hot hr topics for 2015

The Good, The Bad and the UglyU t iUncertain

Top Legal Developments – 2014-2015

P.A. Neena GuptaRobert Salisbury and Katia DiabRobert Salisbury and Katia Diab

1

Privacy: McIntosh v. Legal Aid Ontario

2


• Employee of LAO Reddick accessed McIntosh’s• Employee of LAO, Reddick, accessed McIntosh s personal information, contained in LAO file.

• Reddick threatened to disseminate the information.• McIntosh initiated an action against LAO and Reddick

personally, alleging violation of privacy rights.• Reddick did not defend the action.

3


• Jones v. Tsige, 2012: Intrusion upon seclusiong , p• One who intentionally intrudes, physically or

otherwise, upon the seclusion of another or his i t ff i i bj t t li bilit tprivate affairs or concerns, is subject to liability to

the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

• Reddick had improperly accessed the plaintiff’s private information and provided it to her ex-boyfriend.

• IS THIS A GOOD CASE FOR EMPLOYERS?

4


Employers have a duty to protect theEmployers have a duty to protect the confidential information belonging to customers. This duty is one that needs to be clearly and explicitly communicated to employees. Employers need to train (and

d t t i i ) b t fid ti litupdate training) about confidentiality.

5

Social Media: United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc.g

6

Social Media: United Steelworkers of America, Local 9548 v. Tenaris Algoma Tubes Inc.g

• Male grievor went on Facebook and complained g pabout female co-worker - suggested “violent and humiliating sex” act.X l d b t th ti d b t• X learned about the posting and became very upset.

• Posts not “private”. • Tenaris had a standard workplace violence human• Tenaris had a standard workplace violence, human

rights and harassment policy and also part of Collective Agreement.

7

Social Media: United Steelworkers of America, Local 9548 v. Tenaris Algona Tubes Inc.g

• Company fired worker; worker grieves.p y ; g• Held: Grievance denied. Grievor’s conduct

constituted physical and sexual threats, contrary to Bill 168 th C ’ d f d t d thBill 168, the Company’s code of conduct and the Company’s Workplace Harassment Policy. Reinstatement would be contrary to the goals established by such policies.

IS THIS A GOOD CASE FOR EMPLOYERS?• IS THIS A GOOD CASE FOR EMPLOYERS?

8

Social Media: United Steelworkers of America, Local 9548 v. Tenaris Algona Tubes Inc.g

“ …progressive discipline is not appropriate in…progressive discipline is not appropriate in every case. Some offences are so serious that they warrant discharge. An employee does not

il t f l h tnecessarily get one free sexual harassment before he loses his job.”

Laura Trachuk – Sole Arbitrator

9

William Osler Health System and ONA and Dr. G

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• The grievor, a nurse, claims she was sexually g , , yharassed by Dr. G.

• Hospital agrees and strips Dr. G of his privileges, so th t h t ti f th k lthat he cannot practice from the workplace.

• Dr. G applies to the hospital to have his privileges restored.restored.

• Hospital argues that the arbitrator does not have jurisdiction to determine Dr. G’s privileges at the h it lhospital.

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• Arbitrator concludes that the question is not to qdetermine Dr. G’s medical privileges, but to determine how close (and under what conditions) Dr. G should work in relation to the grievor given his prior conductwork in relation to the grievor, given his prior conduct and all other relevant information, including efforts he has made to remedy his prior misconduct.

• Arbitrator treats matter as a health and safety issue.


12

Confidentiality: Jan Wong v. The Globe and Mail Inc.

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• Jan Wong is an award-winning author who hadJan Wong is an award winning author who had previously worked with The Globe and Mail.

• In her 2012 autobiography, Wong indicated that she ff d f d i d th t i 2008 hsuffered from depression and that in 2008, her

previous employer “caved” and paid her “a big pile of money to go away.” y g y

• Her settlement agreement required confidentiality.• Was that a breach?

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• The Globe and Mail sued for every cent paid to her.y p• Labour arbitrator ruled that Wong had to pay The

Globe and Mail everything back!• The decision was very carefully drafted to avoid

mentioning how much money involved.


15


Regardless of jurisdiction -- courts andRegardless of jurisdiction courts and tribunals recognize that without giving confidentiality clauses some teeth --nobody would ever settle for fear of creating a precedent.

16

Termination: Kimball v. Windsor Raceway Inc.

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• Plaintiff, Kimball expressed his intention to retire after , phis 65th birthday.

• Kimball did not retire.• Shortly after Kimball was placed on an indefinite layoff

and provided with certain entitlements under the ESA• At that time Kimball was a long service employee• At that time, Kimball was a long service employee.• Kimball brought a claim for wrongful dismissal

claiming 24 months notice.

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Held:• Kimball is entitled to receive statutory severance pay.• If the dismissed employee has no intention to look for

work, but has instead decided to retire, the very purpose for which reasonable notice is required to be given is absent. That is a factor that may well begiven is absent. That is a factor that may well be relevant in assessing what constitutes reasonable notice in this case.


19


• Employees’ future intentions factor into aEmployees future intentions factor into a determination respecting reasonable notice entitlements.

