that required The employer didn’t know the employer, the union, or the (employee), physiotherapy. The average sick time was not made known or available to the taken by Cape Breton employees was six impact of her depression on her employer prior to termination,” said the days per year. absenteeism. It had only been given arbitrator. “Had this information been In March 2010, the director of HR and known to the employer at the time of the employee met to discuss her absen- information relevant to her fi tness termination, then there is no question the teeism. It was made clear to the em- to work – a common practice. information as to the disability would ployee that the municipality was aware have required to have been considered by she was dealing with a serious illness, the employer under the duty to accom- but her “continued excessive absence” modate.” could lead to termination. As such, the municipality understood The arbitrator found the employee’s The municipality also requested med- the employee’s absenteeism was related disability and its effect on her absentee- ical approval showing she was fi t to to her medical problems and consid- ism wasn’t accommodated, but the mu- work a regular work schedule. If not, ered it “blameless,” but it felt the ex- nicipality didn’t have the opportunity and if her health problems were serious cessive absenteeism was a pattern that- to investigate its duty to accommodate enough that she was unable to work reg- was unlikely to improve in the future. since it didn’t have all the medical infor- ularly, then the municipality indicated it Therefore, the municipality felt it had mation. The municipality was ordered would help the employee apply for LTD reached the point of undue hardship to reinstate the employee, but only con- benefi ts. and couldn’t employ the employee as a ditionally pending a review of its ability The employee continued to provide full-time worker. to accommodate her. assurances she would come to work on The arbitrator noted a 1995 Supreme time, but she still regularly did not. The Court of Canada decision — Quebec municipality fi nally decided the diffi cul- Cartier — that stipulated a dismissal FOR MORE INFORMATION SEE: ties the absences were causing were too should be upheld when the employer • Cape Breton (Regional Municipality) much and it could no longer accommo- has just cause based on the information and CUPE, Local 993 (B.(A.)), Re, 2013 date the employee as a full-time worker. it has at the time of dismissal. Subse- CarswellNS 963 (N.S. Arb. Bd.). It terminated her employment on Jan. 14, quent information — such as the de- • M.U.A., local 6869 c. Cie minière 2011, for excessive absenteeism. tails of the employee’s depression and Québec Cartier, 1995 CarswellQue 24 Shortly thereafter, the union fi led a its contribution to her absenteeism — (S.C.C.). grievance requesting reinstatement. The arbitrator found the employee’s depression was “of a serious and signifi - cant nature” that was a main contribu- tor to her inability to come to work on WWEBINARSEBINARS time many mornings. It qualifi ed as a Interested in learning more about employment disability that required accommodation to the point of undue hardship, said the law issues directly from the experts? Check out arbitrator. the Carswell Centre’s The arbitrator also found the employ- live and on-demand webinars discussing topics ee’s statements that she would be on such as family status accommodation, young time for work after being warned were workers and the law, gender expression and understandable since she was worried identity in the workplace, best hiring practices, about her job and intended to try harder social media in the workplace, and accommodating to be on time. However, her failure to people with disabilities. improve and continued excessive absen- teeism “had a signifi cant and serious ef- To view the webinar catalogue, visit cpdcentre.ca/hrreporter. fect on the workplace and other employ- ees,” said the arbitrator.

