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Pre-employment Representations Cost Employer $100,000
Mr. Feldstein was a software engineer. He suffered from cystic fibrosis. He was terminated from his employment with MDA 1 March 2012 and given 6 months working notice. On 30 April 2012, he commenced employment with 364. Shortly after – in November 2012 – his health deteriorated and was approved for LTD benefits, but only the minimum and not 2/3 of his salary as he had expected. Ultimately, 364 terminated his employment in November 2013. At that time, his LTD benefits had vested.
read moreClaim for Wrongful Dismissal Rejected by BC Supreme Court
Just cause for insubordination is established where “the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard – a complete disregard – of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master” (per Lord Evershed in Laws v. London Chronicle (Indicator Newspapers), Ltd.). The BCSC noted: “Accordingly, where the employer has issued directions that are lawful and not dishonest, it will amount to insubordination if those directions are disobeyed.” Citing, Chan v. Ling, 2006 BCSC 1243, the Court: “However, all misconduct must be assessed as to nature and degree within a contextual approach to determine whether it warrants dismissal. The principle from McKinley v. BC Tel, [2001] 2 S.C.R. 161 at para. 57 concerning dishonesty, that each case is to be considered within its own facts and circumstances and each dishonesty assessed as to nature and seriousness so to determine whether it is reconcilable with sustaining the employment relationship, applies equally to insubordination and other acts of misconduct. Conduct that causes an employer to lose trust in an employee in a responsible position may so undermine the relationship as to justify dismissal.” Mr. Cotter’s argument was that his actions were entirely appropriate and indeed part of his ethical duty. His actions were nor reasonable. The Court concluded: “Mr. Cotter’s actions were insubordinate and completely incompatible with an employer-employee relationship. The termination for cause was justified.” The Controller was insubordinate and was terminated for cause.
read morePersonal and Corporate Liability for Work Place Safety
The cases are few and far between. The addition of section 217.1 of the Criminal Code has resulted in an expansion of the criminal law into the work place. The degree of fault or moral blameworthiness attributed to the accused is the factor that determines whether the actions that resulted in the workplace accident are prosecuted criminally or as a provincial regulatory offence (R. v. Katsheshuk Fisheries Limited, 2014 CanLII 50665 (NL PC)).
read moreCriminal Negligence in the Workplace – 3 and 1/2 years in prison for Project Manager
Project Manager was under a duty to rectify the situation. He permitted the workers to board a motorized swing stage, without any knowledge of the capacity of the stage. The stage collapsed and workers fell to their death. The court found him guilty of criminal negligence.
read moreBC Human Rights Tribunal on Parental Rights
Cavanaugh v. Sea to Skye Hotel (No. 2) is a decision of the BC Human Rights Tribunal. In that case, a female banquet manager, a single parent with a young child, was terminated. The job entailed being available for functions and coordinate events, which would sometimes require long and irregular hours. The manager understood these requirements when she accepted the job.
read moreOntario Court Of Appeal On Negligent Infliction Of Mental Distress
The facts in Piresferreira v. Ayotte et al. briefly were as follows. P was a 10-year employee who worked as an account manager with Bell Mobility. Towards the end of her employment she received negative performance evaluations. Her manager was critical, demanding, loud and aggressive. In the last days of her employment she had a confrontation with the manager, who pushed her and told her to “get he hell out of his office.” He indicated that he would prepare a performance improvement plan for her. After that P went home and later went on sick leave. She filed a complaint with human resources, which found that the manager had acted inappropriately. He was relocated and ultimately retired. P refused the employer’s offer to return to work. A psychologist and a psychiatrist diagnosed P with post-traumatic stress disorder and a major depressive disorder resulting, among others, from the confrontation with the manager and the manner in which Bell had dealt with it.
read moreJudicial Review – Supreme Court Of Canada
A couple of days ago the Supreme Court of Canada released its decision in Smith v. Alliance Pipeline Ltd., a judicial review arising out of decisions of arbitration panels under the National Energy Board Act and related court proceedings.
read moreChildcare Responsibilities And Human Rights
In three recent decisions the Canadian Human Rights Tribunal concluded that childcare responsibilities fell within the protected ground of “family status” (Richards v. Canadian National Railway). While this does not mean that employers must accommodate all childcare issues, it does suggest that they should not be dismissed lightly, especially in the federal jurisdiction. In Richards (and related cases) three female employees, fired for refusing transfers due to parental responsibilities, and the Tribunal concluded that they were discriminated against based on “family status.” The Tribunal reinstated them with back pay, $15,000 for pain and suffering, and $20,000 as compensation for “reckless” discrimination.
read moreAbsenteeism Management Program Constitutes Systemic Discrimination
In a recent decision, Coast Mountain Bus Company, the British Columbia Court of Appeal upheld a decision by the Human Rights Tribunal, which concluded that the company’s attendance management program resulted in systemic discrimination against employees with chronic and recurring disabilities, and that the program was not exempted as a bona fide occupational requirement. The employer successfully filed an application for judicial review in the British Columbia Supreme Court. The Court of Appeal set aside that decision.
read moreFailure To Accommodate May Be Expensive – Even If You Do “Almost” Everything
Human rights law is a minefield for many employers. No area is more complicated than the duty to accommodate employee disabilities. Mistakes can be costly. In a recent case, the BC Human Rights Tribunal ordered MacDonald’s Restaurants to pay a former employee more than $50,000, including the highest award in respect of compensation for injury to dignity, feelings and self-respect – $25,000.
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