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Labour & employment law column by Robert Smithson

The Supreme Court of Canada Taketh Away

Several years ago, an Ontario Court set a precedent by issuing one of the richest-ever wrongful dismissal awards in Canadian history. That case has climbed through the appeal system and the Supreme Court of Canada has now reined in the original award.
 
The employer, Honda Canada Inc., appeared to have sinned by their blind insistence on production efficiency at the expense of their obligation to accommodate an employee, Keays, who had been diagnosed with chronic fatigue syndrome. 
 
Keays had been a long-term employee at Honda’s Ontario production facility. He was found to be a dedicated and conscientious employee who had made his employment at Honda his life’s work. He had, however, experienced ongoing health problems which resulted in a medical leave and the collection of disability benefits.
 

Strange Tales From The Employment World

The last six months have seen no shortage of weird work-related
occurrences, many of them involving crimes and guns.
The occupation of tattoo artist can have its risks at times, some of
them unexpected.  In Chaparral, New Mexico, two men were trying to trace
the outline of a .357 caliber Magnum pistol as a pattern for a tattoo. 

Unfortunately for them, the pistol was loaded (I think you can see where
this is headed...), it went off, and both men were wounded.  One of them

Golf Haters: 1 Canada Revenue Agency: 0

Employees routinely pay tax to the Canada Revenue Agency in relation to benefits received as an employee. Rarely, it seems, an employee is able to escape the burden of the Income Tax Act in relation to such a benefit.
 
One such person is Henry Rachfalowski, who triumphed in his battle against the CRA. Mr. Rachfalowski had been taxed for a perquisite of employment but fought back and, after taking his case to the Tax Court of Canada, succeeded.
 
Mr. Rachfalowski’s story begins when he was hired as a Vice President by Canada Life Financial Corp. in Ontario. As part of his employment, his employer paid for a membership at the Barrie Golf Club. It paid the initiation fee of $5,000 and the annual fees of $2,047 each season. 
 

Reservists' Leave Provisions Enacted

In British Columbia, new unpaid leave provisions applying to armed forces reservists are now in force. These provisions provide largely similar job protections as those already in existence for pregnancy (maternity) leave, parental leave, family responsibility leave, compassionate care leave, bereavement leave, and jury duty.
 
There are approximately 30,000 part-time and full-time reservists with the armed forces at any given time.   Their military (and emergency response) duties and training obligations can require them to be absent from home, and work, for extended periods of time.
 
B.C.’s Employment Standards Act now provides that an employee who is a reservist is entitled to unpaid leave while deployed on a Canadian Forces operation outside Canada. The leave is also provided if the reservist is engaged in pre-deployment or post-deployment activities (whether inside or outside the country) or has been deployed inside the country to assist in dealing with an emergency.

Indoctrinate Employees In Culture of Customer Service

Employment lawyers have the opportunity to hear many employers’ complaints about the performance and conduct of their employees. Often in the context of building a case for just cause (for summary dismissal), poor treatment of customers is a frequent topic of discussion.
 
Customer service is, of course, the window through which customers view a company. Not surprisingly, poor service is one of the chief complaints of customers. It comes in all shapes and sizes and can sour a relationship to the point where the customer moves on to obtain goods or services elsewhere.
 
A recent study reported that half of all shoppers polled report multiple customer service problems during any given shopping trip. In my own experience, there are three versions of poor customer service which are particularly likely to jeopardize the relationship.
 

Class Actions, We Hardly Knew You

Employment lawyers in British Columbia are mourning the apparent (and early) demise of the class action. Class actions briefly showed promise for pursuing large-scale claims in court against employers.
 
Class action lawsuits allow many plaintiffs to band together to pursue their claims in court. Typically, each individual claim is small in scale, sometimes small enough that it wouldn’t be worth pursuing at all on its own.
 
Combined with hundreds, or even thousands, of similar claims the potential damages definitely start to attract some attention. Not long ago, a group of Wal-Mart employees in the U.S. won an award of $78 million for unpaid overtime pay.
 

In Praise of the Probation Period

In these days of modern psychological testing methods, more humble aspects of hiring such as the probation period are prone to being overlooked. But, such old-fashioned selection techniques can produce far superior results as compared to the crystal ball gazing of standardized testing.
 
I have written previously that the probation period can be viewed as one long audition for a job. It reveals an individual’s true skills and attitude. In my view, there simply is no substitute for viewing an individual on the job in real work situations.
 
A recent B.C. Supreme Court decision demonstrates the utility of the probation period. Pekrul was hired by Flexmaster Canada Ltd. in late 2004. During the pre-hiring discussions, Flexmaster insisted (verbally) on a probationary period. Pekrul later denied that she had accepted the imposition of a probation period.
 

Making A Mountain Out Of A Timbit

News reports last week were full of accounts of an employee fired by a Tim Horton’s franchise for having given a timbit to a child. This saga demonstrated one aspect of employee management which employers tend to get wrong and it also involved one very savvy public relations move by Tim Horton’s.
 
The story is quite simple. The employee provided a timbit – said to have a retail value of 16 cents – to the child of a customer, free of charge. The employee did not pay the cost of the timbit, nor did the customer. 
 
The event came to the attention of management and, the next day, they dismissed the employee (reportedly for “giving baby product without paying”). The employee acknowledged the unauthorized act of giving and, according to media reports, said goodbye to her $9 per hour job in tears. Her next act was to contact a newspaper.
 

A Dismissal By Any Other Name

The distinction, or lack thereof, between wrongful dismissals and constructive dismissals is one which has challenged courts, lawyers, and judges. So debatable are the differences that the Supreme Court of Canada has recently seen fit to weigh in on this subject.
 
The case involved a union business agent, Evans, who had been employed by the Teamsters union for over 23 years. During an election for a new union executive, Evans supported the incumbent, who was defeated.
 
After the election of a new union executive, Evans was notified, in writing, that his employment would be ending. It appears that Evans ceased active duties at that point but he was kept on the union’s payroll. 
 

Due Process Rights and Public Office Holders

For half a century, a challenging area of employment law has been the application of due process rights enjoyed by public office holders. The Supreme Court of Canada has now issued a seminal decision which severely curtails those rights.
 
The history of due process rights in the employment context can be tracked back to England’s House of Lords. In 1963, the House of Lords issued a decision which involved the dismissal of the chief constable of Brighton.
 
The House of Lords determined that the administrative body which had dismissed him had an obligation to provide him with reasons for his dismissal and accord him an opportunity to be heard in response to those reasons. Thus was established the right of procedural fairness which, since, has protected many a civil servant and public office holder from arbitrary dismissal.
 

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