employer obligations vancouver seminar november 30, 2012 carolyn maceachern & joe scafe

Employer Obligations

Vancouver Seminar

November 30, 2012

Carolyn MacEachern & Joe Scafe


Evolving concept in human rights Employer may have duty to accommodate

before employee advises of a disability When must an employer inquire whether an

employee has a disability or the disability is related to conduct?

DUTY TO INQUIRE


Willems-Wilson v. Allbright Drycleaners Ltd (1997), 32 CHRR D/71 Employee had a history of emotional problems Employer was aware she was unstable Termination during hospitalization was

discrimination

DUTY TO INQUIRE


Mackenzie v. Jace Holdings Ltd (cob Thrifty’s), 2012 BCHRT 376 Employee fired for poor performance, disruptive

behaviour, insubordination Employee exhibited signs of depression Manager denied knowing the employee was

depressed Thrifty’s should have known she was depressed,

failed the duty to inquire, was found liable for discrimination.

DUTY TO INQUIRE


How disruptive must an employee’s behaviour be to trigger the duty?

Rezaei v. University of Northern British Columbia and another (No. 2), 2011 BCHRT 118 Employee made inappropriate and unsubstantiated

accusations against superiors Employee claimed discrimination 2 years after

employment ended Nothing fell “so far out of the norms of communication

among individuals holding firm views on matters of dispute”

DUTY TO INQUIRE


Drug use may trigger the duty to inquire Wilson v. Transparent Glazing Systems (No 4),

2008 BCHRT 50 Work criticized and suspicion of on-site drug use Employer knew employee took “medication” for

back pain and migraines Employer failed to inquire whether job

performance was related to employee’s disability/medication

DUTY TO INQUIRE


Denial of disability Geldreich v. Whisper Creek, 2009 BHCRT 178

Employee fired for smoking marijuana at work, claimed discrimination

Had previously twice denied using drugs at work Casual drug use does not trigger the duty to

inquire

DUTY TO INQUIRE


Employer should question resignation connected to mental disability

Alberta (Department of Justice) v. Alberta Union of Provincial Employees, [2011] AGAA No 60. Greivor resigned before she thought she would be fired Employee expressed second thoughts Employer knew she was unstable but accepted the

resignation Knowledge of disability should have influenced the “ease

with which the Employer relied upon her expressed intention.”

DUTY TO INQUIRE


Before taking action against an employee employers should consider: Whether that employee has disclosed a mental or

physical disability, Whether that employee has exhibited conduct

which could indicate a disability

DUTY TO INQUIRE


Employers required to consider all of the facts when making discipline and dismissal decisions

Always conduct an investigation before making decision regarding discipline or dismissal

Investigations must be objective and fair Do not jump to conclusions or make

assumptions

INVESTIGATIONS


Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133

Manager of liquor store dismissed for just cause

30 year employee Employer alleged gross workplace misconduct

including bullying, harassing and intimidating subordinates

INVESTIGATIONS


Manager had “no-nonsense” approach Employer received complaint that manager

had harassed a staff member Employer conducted an investigation prior to

making decision to dismiss

INVESTIGATIONS


Employer interviewed the complainant, the employee and witnesses

Court found investigation process was flawed Wrong person conducted the investigation Merit of complaint decided before the

investigation was finished

INVESTIGATIONS


Court characterized interviews as “interrogations”

Investigator mistakenly concluded that the employee denied all of the allegations

Court determined investigation was neither objective or fair

No just cause

INVESTIGATIONS


R. v. Cole, 2012 SCC 53 Teacher was charged with possession of child

pornography and unauthorized use of a computer

Pornography found on work-issued laptop Teacher was allowed to use laptop for

incidental personal purposes

PRIVACY


Technician found photos of an underage female student

Principal seized the laptop and handed it over to the police

Police viewed contents of laptop without a warrant and created a mirror image of the hard drive for forensic purposes

PRIVACY


Teacher argued that computer material was not admissible in court as breach of his privacy rights under Canadian Charter of Rights and Freedoms

