The Canadian Abridgment edigests -- Employment Law

Transcription

1 The Canadian Abridgment edigests -- Employment Law July 11, 2016 LAB.II.6.a.i.D Classification Number: II.6.a.i.D Employment law -- Termination and dismissal -- Termination of employment by employer -- Constructive dismissal -- Miscellaneous Employee was hired as draftsman by engineering company -- Company merged with defendant -- Employee was continuously employed for almost 22 years until he was temporarily laid off -- At time he was laid off, employee occupied position that was variously referred to lead engineering technician and as mechanical designer at salary of $63,797 per year plus benefits -- Employee alleged that he was constructively dismissed -- Employee brought motion for summary judgment -- Motion granted -- Summary judgment was granted in amount of $36, Temporary layoff could not be invoked unless defendant was contractually entitled to do so -- Defendant acted without benefit of such term in laying off employee and, in so doing, employee was constructively dismissed -- Employee was entitled to eight weeks salary in lieu of notice and 22 weeks salary for severance which parties agreed totalled $36, While employee was entitled to common law damages, set-off for statutory payments and earnings in mitigation greatly exceeded employee s prospective common law damages. Chea v. CIMA Canada Inc. (2016), 2016 CarswellOnt 5940, 2016 ONSC 1937, M. James J. (Ont. S.C.J.) [Ontario] LAB.II.6.a.ii.A.1 Classification Number: II.6.a.ii.A.1 Employment law -- Termination and dismissal -- Termination of employment by employer -- What constituting just cause -- Misconduct -- Criminal activities First Nation Band administrator (employee) was dismissed by First Nation based on allegations that employee reimbursed herself for vacation pay and CPP, EI and pension payroll deductions when such reimbursements were not contemplated by employment agreement, paid First Nation funds to herself or those close to her, authorized payment of expenses in excess of her discretionary limit without authorization, and imposed discipline on another employee without authorization -- Employee brought action for damages for wrongful dismissal, mental distress and defamation; First Nation brought counterclaim for CPP, EI, pension and vacation pay employee directed to herself -- Action dismissed; counterclaim allowed -- First Nation established that letter of offer of employment employee introduced into evidence to support claim was forgery -- Employee knew that, during her tenure, she was not entitled to money she paid to herself for vacation pay and for EI, CPP and pension reimbursement -- Employee s conduct amounted to repeated theft from employer of public funds 1

2 and was just cause for termination -- Theft was particularly egregious because employee was fiduciary with responsibility for First Nation s financial management -- First Nation was entitled to reimbursement of CPP, EI and pension in amount of $12,933, and reimbursement of vacation pay in amount of $5, Martin v. Munsee Delaware Nation (2016), 2016 CarswellOnt 6567, 2016 ONSC 620, H.A. Rady J. (Ont. S.C.J.) [Ontario] LAB.II.6.a.ii.A.5 Classification Number: II.6.a.ii.A.5 Employment law -- Termination and dismissal -- Termination of employment by employer -- What constituting just cause -- Misconduct -- Sexual harassment of other employees Employee worked at restaurant for four months -- Employee s manager had sent out performance evaluation form to all employees and had received negative comments about employee, although there were no reports of sexual misconduct -- Female bar served made complaint that employee had inappropriately touched her buttocks -- Manager summarily dismissed employee without hearing his side of story -- Employee s attempts to get other work in restaurant industry were unsuccessful -- Employee brought small claims court action against restaurant claiming he was wrongfully dismissed from his employment -- Action allowed -- Evidence of server was equally consistent with her having been bumped, tapped or hit with tray held by employee, as it was with her being touched by employee s hand -- There was no suggestion of any previous inappropriate sexual conduct in words or gestures by employee towards server -- Server may have been honestly mistaken as to what actually happened -- Restaurant failed to prove, on balance of probabilities, that employee was guilty of sexually inappropriate conduct towards server -- Employee was dismissed without just cause. Chen v. Moxie s Restaurants Management, Inc. (2016), 2016 BCPC 169, 2016 CarswellBC 1632, P.R. Meyers Prov. J. (B.C. Prov. Ct.) [British Columbia] LAB.II.6.a.iv Classification Number: II.6.a.iv Employment law -- Termination and dismissal -- Termination of employment by employer -- Miscellaneous Plaintiff was employed by company as learning specialist in Nova Scotia and then subsequently as System Service Representative in New Brunswick -- In 2008, plaintiff had depressive episode and took leave of absence from September 2008 to January 2009 using company s short term disability (STD) plan -- In 2013 plaintiff suffered second depressive episode and again applied to STD plan -- During same period, plaintiff moved to Ontario and began seeing psychologist -- In January and February 2014 plan administrator rejected plaintiff s initial STD application and appeal -- Company sent out five "Absence Option Letters" in which company noted that if plaintiff did not return to work or submit medical documentation to administrator by 2

