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Employee’s Duty to Mitigate

When an employee is terminated without cause, the law requires the employee to mitigate his/her loss by diligently searching for alternative employment. In order to discharge this duty, the terminated employee must take steps that a reasonable person would take in the circumstances. Consequently, an employee who chooses to focus on personal preferences , such as for example, pursuing a new career, or taking a lower paying job, when the employee could have secured a comparable job, may fail to properly discharge the duty to migitage.

Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026, is a good example of a situation in which the plaintiff failed to mitigate her damages by turning down full-time work.

Background

Ms. Schinnerl was terminated without cause by her employer, Kwantlen, on March 2, 2016 and was offered a ten-month salary continuation and benefits package. Under the terms of the package, if the plaintiff found alternative employment with another public-sector employer but the salary was less than what she made at Kwantlen, Kwantlen would pay the difference for the remaining salary continuance period.

Ms. Schinnerl got a full-time job at Douglas College, starting June 13, 2016 at a salary higher than what she earned at Kwantlen. However, Ms. Schinnerl then arranged to work part-time during the period June 13 – December 31, 2016 because she wanted to do her doctoral studies.
The issue that the court had to consider was whether Ms. Schinnerl, who had chosen to accept part-time employment because she wanted to complete her doctoral studies, had fulfilled her duty to mitigate.

Kwantlen argued that it should not have to pay the plaintiff the difference in salary for the remainder of the salary continuance period, because the plaintiff’s decision to work only part-time was unreasonable and inconsistent with her duty to mitigate her damages.

Decision

The court noted that the plaintiff was entitled to choose to work part-time in order to complete her studies and that a dismissed employee is entitled to consider her long-term interests. However, this did not mean that the defendant employer had to pay for it.

The court held that accordingly, Kwantlen’s obligation to provide the plaintiff with salary continuance ended on June 13, 2016 – the date on which the plaintiff had the opportunity to work full-time and mitigate all of her damages.

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Duty to Accommodate: reasonableness, not perfection

In Adair v. Forensic Psychiatric Services Commission (No. 2), 2017 BCHRT 147, a decision of the B.C. Human Rights Tribunal (the “Tribunal”) in July of last year, the Tribunal made it clear that the employer’s duty to accommodate, does not extend to perfect accommodation.

Background

Mr. Adair had worked for the Forensic Psychiatric Services Commission (the “Commission”) for approximately 13 years and held the position of Forensic Security Officer (“FSO”). All FSOs were required to have a valid class 4 driver’s license.

In late 2012, Mr. Adair, had to go on a medical leave of absence as a result of suffering an epileptic seizure. During this leave, his class 4 commercial driver’s license and his class 5 license, was cancelled by the Office of the Superintendent of Motor Vehicles.

In November 2013, Mr. Adair informed the employer that he had been cleared to return to work in January 2014 but that his class 4 driver’s license would not be reinstated until he was seizure-free for a period of five years. In December 2013, Mr. Adair and his union met with the employer to discuss Mr. Adair’s return to work and accommodation.

Prior to going on the medical leave, Mr. Adair had primarily worked the day shift and his duties included driving persons held in custody to court hearings and medical appointments. As Mr. Adair’s class 4 license had been cancelled, this was no longer possible, so the Commission proposed an accommodation whereby Mr. Adair would mostly work night and evening shifts, which did not require him to do any driving.

Mr. Adair was unhappy with the proposed accommodation and sought to work the day shift. He claimed that working the night shift would have resulted in decreased pay and that it would also mean that he would not get to see his children. He had two young sons aged 8 and 11 and his family was very important to him. He then proposed working 90% evening shifts and 10% on the night shift relief.

A few days after returning to work, Mr. Adair’s union filed a grievance on his behalf. Mr. Adair subsequently also filed a human rights complaint against the Commission alleging that the Commission had discriminated against him on the basis of physical disability.

Decision

At the hearing, Mr. Adair claimed that while he had proposed the evening/night shift combination, he had done so reluctantly because it appeared to be the only way to retain his job and his pay rate. He also stated that the Commission knew that, notwithstanding his proposal, he was seeking better accommodation. For him, the best accommodation was to continue on the day and afternoon schedule and for the employer to permit him to drive using his class 5 driver’s license, or to have a colleague drive when it became necessary to transport patients.

