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Five Big Developments In Employment Law In 2013
Here is Howard's year-end wrap up of the major employment law developments of 2013:
- Accommodating both sides of the sandwich generation. Human rights decisions in Deveney v. Zeidler Partnership and in Johnstone v. Canadian Border Services require employers to change their hours, locations and terms of work to accommodate both their employees' child care and elder care needs.
In Johnstone v. Canadian Border Services, the Toronto Airport Authority was ordered by the Federal Court to create a shift, of limited utility, to meet a shiftworker's child care obligations, even overriding more senior unionized employees' rights to their choice of shifts. In Deveney v. Zeidler, a human rights tribunal ordered the architecture firm to allow Deveney to work from home to assist his elderly parent notwithstanding its normal practice requiring employees to work from the office.
The potential changes to workplace arrangements are limitless, (as is the potential for resistance to hiring women of child rearing age).
- Fewer workplace investigations. Employers are realizing that it makes little sense to pay an outside investigator a larger sum to determine whether it has cause for discharge than it would cost to simply fire the employee without alleging cause.
A 2013 arbitration noted that the "investigation report" is not even admissible evidence and if the courts find there is cause, the lawyer conducting the investigation is conflicted out as a witness so the money is largely wasted. Furthermore, if the investigator finds there is no cause, the cost of the investigation is an entire waste of money.
Most significantly, the courts have found that investigations are not required, other than in human rights cases, and a 2013 human rights tribunal decision found an investigation can be minimal and be conducted internally.
- Human rights damages in court cases. After more than 16 months of employment, Patricia Wilson was fired by Solis Mexican Foods when it sold the division of the business she worked for. The 54-year-old business analyst, who was earning $65,000 a year, was told that her position had become redundant. She was awarded three months severance.
However, Ontario Superior Court Justice Duncan Grace, on Sept. 12, awarded Wilson another $20,000 in non-taxable damages for the violation of her human rights. As he found, her employer realized it could make due without her when she was off for a sore back. When she attempted to return to modified work, Solis Mexican Foods put up roadblocks so as to "nudge the problem across the divestiture (sale of her division) finishing line and provide the defendant with an excuse to terminate her."
- Dependent contractors are entitled to wrongful dismissal damages. In a March 20 decision of the Alberta Queens Bench in Weber v. Coco Homes Okotoks, the court held that dependent contractors are entitled to wrongful dismissal damages, although not to quite as much as employees.
- Constructively dismissed employees now take legal action at their peril. When David Potter was suspended without pay from New Brunswick Legal Aid and its board recommended his firing, he sued for constructive dismissal.
An April 25 decision of the New Brunswick Court of Appeal ruled that by suing his employer, Potter made his continuing employment impossible and had effectively resigned without any right to severance. This leaves constructively dismissed employees with the hard choice of resigning or accepting the changes.