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Hidden Camera Leads to Dismissal

An arbitrator recently upheld the termination of a “reliable and capable” Personal Support Worker (a “PSW”) with no prior disciplinary record, because of significant mistreatment of an individual she was responsible for, and because she did not show the kind of insight required.

The Grievor had 6 years of service as a PSW in a licensed long-term care home (the “Home”). Her most recent performance appraisal showed perfect attendance and an overall rating of 41 out of 48 for the relevant review period.  She was nominated for the “2013 Face of Safety Award”, but by May 2013 she had become the face of the villain in a video that was widely circulated in the media.

The Home served vulnerable residents living with significant physical, psychological and/or behavioural impairments. The Grievor’s role as a PSW involved assisting residents with their activities of daily living (ADL), often alone and unsupervised. The resident at the centre of this grievance was an 85-year old woman living with Alzheimer’s (the “Resident”).

The Grievor claimed that on the day of the incident that culminated in her termination, smells emanating from the Resident’s room alerted her to the fact that the Resident needed to be cleaned and changed. She testified that although the Resident resisted care, she persisted out of concern for the Resident’s comfort and her fear that the Resident might develop sores if left unattended in the “pool of urine and feces”. The Grievor also testified that because the Resident was resisting care, she showed the Resident the soiled washcloth to prove to her that she needed care.

The 7-minute montage from a hidden camera that the Resident’s son had placed in the room, and later shared with the media, told a different story. The Resident was seen lying contentedly on her bed until the Grievor attempted to get her out of bed. As the Resident resisted, the Grievor pulled the Resident, grabbed her by her neck and tried to lift her out of bed. The next few minutes were not captured by the camera, as the Grievor and the Resident moved to the bathroom. After they returned the Resident lay on the bed without protest, rolled onto her side without protest and appeared totally compliant. The Grievor then waved the feces-covered cloth in the Resident’s face. As a result the Resident became agitated and began to refuse care. The Grievor persisted in delivering care and roughly pushed the Resident and rolled her around. At no point in the video did the arbitrator see any soiled bedding or any “pool of urine and feces”.

The Home alleged that the Grievor’s conduct constituted abuse, breached the Resident’s Bill of Rights under the Long-Term Care Homes Act, 2007 and breached several organizational and generally accepted protocols.‎

The Home led evidence that given the Resident’s frailty and the manifestations of Alzheimer’s, it was critical that the Grievor comply with the protocols the Home had developed for dealing with resistance. Instead, the Grievor began by ignoring the two-person lifting and transferring protocol. She also ignored the universally accepted “leave and reapproach” method. When the Resident refused care, instead of persisting, the Grievor should have left, waited a few minutes and then reapproached with the assistance of another employee. The Home maintained that the Grievor’s conduct was a significant breach of trust requiring not just discipline, but termination.

The arbitrator agreed. He said the Grievor demonstrated a “fundamental lack of judgement”, falling within the definition of abuse and going to the heart of the employment relationship. He also acknowledged that long-term care employees like the Grievor held positions of public trust and public interest, which demanded a very high standard of conduct.

The arbitrator commented that reinstatement would have been very likely if he had found that the Grievor had accepted full responsibility and provided him with confidence that she would not repeat her conduct. Moreover, if he had accepted her explanation as being credible and consistent with the video he would have seriously considered reinstatement. Instead, the arbitrator concluded that the Grievor did not seem to grasp that in future she should use the “leave and reapproach” method. Although the Grievor apologized and declared her willingness to undergo counselling and do whatever was required to repair the employment relationship, this was, in the eyes of the arbitrator, not enough to give him the confidence that would make reinstatement appropriate.

The Grievor’s ideal response would have been one that satisfactorily explained her conduct, demonstrated insight, and above all, instilled confidence she would never repeat her conduct. An earnest response would not have “downplayed her culpability”.

On one level this case is a reminder that grievances can turn on the ability to adduce evidence or elicit testimony about the likelihood that an employee will re-offend. Beyond that, this is an important reminder of the value of effective recruitment and selection processes. Employers should design recruitment and selection processes to identify candidates who likely possess the insight to appreciate and apply the policies and training that are provided to help them deal with difficult situations.

St. Joseph’s at Fleming Long-Term Care Facility v Canadian Union of Public Employees, Local 2280, 2015 CanLII 2811 (ON LA) 

Hidden Camera Leads to Dismissal

A Definitive Ruling on the Issue of Without Cause Terminations under the Canada Labour Code

Federally regulated employers take note.  The Federal Court of Appeal has recently confirmed that without cause dismissals are not automatically deemed to be “unjust” under the provisions of the Canada Labour Code (the “Code”).