Mr. Adair also stated that working the evening shift had a “huge” effect, particularly on his younger son, his wife was “burnt out” and it caused “undue hardship” on him and his family.

The Tribunal reiterated that the search for accommodation is a multi-party inquiry. While the creation of a reasonable accommodation was ultimately the employer’s responsibility, the employee also had a role to play, including proposing reasonable alternatives where possible and cooperating in a reasonable accommodation plan proposed by the employer.
The Tribunal further noted that the “object of the exercise in accommodating an employee with a disability is to ensure that an employee can work if the employee is able, and to remove barriers to continued and productive employment where that can be done without undue hardship”.

Applying the above principles to the facts, the Tribunal found that the employer’s accommodation in this case was reasonable.

The Tribunal further noted that even if Mr. Adair had brought his complaint as one of family status, he would not have been successful “because the scheduling did not interfere with his obligation to provide child care or any other legal responsibility for his children, and his ability to continue to perform his job”.

Employer Takeaways

• An employer is required to provide reasonable accommodation. It does not have to be perfect.
• An employee cannot insist on a perfect solution, or a solution that is preferable to the employee.
• Any accommodation that is offered should be designed to balance the needs of the employer as well as the employee.
• A grudging attempt to provide the minimum accommodation possible, may be found to be unreasonable.

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Expanded Scope of Workplace Human Rights

In December 2017, the Supreme Court of Canada issued a landmark decision, British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, which expands the scope of workplace human rights protection.

Background

The Schrenk case involved a human rights complaint made by Mr. Mohammadreza Sheikhzadeh-Mashgoul, a civil engineer working for Omega and Associates Engineering Ltd. (the “Complainant”), claiming that he had been harassed by a site supervisor while working on a road improvement project.

The alleged harasser, Schrenk, worked for Clemas Contracting Ltd. (“Clemas”), the primary construction contractor on the project.

The Complainant was a Muslim of Iranian descent. The alleged harassment included:

  • Schrenk asking if the Complainant was going to blow them up with a suicide bomb;
  • calling the Complainant, a “f…ing Muslim piece of shit”;
  • telling the Complainant to “go back to the mosque” where he came from; and
  • making insinuations about the Complainant’s sexual orientation.

After Mr. Sheikhzadeh-Mashgoul complained about Schrenk to Clemas, Clemas eventually removed Schrenk from the site and terminated his employment.

Even though Mr. Clemas was not the Complainant’s employer, and the two men were not co-workers, the Complainant filed a complaint with the BC Human Rights Tribunal (the “Tribunal”) against Mr. Schrenk as well as Clemas alleging discrimination based on religion, place of origin, and sexual orientation.

Schrenk and Clemas argued that the Tribunal did not have jurisdiction to hear the complaint because the Complainant did not have an employment relationship with either of them.

Issue of Jurisdiction

The Tribunal rejected the argument of Schrenk and Clemas and claimed jurisdiction on the basis that any discrimination suffered “regarding employment” could attract the protection of the BC Human Rights Code (the “Code”).

The Tribunal further noted that it would be unduly artificial and not in keeping with the purposes of the Code to exclude employees from its protection simply because the alleged perpetrator of the discriminatory behaviour worked for a different employer at a shared worksite.

Schrenk sought judicial review of the Tribunal’s decision and the BC Supreme Court dismissed the petition. Schrenk then appealed to the BC Court of Appeal.

BC Court of Appeal

The BC Court of Appeal unanimously allowed Mr. Schrenk’s appeal and held that the Tribunal did not have jurisdiction to address the complaint.

The Court of Appeal stated that the Code only seeks to address situations where persons are forced by others who occupy positions of power to suffer insult or abuse as a term or condition of employment. Accordingly, the proper question to be asked was whether Mr. Schrenk, the site foreman, stood in such a relationship to the Complainant. Because the answer was “no”, the Tribunal did not have jurisdiction to hear the complaint.

The Tribunal then appealed the BC Court of Appeal’s decision to the Supreme Court of Canada.

The Supreme Court Decision

The issue before the Supreme Court of Canada was whether discrimination regarding employment can be perpetrated by someone other than the complainant’s employer, or superior in the workplace.

