Last week’s decision in Hydro QuÃ©bec v. Syndicat des employÃ©-e-s de techniques professionnelles et de bureau d’Hydro-QuÃ©bec 2008 SCC 43 is good news for employers â€“ finally there is a clear limit to your duty to accommodate employees who are chronically absent from work.
Earlier this year, we reported on the decision of the Alberta Court of Appeal in Chiasson v. Kellogg Brown & Root (see the January 22, 2008, blog entry titled Ruling helps Alberta employers defend preemployment testing challenges), which upheld an employer’s right to perform mandatory preemployment alcohol and drug screening for safety-sensitive positions.
Employers often ask whether they should give employment references to employees and former employees. This decision can be a difficult one with possible negative consequences for either course of action. Whatever decision is made, it’s important to consistently apply one policy regarding reference letters.
On Friday, June 27, 2008, the Supreme Court of Canada (SCC) released its decision in Honda Canada Inc. v. Keays, reversing the largest award of punitive damages in a wrongful dismissal action in Canadian history. The decision is very favorable for employers.
Kevin Keays was a long service Honda employee who was diagnosed with chronic fatigue syndrome in 1997. He returned to work after a period on long-term disability benefits. Honda exempted him from its attendance-related progressive discipline policy but required him to provide a medical note for each absence, which was not required of employees suffering “mainstream” illnesses.
Keays’ sporadic absences continued, and Honda hired Dr. B to assess Keays. Keays hired a lawyer, who wanted to clarify the purpose of the meeting with Dr. B. Honda refused to deal with Keays’ lawyer and made Keays subject to its attendance-related discipline policy. When he continued to refuse to meet with Dr. B without Honda clarifying the purpose of the meeting, Honda terminated his employment for insubordination. read more…
If you have ever thought it wouldn’t be worth the cost to investigate an employee’s criminal misconduct, the recent decision in Canada Safeway Limited v. Brown,  B.C.J. No. 2400 (S.C.) might make you reconsider. Not only was the employee ordered to pay back the money she stole, the judge tacked on six times that amount to cover the costs incurred by the employer in investigating and prosecuting the employee.
As a cashier and customer service representative for Canada Safeway, a major grocery store chain in Western Canada, Sharon Brown had unsupervised access to the company’s cash and accounting records. When Safeway began experiencing cash and inventory shortages, it installed surveillance equipment and assigned its security officer to investigate. Lo and behold, Safeway discovered that Ms. Brown was processing fraudulent refunds and pocketing the cash.
Labor laws in Canada provide that the purchaser of a business will generally “take over” any collective bargaining agreements (CBAs) between a union and the vendor. The purchaser becomes the “successor employer” and becomes bound by the vendor’s existing CBAs. In this situation, the union continues to represent unionized employees after the sale or transfer of the business to the new owners or operators.
In addition to the continuation of bargaining rights after a sale or transfer, two companies that are under “common control or direction” can be held to constitute a single or common employer for labor relations purposes. Such a finding can mean that the union’s bargaining unit encompasses employees of both companies.
When employees are terminated in Canada, unless they have been fired for “cause” (such as theft) employers have an obligation to provide common law “reasonable notice” of termination or pay in lieu of reasonable notice.
Unless the amount of reasonable notice is clearly set out in an employment agreement, it will be assessed in a court action after an employee has been terminated. The courts consider factors such as age, length of service, the nature of the position, and the likelihood of the employee finding reemployment in deciding how much reasonable notice to award.
A recent decision of the Ontario Court of Appeal places new limits on a trial judge’s ability to award damages for conduct on the part of an employer during the termination process that is said to amount to “bad faith.”
While it’s an Ontario decision, it can be expected to have broad ramifications across Canada.