3 certain date it would consider his absence to be voluntary resignation from position, with each successive letter providing later date to either return to work or submit medical documentation -- Company registered plaintiff as having resigned from his position and plaintiff brought claim for wrongful dismissal -- Company s motion for summary judgment was granted and plaintiff s claim and motion for summary judgment were dismissed -- Plaintiff appealed -- Appeal dismissed -- Motion judge did not err on facts as he found them in determining that plaintiff abandoned his position with company -- Plaintiff failed to submit any medical evidence to establish that he was medically unable to perform his job, notwithstanding company requested that information on numerous occasions -- Motion judge did not err in relying on fact that plaintiff failed to comply with STD plan -- There was evidence before motion judge upon which he was entitled to rely to find that by moving to Ontario, plaintiff abandoned his employment with company which was in New Brunswick -- Company s actions in dealing with plaintiff in respect of STD plan incorporated significant accommodation to plaintiff and company had no independent duty to accommodate plaintiff over and above its STD plan. Betts v. IBM Canada Ltd. / IBM Canada Ltée (2016), 2016 ONSC 2496, 2016 CarswellOnt 7483, D.A. Broad J., L.A. Pattillo J., Marrocco A.C.J.S.C. (Ont. Div. Ct.); affirming Betts v. IBM Canada Ltd. (2015), 2015 CarswellOnt 12779, 2015 ONSC 5298, 2016 C.L.L.C , Diamond J. (Ont. S.C.J.); additional reasons at Betts v. IBM Canada Ltd. (2015), 2015 CarswellOnt 15635, 2015 ONSC 6259, Diamond J. (Ont. S.C.J.) [Ontario] LAB.II.6.a.iv Classification Number: II.6.a.iv Employment law -- Termination and dismissal -- Termination of employment by employer -- Miscellaneous Suspension of security clearance -- Applicant worked for transport company, which required security clearance as result of travel through port -- Minister of Transport suspended applicant s maritime security clearance on basis of association with husband, who was accused of offences related to importation of drugs through port -- Minister claimed there were reasonable grounds to suspect that applicant was in position likely to be bribed to commit act that could pose risk to marine transportation security -- Applicant brought application for judicial review -- Application dismissed -- Decision was reasonable -- There was close relationship between seriousness of charges against applicant s spouse, which were directly related to security threat that port was attempting to eradicate and applicant s position -- Minister s decision was not based on prejudice, but rather based on nexus between criminal charges against applicant s spouse, place of work, security of shipping and arm s length of applicant vis-a-vis husband -- Evidence did not demonstrate that applicant suffered difference in treatment because of marital status -- It was incumbent on applicant to demonstrate that there was no risk to marine transportation security, which was not done. Neale c. Canada (Procureur général) (2016), 2016 CarswellNat 2332, 2016 CF 655, Sylvie E. Roussel J. (F.C.) [Federal] 3

