The Employment and Labour Law Students’ Society (“ELLSS”) will be holding its Annual ELLSS Career Fair on the evening of Wednesday, November 18^th.

The Career Fair is the biggest event on the University of Ottawa campus for law students interested in learning more about a career in labour and employment law.  Each year, the ELLSS brings together private and public sector lawyers representing both the management and employee sides. Following a short meet-and-greet, the main part of the event is a moderated panel of 4 speakers practicing in this field who provide information to students on possible career paths, what led them to this area of law, their personal experiences, a general overview of practicing in this field, job possibilities, even topical points of law. The panel discussion is followed by a catered reception attended by representatives from various law firms involved in labour and employment law.

The Career Fair enables law students to learn more about what this exciting area of law has to offer, and to have one-on-one discussions with speakers as well as the many firm representatives who attend the event to meet with students.

This year’s event is sponsored by Sherrard Kuzz LLP, Sack Goldblatt Mitchell LLP, and Emond Harnden LLP.  The panel will be comprised of the following speakers: Lorenzo Lisi (Sherrard Kuzz), Lise Leduc (Sack Goldblatt Mitchell), Raquel Chisholm (Emond Harnden), and Anne Clark-McMunagle (Senior Legal Counsel, Public Service Labour Relations Board).

If you would like to attend the event as a student or firm representative, please RSVP to executive@ellss.ca. Firm guests are welcome (and encouraged) to bring firm promotional materials as there will be space specifically for students to peruse these materials.

When: Wednesday, November 18th 2009 - 4:30pm to 7:30pm

Meet and greet - 4:30pm to 5:00pm

Panel - 5:00pm to 6:15/6:30pm

Reception - 6:15/6:30pm to 7:30pm

Where:  Fauteux Hall Atrium (3rd floor)

This morning, the Supreme Court of Canada dismissed the leave to appeal application in Western Inventory Service Ltd. v. Darrell Wronko (”Wronko“).  In doing so, the debate in this province as to the proper approach to be taken when an employer seeks to amend an existing employment contract has effectively ended.

Wronko involved an employer who tried to modify a fundamental term of an employment contract with their long-service employee, Darrell Wronko.  Mr. Wronko had rejected the employer’s proposed changes, and so the employer gave him reasonable notice-two years in his case-that the new contract would in fact come into effect.  He consistently rejected the change during this time.  At the end of the period, the employer stated to him that as per the notice they had provided the amended contract was now in place and there would be no job for him if he refused.   Mr. Wronko again rejected it, left, and sued for wrongful dismissal.

Making a unilateral and unwanted change to a fundamental term of an employee’s contract of employment will in most cases constitute constructive dismissal.  Did the employer’s actions in this case guard them against a bona fide employee claim?  Did the end of Mr. Wronko’s employment constitute a resignation, a constructive dismissal, or a termination?  The employer’s giving of “notice” in this case was one way employers have sought to legally and unilaterally change a fundamental term of an existing employment contract without attracting a wrongful or constructive dismissal claim.  The question is, was this notice approach legally valid?

The trial judge seemed to think so.  The issue was whether the employer had the unilateral right to vary a fundamental term of the employment contract upon reasonable notice to the employee.  The trial judge held that the employer did in fact have this right.  In keeping with employment law jurisprudence that seemed to indicate an employer could make unilateral changes to an employment contract as long reasonable notice of the change had been given, Mr. Wronko’s claim was dismissed.  The employer’s actions were proper.  Mr. Wronko had resigned and was not entitled to damages.

The Ontario Court of Appeal did not agree.  It restated the three options that were available to an employee when an employer attempts to unilaterally change a fundamental term of an employment contract-one of them being clear rejection of the new term as Mr. Wronko did in this case.  An employee, as Mr. Wronko did, is entitled to insist on the employer’s adherence to the terms of the contract.  This act triggered an extra step that the employer must take.  The mistake the employer made was that it did not, at the outset, include explicit notice of termination with the two years notice of the change when it was rejected by Mr. Wronko.  What the employer could have and should have done was to “advise [Mr.] Wronko that his refusal to accept the new contract would result in his termination and that re-employment would be offered on the new terms.”  The employer did not do this, and because Mr. Wronko continued working, could be taken to have effectively accepted Mr. Wronko’s position that the terms of the existing contract remained in effect.   Because of their actions it was the employer that ended the employment relationship, not Mr. Wronko.  He was entitled to potential damages of two years as per the termination provision in his old contract.

As noted, the Supreme Court of Canada denied the employer’s leave to appeal.  Wronko now becomes the most recent case of a high authority in this province as to how an employer may make unilateral modifications to fundamental employment contract terms.

In its decision, the Court of Appeal has set out one way for an employer to make planned changes when an employee clearly rejects them.   An employer must take that extra step of notifying their employee that there will be a termination of their existing employment when the notice period they provide expires, and new employment under the altered conditions will begin.  Legally, this makes sense.  It is in accordance with constructive dismissal principles and logically equates reasonable notice of termination of employment with reasonable notice of termination of existing employment conditions.  Instead of ending an employment relationship altogether, the employer is just re-commencing it on different terms.