In answering the question in the affirmative, a majority of the Supreme Court of Canada disagreed with the narrow interpretation of the BC Court of Appeal that the Code only protected employees from discriminatory harassment by their superiors in the workplace. The Court stated that the protection of the Code “extends to all employees who suffer discrimination with a sufficient connection to their employment context.” [our emphasis]

The Court held that this would include discrimination by co-workers, including where the co-workers have different employers.

Based on this purposeful approach, the Supreme Court allowed the appeal and held that the Tribunal had jurisdiction over the complaint.

Employer Takeaways

  • The Schrenk decision shows that the Code provides a right to a workplace free of discrimination and that the scope of the Code is not limited to only protecting certain workplace relationships.
  • Discrimination can occur even where the party engaging in the alleged discriminatory conduct is: (i) someone who works for another employer; (ii) has no power or control over the complainant; and (iii) has no authority to force the complainant to endure the discrimination as a condition of his or her employment.
  • Section 13(1)(b) of the Code does not restrict who can perpetrate discrimination, it defines who can suffer employment discrimination. If the discriminatory conduct that targets employees has a sufficient nexus to the employment context, then it is prohibited.
  • Whether there is a sufficient nexus between the alleged discrimination and the employment context must be determined by looking at the specific facts of each case.
  • This decision has extended the scope of workplace human rights and employers need to be mindful of the implications, particularly in shared worksites.
  • The decision could also result in contractors being held to be personally liable for discrimination.
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Video Surveillance and Employee Privacy

A very recent decision from the Office of the Information and Privacy Commissioner of British Columbia (OIPC), 2017 BCIPC 58, is a reminder to employers about employee privacy and when it is acceptable to conduct video surveillance.

Background

In June 2017, a video showing disturbing images of animal abuse at a chicken farm in the lower mainland, was released to the media. After the video was released, some of the employees received death threats by an enraged public and the company’s reputation was tarnished.

The company, which offers chicken catching services to farmers and large poultry processing companies located in BC, hired a crisis management consultant to help prevent future misconduct by its employees and also restore its reputation.

On the advice of the consultant, the company required its employees to wear surveillance video cameras while they worked. The thinking was that this would discourage employees from abusing the chickens.

It appeared that this successful, because the company executive who was responsible for reviewing the surveillance when it was being tested, indicated that he had not observed any misconduct when he reviewed the recordings.

When the OIPC learned that the company intended to continue using the video surveillance, it initiated an investigation to examine whether the surveillance complied with the Personal Information Protection Act of British Columbia (“PIPA”).

PIPA governs the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of individuals to protect their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

Decision

Under PIPA, personal information that is collected can only be used for purposes that individuals have been notified of, or which are sufficiently obvious to provide deemed consent and which a reasonable person would consider to be appropriate.

In this case, the company did not notify individuals of all the potential uses of the personal information it collected through the surveillance.

At a group meeting, the company simply told the employees that the surveillance was a preventive measure to protect their reputations. It did not inform the employees that the surveillance could be used for the purpose of managing their employment relationship with the company and that they could be disciplined if the recordings showed that they were not following standard operating procedure. The company also did not tell the employees that they might show the surveillance to customers, as a means of managing the company’s reputation.

The OIPC also found that even if the company was going to use the information captured by the video surveillance “solely for deterring improper conduct of the employees”, such collection would not be “reasonable”. It was not reasonable, because the reasonable person standard requires that surveillance should only be used as a last resort after less invasive measures to achieve the business purpose, have been exhausted.

In the current situation, the company had not considered any other alternatives. For example, it had not considered measures such as employee training or “spot checking” the chicken catching operations to deter abuse.

The OIPC also noted that PIPA authorizes the implementation of video surveillance in accordance with the reasonable person test, only in the following circumstances:

  • there is a real and serious threat to personal safety or the security of property;
  • the organization has tried all reasonable alternatives without success; and
  • there is a reasonable prospect that the video surveillance will address those threats.

In the situation under consideration, there were no prior instances of employee violence, workplace injuries, thefts, or other safety concerns that justified the installation of the surveillance system. Consequently, it was not authorized under PIPA.