4 LAB.II.6.b.i Classification Number: II.6.b.i Employment law -- Termination and dismissal -- Notice -- Entitlement Defendant employer was in business of sheet metal fabrication and custom metal fabrication -- Employer carried out fabrication work on customers behalf on contract by contract basis -- Plaintiff employee was hired as assembler and was initially paid $15 per hour -- At time of hiring, employee signed work agreement which provided in part that, for employment period of three years or more, employee was entitled to one week of notice for each year of employment, to maximum of eight weeks -- After approximately four years employment, employee was terminated -- At time of termination, employee was relatively junior and had no supervisory responsibilities -- Employee was 56 years of age at date of dismissal -- Employer alleged that reason for termination was that employer had shortage of work -- In purported compliance with written employment contract and with Employment Standards Act, employee was given four weeks pay in lieu of notice in amount of $2, plus other entitlements required under Act -- Employee was unemployed, collected employment insurance, and subsequently worked intermittently through employment agencies and had not regained full-time employment -- Employee commenced action on grounds including wrongful dismissal, and alleged that he was entitled to reasonable notice of termination and not merely four weeks required under Act -- Despite employment agreement, employee was entitled to reasonable notice of termination consistent with common law principles -- Appropriate notice period in present case was four months -- Plaintiff s recoverable loss was $8, Singh v. Qualified Metal Fabricators Ltd. (2016), 2016 CarswellOnt 8795, Stinson J. (Ont. S.C.J.); additional reasons at (2016), 2016 CarswellOnt 8796, Stinson J. (Ont. S.C.J.) [Ontario] LAB.II.6.b.iii Classification Number: II.6.b.iii Employment law -- Termination and dismissal -- Notice -- Effect of contractual terms regarding notice Defendant employer was in business of sheet metal fabrication and custom metal fabrication -- Employer carried out fabrication work on customers behalf on contract by contract basis -- Plaintiff employee was hired as assembler and was initially paid $15 per hour -- At time of hiring, employee signed work agreement which provided in part that, for employment period of three years or more, employee was entitled to one week of notice for each year of employment, to maximum of eight weeks -- After approximately four years employment, employee was terminated -- Employer alleged that reason for termination was that employer had shortage of work -- In purported compliance with written employment contract and with Employment Standards Act, employee was given four weeks pay in lieu of notice in amount of $2, plus other entitlements required under Act -- Employee was unemployed, collected employment insurance, and subsequently worked intermittently through employment agencies and had not regained full-time employment -- Employee commenced action on grounds including wrongful dismissal, and alleged that he was entitled to reasonable notice of termination and not merely four weeks required under Act -- Despite employment 4

5 agreement, employee was entitled to reasonable notice of termination consistent with common law principles -- It was open to employer to draft contract that excluded common law notice; however, employment agreement was silent on subject and it was open question as to whether it was intended to override common law notice entitlement -- Ambiguity was to be construed against employer having regard to power imbalance between employer and employee -- Employment agreement did not operate to nullify or detract from implied common law requirement of reasonable notice of termination. Singh v. Qualified Metal Fabricators Ltd. (2016), 2016 CarswellOnt 8795, Stinson J. (Ont. S.C.J.); additional reasons at (2016), 2016 CarswellOnt 8796, Stinson J. (Ont. S.C.J.) [Ontario] LAB.II.6.b.iii Classification Number: II.6.b.iii Employment law -- Termination and dismissal -- Notice -- Effect of contractual terms regarding notice Employer dismissed employee after eight years of service -- Employee received 13 weeks of working notice in addition to 8 weeks notice -- Plaintiff, who was 49 years old, continued to be unemployed -- Defendant alleged that employment relationship including termination was governed by offer of employment/employment contract letter -- Plaintiff brought motion for summary judgment for damages for wrongful dismissal -- Motion dismissed -- Termination clause was not unenforceable -- Termination clause provided payment in accordance with Employment Standards Act and was in excess of recovery provided by legislation -- There was no evidence that defendant did not continue to make requisite premium payments, or that employee submitted claim during working notice which was rejected. Wood v. Fred Deeley Imports Ltd. (2016), 2016 CarswellOnt 6402, 2016 ONSC 1412, G. Dow J. (Ont. S.C.J.) [Ontario] LAB.II.6.b.vi.L Classification Number: II.6.b.vi.L Employment law -- Termination and dismissal -- Notice -- Mitigation by employee -- Miscellaneous Defendant employer was in business of sheet metal fabrication and custom metal fabrication -- Employer carried out fabrication work on customers behalf on contract by contract basis -- Plaintiff employee was hired as assembler and was initially paid $15 per hour -- At time of hiring, employee signed work agreement which provided in part that, for employment period of three years or more, employee was entitled to one week of notice for each year of employment, to maximum of eight weeks -- After approximately four years employment, employee was terminated -- At time of termination, employee was relatively junior and had no supervisory responsibilities -- Employee was 56 years of age at date of dismissal -- Employer alleged that reason for termination was that employer had shortage of work -- In purported compliance with written employment contract and with Employment Standards Act, employee was given four weeks pay in lieu of 5