For decades, adjudicators have been at odds with one another regarding the question of whether the Code permits dismissals on a without cause basis.  As a matter of background, the Code applies only to federally regulated employers such as banks, railways and telecoms.  After years of uncertainty in this area, the Federal Court of Appeal recently decided to end the discord and definitively determine the legal point.

In the case of Wilson v. Atomic Energy of Canada Limited, Mr. Wilson was employed for 4.5 years before being terminated on a without cause basis and offered a common law package equal to about 6 months of pay.  Mr. Wilson chose not to sign a release in exchange for the offer and instead filed a complaint under the Code which alleged that he had been unjustly dismissed.

After both an adjudication and a Federal Court hearing, the matter proceeded to the Federal Court of Appeal, which found that a dismissal without cause is not automatically “unjust” under the Code and that adjudicators must examine the circumstances of each particular case in order to decide whether or not a dismissal is unjust.  In its analysis, the court determined that Part III of the Code (which contains exceptional remedies such as reinstatement of employment) is merely intended to offer employees more remedies than exist under the common law, but only if the dismissal is unjust.  The extra remedies granted under Part III do not, however, mean that all without cause dismissals under the Code are automatically unjust.

As a result, federally regulated employees who are terminated without cause must prove that they have been terminated unjustly if they want that conclusion to be drawn.  In practical terms, this means that where there is no finding of unjust dismissal, a federally regulated employee can be terminated without cause and simply provided with a notice or severance package.  In order to gain the benefit of Code remedies which do not exist under the common law, such as the right to reinstatement, the employee must go the extra step and establish that the without cause termination was “unjust”.

The decision in Wilson v. Atomic Energy of Canada Limited can be found here: http://decisions.fct-cf.gc.ca/fca-caf/decisions/en/item/100689/index.do.

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A Definitive Ruling on the Issue of Without Cause Terminations under the Canada Labour Code

On the Radar Screen: the Stronger Workplaces for a Stronger Economy Act, 2014

As we reported in a previous blog post that can be found here, the Stronger Workplaces for a Stronger Economy Act, 2014 makes some significant changes to several Ontario statutes.  The legislation received Royal Assent on November 20, 2014 and a copy can be found here, but the significant changes include the following:

1. Starting on October 1, 2015, it provides for increases (but not decreases) to the minimum wage under the Employment Standards Act, 2000 (the “ESA”) based on the Ontario Consumer Price Index. The CPI will be announced by April of each year, with the minimum wage change to come into effect on October 1.  This will likely result in the minimum wage changing incrementally every year, creating an additional administrative burden on employers who pay their employees at or near the minimum wage.

2. It eliminates the $10,000 cap on the recovery of unpaid wages through Ministry of Labour Orders to Pay under the ESA.  This provision comes into force on February 20, 2015, although the cap still applies to orders made in respect of wages due prior to the date on which the provision comes into force.

3. It requires employers to provide each of their employees with a copy of the most recent poster published by the Ministry of Labour that provides information about the ESA. An employer must provide available translations of the poster if requested by an employee.  The poster must be provided to all employees within 30 days of the day on which the provision comes into force, and thereafter (for new employees) within 30 days of the day on which an individual becomes an employee of the employer.  This provision comes into force on May 20, 2015.

4. It increases the period of recovery of unpaid wages (i.e. the limitation period) under the ESA to two years, and gives Ministry of Labour inspectors the ability to order an employer to conduct a “self-audit”, whereby it examines its own records to ensure it is in compliance, after which the employer must report back to the officer on the level of compliance.  This provision comes into force on February 20, 2015.

5. It expands employment protections to cover all foreign employees who come to Ontario under an immigration or foreign temporary employee program (previously the protections had only been in place for live-in caregivers).  This provision comes into force on November 20, 2015.

6. It creates “joint liability” for a temporary help agency and its client for certain ESA violations, such as the failure to pay regular wages, overtime pay, and public holiday entitlements.  Although the temporary help agency still has the primary liability, the client is now jointly liable.  This provision comes into force on November 20, 2015.

7. It amends the Workplace Safety and Insurance Act to add “temporary help agencies” as a recognized definition, and to assign workplace injury and accident costs to the client of a temporary help agency when an employee is injured while performing work for the agency’s client.  This provision will come into force on a future date to be proclaimed by the Lieutenant Governor, so it is unclear when it will take effect.

8. It expands coverage under the Occupational Health and Safety Act to include unpaid co-op students and other unpaid learners, which will give them protections such as the right to know about workplace hazards and the right to refuse unsafe work.  This provision came into force on November 20, 2014.