Published by Canadian HR Reporter, a Thomson Reuters business 2014 5 January 22, 2014 Pattern of behaviour for constructive dismissal

Continued from page 1 stated that standalone incidences are son, 2013 CarswellOnt 10496 (Ont. not enough to prove the existence of a C.A.). A similar constructive dismissal case poisonous working atmosphere and that • Piron vs. Dominion Masonry Ltd., 2013 that resulted from poor relations among there needs to be a consistent pattern of CarswellBC 1028 (B.C. C.A.). staff is Danielisz vs. Hercules Forwarding misconduct to be considered suffi cient Inc. Barbara Danielisz, a customs broker evidence. Johnson’s case was dismissed. and departmental manager at Hercules, About the Author a freight services company in Toronto, Denial of expected bonuses complained she was subject to a poison- can lead to constructive dismissal Ritu Mahil ous working atmosphere. In addition to the above cases, denial of She claimed her superior undermined an annual bonus can also be construed her authority by not allowing her to as constructive dismissal, depending on discipline her staff and her colleagues whether the bonus is considered to be “ganged up” on her. Conversely, Dan- discretionary or part of a salary package, ielisz’s colleagues claimed she was not as evidenced in Piron vs. Dominion Ma- a team player and made derogatory and sonry Ltd. James Piron was a long-serv- verbally abusive comments to others. ing employee at Dominion Masonry, a Hercules held a meeting in attempt to commercial masonry company in Burn- resolve the situation but was unsuccess- aby, B.C., when his employment ended Ritu Mahil is a lawyer with the Labour and ful. Danielisz went on stress leave and in 2011 due to a disagreement over his Employment Law Group at Lawson Lundell Hercules said it expected her to return to bonus entitlements. LLP in Vancouver. She can be reached at (604) work and perform her duties. Danielisz That year, Dominion Masonry stated 631-9156 or [email protected]. fi led a legal claim for compensation for it was experiencing fi nancial hardship stress, depression and constructive dis- because of the economic downturn and missal, which Hercules took as her res- informed Piron it couldn’t pay his an- ignation. nual bonus. Piron argued this was unac- The British Columbia Supreme Court ceptable, as his bonus was part of his Ask an expert: found there weren’t grounds for con- employment agreement. Dominion Ma- structive dismissal and Danielisz had sonry disagreed, saying his bonus was helped to create a poisonous working discretionary. Piron took the case to Reviewing atmosphere as much as she’d suffered the B.C. Court of Appeal, where it was from it. The court said if Danielisz had unanimously agreed he should receive employment done more to mitigate the issue, she his bonuses. He was awarded $20,000 wouldn’t have had to make the claim — in addition to his compensation pack- which was dismissed and not granted a age, but the court felt a reduction was contracts leave of appeal. in order. Comparable to Danielisz’s case, Yo- These cases demonstrate the need for Continued from page 2 hann Johnson, an employee of auto- substantial evidence and multiple inci- maker General Motors (GM) in Oshawa, dents of misconduct for an employee to exchange for signing the contract (“con- Ont., fi led for constructive dismissal win a constructive dismissal case. Em- sideration”) since the employee was (General Motors of Canada Ltd. v. John- ployer attempts to resolve such work- already in possession of the job before son) when he attempted to return to place issues go a long way in the eyes signing the contract. As such, execution work after being away on of the court, as evidenced in both Dan- of the contract prior to the commence- for two years from his job as a result ielisz and Johnson. ment of work is an important element of what he claimed was the poisonous So, the answer to the question an em- of ensuring it is later enforceable for the working atmosphere and racism. ployee may ask when considering con- employer. Upon his return, Johnson was offered structive dismissal — “Should I stay or two positions in two different depart- should I go?” — is: “it depends on the For more information see: ments. However, he did not accept ei- situation.” • Bear Day Care v. Hollander, 2010 Car- ther position, stating he didn’t want to Constructive dismissal is discretionary swellOnt 11089 (Ont. Lab. Rel. Bd.). come in contact with the racist employ- and is largely judged on a case-by-case • All-Way Transportation Services Ltd, ee. GM interpreted Johnson’s rejection basis, often requiring additional specu- Re, 1979 CarswellOnt 855 (Ont. E.S.B. of the positions as his resignation. lation and legal assistance before a con- (Adjud.)). Johnson took the case to the Ontario clusion is reached. Should an employee • MenuPalace.com Corp. v. Saladino, Court of Appeal, where he was initially wish to fi le for constructive dismissal, 2008 CarswellOnt 5544 (Ont. Lab. Rel. awarded $90,000. However, the same he must present hard and consistent evi- Bd.). court later overturned the decision, stat- dence to win his case. • Altman v. Steve’s Music Store Inc., 2011 ing there was no conclusive evidence of CarswellOnt 1703 (Ont. S.C.J.). workplace racism to prove constructive For more information see: dismissal. • Potter vs. New Brunswick (Legal Aid Brian Wasyliw is a lawyer with Sherrard It didn’t agree there was workplace Services Commission), 2013 Carswell- Kuzz LLP, a management-side employ- bullying as General Motors had made NB 196 (N.B. C.A.). ment and fi rm in Toronto. notable efforts to retain Johnson by of- • Danielisz vs. Hercules Forwarding Inc., He can be reached at (416) 603-0700 fering him two positions, both of which 2012 CarswellBC 2321 (B.C. S.C.). (Main), (416) 420-0738 (24 Hour), or by he refused. Furthermore, the court • General Motors of Canada Ltd. v. John- visiting www.sherrardkuzz.com.

