Contents

  • The Importance of Obtaining Accurate Up‐to‐Date Medical Information When Dealing with Ill or Injured Employees
  • One Strike and You're Out? Single Incident Just Cause
  • The Price of Bullying in the Workplace: A Comment on the Ontario Court of Appeal's Decision in Piresferreira v. Ayotte
  • B.C. Considers Reform of Workplace Dispute Adjudication

The Importance of Obtaining Accurate Up‐to‐Date Medical Information When Dealing with Ill or Injured Employees
By Adrian Elmslie

Employee absences from the workplace due to illness or disability can raise difficult issues for employers. While regular attendance at work is a legitimate expectation for an employer to have of their employees, this expectation must also be balanced with an employer's duty to accommodate disabled employees.

The legal options available to employers to address attendance problems related to illness generally depend on the nature of the illness. As a result, decisions regarding an employee who is absent from work due to illness or injury cannot be safely made without first obtaining and reviewing accurate up‐to‐date medical information.

Often times the medical information initially received by employers consists of a doctor's note explaining that the employee is unable to work for a specified time due to illness. While such a note may assure an employer that the employee's absence from work is legitimate, such notes are generally of little assistance when dealing with prolonged absences or more serious illnesses which require consideration of the employer's duty to accommodate, access to benefits and the end of the employment relationship through the contractual doctrine of frustration.

In order to make fully informed and good faith decisions regarding these more serious issues, employers need to take the initiative to gather sufficient medical information regarding the employee's condition. In fact, there is a legal expectation that employers take active measures to ascertain the extent of an employee's disability as part of the employer's duty to accommodate, and its overarching duty to act in good faith.

Generally, such information is gathered through the employee by way of a letter to the employee that contains the following:

  • confirmation that the employer is writing to seek information required to address the employee's alleged disability and possible return to work;
  • confirmation that it is the employee's responsibility to facilitate the employer's access to this information; and
  • a request for the employee's medical advisor to complete an attached questionnaire that is intended to provide the following information:
    • details of the employee's functional limitations;
    • scope of conflict between functional limitations and the employee's job duties, if any, based on a summary of duties provided by the employer;
    • projected time limits for persistence of functional limitations;
    • identification of any treatment needs or medication that will affect, in any way, the work responsibilities of the employee; and
    • the prognosis and expected date of return to work in cases of total disability that cannot be accommodated.

While the employer will generally take the initiative in gathering medical information, it should also be kept in mind that the employee also has a duty to cooperate and, accordingly, has an obligation to provide his or her employer with any relevant and necessary medical information that is requested.

Depending on the circumstances, failing to provide such information can be proper grounds for discipline and may relieve the employer of any further obligations toward the employee. However, a single refusal to provide information is generally not sufficient to allow an employer to abandon its responsibilities with respect to gathering information or taking reasonable steps to accommodate an employee. Nor would a single refusal to provide such information give an employer the ability to terminate an employee for cause.

Rather, in the event the employee and/or attending physician fails to co‐operate in the employer's effort to obtain information relevant to the assessment, the employer should again write the employee and/or doctor indicating that the employee is obligated to provide this information. The letter should also indicate that the failure to comply with this request may jeopardize the employee's right to accommodation, and may result in discipline up to and including dismissal for persistently refusing to provide the information required.

Once the information has been gathered, the employer can then assess the situation and takes steps to ensure it meets its operational requirement, while at the same time meeting its obligations to accommodate disabled employees. Such steps may include:

  • assessing whether the employee's illness or injury actually prevents the employee from carrying out his or her duties;
  • exploring accommodation measures that might allow the employee to return to work;
  • assessing the need to hire a temporary replacement for the disabled employee during his or her absence; and
  • assessing whether the employee's state of disability is such that it has resulted in frustration of the employment contract.

It is also important to remember that illnesses and disabilities can shift or change over time and, as a consequence, it is important to obtain regular updates regarding the employee's condition in order to allow the employer to reassess and reevaluate its options, and make a well informed, thoughtful decision.

One Strike and You're Out? Single Incident Just Cause
By Joanna Scott

Can an employer summarily dismiss an employee for one mistake? The short answer is that it depends on how big of a mistake it is. An isolated act of disobedience will not normally justify immediate dismissal but, in certain circumstances, dismissal can be warranted.

The leading case on point is Laws v. London Chronicle (Indicator Newspapers) Ltd.1 In that case, the court stated that the test to be applied is whether an isolated act of disobedience amounted to a repudiation of the employment contract or one of its essential terms. Additionally, there is a requirement that the disobedience must at least have the quality that it is wilful and connotes a deliberate flouting of the essential contractual conditions. The concept of a single act of misconduct has been dealt with by Canadian courts under the various grounds that warrant summary dismissal of an employee. However one defines the conduct, the test remains consistent. The court uses a contextual approach in the application of the test and the results turn on the particular facts of each case. Some of the more common examples that are often the subject of a wrongful dismissal action are discussed below.