9. It amends the Labour Relations Act, 1995 in respect of the unionized construction industry’s “open period”, to decrease the time when construction workers can change their union representation (or apply to remove their union) from three months before the expiry of the current collective agreement down to two months.  This provision comes into force on May 20, 2015.

Particularly in respect of the changes to the ESA, these expanded powers will likely result in an increase in claims made to the Ministry of Labour, as this process is generally cheaper and faster than court-based civil litigation.

On the Radar Screen: the Stronger Workplaces for a Stronger Economy Act, 2014

Significant Changes Proposed to Ontario’s Workplace Laws

Ontario’s government introduced workplace legislation on July 16, 2014 that would affect five labour and employment statutes in the province. Significant changes that are proposed in the Stronger Workplaces for a Stronger Economy Act, 2014 include:

  • Eliminating the $10,000 cap on the recovery of unpaid wages by employees through the Ministry of Labour claim process under the Employment Standards Act, 2000;
  • Increasing the limitation period to two years for employees to recover unpaid wages through the Ministry of Labour claim process under the Employment Standards Act, 2000.  The current limitation period is six months or one year depending on the type of claim;
  • Requiring employers to provide each of their employees with a copy of the most recent poster published by the Ministry of Labour that provides information about the Employment Standards Act, 2000. An employer must provide available translations of the poster if requested by an employee;
  • Making temporary help agencies and their clients jointly and severally liable for unpaid regular wages and unpaid overtime pay;
  • Requiring the Workplace Safety and Insurance Board to assign workplace injury and accident costs to temporary help agency clients when an employee is injured while performing work for the agency’s client;
  • Extending the safety protections under the Occupational Health and Safety Act to unpaid workers receiving training under prescribed conditions;
  • Decreasing the construction industry’s open period, when construction workers can join a different union close to the end of the term of their collective agreement, from three months to two months;
  • Expanding employment protections for foreign nationals who are in Ontario under an immigration or foreign temporary employee program. The protections include a prohibition on charging a recruiter fee or taking possession of the foreign national’s property, such as their passport or work permit; and
  • Tying future minimum wage increases under the Employment Standards Act, 2000 to the Consumer Price Index. The new minimum wage will be announced by April 1 of each year and will come into effect on October 1.

It is currently unclear when the proposed changes will be passed by the Ontario legislature. We will keep you apprised of any developments.

A copy of the Stronger Workplaces for a Stronger Economy Act, 2014 can be found here: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session1/b018.pdf

Significant Changes Proposed to Ontario’s Workplace Laws

The Non-Working Worker: A Practical Guide for Dealing with Employee Absences – Seminar

We hope that you will join us in Vancouver on Wednesday, November 20th as we discuss:

  • When They’re Not at Work: Managing Employees on Leave – Jeff Bastien
  • When They Don’t Return: Managing Employees who are Unwilling or Unable to Return – Andrea Raso
  • They’re Baaaaack…: Managing Reintegration and Performance Expectations – Dana Hooker

BC HRMA members – this workshop may be eligible for CHRP recertification credits.

Event Details
November 20, 2013
8:00 AM – 10:00 AM PDT

Terminal City Club
Walker Room
837 West Hastings St.
Vancouver, British Columbia
Canada

This session is complimentary. Please email vancouver.events@dentons.com to RSVP before November 15th.

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The Non-Working Worker: A Practical Guide for Dealing with Employee Absences – Seminar

Fall Employment and Labour Law Update – Seminar

Dentons Canada LLP
77 King Street West, 5th Floor
Toronto, ON M5K 0A1
Canada
 

On October 9th, 2013, Dentons hosted the Fall Employment and Labour Law Update.  This seminar featured presentations from our firm members Anneli LeGaultJeff Mitchell and Andy Pushalik.

Presentations include:

  • AODA Update: What Employers Should Know About the Accessibility for Ontarians with Disabilities Act, 2005, presented by Anneli LeGault
  • Return to Work Strategies: Sick and Disabled Employees, presented by Jeff Mitchell
  • Non-Solicitation and Non-Competition Covenants: Making them Enforceable, presented by Andy Pushalik

CHRP Accreditation

This program may be eligible for recertification points.

CPD Accreditation

This 1.5 hour program can be applied toward 9 of the 12 educational hours for Continuing Professional Development required annually by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.

This seminar is also offered via webinar.

To download a PDF of the presentation, or the seminar booklet, click here.

To view the full presentation, click here.