Employer Takeaways

  • If an organization is collecting surveillance recordings of individuals while at work, it is collecting “personal information” under PIPA.
  • An organization should limit the collection of personal information only to what is necessary for a previously identified purpose.
  • PIPA authorizes the implementation of video surveillance in accordance with the reasonable person test, only where the three pre-conditions described in the decision, are satisfied.
  • Video surveillance should be a last resort – it is not a “quick and easy” fix.
  • Ensure that your organization has a privacy policy as well as procedures which address the collection of personal information.
  • Review your privacy policy and procedures periodically to ensure relevancy and currency.
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Managing Employee Performance

Many organizations conduct formal performance reviews, typically once a year. While such reviews can be an invaluable tool for evaluating employees, if done poorly, without preparation, they can be counter-productive and harmful to the organization.

For employee performance management to be meaningful and useful, it is important to remember that it is a process which requires planning and preparation; the annual review is but one part of that process.

An effective employee performance review process involves:

  • proactive planning at the beginning of the performance year;
  • ongoing feedback and coaching during the year; and
  • an annual Performance Plan and Review meeting.

Proactive Planning within the employee performance management process includes long term preparation such as engaging in ongoing dialogues throughout the performance cycle and documenting and addressing issues as they arise, as well as short term preparation for the actual interview. For example, booking time for the interview, making sure the employee has a copy of his/her job description, etc.

During the actual employee performance review meeting, it is important to acknowledge an employee’s strengths before discussing areas which require improvement. During the meeting, the supervisor should

  • focus on specifics;
  • Keep comments impersonal and job related; and
  • be respectful.

Before the meeting ends, it is important for the employee to have a clear idea of the goals and expectations for the next year and what support he/she can expect from the organization. It is also important to check in periodically with the employee to find out how the employee is doing and what further support/training is required.

If the employee performance management process is successful, it will result in the organization:

  • identifying performance gaps;
  • determining the cause(s) of the inadequate performance;
  • developing a plan of action to close the performance gap;
  • implementing the plan of action; and
  • evaluating performance to see whether plan is working and the gap is closing
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Are your restrictive covenants enforceable?

Most companies wish to include restrictive covenants in their employment and contractor agreements. Often, companies want these covenants to be drawn up as broadly as possible and are displeased when advised that a court will not enforce restrictive covenants unless:

  1. they are reasonable as to length of time and location; and
  2. the scope of the restriction is limited to what is reasonably necessary to protect the legitimate business interests of the company.

A recent decision of the BC Court of Appeal, IRIS The Visual Group Western Canada Inc. v. Park, 2017 BCCA 301, reconfirms the principles relating to restrictive covenants.

Facts

IRIS, an eye care services provider, delivers its services and products to customers through optometrists. These optometrists provide services to IRIS as independent contractors.

Dr. Park, an optometrist, entered into an Optometric Services Agreement with IRIS which set out the terms and conditions pursuant to which she would provide services to IRIS (the “Agreement”).

The Agreement included a non-competition clause which prohibited Dr. Park from competing with IRIS for a period of three (3) years, whether directly or “in partnership or in conjunction with” any person or company “carrying on, engaged in, interested in or concerned with a business that competes with” IRIS within 5 km of the IRIS location where she provided the services.

The non-compete clause also contained a non-solicitation provision.

Dr. Park wished to set up her own practice and asked IRIS to release her from the non-competition clause, which IRIS refused to do.

Dr. Park went ahead anyway, and started a practice within a 3.5km radius of the IRIS at which she had worked. IRIS then sought an injunction preventing her from competing against it pursuant to the terms of the Agreement.

Decision

At trial, the judge held that while the non-compete clause was reasonable as to duration and geographic limit, it was broader than necessary to protect the business interests of IRIS and was accordingly, unenforceable.

In arriving at this decision, the trial judge characterized the Agreement as being closer to an employment agreement, which warranted a heightened degree of scrutiny to determine whether the non-compete was reasonable as between the parties.

Court of Appeal

On appeal, the Court of Appeal confirmed that when the enforceability of a non-competition clause is in issue, the burden of establishing that it is reasonable as between the parties is on the party who seeks to enforce the clause.

To determine whether a covenant is reasonable between the parties, the first step that a court must take is to look at the context of the clause to determine the degree of scrutiny to be applied to the clause. In this regard, there is a distinction between non-competition clauses found in employment agreements and non-competition clauses found in agreements for sale of a business.

Based on the context of the clause, the Court noted that the trial judge had characterized the Agreement appropriately as being more like an employment agreement because: (1) there was a power imbalance between the parties, that favoured IRIS; and (2) there was no “goodwill” payment as in a sale of business context.