6 notice in amount of $2, plus other entitlements required under Act -- Employee was unemployed, collected employment insurance, and subsequently worked intermittently through employment agencies and had not regained full-time employment -- Employee commenced action on grounds including wrongful dismissal, and alleged that he was entitled to reasonable notice of termination and not merely four weeks required under Act -- Despite employment agreement, employee was entitled to reasonable notice of termination consistent with common law -- There was no basis for reduction of income loss damages for failure to mitigate -- Employee was beginning to earn replacement income in July 2015, approximately two months after termination -- Dismissal was unexpected and there were challenges associated with finding work in manufacturing sector. Singh v. Qualified Metal Fabricators Ltd. (2016), 2016 CarswellOnt 8795, Stinson J. (Ont. S.C.J.); additional reasons at (2016), 2016 CarswellOnt 8796, Stinson J. (Ont. S.C.J.) [Ontario] LAB.II.6.d.iii Classification Number: II.6.d.iii Employment law -- Termination and dismissal -- Practice and procedure -- Evidence Employee worked at restaurant for four months -- Employee s manager had sent out performance evaluation form to all employees and had received negative comments about employee, although there were no reports of sexual misconduct -- Female bar served made complaint that employee had inappropriately touched her buttocks -- Manager summarily dismissed employee without hearing his side of story -- Employee s attempts to get other work in restaurant industry were unsuccessful -- Employee brought small claims court action against restaurant claiming he was wrongfully dismissed from his employment -- Action allowed -- Evidence of server was equally consistent with her having been bumped, tapped or hit with tray held by employee, as it was with her being touched by employee s hand -- There was no suggestion of any previous inappropriate sexual conduct in words or gestures by employee towards server -- Server may have been honestly mistaken as to what actually happened -- Restaurant failed to prove, on balance of probabilities, that employee was guilty of sexually inappropriate conduct towards server -- Employee was dismissed without just cause. Chen v. Moxie s Restaurants Management, Inc. (2016), 2016 BCPC 169, 2016 CarswellBC 1632, P.R. Meyers Prov. J. (B.C. Prov. Ct.) [British Columbia] LAB.II.6.d.iv Classification Number: II.6.d.iv Employment law -- Termination and dismissal -- Practice and procedure -- Summary proceedings Plaintiff was manager of one of car dealerships owned and operated by group of automotive companies -- Plaintiff brought action for wrongful dismissal -- Eight defendants brought motion for summary judgment to have claims dismissed by reason of there being no cause of action against them -- Motion granted -- There was 6

7 no allegation of fraud, deceit, dishonesty or want of authority regarding two personally named defendants -- Pleadings did not allege facts, nor was there any evidence before court, to support piercing corporate veil -- Defendants conceded there was potential for finding that operating companies were "common employer", but defendants position that holding companies could not be found to be common employers was accepted -- Fact that six holding companies were intermingled financially, even to great extent, would not result in finding that these companies had effective control over employee -- These companies were holding companies; they did not exercise any control over employees, directly or indirectly -- Doctrine of common employer had no application to them -- There was no genuine issue for trial pertaining to eight defendants in question. Sproule v. Tony Graham Lexus Toyota (2016), 2016 ONSC 2220, 2016 CarswellOnt 7561, Robert L. Maranger J. (Ont. S.C.J.) [Ontario] LAB.III.3.a Classification Number: III.3.a Employment standards legislation -- Definitions -- Employee Employer hired homeless woman (worker) to work as motel housekeeper -- Employer paid worker fixed amount per room and deducted fixed amount weekly for worker s room at hotel -- Worker s complaint to Employment Standards Branch that she was terminated as reprisal for asking to be paid minimum wage was dismissed by Employment Standards Officer who found that worker was independent contractor and not employee -- Ontario Labour Relations Board (OLRB) granted worker s application for review of Officer s decision, finding that worker was not engaged in business on own account, did not advertise services or have other clients, had limited ability to profit from work, and that employer provided all cleaning products and equipment -- OLRB went on to find that manner of termination was particularly harsh, that termination constituted reprisal, that worker was entitled to unpaid wages of $6, based on 42 hours weekly at minimum wage, three months wages, and $5,000 for pain and suffering -- Employer and Director of Employment Standards brought request for reconsideration -- Request refused -- OLRB only exercised power to reconsider and vary its decisions in exceptional circumstances such as where new evidence came to light that was not available earlier and which would almost certainly be dispositive of case -- Employer s "new" submissions were either made at or could have been made at hearing -- OLRB reasons did not disclose obvious error or otherwise amount to proper grounds for reconsideration -- Decision under Income Tax Act regarding legal test for determining whether worker was employee or independent contractor did not assist in request for reconsideration before OLRB -- Statements of witnesses employer chose not to call at hearing did not satisfy test for "new evidence" -- Finally, allegations of welfare fraud which employer sought to introduce through evidence of witness who did testify at hearing were beyond OLRB s jurisdiction. Teneva v Ontario Ltd. (2016), 2016 CarswellOnt 7106, Kelly Waddingham V-Chair (Ont. L.R.B.); reconsideration refused (2016), 2016 CarswellOnt 1003, Kelly Waddingham V-Chair (Ont. L.R.B.) [Ontario] LAB.III.5.a 7