For additional information, please contact:

Marina Tsouloufas
Event Specialist, Toronto
+1 416 361 2398
marina.tsouloufas@dentons.com

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Fall Employment and Labour Law Update – Seminar

SCC Rules on Random Alcohol Testing at Pulp and Paper Mill

On June 14, 2013, the Supreme Court of Canada released its highly anticipated decision in Communications, Energy and Paperworkers Union of Canada, Local 30, v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (http://www.canlii.org/en/ca/scc/doc/2013/2013scc34/2013scc34.pdf). In its decision, the Supreme Court of Canada signaled for the first time that employers in safety-sensitive work environments may be justified in implementing random alcohol testing when there is a safety risk in the workplace due to alcohol, such as evidence of a general problem with substance abuse in the workplace.

Facts:

In 2006, Irving Pulp and Paper (“Irving”) adopted a new policy on alcohol and drug use at its kraft paper mill in Saint John, New Brunswick. The mill is acknowledged to be a dangerous workplace with malfunctions carrying the potential for “catastrophic failures”. As part of the new workplace policy, Irving instituted a random alcohol testing program whereby 10% of the employees in safety sensitive positions were to be randomly selected for unannounced breathalyzer testing over the course of a year. In the 15 years which preceded the introduction of this policy, there were only eight documented incidents of alcohol consumption or impairment at the mill. Moreover, there were no accidents, injuries or near misses connected to alcohol.

On March 13, 2006, mill employee Perley Day, was randomly selected to submit to a breathalyzer test. As Mr. Day does not consume alcohol, his test returned a blood alcohol level of zero. Shortly thereafter, the Union filed a policy grievance alleging that the random alcohol testing component of the new alcohol and drug policy was unreasonable; the Union did not challenge the other aspects of the policy.

The arbitration board found that although random alcohol testing may be reasonable in some circumstances, there was not sufficient evidence in this case of an existing problem with alcohol use in the workplace. On judicial review, the Court of Queen’s Bench of New Brunswick set aside the arbitration decision. The New Brunswick Court of Appeal dismissed the appeal.

The SCC’s Decision:

While there was no debate about the safety-sensitive nature of the workplace, the majority held that the dangerousness of a workplace is only the beginning of the inquiry, “[w]hat has been additionally required is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.” That said, Justice Abella, on behalf of the majority, went on to say that “[t]his is not to say that an employer can never impose random testing in a dangerous workplace. If it represents a proportionate response in light of both legitimate safety concerns and privacy interests, it may well be justified.” Considering the particular facts before them in this case, the Court found that random alcohol testing was not justified in the context of the Irving paper mill in Saint John, New Brunswick.

The three judges in dissent noted that an employer should not be required to wait for a serious incident of loss to take proactive steps to mitigate risk.

Barbara B. Johnston and April Kosten represented the Construction Owners Association of Alberta, Construction Labour Relations – An Alberta Association and Enform at the Supreme Court of Canada. Please feel free to contact Barbara or April directly if you would like to discuss the implications of this decision.

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SCC Rules on Random Alcohol Testing at Pulp and Paper Mill

Accommodation is a Two-way Street

What is an employer to do with an employee who demands changes to a job, without ever having done the job? A recent arbitration decision, Child Development Institute and the Canadian Union of Public Employees, local 2132 (June 21, 2012), unrep. (Charney), considered this issue.

The grievor succeeded in her application for a full-time family violence clinician position. Prior to being awarding the job, the grievor had worked for the employer in a part-time capacity. She expressed great enthusiasm and no reservations when she accepted the job. Almost immediately thereafter though, she requested changes to the job’s design. These changes initially were expressed as a preference and were not supported by medical documentation. The grievor seemed to think her changes would be a better way to run the program. The employer disagreed.

Shortly before commencing the job, the grievor raised a concern as to trauma and then provided documentation that she was suffering from serious depression. Her psychiatrist recommended that the employer implement all of the job design changes identified by the grievor.

Although the arbitrator queried, “why one would apply for a job and then without ever trying to do it, decide that it needs to be accommodated”, given the psychiatric evidence that doing the work, as constituted, would either continue or worsen the grievor’s depression, the arbitrator found that she required accommodation. After a few months – which the arbitrator excused as a reasonable period of time – the employer offered the grievor her choice of two possible reintegration plans. The grievor refused both on the basis they did not exactly fit with the accommodation she required. The employer’s third offer of accommodation also was refused.