Breach of Workplace Policy

An employee may be summarily dismissed with cause for a single incident of wilfully breaching known and reasonable workplace policies. Where the nature of the employee's breach is sufficiently serious, having regard to all the circumstances so as to constitute a repudiation of the employment contract, the employer can terminate the employee immediately for just cause.

There have been cases, however, that have found that an isolated transgression2 or error in judgment,3 although on its face a deviation from the employee's normal behaviour, does not amount to a serious enough transgression to repudiate the employment contract and justify summary dismissal.4 Often the courts will have regard to the nature and force of the policy and the length of the employee's service when making a conclusion with respect to the application of the test. Even the breach of what may be considered a significant policy may not justify the dismissal of a long service employee, where the court finds the employee is entitled to a second chance.5

The court has also set the standard higher to immediately dismiss a long‐term employee who holds a position of some responsibility. In other words, a lower level of misconduct is required to dismiss an employee in a lower position or whose employment is of shorter duration.6 However, where the isolated act meets the test in Laws v. London, just cause will exist.

Dishonesty

The honesty of an employee is key to the employment relationship and, on that basis, isolated acts that call into question an employee's trustworthiness can often be grounds for summary dismissal. There appears to be a difference between isolated, relatively minor forms of employee dishonesty, and serious acts of dishonesty, such as theft and fraud. Historically, dishonesty was always cause for dismissal, even one isolated act. Today, the courts take a contextual approach that considers the nature and seriousness of the dishonest act. The principle of proportionality used in this analysis seeks to balance the severity of the employee's misconduct and the sanction imposed.7 Applying the Laws v. London test implicitly adopted in McKinley, the test in this scenario is whether the employee has been dishonest to such a degree that it is incompatible with his or her employment relationship.

Insubordination

A single incident of insubordination will amount to just cause only in exceptional circumstances. Where an act of insubordination strikes at the root of the employment contract, showing in effect that the employee has repudiated the contract or one of its essential terms, it is cause for dismissal.

In Amos v. Alberta,8 the Alberta Court of Queen's Bench outlined an approach to the question reminiscent of wilful disobedience, in considering whether a single incident of insubordination may constitute cause for dismissal:

Usually, one instance of insubordination will not be sufficient to summarily fire an employee. However, one incident of insubordination can be enough, if:

  • the insubordination is grave
  • it consists of wilful and deliberate disobedience of an order
  • work rules were made known to the employee
  • work rules were consistently enforced
  • work rules were clearly communicated to the employee
  • the work order was authorized, that is, that it came within the scope of the worker's duties
  • the worker was made aware, unequivocally, that discipline is the penalty for disobedience
  • the work order was lawful and reasonable in content
  • the employee has no reasonable excuse for disobedience
  • the breach is serious

In summary, the court will assess all relevant circumstances in the context of the Laws v. London test to determine if, in a particular case, a single act of insubordination will justify summary dismissal.

Conclusion

In several cases, the courts have attempted to break down an isolated act into several smaller acts to justify dismissal.9 While the Laws v. London test is not always referenced in a court's assessment of a single incident just cause defence, the language used is usually consistent with this foundational test. A court will always engage in a contextual analysis, balancing the misconduct of an employee with the severity of the sanction to determine whether it is, indeed, one strike and you're out.

The Price of Bullying in the Workplace: A Comment on the Ontario Court of Appeal's Decision in Piresferreira v. Ayotte
 By Andy Pushalik

The scales of justice recently tipped in favour of employers as the Ontario Court of Appeal ruled in Piresferreira v. Ayotte10 they cannot be held liable for the negligent infliction of mental suffering. In a precedent setting judgment, the Court eliminated a significant portion of the damages initially awarded at trial – an award which exceeded $500,000.00 – and clarified the extent to which employers will be held responsible for the damages that flow from managers engaged in bullying‐type behaviour.

What Happened

In the beginning Marta Piresferreira was a model employee. She routinely exceeded her sales targets for which she received glowing performance reviews and generous bonuses. However, for a variety of reasons, many of which being beyond her control, Piresferreira's performance began to decline starting in 2004. Like her successes, these poor results were reflected in her performance reviews as her supervisor, Richard Ayotte, became increasingly dissatisfied with her failure to hit certain sales targets.

Ayotte was a self‐described "hands on manager" who often yelled and swore at employees. As Piresferreira continued to struggle in her work, she became a frequent target for Ayotte's expletive laden outbursts.