In arriving at the conclusion that there was a power imbalance which favoured IRIS, the Court noted the following:

  • there was no negotiation around the restrictive covenants – they were presented to Dr. Park as “standard form”;
  • IRIS determined Dr. Park’s hours of work;
  • IRIS set Dr. Park’s vacation days and she required IRIS’ approval to take the days;
  • IRIS controlled what fees Dr. Park could charge;
  • upon termination of the relationship, Dr. Park was required to transfer her files to another optometrist;
  • Park was relatively inexperienced as she had been practicing for only four years; and
  • Park had no existing patient base.

In terms of the scope of the non-competition clause, the Court noted that the Agreement already contained provisions to protect IRIS’ trade connections as it had a non-solicitation clause and also language which required Dr. Park to transfer her files to another IRIS optometrist upon termination of the relationship.

The Court also noted that the non-competition clause was ambiguous in that it was not clear how one would determine whether an individual is “concerned with” a business that competed with IRIS and that it went beyond what was required to protect IRIS’ business interests because it also sought to prevent Dr. Park from engaging in work that did not compete with IRIS’ business.

IRIS then asked the court to apply the “blue pencil rule” and strike out the unreasonable portions of the non-compete clause so that it would be enforceable. The Court declined, affirming prior jurisprudence that the courts will not rewrite an agreement for the parties where to do so, would not reflect the intention of the parties.

Employer takeaways

  • A covenant not to compete is a restraint of trade and presumptively unenforceable.
  • A restraint of trade will be enforceable if it is reasonable as between the parties and with reference to public interest.
  • The burden of establishing that a non-competition clause is reasonable as between the parties is on the party seeking to enforce the clause.
  • The purpose of a restrictive covenant is to protect the legitimate business interests of the employer. Therefore, a restrictive covenant should only be as broad as necessary to achieve this purpose.
  • A restrictive covenant must be clear and unambiguous and reasonable as to length of time, geographic location and scope of activities that it seeks to restrict.
  • Courts will not apply the blue pencil rule to “make” an agreement for the parties.
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Discriminatory Action Complaints

Employers have many obligations under the British Columbia Workers Compensation Act (the “Act”) and the related WorkSafeBC Occupational Health and Safety Regulation (the “Regulation”).

Employer obligations include providing a safe workplace, establishing a valid occupational health and safety program, reporting injuries to WorkSafeBC and investigating incidents where workers are injured or equipment is damaged.

Another very important obligation that an employer has, is to NOT take discriminatory or retaliatory action against a worker for:

  • raising a health or safety issue
  • exercising or carrying out a duty under the occupational health and safety provisions of the Act or the Regulation
  • testifying in any matter, inquiry or proceeding under the Act, the Coroners Act or an issue related to health and safety

Discriminatory Action Complaint

If an employer penalizes, or threatens to penalize a worker for raising a health and safety issue, or for exercising health and safety activities, the worker can submit a discriminatory action complaint. (A unionized worker can choose to file a grievance instead).

The threshold for WorkSafeBC to accept a discriminatory action complaint, is very low. The worker simply has to show that:

  • the worker exercised an occupational health and safety right or duty protected by s. 151 of the Act
  • the employer committed, or threatened a discriminatory action prohibited by s. 150 of the Act
  • there is a nexus or causal connection between the employer’s action and the worker’s activity

Once WorkSafeBC accepts the complaint, the onus shifts to the employer to prove that the action taken by the employer is not discriminatory because it was not motivated by the exercise of the worker’s occupational health and safety right or duty.

A discriminatory action complaint must be filed within one year of the alleged discriminatory action. If the complaint is about failure to wages, the complaint must be filed within 60 days of the wages becoming payable.

While a complaint of bullying & harassment falls within the scope of a health and safety issue, allegations about sexual, racial or other discrimination, do not fall within the scope of a discriminatory action complaint.

What constitutes Discriminatory Action?

