Human Resources Association of New Brunswick

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Human Resources Associationof New Brunswick
The Seven Most Influential Employment Decisions
of 2006/2007

• Jamie Eddy
• Cox Palmer
• Labour and Employment Group
• October 25, 2007

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• TREND 1 MISTREATMENT OF DISABLED EMPLOYEES
  PUNITIVE DAMAGES
• Keays v. Honda Canada (2006 Ontario Court of
  Appeal)

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• DAMAGES
• 15 months pay in lieu of notice 100,000.00
  (estimate at 80,000/year)
• 9 months additional pay in lieu of notice
  (Wallace) 60,000.00 (estimate)

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• Punitive damages 500,000
• Solicitor Client Costs 610,000.00
• TOTAL 1,270,000.00

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• TREND 2 HARASSMENT OF AN EMPLOYEE WCB
  COMPENSABLE INJURY
• Logan v. Nova Scotia Workers Compensation Appeal
  Tribunal (2006 Nova Scotia Court of Appeal)

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• The Workers Compensation Act defines accident
  as
• accident includes a wilful and intentional
  act, not being the act of a worker, and also
  includes a chance event occasioned by a physical
  or natural cause,

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• as well as a disablement caused by an
  occupational disease and any other disablement
  arising out of and in the course of employment,
  but DOES NOT INCLUDE THE DISABLEMENT OF MENTAL
  STRESS OR A DISABLEMENT CAUSED BY MENTAL STRESS,
  OTHER THAN AS AN ACUTE REACTION TO A TRAUMATIC
  EVENT

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• TRADITIONAL APPROACH
• End of the Employment Relationship
• 1. Harassment
• ?
• 2. Employee Resigns
• ?

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• 3. Wrongful Dismissal Action
• ?
• and/or Human Rights Complaint

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• MODERN APPROACH
• Continuation of Employment Relationship
• 1. Harassment
• ?
• 2. WCB Coverage
• ?

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• 3. Leave of Absence
• ?
• 4. Return to Work
• ?
• 5. Potential Accommodation/Modification of
  Workplace

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• TREND 3 LIABILITY EXPOSURE TO TERMINATED
  EMPLOYEES BECOMING DISABLED
• Egan v. Alcatel Canada Inc. (2006 Ontario Court
  of Appeal)

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• EXAMPLE
• 20 years x 66,000 per year (100,000) 1.32
  million
• TOTAL 1.32 million

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• RECOMMENDATIONS
• 1. Check for actively working clause in
  disability contract.
• 2. Check for continuation clause in disability
  contract.

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• 3. Do not self-insure.
• 4. Consider transition disability coverage.
• 5. Employment standards.

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• TREND 4 PROGRESSIVE DISCIPLINE
• Carscallen v. FRI Corporation, (2006 Ontario
  Court of Appeal)

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• Progressive Discipline the implementation of
  incrementally more serious warnings and
  disciplinary action prior to dismissal

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• PROGRESSIVE DISCIPLINE
• Verbal reprimand
• Written reprimand
• Short term suspension
• Long term suspension
• Termination of employment for cause

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• EMPLOYER IS ABLE TO SUSPEND IF
• Contained in contract or policy
• Fair and reasonable
• A right of review exists

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• TREND 5 DONT MESS WITH A REVEREND
• Reverend Gael Matheson v. Presbytery of PEI
  (2006/2007 - PEI HR Panel)

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• DAMAGES
• General Damages - 50,000.00
• Past Loss of Income - 425,058.00
• Loss of Employment Benefits -25,000.00
• Costs - 102,310.00
• TOTAL 602,000.00

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• TREND 6 MITIGATION IS DEAD
• Marge Fraser v. Brookville Carriers Van LP Inc.
  (2007 New Brunswick Court of Queens Bench)

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• A terminated employee has an obligation to lower
  the damages owed by the employer following
  termination by actively pursuing comparable,
  alternative employment.

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• However, in practice, courts are hesitant to
  strictly hold a wrongfully dismissed employee to
  the stringent rules of mitigation that govern
  regular commercial contracts.

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• Consequently, the defence of failure to mitigate
  in the employment context seldom results in a
  deduction of the damages otherwise due to a
  wrongfully dismissed employee.

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• 1. The duty to act reasonably does not require
  the employee to conduct an over-the-top or
  unusually aggressive job search.

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• 2. There is no obligation on an employee to
  accept employment which is not similar, nor any
  obligation to accept a significant demotion in
  status or salary.

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• 3. Employees are normally entitled to a
  breathing space of one or two months following
  the date of dismissal before they are required to
  mitigate their damages.

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• 4. If the dismissal was particularly
  traumatic, the breathing space may be
  lengthened.

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• 5. In most circumstances, the employee can wait
  and accept only a substantially comparable
  position.

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• 6. Restricting ones search for employment to
  the same income level does not generally violate
  the duty to mitigate.

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• 7. An employee is only obligated to apply for
  positions in other locations if doing so is
  reasonable in all of the circumstances, having
  regard to the employees profession, position,
  work background, and the available jobs in the
  area.

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• 8. It is relevant to consider the employers
  conduct following the dismissal in determining
  whether the employee took reasonable steps to
  mitigate (i.e. lack of letter of reference).

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• 9. The duty to mitigate is relaxed in cases of
  employees who, following dismissal, continue to
  be bound by non-solicitation and/or
  non-competition clauses.

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• 10. If an employee is dismissed in a callous
  manner, his or her ability to find alternate
  employment may be hampered.

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• 11. The particular employees specific
  knowledge of how to hunt for work will be
  considered in determining whether he or she
  fulfilled the duty to mitigate.

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• The difficulty in establishing this defence is
  also clearly illustrated by the sheer statistics
  of its failure.

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• New Brunswick - since 1995
• pleaded 16 times
• defence has been accepted by the Courts a mere 3
  times

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• Ontario - since 2002
• pleaded 51 times
• defence has been accepted by the Courts a mere 14
  times

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• TREND 7 ELIMINATION OF MANDATORY RETIREMENT
  ACCOMMODATION OF EMPLOYEES - AGE