valkyrie law group llp gwendoline allison gallison@valkyrielaw.com

R.E.S.P.E.C.T. in the WorkplaceValkyrie Law Group LLP

Gwendoline Allisongallison@valkyrielaw.com

www.valkyrielaw.com

Key issues

Definitions and legislative framework Bullying, harassment and defamation Costs of a disrespectful workplace Liabilities – some recent cases General strategies to create and maintain a

respectful environment

Costs of a disrespectful workplace Toxic atmosphere and stressed employees Absenteeism Reduced work productivity Difficulty recruiting and retaining Reduced corporate image Litigation or union issues

• Occupational Health and Safety legislation• 2012 - BC Workers Compensation Act

amendments to provide benefits for work-related mental illness

• 2010 - Ontario• 2007 – Saskatchewan• 2004 – Quebec

Legal framework

• Common law• Constructive dismissal• Breach of Contract• Tort

Legal framework

Bullying and harassment

Constructive Dismissal Shah v. Xerox Canada Ltd., [2000] O.J.

No. 849 Ata-Ayi v. Pepsi Bottling Group

(Canada), 2006 CarswellOnt 6864 Tort Claims?

Sulz v. Minister of Public Safety and Solicitor General, 2006 BCSC 99

Piresferreria v. Ayotte, 2010 ONCA 384

Piresferreira v. Ayotte Negligent infliction of mental suffering not

available Intentional infliction of mental suffering is

available Breach of Contract?

Other cases Disotell v. Kraft Canada Inc., 2010 ONSC 3739 Qubti v. Reprodux Ltd., 2010 ONSC 837 Cooke v. HTS Engineering Ltd. 2009 CarswellOnt

8326

General strategies for respect in the Workplace

Training Supervisory training Orientations for new or promoted employees Respectful workplace training for all employees

General strategies for respect in the Workplace

Policy should include: Clear statements of what is considered

harassment and bullying Clear statements of what is not bullying or

harassment e.g. performance reviews The consequences of not following policy A commitment to investigate and deal with

concerns in a prompt and fair manner

General strategies for respect in the Workplace

Building accountability Objective and confidential internal investigation

processes Encourage reporting Implement sanctions where necessary Discuss and debrief where no harassment is

found Review procedures regularly

General strategies for respect in the Workplace

Communication Be open and frank Communication bad news in person Take particular care when dismissing Be careful with internal and external emails both

before and after the fact

Why respect is important

Respect = healthy, productive work environment

Employees feel valued and business interests thrive

Situational change easier to introduce Productivity is high; conflict is low Expensive litigation or arbitration avoided Communication is open and proactive Terminations and discipline can be easier

Conclusion Respectful treatment permits employers to

manage in a cooperative and productive manner

Respect in difficult times helps transitions and limits conflict

Employers should be advised to (1) be aware of obligations and (2) treat employees with care and compassion

R.E.S.P.E.C.T. in the WorkplaceValkyrie Law Group LLP

Gwendoline Allisongallison@valkyrielaw.com

www.valkyrielaw.com

Brave New WorldTechnology, Social Media and the Workplace

Valkyrie Law Group LLP

Holman Wang 604.215.0505

www.valkyrielaw.com

Technology – the sky is the limit

In 2010: 294 billion emails were sent daily Google was searched 3 billion times dailyIn 2011: Twitter – 7000+ tweets / sec when Steve Jobs

resignedIn 2012: Americans spend 100,000+ years on Facebook

per month

Workplace issues

Email use and abuse Social media and the workplace Odds and ends Best practices

Email at Work - Pitfalls Inappropriate content Wrong recipient Personal emails on work time or on work

computers

Inappropriate content

Inappropriate content Distributing pornographic / racist /

homophobic or other offensive materials Cyber-harassment

Legal issues: express breach of company email policy? just cause for dismissal? vicarious liability of the employer?

Wrong recipient

Wrong recipient Defamation

communication or publication about a person or organization that is likely to lower the opinion or estimation of that person

Breach of confidentiality

Personal emails / internet use

Personal emails / internet use Use of work computers Use of work time Lack of productivity and “time theft” Inappropriate sites Privacy Security issues

Social networking Facebook Twitter YouTube Blogs Pinterest Flickr Tumblr Linked In …

Social media - pitfalls Posting at work Posting about work Off-duty posting about work Offensive comments Blur between private/public Pre-screening employees

Social Networking – Legal Issues Damage to reputation of employer Damage to workplace relations Human Rights Code – duty to accommodate?

Miscellaneous Posting on / moderating social media sites

Create third party user guidelines Links Document retention issues

Best Practices– Email It is a written, permanent communication See it in the newspaper Don’t use “reply all” Don’t use blind copies Watch the autocorrect

Best Practices Policy and procedure is KEY Be consistent and prompt! Email and internet policy

Access boundaries – unacceptable use Privacy expectations Security expectations Retention restrictions Discipline mechanism

Best Practices Social networking policy

Separate policy Public nature of social networking Parameters

If 60 is the new 50, why do I have to retire?

Valkyrie Law Group LLP

Gwendoline Allisongallison@valkyrielaw.com

www.valkyrielaw.com

Introduction

Background What the end of mandatory retirement

means for employers The exceptions Law for firefighters Next stage, and advice

Background Section 13 of the Human Rights Code

prohibits discrimination based on age. Before January 1, 2008, “age” meant 19-65. After January 1, 2008, “age” means over 19.