WorkSafeBC considers the following kinds of conduct by the employer to constitute discriminatory action:

  1. suspending, laying off, or eliminating the worker’s job
  2. demoting the worker or denying the worker an opportunity for promotion
  3. changing the worker’s terms and conditions of employment for example by:
    • transferring the worker’s duties to someone else
    • relocating the worker
    • reducing the worker’s wages
    • changing the worker’s hours of work
  4. coercing or intimidating the worker
  5. disciplining, reprimanding or penalizing the worker

Orders Against Employers

If WorkSafeBC finds that discriminatory action took place, it can order the employer to do one or more of the following:

  • cease the discriminatory action
  • reinstate the worker to the worker’s former position and former terms of employment
  • pay lost wages
  • remove any reprimands/references to the matter from its records
  • pay any reasonable out of pocket expenses incurred by the worker
  • do any other thing that the WorkSafeBC considers necessary to comply with the Act or Regulation

If WorkSafeBc does not find discriminatory action on the part of the employer, it will dismiss the complaint.

The worker or the employer can appeal to the Workers’ Compensation Appeal Tribunal within 90 days of WorkSafeBC’s decision.

Practical Tips

An employer against whom a discriminatory action is filed, must act promptly to deal with the situation. Because the threshold for filing this action is very low, defending against such claims can be quite complicated and it is recommended that employers seek legal advice on how best to proceed.

Note that a worker can also file a discriminatory action complaint against a union.

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Employer’s Duty to Inquire

McNish v. Electronics Boutique Canada and others, 2017 BCHRT 32 (“McNish”) a decision earlier this year by the BC Human Rights Tribunal on an application to dismiss, illustrates an employer’s duty to inquire about the need for accommodation, when it possesses information that raises the possibility that accommodation may be required.

Background

McNish, involved a complainant who alleged discrimination in employment on the basis of mental disability by the respondents Electronics Boutique Canada Inc (“EB Games”), Toni Hardy and Lauren Welch (collectively, the “Respondents”).

Destiny McNish (“Ms. McNish”) worked for EB Games as an Assistant Store Manager. The Respondent Toni Hardy was the Store Manager and the Respondent Lauren Welch was the Area Manager. Ms. McNish had a learning disability and an anxiety condition.

The troubles began when Ms. McNish was asked to train a new co-worker. The two did not get along and there were significant communications issues between them. Ms. McNish complained, among other things, that the co-worker exhibited aggressive body language towards her, slammed drawers shut when she approached him and refused to speak to her during their shifts.

The Store Manager encouraged Ms. McNish and the co-worker to have a conversation to try and resolve their issues, but this was unsuccessful and ended when the co-worker accused Ms. McNish of hiding behind her disability. This conversation occurred on March 23, 2016.

On April 1, Ms. McNish told the Area Manager that the co-worker’s conduct was affecting her mental health and was told to “tough it out”.

On April 15, Ms. McNish told the Store Manager that her doctor wanted her to take a medical leave of absence and asked the Store Manager what her options were in terms of resolving the matter. When the Store Manager was dismissive, Ms. McNish spoke with the Area Manager who laughed at her for considering taking time off and told her to “get over it”.

On April 21, Ms. McNish again spoke with the Store Manager and asked if she could be transferred to another store, as she would otherwise have to go on medical leave because she was experiencing panic attacks which affected her ability to do her job.

The Store Manager responded that a transfer was not an option and made comments suggesting that Ms. McNish was “weak” because she took medications and did not just push through her anxiety problems “like an adult”. She also told Ms. McNish that she had experienced similar health issue but had come to work because that is “what you have to do”. The Store Manager also asked Ms. McNish whether this would happen again if she was unable to get along with some other co-worker.

Ms. McNish was distraught by the conversation and left for the day before her shift ended. The next day she texted the Store Manager to say she would not be in and would submit a doctor’s note. She also contacted human resources and explained that no one was taking any action regarding the issues she was experiencing with the co-worker and that she could not return to work until the situation was resolved, or she was transferred to another store. The HR Manager said they would look into it when Ms. McNish returned from her leave.

Ms. McNish resigned from her employment shortly afterwards on the basis that working at EB Games had become intolerable and subsequently filed a human rights complaint.

Application to dismiss

The Respondents applied to have the complaint dismissed on the basis that they had made several attempts to resolve the matter and had assured Ms. McNish that she could have time off as long as she had a doctor’s note. The Respondents also claimed that the HR Manager had every intention of dealing with the situation once Ms. McNish returned from her sick leave and that if it was ultimately found that the relationship between Ms. McNish and the co-worker was too damaged, they would have tried to accommodate Ms. McNish by moving her to another location.