On May 12, 2005, the situation came to a head. Upon learning that Piresferreira had failed to secure the attendance of a client for an important meeting, Ayotte launched into a tirade accusing Piresferreira of not doing her job. As Piresferreira attempted to show Ayotte an e‐mail on her BlackBerry indicating that she had in fact made all possible efforts to arrange the meeting, Ayotte shoved her, subsequently telling her "to get the hell out of his office."11

Feeling shaken and violated, Piresferreira left work for the day. Upon returning to the office several days later, rather than apologizing, Ayotte presented Piresferreira with a Performance Improvement Plan ("PIP"). Piresferreira refused to sign the PIP and instead lodged a formal complaint with her employer's human resources department. After an investigation which involved meeting with Ayotte but not Piresferreira, Human Resources issued a written disciplinary warning against Ayotte and ordered that he attend counselling sessions on effective communication and conflict management.

Piresferreira was subsequently diagnosed with post‐traumatic stress disorder; she went on sick leave and never returned to work. In a letter dated September 21, 2006, Piresferreira was advised by her employer that she had been deemed to have resigned from her position effective September 19, 2006.

The Trial

The trial judge determined that Piresferreira had been constructively dismissed, but more, that she had suffered assault and battery as well as the intentional and negligent infliction of emotional distress and mental suffering. In addition to being held vicariously liable for Ayotte's actions, the employer was assessed with further damages for failing to provide its employees with a safe and harassment free working environment, failing to sufficiently investigate the incident and imposing disciplinary measures that were "inappropriately mild."12 Including legal costs, the judge issued an order compelling the defendants to pay more than $700,000.00.

The Court of Appeal

On appeal, the Court eliminated the damages founded on negligent and intentional infliction of mental suffering. Writing on behalf of a unanimous bench, Justice Juriansz noted that the law does not recognize a cause of action against employers grounded in the negligent infliction of mental suffering. In his view, such a duty would be a "considerable intrusion by the courts into the workplace."13 There was also no basis to support a finding of intentional infliction of mental suffering. While egregious, Ayotte's conduct did not reach the necessary legal threshold, that is, it was not "calculated to produce harm."14 Finally, the damages which had been found at trial to flow from Piresferreira's assault and battery were too remote: "Piresferreira's psychological disabilities and her inability to work in any employment were largely caused by matters other than the battery itself."15 In the end, the Court fashioned an award reflective of past claims for constructive dismissal including 12 months' reasonable notice, $15,000.00 in damages for the battery and an additional $45,000.00 for the mental suffering related to the manner of Piresferreira's dismissal – a total of approximately $147,855.00.16

Where We Go From Here

While this decision certainly falls in the 'win' column for employers, it nonetheless highlights the importance of eliminating harassment in the workplace. As more and more jurisdictions look to curb inappropriate workplace behaviour through the enactment of workplace harassment legislation, employers must ensure that they have adequate systems in place that effectively allow for the reporting and investigation of such incidents. To the extent that employers fail to address this issue, they could find themselves on the hook for significant monetary penalties.

B.C. Considers Reform of Workplace Dispute Adjudication
By Carman J. Overholt, Q.C.

With the next provincial election in British Columbia not being held until Tuesday, May 14, 2013, the Provincial Government has sought the input and recommendations of the BC Law Institute on the subject of workplace dispute resolution. The term "super‐tribunal" has been used to describe a radically different model proposed for the adjudication of disputes that arise in the workplace. Under one proposal, a single tribunal would be responsible for adjudicating all disputes under the B.C. Labour Relation Code, Employment Standards Act and Human Rights Code (the "Legislation"). At present, disputes that arise under the Legislation are adjudicated by separate and distinct Tribunals that were each created in order to administer a separate piece of legislation. The Employment Standards Tribunal, the BC Human Rights Tribunal and the B.C. Labour Relations Board (the "B.C. Workplace Tribunals") each have separate and distinct jurisdiction granted to them pursuant to their enacting legislation.

In 2002, the Provincial Government established the Administrative Justice Reform Project (the "Project") which led to considerable reform of the legislative framework governing administrative tribunals in the Province of British Columbia. It was recognized that legislation was needed to create a framework in which administrative tribunals would operate. As a result of the Project, the Administrative Tribunals Act [SBC 2004 Chapter 45] was introduced on May 20, 2004 dealing with a range of matters relating to the operation of administrative tribunals, including the appointments of members, terms in office and appeals of decisions of the tribunals.

The introduction of administrative tribunals in Canada was intended to provide for the administration of justice in certain areas that would be informal, cost effective and, most importantly, accessible to individuals who are not represented by legal counsel. The proliferation of administrative tribunals was, in part, recognition that the Courts were not an appropriate place to resolve disputes in certain areas, including the labour and employment area. As a result, a wide range of tribunals exist in British Columbia and Canada, generally, that are responsible for administering legislation that is important to the proper functioning of our society, including labour, employment and human rights legislation.