From another perspective, it may not make sense.  It effectively forces an employer to tell a long-service, loyal employee, or a newer employee who was recently welcomed to the company: ”You don’t accept these changes?  Well, now you’re terminated in x months’ time.”  It is true that changing a fundamental term of employment may have a detrimental effect on the employer-employee relationship no matter what course of action is taken, and that modifications could alternatively be made by ensuring they coincide with fresh “consideration.”  But it is the extra step Wronko upholds which can leave a more negative impression in the mind of an employee.

One might say that this is not a valid concern because it is essentially a human resources issue and not a legal one, and can be tempered through effective management skills and sensitivity.  But for an employer who is attempting to operate and consider bona fide operational business concerns while still maintaining positive and productive relationships with their employees, realistically, is there much of a difference between the two?  Is there any difference in substance between this approach and the one Western Inventory had taken? 

Yesterday, Premier Dalton McGuinty performed a cabinet shuffle including appointing a new Minister to the Ministry of Labour. Peter Fonesca was appointed the new Minister of Labor, replacing Brad Duguid who was moved to Aboriginal Affairs. Fonesca was previously Minister of Tourism, but brings a substantial amount of experience in employment and labour relations to his new position. For more information on his experience, see his biography on the Ministry of Labour’s website. It remains to be seen how his mandate will be fulfilled in light of Ontario’s current economic situation.

How far-reaching is an employer’s duty to accommodate?  This question has been continuously debated in labour and employment jurisprudence for many years.  In the recent decision of Hydro-Quebec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ)  (“Hydro-Quebec”), however, the Supreme Court of Canada has clarified the outer limits of this duty. 

Specifically, the Supreme Court addressed the extent of an employer’s duty to accommodate in light of the test set out in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (“Meiorin”). As per Meiorin, an employer can justify a standard or actions which would otherwise be discriminatory if 3 steps are met. The third step involves demonstrating that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. It is the correct interpretation of this requirement which was addressed by the Supreme Court in Hydro-Quebec. 

The case involved an employee who was plagued by various physical and mental problems, particularly a personality disorder which resulted in deficient coping mechanisms.  This led to a high absence rate as well as difficult relationships with co-workers and supervisors. The situation persisted over several years despite a number of adjustments by the employer to her conditions of work. Eventually, and after receiving a psychiatric assessment which indicated that the employee would not have regular and continuous attendance in the future, the employer dismissed her.

The union challenged her termination. It suggested that the employer could have completely changed her work environment to eliminate the stressors which caused her inability to work in a satisfactory manner. The arbitrator found in favour of the employer, holding that this proposed accommodation, which would require continuous, periodic changes to the employee’s work environment and colleagues, would constitute undue hardship. The Superior Court agreed with the arbitrator’s assessment, but on appeal to the Quebec Court of Appeal the decision was reversed on the grounds that the threshold of impossibility had not been met by the employer. The employer launched an appeal to the Supreme Court.

The Supreme Court needed to assess what the scope of the duty to accommodate was, as per the ruling in Meiorin, and whether or not the employee had been properly accommodated within it.

Even though the Supreme Court emphasized that the goal of accommodation is to ensure that if an employee is able to work they are not unfairly excluded or prevented from doing so, it also concluded that the duty to accommodate, as per the approach articulated in Meiorin, has certain boundaries:

• It does not mean that the employer has to prove it was impossible to accommodate the employee;
• It does mean that the employer has to prove that accommodating the employee would cause undue hardship;
• The employer does not have a duty to change working conditions in a “fundamental way” ;
• The duty to accommodate does not extend to a complete alteration of the “essence” of the employment contract: the performance of work in exchange for remuneration;
• If the nature of an illness is such that the proper operation of the business is excessively hampered or the employee remains unable to perform the work for the reasonably foreseeable future even though the employer has made attempts to accommodate, undue hardship will be met.

The Supreme Court upheld the original decision of the arbitrator and overturned the decision of the Court of Appeal. The test for undue hardship had been met because the employer had tried for a number of years to adjust the employee’s working conditions and attempted to accommodate, but the employee was still unable to work for the reasonably foreseeable future.

In our opinion, this case, while dealing with a situation arising from the labour context, will also have important implications for non-unionized employees and employers. The Supreme Court has clarified several legal points about the duty to accommodate, as well as rejected an interpretation of the Meiorin test which could be the subject of debate in the adjudication of these types of disputes.

Furthermore, it must be recognized that assessing whether or not an employer has met its duty to accommodate obligations to their employee can be a difficult, complicated, and completely fact-driven inquiry. Indeed, the Supreme Court itself in this case recognized that “what is really required is … proof of undue hardship, which can take as many forms as there are circumstances.” While the waters are still (and probably always will be) murky as to what is legally required to satisfy the duty to accommodate to the point of undue hardship, the Supreme Court has, at minimum, clarified what it does not involve.

Authored by:  Heather Robson and Cheryl Waram, ELLSS

The ELLSS will be holding its first general meeting for 2008-2009 in the next few weeks. We will discuss the many events we have in store for the year, chat more about the ELLSS, and talk about the opportunities available to be more involved in the club…including this blog!

We hope all our members will be able to attend, as well as anyone who is interested in joining the ELLSS and exploring the exciting field of labour and employment law.

The meeting will be held from 11:30 to 1:00 on Tuesday, September 30 in the basement of the Royal Oak on Laurier.

If you are a visitor to our blog and website and wish to become a member of the club, simply send an e-mail to executive@ellss.ca.