Decision

In denying the Respondents’ application to dismiss the complaint, the Tribunal stated that the difficulty with the Respondents’ arguments was that they could not explain what steps they had taken to remedy the alleged discriminatory treatment leading up to April 22, except for saying that they eventually agreed to let Ms. McNish take a leave of absence and that they would address the matter upon her return to work.

Noting also that the parties had very different versions about what had happened and that these competing versions would be best resolved through a hearing where the parties would be subject to cross examination, the Tribunal declined to exercise its discretion to dismiss the complaint.

Employer Takeaways

  • Don’t dismiss employee concerns out of hand.
  • Be respectful of an employee’s disability. Telling an employee to “tough it out ” “get over it”, or work through something “like an adult”, is not appropriate in any circumstance.
  • When an employer is in possession of information that raises the possibility of accommodation, it is essential to make proper inquiries and exercise due diligence.
  • When the need is established, taking proper steps to accommodate an employee is not optional; employers are legally required to accommodate an employee up to the point of undue hardship.
  • Consider accommodation options in a timely way.
  • Avoid creating a situation which could result in a constructive dismissal.
  • Keep communication channels open and communicate respectfully with your employees.
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Perils of a Haphazard Workplace Investigation

A workplace investigation that is not done properly can result in significant legal liability for an employer and sometimes, even the investigator.

In a recent decision from Ontario, Doyle v Zochem Inc. et al., 2017 ONSC 920 (CanLII), the court ordered an employer who conducted a haphazard workplace investigation into a complaint of sexual harassment and then fired the plaintiff, to pay the employee 10 months notice as well as $85,000 in moral and human rights damages.

FACTS

48-year old Melissa Doyle, was a Plant Manager and Health & Safety Coordinator at Zochem. Her duties involved supervising a group of workers, all of whom were male.

The environment in which Doyle worked had a locker room mentality and she was subject to sexual harassment. The main instigator was Rogers, the Plant Maintenance Manager. He had photographs and calendars of scantily-clad women in his office, stared at Doyle’s breasts, engaged in sexual banter, and made numerous lewd comments toward her.

In 2010, Doyle reported the harassment to a third-party company that Zochem had hired to do an employee survey on violence and harassment. She also confronted Rogers, who stopped making comments for a while.

After its survey, the third-party company concluded that Zochem had a culture of intimidation, bullying and verbal abuse and a history of violence and recommended that Zochem implement a training plan in order to comply with its obligations under Ontario’s health and safety legislation. However, Zochem did not follow the recommendations.

When Rogers resumed harassing Doyle and withheld information which she needed in order to perform her job, Doyle asked the Chief Engineer to intervene, at a production meeting held on July 14, 2011. This led to her being demeaned, belittled and insulted by both Rogers and the Chief Engineer to the point that she was forced to leave the meeting in tears. Doyle then complained to Stephanie Wrench, the Assistant General Manager, who, unbeknownst to Doyle, was planning on terminating her and had already prepared a termination letter.

Wrench “investigated” Doyle’s complaints and concluded that they were unsubstantiated. The investigation was done in one day. She then proceeded to terminate Doyle’s employment, within five days of the complaint being made. At the time of termination, Wrench also tried to claim that there were performance issues although Doyle had not previously been told about them.

Upon termination, Zochem offered Doyle six months severance and told her she had three days to consider the offer. She was also escorted out without an opportunity to go back to her office. At the time of termination, Doyle had worked for Zochem for nine years.

The evidence showed that Doyle felt betrayed, abused, sad and upset as a result of Zochem’s actions and that she had migraines, chest pains and sleep disturbances. She also had nightmares about Rogers’ harassment and the workplace meeting of July 14. She was diagnosed as having a major depressive disorder, with anxiety and was placed under the care of a psychiatrist.

Doyle sued Zochem for wrongful dismissal.

TRIAL DECISION

At trial, Zochem tried to argue that it had after-acquired cause to terminate Doyle, but was unsuccessful.

The court held that Doyle had experienced significant sexual harassment at work and that there was a culture of harassment, abuse and intimidation at Zochem. The court also found that Zochem had made no attempt to fix the problem and had failed to take Doyle’s complaints seriously.

The court went on to note that instead of dealing with the harassment that Doyle had suffered, Zochem had terminated Doyle’s employment to get rid of her and that Zochem’s attempts to claim after-acquired cause, was spurious.