The B.C. Workplace Tribunals have separate and distinct rules, procedures and forms to be utilized by those involved in disputes under the Legislation, and websites where the public has access to the decisions of the Tribunals and other information. Considerable information is available to the public through the websites to explain the nature of each piece of legislation, and how it is administered and interpreted.

Concern has been expressed that the procedural rules governing proceedings under the Legislation are complex and add a level of formality that is inconsistent with the goal of accessibility. Although the adjudication process is informal in the sense that hearings conducted by the B.C. Workplace Tribunals occur in an informal setting, litigants are required to deal with complex evidentiary and legal issues. The decisions rendered by the Tribunals are often lengthy in addressing the evidence presented by the parties, in addition to the extensive jurisprudence relevant to the legal issues raised. The decisions of the B.C. Workplace Tribunals are subject to judicial review.

Since the Legislation and the B.C. Workplace Tribunals deal with different substantive legal rights and remedies, it is not uncommon for a litigant to proceed with more than one complaint arising from the employment relationship and one dispute. Where a complainant proceeds with more than one complaint, there is a significant risk that the Tribunals will make inconsistent findings of fact and that additional procedural issues will be raised that may defeat the intended goals of efficient, expedient and inexpensive adjudication.

The extensive litigation that has occurred in Canada in the past 20 years regarding jurisdictional issues is evidence that the current patchwork of administrative tribunals may not be the most efficient means of administering justice in this area. An example that illustrates the problem of overlapping jurisdiction is evident when a bargaining unit employee files a complaint with the B.C. Human Rights Tribunal alleging discrimination against the employer. Although the bargaining unit employee will have rights pursuant to the collective agreement and the dispute resolution mechanism under that agreement, a bargaining unit employee may decide to proceed directly to the Human Rights Tribunal with a complaint. In that instance, the employer is required to deal with the complainant directly, while at the same time, the employer is required to deal with the trade union acting on behalf of all bargaining unit employees. The law is settled that labour arbitrators have jurisdiction to address not only labour relations, but also human rights issues that arise under a collective agreement. The Labour Relations Code contemplates that the lawful representative of the bargaining unit employee is the trade union. It is the union that has the right to file a grievance on behalf of the employee. An employer in this example is faced with not only having to defend the human rights complaint, but also a possible grievance under the collective agreement. In this way, the employer is required to deal with a legal claim in the proceeding that does not contemplate the involvement of the trade union representing the bargaining unit employee. Given the complexity of the legislation and lack of clarity in the law with respect to the limits on jurisdiction, employers are vulnerable to the process being misused, and multiple legal proceedings being initiated that all relate to the same employment and one dispute. To compound the problem, a litigant may choose to initiate legal proceedings in the Courts in addition to filing complaints and initiating separate proceedings under the Legislation.

The BC Human Rights Coalition has voiced its opposition to the proposed super‐tribunal idea but has suggested changes to the current rules in order to address some of the areas of concern identified. The BC Business Council has considered the proposal but there is no consensus in the business community or this subject at this time. The discussion of law reform in this area is at an early stage. The review of this subject by the BC Law Institute will be thorough and will likely ignite more discussion and debate by stakeholders.

The B.C. Workplace Tribunals were created at a time when our economy and society were fundamentally different. There have been many significant changes in the past 20 years that would justify a careful review of the existing legislative framework for workplace dispute resolution to ensure that it meets the needs of our society. Given the strong case that can be may made that some efficiency may be achieved in having one adjudicative body determine workplace disputes, changes may occur in British Columbia in this area. British Columbia has not been reluctant in the past to take innovative approaches in connection with the resolution of workplace disputes. A new approach to the administration of justice in this area and a different legislative framework may be on the horizon in British Columbia.

Footnotes

1 [1959] 2 All E.R. 285 (C.A.) ("Laws v. London")

2 Wiebe v. Central Transport Refrigeration (Man.) Ltd., [1993] M.J. No.86 (Q.B.), var'd on other grounds [1994] M.J. No. 279 (C.A.) 3 Basque v. Parrtown Security (1993) Ltd., [1995] N.B.J. No. 441 (Q.B.) 4 Supra at 16‐17 at F.N. 2.

5 Supra at F.N. 3

6 For a recent example, see Rockall v. Munroe Concrete Products Ltd., [2010] O.J. No. 2626 (S.C.)

7 McKinley v. B.C. Tel, [2001] S.C.J. No. 40 (S.C.C.) ("McKinley")

8 [1995] A.J. No. 182 (Q.B.) at para 51

9 See Smith v. Kamloops & District Elizabeth Fry Society, [1996] B.C.J. No. 12214 (C.A.)

10 2010 ONCA 384, [2010] O.J. No. 2224.

11 Ibid. at para. 9.

12 Ibid. at para. 34.

13 Ibid. at para. 62

14 Ibid. at para. 71.

15 Ibid. at para. 84.

16 Ibid. at para. 95.

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