6 Published by Canadian HR Reporter, a Thomson Reuters business 2014 CANADIAN EMPLOYMENT LAW TODAY

work and completed her regular closing nosed as a medial meniscus tear and he MORE CASES duties that day. She also sent a medical had surgery in January 2009. note for a leave of absence the next day, The driver considered his injuries to COMPILED BY JEFFREY R. SMITH which indicated she wanted to remain be a disability that developed from his an employee. work and fi led a claim for worker’s com- Continued from page 1 “In addition to performing her regular pensation benefi ts. closing duties (which suggests that she The WSIB case manager assigned to er told her she should take a leave of intended to continue with her duties the driver’s case didn’t accept that the absence “due to stress” rather than quit, after her statements to her co-workers), driver’s impairments were causally relat- while the other thought she said she did the medical note provided the following ed to his bus driving duties. The driver’s quit. Neither co-worker was Rita’s supe- day indicates an intention for a leave of employer put him on short-term dis- rior or had any role in the termination absence,” said the board. “This suggests ability (STD) benefi ts with the intent to process. that she was not trying to sever the have him return to work, since his claim As it was near the end of the workday, employment relationship.” was denied. The driver appealed to the Rita packed up her belongings and per- The board also determined that Rita’s Workplace Safety and Insurance Appeals formed her regular closing duties after return of her keys and cellphone indi- Tribunal (WSIAT). the other employees left — duties which cated she didn’t want to keep company The WSIAT agreed with the WSIB, included locking the offi ce, putting cash property while on a leave of absence fi nding there wasn’t suffi cient evidence in the safe and transferring the phone to rather than a belief she had quit. to demonstrate the driver’s injuries were an answering service. The board agreed with the original rul- a direct result of his job duties. The tri- The next day, Rita emailed one of her ing that Oomen’s Glass terminated the bunal found the sudden onset of pain in co-workers with a request to give an employment relationship and upheld the 2008, while there was no prior ailment, attached doctor’s note to Joe. The doc- order to pay Rita Oomen termination pay. made it suspect that the driver’s pain was tor’s note indicated Rita was absent from See M. Oomen’s Glass Ltd. v. Oomen, the result of gradual progression of injury work due to medical reasons and would 2013 CarswellOnt 17083 (Ont. Lab. Rel. over time. He also didn’t seem to think be assessed on March 27. The note also Bd.). the injuries were caused by his job until stated she would drop off her keys and he saw a doctor, said the tribunal. company cellphone the next day. The WSIAT also found the city buses After her assessment on March 27, Ri- underwent “rigorous inspection carried ta’s doctor provided a medical certifi cate out by both maintenance staff and driv- that stated she was on a “stress related ers” and the road construct was minor. medical leave.” Rita then applied for em- In addition, the driver’s route featured ployment insurance benefi ts. Bus driver’s injuries an extra loop at one end that allowed for Joe assumed Rita had quit her job and frequent breaks during which the driver Oomen’s Glass issued her a record of not from driving a bus could get up and move around. Also of employment with the comment that Rita note, the driver’s condition continued to was told she wouldn’t be coming back to worsen after