8 Classification Number: III.5.a Employment standards legislation -- Wages -- Entitlement Inspector ordered severance payment under s. 230(1)(b) of Canada Labour Code -- Employer appealed -- Appeal dismissed -- Burden rested with employer to demonstrate that employee resigned from position -- Employee s explanation that he stopped home to empty truck was plausible and supported employee s position that he was dismissed Québec Inc. et Bouchard, Re (2016), 2016 CarswellNat 2380, Mario Létourneau Member (Can.Adjud.(CLC Part III)) [Federal] LAB.III.5.e.ii Classification Number: III.5.e.ii Employment standards legislation -- Wages -- Deductions from wages -- Miscellaneous Inspector issued payment order under Canada Labour Code -- Employer appealed -- Appeal dismissed -- Employer could not make deductions from wages of employment, which was amount deemed to be due to employee -- Employer did not attend appeal hearing, such that preponderance of evidence played in favour of employee. Micmac Logistique Groupe Inc. et Reed (Collection of Salary), Re (2016), 2016 CarswellNat 2329, Pierre Cloutier Member (Can.Adjud.(CLC Part III)) [Federal] LAB.III.14 Classification Number: III.14 Employment standards legislation -- Reprisals Employer hired homeless woman (worker) to work as motel housekeeper -- Employer paid worker fixed amount per room and deducted fixed amount weekly for worker s room at hotel -- Worker s complaint to Employment Standards Branch that she was terminated as reprisal for asking to be paid minimum wage was dismissed by Employment Standards Officer who found that worker was independent contractor and not employee -- Ontario Labour Relations Board (OLRB) granted worker s application for review of Officer s decision, finding that worker was not engaged in business on own account, did not advertise services or have other clients, had limited ability to profit from work, and that employer provided all cleaning products and equipment -- OLRB went on to find that manner of termination was particularly harsh, that termination constituted reprisal, that worker was entitled to unpaid wages of $6, based on 42 hours weekly at minimum wage, three months wages, and $5,000 for pain and suffering -- Employer and Director of 8