The arbitrator was critical of the grievor’s intransigence finding that she had a duty to explore the possibilities of the accommodation offered by the employer. According to the arbitrator, “What works and what doesn’t work is an inexact science and to be able to forecast that nothing will work except the exact accommodation that the grievor has sought is a difficult proposition …. It would be more understandable to me that if she attempted the work hardening process and then if it didn’t work she continued to be unable to function, that could be dealt with.”

Given the employer’s limited funding and the funding required to achieve the grievor’s preferred accommodation, the arbitrator found ”a classic example of undue hardship”. He also concluded that the employment relationship had completely broken down and it was inconceivable she could return to work. Accordingly, the arbitrator dismissed the grievance.

This decision is a good reminder that there, in fact, are limits to the duty to accommodate and that employees must work with their employers as part of the accommodation process, not simply make unreasonable demands.

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Accommodation is a Two-way Street

Arbitrator Reinstates Sleepy Security Guard

An employer’s ambiguous disciplinary policy and lenient past disciplinary practice has caused it to lose an otherwise strong just cause dismissal case.

After several security lapses at its Port Huron uranium conversion facility, Cameco Corp. conducted a “security readiness test and audit” of its night shift on April 17, 2011. At approximately 3:30 AM two managers from Cameco’s Security Department breached the facility’s security perimeter. Although the breach set off an alarm and was captured by monitors in the main gate house, the would-be intruders were not intercepted. Instead, the managers were able to travel unimpeded to the main gate house where upon arriving, they discovered the Grievor, a plant guard and supervisor, and one of his subordinates fast asleep.

Both employees were fully reclined and had their feet up on the desk. The Grievor had also removed his safety boots.  It was subsequently acknowledged that the Grievor had watched a movie while on shift and that contrary to company policy, he had filled out his shift log at the beginning rather than the end of his shift. As a result, the Grievor’s log was not an accurate reflection of the assignments or events that had actually happened during his shift.

Given the Grievor’s multiple infractions of company policy and the significant safety risk posed by his dereliction of duty, Cameco terminated his employment, claiming just cause.

At the arbitration hearing that followed, the union denied that the Grievor had intended to fall asleep.  Alternatively, the union argued that the Grievor was ill and that he had only taken off his safety boots because his feet were sore.   The union further argued that Cameco should be prevented from relying on the Grievor’s movie watching and poor log keeping since Cameco had not instituted a clear policy on either of these matters nor had it consistently enforced any sort of rule regarding such conduct. However, most importantly, the union argued that because Cameco’s disciplinary policy listed “sleeping on the job” as misconduct which warrants only a verbal or written warning, it could not depart from its own policy and institute a punishment that was more severe.

Despite recognizing the importance of maintaining the facility’s security, the arbitrator nonetheless ordered the Grievor’s reinstatement (albeit to a lower level position and according to the terms of a “last chance” agreement). The arbitrator agreed with the union that Cameco had effectively condoned the Grievor’s conduct with respect to the movie watching and log keeping and therefore could not now rely on either of those matters in support of its decision to terminate the Grievor’s employment. The arbitrator ruled that the “Grievor’s falling asleep and apparent ‘nesting’, given his duties and the potential catastrophic consequences of his failure to attend diligently to them, is on the legal standard, just cause for termination”.  However, the ambiguity in Cameco’s disciplinary policy and its apparent past practice of issuing warnings to employees who had previously been found sleeping meant that the employer did not have just cause.

Cameco Corporation v United Steelworkers, Local 8562 -  http://www.canlii.org/en/on/onla/doc/2012/2012canlii2594/2012canlii2594.pdf

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Arbitrator Reinstates Sleepy Security Guard

Évitez les mauvaises surprises : notions de base en droit canadien de l’emploi, de l’immigration et du travail

L’article dont il est question dans le présent billet a été rédigé par Andrea Raso Amer et Tony Schweitzer.

Bien que le Canada et les États-Unis entretiennent d’étroites relations et que leur gouvernance et leurs lois présentent de nombreuses similarités, il existe entre les deux pays des différences importantes et distinctes, dont il faut tenir compte dans la conduite d’activités commerciales transfrontalières. La façon d’attirer, de gérer et de fidéliser les employés est notamment assez différente au Canada et toutes les entreprises qui songent à brasser des affaires au nord de la frontière devraient être informées de certains points très importants à prendre en considération.

FMC vous invite à lire un article traitant de différents sujets de façon approfondie, notamment les permis de travail, les membres de la famille qui accompagnent les travailleurs, les heures supplémentaires et les congés.

Pour lire l’article, veuillez cliquer ici (en anglais seulement).

 

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Évitez les mauvaises surprises : notions de base en droit canadien de l’emploi, de l’immigration et du travail