he stopped driving a bus work due to “personal problems causing THE ONTARIO WORKPLACE Safety and In- in 2008. errors in her work.” surance Board (WSIB) has denied a bus The medical evidence included x-rays Rita fi led a claim for termination pay driver’s claim for benefi ts for back and and an MRI which showed disc protru- with the Ontario Employment Standards knee pain, which the driver claimed was sion in his back, but no neurological Branch, claiming Oomen’s Glass had ter- the result of his bus driving duties. damage. In addition, the torn meniscus minated her employment. An employment The driver began his employment driv- in his knee wasn’t consistent with the standards offi cer agreed with her and or- ing a city bus in January 2002. Over the supposed cause of driving or bumping dered the company to pay her $3.149.22 years, he worked a signifi cant amount of the knee on the fare box, said the tribu- in termination and vacation pay. overtime in addition to his regular hours. nal. Oomen’s Glass appealed to the Ontar- In 2008, he began feeling a jabbing “Bulging or protruding discs are com- io Labour Relations Board, claiming Rita pain in his lower back, numbness in mon in the general public associated Oomen had quit, thereby terminating the his legs and pain in his right knee. The with the natural process of degenera- employment relationship and making driver felt these injuries were the result tive changes,” said the tribunal. “These her ineligible for termination pay. of the countless hours he spent sitting changes occur regardless of trauma or The board noted there were two things in the same position while driving, along injury.” to be considered when determining if an with the repeated pressure and vibration The tribunal determined the driver employee has quit: a subjective intent to from using the gas and brake pedals. His had “a spontaneous fl are-up of pain” quit and if the employee’s actions mani- knee pain, the driver believed, was the from his condition but it wasn’t causally fested that intent. result of constantly hitting his knee on connected to his job. The driver’s inju- The board found that regardless of the fare box in the bus. ries did not arise from his employment, whether she told her co-workers she was The driver indicated he always drove but rather were the result of a “degenera- going to quit, there was no dispute that an older model of bus that had bad tive condition which is disabiling in and she never told Joe Oomen — her actual shocks, especially when the bus was of itself rather than evidence of a causa- boss — that she quit. Her state of mind full. In addition, part of his route fea- tion relationship between the work and immediately following the argument on tured road construction which caused a the disability.” the phone was likely emotional and not ride that was more bumpy than usual, This fi nding was supported by the fact clear-thinking, nor was it a communica- exacerbating the vibration problem. The the driver’s injuries continued to dete- tion to the employer of her intent to quit, worker had no previous pain, so when riorate after he stopping driving buses said the board. his doctor checked him out he became and went on disability leave. See Ontario The board also found Rita’s actions aware his problems were likely related to Workplace Safety and Appeals Tribunal indicated her intent to continue the em- years of driving a bus. Decision No. 1168/13, 2013 CarswellOnt ployment relationship. She continued to The driver’s knee injury was diag- 15795 (Ont. W.S.I.A.T.).

Published by Canadian HR Reporter, a Thomson Reuters business 2014 7 January 22, 2014 Manager or dispatcher?