End of Mandatory Retirement Cannot make decisions about employment

based on the employee’s age Must accommodate age-related illnesses and

disabilities May have to provide benefits to the over 65s,

even if your insurer will not cover the employee: Municipality of Strathroy-Caradoc Police Services Board

Section 13(4) – mandatory retirement will be lawful if it is a bona fide occupational requirement. Purpose is rationally connected to the performance of

the job Provision was adopted in an honest and good faith

belief that it was necessary to the fulfilment the purpose

Provision is reasonably necessary to the accomplishment of the purpose - it is impossible to accommodate individual employees without imposing undue hardship on the employer

The Defence

• Air Canada pilots• Police officers• Firefighters

Who is Challenging Mandatory Retirement?

Espey v. London (City)

District Chief forced to retire at 60 – had not reached full pension

Asked for an extension of retirement date Sought to be tested individually City said no – relied on blanket policy

Espey v. London (City) City led evidence:

expert medical or statistical data which supports the increased cardiovascular risk after 60 years of age

demands of the position safety hazard to the firefighter and co-workers

and the public

Espey v. London (City)

Tribunal upheld mandatory retirement provision: In light of the increasing risk of cardiac events

with age, and the effects of a cardiac event on the work of a firefighter, it is evident that mandatory retirement is rationally connected to the work of a firefighter, to protect health and safety. It is also evident that this standard was adopted in good faith to promote the work-related purpose of protecting health and safety.

Espey v. London (City)

I therefore conclude that it has been shown on a balance of probabilities that there is no individual testing method that would allow a better risk assessment of on-the-job events for firefighters more accurately than age, given their occupation-related risks of heart disease.

Ho

Espey v. London (City)

However, I do not foreclose the possibility that where an individual firefighter initiates a request for an exception to the mandatory retirement date based upon his or her individual risk of cardiac events and medical evidence suggests an extremely low or negligible risk of cardiac events in that individual, accommodation may be required.

Gill v. City of Hamilton

Wanted individual testing Also argued that Volunteer firefighters could

work until 65 Tribunal dismissed complaint (August 3,

2012) No strong evidence to require individual testing Volunteer firefighters do not work as hard

Next Stages

There will be a continued push for individual testing Mississauga firefighters have started a challenge

Accommodation in a new role So far the firefighters are not pushing for new

roles.

Recommendations Gather medical evidence Gather negotiation notes from collective

bargaining meetings Conduct an analysis of the costs of individual

assessment Analyse potential for other positions

including any cost analysis or alternative suggestions and whether this would interfere with other members rights.

Recommendations Maintain position that the mandatory

retirement clause is a BFOR and is not subject to individual accommodation, either in respect of testing or for possible transfer to another position.

If 60 is the new 50, why do I have to retire?

Valkyrie Law Group LLP

Gwendoline Allisongallison@valkyrielaw.com

www.valkyrielaw.com

Dismissing the Disabled, the Pensionable and the New Parents

Valkyrie Law Group LLP

Gwendoline Allisongallison@valkyrielaw.com

www.valkyrielaw.com

Introduction

Basic Principles of Dismissal Employees on Disability Leave Employees Receive a Pension Employees Returning from Parental Leave

Sylvester v. British Columbia Disability benefits plan part of the contract Plan fully funded by employer Key – what was the intention of the party? Benefits are deductible from wrongful

dismissal damages.

Sylvester v. British Columbia Disability benefits plan part of the contract Plan fully funded by employer Key – what was the intention of the party? Benefits are deductible from wrongful

dismissal damages.

McKendrick v. Open Learning Agency Reid v. Specialty Motors Pereira v. The Business Depot

Benefits were deducted. In each case, the benefits were paid by a

third party insurer and the employee paid the premiums.

Sylvester in BC

• Sills v. Children’s Aid Society of the City of Belleville

• McNamara v. Alexander Centre Industries Ltd.

• Seven other cases

• Benefits not deductible where third party insurer and employee contribution to premiums.

Sylvester in Ontario

Sylvester In Ontario

Zorn-Smith v. Bank of Montreal

Benefits not deducted when employer fully funded.

Loss of value of time Also separate breach of contract

Sylvester - Conclusion Difficult to reconcile approaches BC Court of Appeal has not weighed in yet. Is there a value to lost time? Other alternatives?

Bavaro Whelehan

Employees Who Elect to Receive Pension

Girling v. Crown Cork & Seal Canada Inc. Pensions are not integral Not deductible from wrongful dismissal

damages Court of Appeal relied on Court of Appeal

decision in Sylvester Slyvester CA overruled by SCC

Girling Under Attack

MacGillivray v. TELUS Communications Inc. Johnson v. Global Television Inc. Waterman v. IBM Canada Ltd.

Employer funded pension Court of Appeal decision Sylvester SCC distinguished Pension benefits not deductible

Girling – what next?

Difficult to reconcile principles with Sylvester Disability benefits are deductible Pension benefits are not deductible

SCC has granted leave in Waterman

Parents Returning from Parental Leave

No insurable hours Damages in lieu of reasonable notice will not

accrue insurable hours Additional head of damages for employees?

Conclusion

Conclusion whether employees have additional causes of action

Watch for SCC decision

Dismissing the Disabled, the Pensionable and the New Parents

Valkyrie Law Group LLP

Gwendoline Allisongallison@valkyrielaw.com

www.valkyrielaw.com