• Ask all employees about their career p yintentions/plans, not just the older worker.

20

Mental Stress: Decision No. 2157/09

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• Worker diagnosed with an adjustment disorder due to g jmistreatment by co-worker.

• Worker’s claim for benefits was denied by the WSIB.• Worker’s disorder as a result of mistreatment did not

constitute a “traumatic and unexpected event” as required by subsections 13(4) and (5) of the WSIA.required by subsections 13(4) and (5) of the WSIA.

• Worker challenged these subsections as being unconstitutional.

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Held: • Restrictions on mental stress were unconstitutional. • Worker entitled to benefits.


23


Employees may now be eligible for WSIBEmployees may now be eligible for WSIB benefits for the effects of harassment in the workplace.p

If the WSIB covers general harassment andIf the WSIB covers general harassment and mental distress, employee cannot sue for those types of damages in court.

24

Severance: Paquette v. Quadraspec

25

Severance: Paquette v. Quadraspec

• Following termination of his employment, Paquette g p y , qsought the court’s declaration that he was entitled to severance pay pursuant to the ESA if Quadraspec’s global payroll exceeded $2 5 millionglobal payroll exceeded $2.5 million.

• Held: A company’s global payroll is to be considered when determining entitlements to severance pay pursuant to the ESA.


26

Investigations: B.C. Ferry Services Inc. v. B.C. Ferry and Marine Worker’s Union

27


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• The Queen of the North sank - Employer investigated Q p y gthe accident.

• The Grievors refused to answer any questions about h t h d h d i di t l b f th id twhat had happened immediately before the accident

unless the information would be kept confidential.• The Grievors were suspended without pay for theirThe Grievors were suspended without pay for their

refusal to cooperate in the investigation.• Union argues that a grievor's silence, standing alone,

i t j t d bl f di i liis not a just and reasonable cause for discipline.

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• Employer had “legitimate public purpose" in learning p y g p p p gwhat had occurred.

• At arbitration, and on the review of that award, it was f d th t BC F i ’ d t t k f ll di lfound that BC Ferries’ duty to make full disclosure outweighed the employees’ right to remain silent.


30

Investigations: Recent Events

Ghomeshi DalhousieGhomeshi Dalhousie

31

Investigations

THE BASIC PRINCIPLE:

The duty to investigate is a “means” by which theemployer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employeesfree environment and providing its employeeswith a safe work environment.

Laskowska v. Marineland of Canada Inc., 2005HRTO 30

32

Investigations: Scaduto v. Insurance Search Bureau

• Mr. Scaduto’s employment with ISB was terminated p yfor poor performance.

• At the termination meeting, Mr. Scaduto alleged, for th fi t ti th t h b li d h b ithe first time, that he believed he was being scrutinized unfairly because he was gay.

• ISB did not investigate Mr. Scaduto’s allegations asISB did not investigate Mr. Scaduto s allegations as his employment had already been terminated.

33

Investigations: Scaduto v. Insurance Search Bureau

• Held: Mr. Scaduto was not discriminated against and gthere was no duty to investigate the allegations raised at the time of termination:

Th i t ti f th C d i l• There is no contravention of the Code simply because there was a failure to investigate a complaint of discrimination where there is no finding of discrimination.


34

Investigations: legislative requirement, OHSA

• Obligations: preparation and implementation of g p p pworkplace policies re violence and harassment.

• Workplace violence program must include procedures ffor: • controlling risks, summoning immediate assistance

when workplace violence occurs or is likely towhen workplace violence occurs or is likely to occur, reporting and investigating incidents or complaints of workplace violence.

35

Disability: Galuego v. Spectrum Health Care

• Applicant , a PSW, refused to attend an in office pp , ,meeting to discuss work related problems with supervisor.S i f d t l hi th h d l f• Supervisor refused to place him on the schedule for appointments until he did so.

• Doctor’s note indicated he had “mental stress.”Doctor s note indicated he had mental stress. • Applicant alleged he was constructively dismissed

and brought a complaint re discrimination and i lreprisal.

36

Disability: Galuego v. Spectrum Health Care

• Regarding the Applicant’s claims of mental stress, the g g pp ,Tribunal stated:

Suffering from stress can turn into, or be l t d t t l di bilit b t it i trelated to, a mental disability, but it is not a

disability in and of itself.


37

Employment Standards Act changes – Not good!

Old New (January 1 2015)Old $10,000 cap on ESA cases.

New (January 1, 2015)No cap on ESA cases.

6 or 12 month limitation period.

Temporary help agencies liable f l i

24 month limitation period.

Temporary help and employerfor wage claims.

Minimum wage hikes had to be ifi ll l t d ( d

Temporary help and employer client jointly liable for wage claims.

specifically regulated (and therefore subject to more scrutiny).

Minimum wage automatically linked to CPI.

38

Thank You

P A N G t R b t S li b K ti Di bP.A. Neena Gupta Robert Salisbury Katia Diab519-575-7501 519-575-7520 [email protected] [email protected] [email protected]

Follo Us on T itterFollow Us on Twitter:@GowlingsHR@ g

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