9 Employment Standards brought request for reconsideration -- Request refused -- OLRB only exercised power to reconsider and vary its decisions in exceptional circumstances such as where new evidence came to light that was not available earlier and which would almost certainly be dispositive of case -- Employer s "new" submissions were either made at or could have been made at hearing -- OLRB reasons did not disclose obvious error or otherwise amount to proper grounds for reconsideration -- Decision under Income Tax Act regarding legal test for determining whether worker was employee or independent contractor did not assist in request for reconsideration before OLRB -- Statements of witnesses employer chose not to call at hearing did not satisfy test for "new evidence" -- Finally, allegations of welfare fraud which employer sought to introduce through evidence of witness who did testify at hearing were beyond OLRB s jurisdiction. Teneva v Ontario Ltd. (2016), 2016 CarswellOnt 7106, Kelly Waddingham V-Chair (Ont. L.R.B.); reconsideration refused (2016), 2016 CarswellOnt 1003, Kelly Waddingham V-Chair (Ont. L.R.B.) [Ontario] LAB.III.15.c Classification Number: III.15.c Employment standards legislation -- Administration and enforcement -- Liability of directors Employer was found liable for wages owing to complainants (corporate determination) -- Appeal of corporate determination was dismissed -- Labour Relations Board determined I was director of employer and was liable for wages under s. 96 of Employment Standards Act -- I appealed -- Appeal dismissed -- I failed to establish any relevant basis to cancel s. 96 determination -- Appeal had no prospect of success -- Director/officer is precluded from arguing corporate liability in appeal of s. 96 determination -- It was not disputed that I was director or officer of employer, and so listed in corporate searches of employer at time wages (overtime) of complainants were earned and should have been paid by employer -- Amount of personal liability imposed on I was within limit of personal liability set out in s No circumstances that might exempt I from personal liability under s. 96(2) of Act were raised. Ismail, Re (2016), 2016 CarswellBC 1434, Shafik Bhalloo Member (B.C. Empl. Stnds. Trib.) [British Columbia] LAB.III.15.c Classification Number: III.15.c Employment standards legislation -- Administration and enforcement -- Liability of directors Employer corporation was found liable for wages owing to complainants (corporate determination) -- Appeal of corporate determination was dismissed -- Labour Relations Board determined I was director of employer and was liable for wages under s. 96 of Employment Standards Act -- I appealed -- Appeal dismissed -- I failed to establish any relevant basis to cancel s. 96 determination -- Appeal had no prospect of success -- Director/officer is precluded from arguing corporate liability in appeal of s. 96 determination -- It was not 9

10 disputed that I was director or officer of employer, and so listed in corporate searches of employer at time wages (overtime) of complainants were earned and should have been paid by employer -- Amount of personal liability imposed on I was within limit of her personal liability set out in s No circumstances that might exempt I from personal liability under s. 96(2) of Act were raised. Ismail, Re (2016), 2016 CarswellBC 1435, Shafik Bhalloo Member (B.C. Empl. Stnds. Trib.) [British Columbia] LAB.III.15.g Classification Number: III.15.g Employment standards legislation -- Administration and enforcement -- Review or referral of decision Employer hired homeless woman (worker) to work as motel housekeeper -- Employer paid worker fixed amount per room and deducted fixed amount weekly for worker s room at hotel -- Worker s complaint to Employment Standards Branch that she was terminated as reprisal for asking to be paid minimum wage was dismissed by Employment Standards Officer who found that worker was independent contractor and not employee -- Ontario Labour Relations Board (OLRB) granted worker s application for review of Officer s decision, finding that worker was not engaged in business on own account, did not advertise services or have other clients, had limited ability to profit from work, and that employer provided all cleaning products and equipment -- OLRB went on to find that manner of termination was particularly harsh, that termination constituted reprisal, that worker was entitled to unpaid wages of $6, based on 42 hours weekly at minimum wage, three months wages, and $5,000 for pain and suffering -- Employer and Director of Employment Standards brought request for reconsideration -- Request refused -- OLRB only exercised power to reconsider and vary its decisions in exceptional circumstances such as where new evidence came to light that was not available earlier and which would almost certainly be dispositive of case -- Employer s "new" submissions were either made at or could have been made at hearing -- OLRB reasons did not disclose obvious error or otherwise amount to proper grounds for reconsideration -- Decision under Income Tax Act regarding legal test for determining whether worker was employee or independent contractor did not assist in request for reconsideration before OLRB -- Statements of witnesses employer chose not to call at hearing did not satisfy test for "new evidence" -- Finally, allegations of welfare fraud which employer sought to introduce through evidence of witness who did testify at hearing were beyond OLRB s jurisdiction. Teneva v Ontario Ltd. (2016), 2016 CarswellOnt 7106, Kelly Waddingham V-Chair (Ont. L.R.B.); reconsideration refused (2016), 2016 CarswellOnt 1003, Kelly Waddingham V-Chair (Ont. L.R.B.) [Ontario] 10