Employment & Human Rights Law In Canada : Canada Employment Human Rights Lawyer : Lisa Stam, Law Firm : Labour Law in Toronto, Ontario

Certain industries such as trucking or the oil fields have had a history of a male-dominated work force where the workplace culture may indeed have been a little rough. 

Two recent decisions highlight the requirement that all industries, regardless of a historical “culture”, must adhere to employment and human rights law.

On February 5, 2010, the Ontario Human Rights Tribunal released the decision of Khan v Lynx Trucking , awarding a former employee $25,000 plus lost wages for the racist comments she was forced to endure by the owner of the trucking company. At least one of the employer’s witnesses referred to the ‘rough and tumble world of trucking’, and most of the employer’s own witnesses noted that the owner would often swear and raise his voice. 

After months of dealing with racist comments and jokes, when the employee approached the employer to not speak to her in that manner, he responded that it was his “f***ing company”. That may be true, but owners must still comply with Ontario employment and human rights laws, which include refraining from discriminatory comments and conduct. 

In addition to the large damage award, the Tribunal ordered the company to retain an expert in human rights to assist in the development and implementation of a human rights and anti-harassment policy for the organization, and to implement human rights and anti-harassment training in the workplace. In other words, being the owner of the company did not exempt the respondent from the jurisdiction of the Tribunal.

Last August, the Alberta Court of Appeal faced a similar defence in the wrongful dismissal case of Poliquin v Devon Canada Corporation .

In that case, the oil fields company fired a manager in part for accessing internet pornographic and racist material and emails on the company computer, despite warnings not to do so. 

The court rejected the manager’s argument that because the company is in small-town northern Alberta in the heart of the oil patch, the industry atmosphere and culture was relaxed with respect to emails of “questionable content”. The court held that the employee’s conduct was not to be measured against the lowest common standards in an industry, but rather, to the reasonable standards to which the company requires compliance.

In that case, the company’s anti-discrimination policy addressed the problematic behaviour, and the company was able to point to it as a defence. The court upheld the company’s decision to dismiss the employee.

While all workplaces certainly have their own culture and history, that culture must evolve with Canadian law.

Both of these cases highlight the fact that workplace “culture” can no longer be an excuse for behaviour prohibited under the applicable human rights code. Up to date workplace policies remain an effective tool for companies to both deal with problematic behaviour and to defend themselves when facing discrimination complaints and law suits.

(*This piece was written for the Financial Post HRPA website.)

• Email This
• Print
• Comments
• Trackbacks

Just in time for Valentine's Day, Toronto city councillor Adam Giambrone made a statement to the media  last night that he has had "intimate relations" with women other than his spouse throughout most of 2009. 

While at 32 years old, the politician may be excused for the lapse in judgment, given his former bid to run for Mayor of Toronto, the jury is out whether public opinion will be quite so forgiving.

In my view, the interesting issue is not so much whether he had affairs, but rather, the extent to which the news will have a negative affect on his credibility and ability to assume the role of leadership and responsibility of running a large city.  In fact, he has stepped down from his candidacy within a day of the news.

Companies are forced to deal with this all the time.  What happens when one of your senior people starts behaving inappropriately at the staff party?  When rumours start to fly about an affair with a junior person in the organization?  Or when two people approach you, as owner, to declare that their mature romantic relationship will not impact their workplace professional relationship?

The courts zero in on consent - if a senior executive is romantically involved with a junior employee, is the employee really fully consenting?  Or is he or she just worried about job security? 

Unless your workplace policy says otherwise, it is likely fairly benign for employees to engage in relationships with people at the same level, at least in the short-term while they are each at the same level.  The cases are clear, however, that relationships crossing supervisory roles are a problem.

In the 2009 Ontario case Cavaliere v Corvex Manufacturing, the plaintiff sued the company for wrongful dismissal.  He had worked his way up the company to a senior management position.  After a warning about sexual relationships with one employee, the plaintiff engaged in a relationship with another employee.  When that employee's husband found out, he went straight to the owner.  The owner - and the court - found that the pattern of behaviour was sufficient grounds for dismissal.

The plaintiff insisted that the relationships were consensual and relied on a 1995 case that found consensual relationships in the workplace were not grounds for dismissal.  He argued that if the relationships were consensual, his dismissal was wrongful and he was entitled to damages for pay in lieu of notice. 

The court in Cavaliere, however, held that in 2009, the achievable expectation for an harassment free workplace required a look at all of the facts, which included:

• the company had already warned him in writing to cease the behaviour;
• he was in a position of senior management; 
• the last relationship was with a particularly vulnerable junior subordinate; and
• the plaintiff just "didn't get it" that the behaviour in the circumstances was inappropriate.

These were all reasons to uphold the termination and deny him any termination pay.

Those in leadership roles will bear a greater onus to guard against romantic relationships with subordinates.  While many Canadians still agree that the state (or the courts or the company) has no place in its citizens' bedroom, for leaders and senior folks in your organization, that may not be quite so true.    

• Email This
• Print
• Comments
• Trackbacks

One of the more stark contrasts between Canadian and American law is the law around terminations of employment. This may be rooted in the fundamental difference between the American "at will" concept versus the Canadian contract-based employment relationship. In other words, unless a contract says otherwise, in the US, an employee is hired "at will" and can be terminated with little to no notice.

Any Canadian employer - and certainly any American employer with a branch in Canada - will tell you that termination of employment requires a careful look at the employment contract to determine the parameters in which the termination can occur. If the contract doesn't survive a court's scrutiny, in many situations, an employer is often looking at paying an employee 3-5 weeks per year of service if the termination is found to be wrongful.

What is not necessarily in the contract, however, is the Canadian requirement to terminate only in good faith and without public humiliation. In other words, even when terminating an employee, Canadians have to be nice about it.

There are a number of cases that have awarded additional damages to a terminated employee if the employer conducted the discharge in a publicly humiliating or unnecessarily cruel manner. Terminations should be in person and the employee is entitled to know the grounds for dismissal.

A recent example is the case of Soost v Merrill Lynch Canada Inc in which an Alberta court awarded the terminated employee damages for wrongful dismissal. Not only was the employer found to have not had grounds for termination, but the court held that " the Defendant’s actions in purporting to dismiss Soost for cause were both unfair and insensitive."

For more details on the facts of the case, Christina Catenacci has done a great summary entitled, The importance of notice and manner of dismissal over on the First Reference Blog.

The bottom line is that Canadian employers always need to proceed slowly, with caution and with a hefty paper trail to back up the reasons for the termination. Now, in light of the damages award in Soost, there is even more financial incentive to be decent about it. It could get expensive otherwise.

• Email This
• Print
• Comments
• Trackbacks