The privacy issue made it all the way to the Supreme Court of Canada

PRIVACY


SCC agreed that police infringed privacy rights under s. 8 of the Charter

However, SCC agreed that conduct of police not an egregious breach of Charter

SCC concluded that evidence from the laptop was admissible in court

PRIVACY


Vancouver School District (2011), 212 L.A.C. (4th) 248 (Sanderson)

Grievor was dismissed with just cause for viewing and distributing pornographic material using the employer’s computer while at work

Dismissal upheld

PRIVACY


Grievor uncooperative in the investigative meetings

Deliberately tried to minimize his involvement and avoid responsibility for his actions

Conduct was premeditated and egregious No evidence that grievor had accepted

personal responsibility

PRIVACY


RELEASES

Release of claims recommended in dismissal situation

There needs to be consideration for a release Releases are generally enforceable even if an

employee later has regrets However, courts will strike down releases

where unconscionable


RELEASES

Rubin v. Home Depot Canada Inc., 2012 ONSC 3053

Employee was 63 years old with 20 years of service

Offered a severance package that was conditional on signing a release

Severance offered was only 2 days above ESA entitlement


RELEASES Court concluded that release was not

enforceable Employee was caught off guard by dismissal

meeting The notice was “grossly inadequate” Employer did not advise employee of rights

under ESA Court awarded 12 months’ notice plus benefits


Mielke v. Delta, 2010 BCHRT 170 Employee dismissed without cause because

“not a good fit” Employee accepted a severance package and

signed a release Employee then applied for another position

with the same employer

RELEASES


Employer did not consider the application Employee filed a human rights complaint

based on age and physical disability Employee said signed the release “with

reservations” Tribunal dismissed the complaint

RELEASES


Recent legislative changes Mental stress now includes mental disorders

caused by a significant work-related stressor Includes bullying and harassment Employees who suffer mental disorder

because of bullying and harassment can file WorkSafe claims

WORKSAFE AMENDMENTS


What is bullying and harassment? Inappropriate or vexatious conduct or comments; Committed or made by a person towards a worker; Which the person knew or ought to have known would

cause the worker to be humiliated, offended or intimidated;

Does not include reasonable actions related to management, direction or place of employment

Conduct must arise out of circumstances related to work

WORKSAFE AMENDMENTS


Employer required to take all reasonable steps to ensure health and safety of employees

Expanded obligations on employers and workers to ensure harassment free workplace

Proposed changes to Occupational Health and Safety Policy

WorkSafe considering feedback received on these proposed changes

WORKSAFE AMENDMENTS


Employer obligations: Perform a risk assessment of the workplace Develop and implement policies and procedures Inform workers of the risk, policies and procedures Investigate and document complaints and

incidents Take corrective action Advise victims to consult physician

WORKSAFE AMENDMENTS


Worker obligations: Protect themselves and others Refrain, report, comply

Supervisor obligations Apply and comply with employer’s policies and

procedures

WORKSAFE AMENDMENTS


Information and Privacy Commissioner report The most invasive pre-employment

screening measure Could result in an individual being unfairly

denied employment Must respect the privacy rights of the

subjects of criminal records checks

CRIMINAL RECORDS CHECKS


Best Practices Do not conduct Police Information Checks Collect the minimum amount of personal

information Only use them for sensitive positions Terminate only if the crime is related to the

position Conduct the check only after a conditional offer of

employment



Best practices (cont.) Use certified criminal records checks sparingly Results should go to the individual first Do not require additional checks for changes in

position Use ongoing checks only in very sensitive positions Checks should not be conducted by the manager



Office of the Information and Privacy Commissioner’s report May unearth more information than a local

government is authorized to collect Must have individual’s consent to collect May inadvertently collect information about third

parties

SOCIAL MEDIA BACKGROUND CHECKS


Office of the Information and Privacy Commissioner’s recommendations Do not perform checks from personal accounts Do not contract a third party to conduct checks Do not assume checks are untraceable

SOCIAL MEDIA BACKGROUND CHECKS

employer obligations vancouver seminar november 30, 2012 carolyn maceachern & joe scafe

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