Based on Doyle’s length of service, position and experience, the court held that she was entitled to 10 months reasonable notice. The court also awarded Doyle $60,000 in moral damages because of the way in which Zochem had treated Doyle during her dismissal.

Doyle was further awarded $25,000 in damages for breach of her human rights.

COURT OF APPEAL

Zochem appealed the amount of the moral damages and argued that it should be reduced to $20,000, which the Court of Appeal rejected.

The Court then awarded Doyle a further $40,000 in costs plus HST and disbursements on the basis that Zochem’s conduct in pursuing the appeal was a continuation of its oppressive conduct towards Doyle.

EMPLOYER TAKEAWAYS

This case highlights the need for employers to investigate employee complaints properly. One of the reasons for the court awarding Doyle moral damages, was the ineffective investigation that Zochem conducted.

The investigation flaws included:

  • the investigation being conducted by a person who had no training;
  • a deficient investigation – it was completed in a day despite the seriousness of the complaint;
  • the notes of the investigator showing a clear bias against Doyle; and
  • failing to inform Doyle about the outcome of the investigation.

To avoid/minimize a finding of a deficient investigation, employers should do the following:

  • implement a proper complaint process so that employees know what to do and how to make a complaint when they are faced with bullying and harassment;
  • when someone complains, take the complaint seriously and determine whether an investigation is needed;
  • use an external investigator unless you have in-house expertise to conduct the investigation;
  • if the investigation is conducted internally, make sure it is thorough and unbiased;
  • inform the complainant and the alleged harasser(s) of the outcome, once the investigation is completed; and
  • take appropriate steps to address the findings of the investigation.

Integritas Workplace Law trains human resources practitioners, line managers and supervisors who conduct, or may be required to conduct, workplace investigations on how to conduct investigations in an effective and legally defensible way. Contact iwl@telus.net for more details.

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How to Conduct a Workplace Investigation

A poorly conducted workplace investigation can cost an organization a significant amount of money in wrongful dismissal damages and legal fees and also result in considerable negative publicity.

Learn how to conduct a workplace investigation effectively by taking our one day workshop “How to Conduct a Workplace Investigation”.   REGISTER: https://tinyurl.com/ybe36f6o

Workshops are limited to six participants to ensure maximum learning. This workshop is geared towards human resources professionals, line managers and other personnel who may be called upon to conduct a workplace investigation.

The Workshop will cover:

  • Legal considerations
  • When you should conduct an investigation
  • Planning the investigation
  • Gathering relevant information
  • Investigation interviews and much more

Cost: $450 per person (includes GST).

10% discount for two people from the same organization. 15% discount for more than two people from the same organization.

This workshop is also offered in-house to organizations that want a customized workshop.

Recent reviews:

Shawna C., Manager, Human Resources & Administration, Vancouver

Heather Hettiarachchi led a full-day workshop called Conducting Workplace Investigations for our Human Resources team. It was an extremely informative and thorough workshop. Heather is an expert in this field and generously shared her knowledge with us. We gained tools and explored methods to help us conduct proper investigations. I recommend Heather without reservation!

Shawn B., General Manager, Surrey

After participating in Heather’s Employee Investigation Course it gave me some great insight into what needs to be done to protect both the company and how to properly deal with complaints or concerns brought forth regarding other staff and what steps to take to properly investigate. As well as how important a proper investigation really is. I feel more prepared in dealing with future situations.

Resources

In Teljeur v Aurora Hotel Group, 2023 ONSC 1324, a court had to decide whether an employee who had been terminated without cause....
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Surreptitious recordings and moral damages, Oh my!
In Bryant v Parkland School Division, 2002 ABCA 220, the Alberta Court of Appeal held that three employees were entitled to common law notice....
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Employers, are your termination clauses clear and unambiguous?
In Dr. C. Sims Dentistry Professional Corporation v. Cooke, 2024 ONCA 388, the ON Court of Appeal had to determine the enforceability of a....
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Non-compete clauses in purchase and sale of a business
In Lefebvre v. Gisborne Holdings Ltd., 2023 BCSC 2231, the BC Supreme Court had to decide whether the employer had dismissed Ms. Lefebvre, who had....
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“Just Cause” terminations - refresher for employers
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