THIS INSTALMENT OF You Make the Call cation pay. He argued he wasn’t a manag- features a dispute over whether an em- er and therefore was entitled to such pay ployee was a manager and was entitled to under employment standards legislation. overtime time pay. In June 2013, Human Resources and Richard Coles was employed as a dis- Development Canada issued an order to patcher with Action Express & Hot Shot, a pay Coles more than $10,000 for non-pay- courier company based in Edmonton. His ment of overtime and vacation pay, but job duties included managing the compa- Action Express appealed the order, argu- ny’s fl eet and income without any direct ing Coles performed management duties supervision by the owners. How would you handle this case? and had agreed to his pay arrangement Coles didn’t hire or fi re any staff, but Read the facts and see if the judge agrees when he was hired. had some input into hiring. He also re- viewed the insurance, vehicle registration and workers’ compensation coverage of If a driver was assigned a call and re- each driver and reported any issues to the fused, Coles had the authority to send You Make the Call owners of the company. Overall, Coles the driver home. However, the owners in- Was Coles entitled supervised four call takers and 25 drivers structed him not to engage in arguments to overtime pay? who were independent contractors. with drivers and to refer any problems OR to them. He assigned calls to drivers and made input into commission raises, but Was Coles a manager and the fi nal pay decisions were made by the therefore not entitled to owners. overtime pay? In addition to assigning calls to driv- Published biweekly 22 times a year ers, Coles was expected to go on sales Subscription rate: $299 per year calls once per week. He didn’t have an Customer Service expense account or company credit card, IF YOU SAID Coles was entitled to overtime Tel: (416) 609-3800 (Toronto) though he was reimbursed for any mon- pay, you’re right. The adjudicator found (800) 387-5164 (outside Toronto) ey he spent on customers. He did use a that, although Coles managed the drivers Fax: (416) 298-5082 (Toronto) company fuel card when he was out on and assigned their work, there was little (877) 750-9041 (outside Toronto) sales calls. evidence that he had any true “indepen- E-mail: Because Coles assigned the drivers dent action, autonomy or the discretion Carswell.customerrelations@ thomsonreuters.com work and ensured they were earning to make signifi cant decisions.” Website: www.employmentlawtoday.com about the same on calls, Action Express He could mediate driver complaints considered him to be equivalent to a but could not resolve them — they had Thomson Reuters Canada Ltd. manager. to be referred to the owners for that, One Corporate Plaza He was expected to work 50 hours said the adjudicator. 2075 Kennedy Road, Toronto, per week and, although he asked for ex- Action Express argued Coles deter- Ontario, Canada M1T 3V4 tra pay, Action Express said he was paid mined the income of the drivers by as- Publisher: John Hobel based on those hours. He was also com- signing their calls, but the adjudicator Managing Editor: Todd Humber pensated in other ways, such as a compa- found Coles was merely dispatching them Editor: Jeffrey R. Smith ny care with paid insurance, a company and ensuring they earned about the same E-mail: [email protected] cellphone and cash advances which were income. Any actual decisions on their ©2014 Thomson Reuters Canada Ltd. never paid back. One of the owners also rate of pay and commission levels was All rights reserved. claimed he bailed Coles out of jail twice decided by the owners with his input, No part of this publication may be reproduced, for a total of $7,000. and the same could be said of other stored in a retrieval system, or transmitted, in any When Coles was hired in 2008, he ac- company matters. form or by any means, electronic, mechanical, pho- knowledged his position didn’t include “Mr. Coles did not independently tocopying, recording or otherwise, without the prior overtime pay. Though there was no writ- run a major portion of the business on written permission of the publisher. ten employment contract, but Action his own,” said the adjudicator. “He was The publisher is not engaged in rendering legal, Express made it clear his salary was “all- restricted by the types of decisions he accounting or other professional advice. If legal inclusive.” could make and they did not amount to advice or other expert assistance is required, the ser- In addition, the company noted part of managerial functions.” vices of a competent professional should be sought. his job was making sales calls and sales- The adjudicator also noted that Coles’ The analysis contained herein represents the opinion people were not subject to overtime pay. job title was “dispatcher,” not “superin- of the authors and should in no way be construed as During busy times, he was in charge of tendent” or “manager.” being either official or unofficial policy of any govern- mental body. the company’s after-hours phone and The majority of his time was spent during slower times, he was allowed to dispatching, with a small part in sales, We acknowledge the financial support of the Govern- leave early. He was also allowed to use making him a regular employee who was ment of Canada, through the Publications Assistance his company cellphone 24 hours a day for not exempt from the overtime provision Program (PAP), toward our mailing costs. personal use. in the Canada . The order to In early 2013, Coles’ employment was pay was upheld. terminated by Action Express. Coles said See 1484174 Alberta Ltd. and Coles, GST #897176350 he wasn’t clear on the reason for termina- Re, 2013 CarswellNat 4313 (Can. Labour tion and fi led a claim for overtime and va- Code Adj.).

8 Published by Canadian HR Reporter, a Thomson Reuters business 2014