Anyone who has litigated human rights, or who has done research for said litigation, understands the challenges of putting together a claim for discrimination. However, that challenge becomes even more difficult when filing a claim for discrimination on the ground of family status. According to a relatively recent article in Canadian Lawyer Magazine (http://www.canadianlawyermag.com/), human rights tribunals, labour arbitrators and the courts will be faced more and more frequently with cases revolving around issues such as workplace flexibility and discrimination on the basis of family status, as families increasingly find themselves struggling to balance work and personal responsibilities. Unfortunately, the case law has not been very helpful, nor has it been very forgiving to these families.

In a 2004 British Columbia Court of Appeal case, Health Sciences Association of B.C. v. Campbell River and North Island Transition Society, the court held that in order to meet the prima facie threshold for discrimination on the basis of family status, it must be the employer who changes a term of employment resulting in serious interference with a substantial parental or other family obligation. At that point, the employer must prove that the change was a bona fide occupational requirement. However, the article points out that a “serious interference” isn’t required for a finding of discrimination on other grounds.

The Federal Court, and the Federal Court of Appeal, agreed in Hoyt v. Canadian National Railway, that, “The suggestion by the court in Campbell River…that prima facie discrimination will only arise where the employer changes the conditions of employment seems to be…unworkable and, with respect, wrong in law.” Meanwhile, Quebec’s human rights legislation doesn’t protect against discrimination based on family status, meaning that employers in Quebec have no duty to accommodate families hoping for flexibility in the workplace.

The article also suggests that the challenge becomes greater for human rights advocates when employers use the downturn in the economy as a defence for the termination of an employee. It has become easier for employers to argue that accommodation on the basis of family status would involve undue hardship. And, despite the conflicting case law across jurisdictions, the theme in many cases is that it is the responsibility of parents to make external arrangements for child care. In other words: get to work.

Cited from:

Glenn Kauth, “Accomodating for Family Status” (August, 2009) Canadian Lawyer Magazine.

Although traditionally the employee’s physical well-being was the sole criterion by which a “harassment free” environment was analyzed, at the current stage of the law employers are increasingly expected to provide for the employees’ psychological well-being as well. This is especially the case in light of the recent amendments to the Occupational Health and Safety Act (OHSA). In the following paragraphs I provide a brief overview of the law on the subject. I suggest that employers should be more mindful of this ongoing evolution. The reason being: what once was not considered “violence,” “harassment,” or “bullying,” today might be. This shift has implications on the employer’s legal obligations vis-à-vis the injured employee. This is because the employer may be held vicariously liable for actions it did not have to answer in earlier times.

At common law employer liability is based on an implied contractual duty of care. The employer is obligated to provide for the safety of its employees. A number of cases suggest that once harassment reaches a certain level of intensity it will amount to an actionable wrong for which the employer may be held liable. In addition to the traditionally recognized torts of battery and assault, the three areas of the law in which an employee could bring an action against an employer are: the tort of nervous shock; negligence; and, constructive dismissal. The duty applies to management level employees as well as to co-workers. The employer may, therefore, be held liable and be required to compensate for the wrongs of its employed subordinates. Of the two torts, only one relates directly to the psychological suffering of the plaintiff.

A worker is also entitled to benefits for mental stress under the The Workplace Safety and Insurance Act. However, mental stress must be precipitated by “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. The worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.” Jurisprudence from the Workplace Safety Insurance Appeals Tribunal suggests that the circumstances must generally be unexpected, traumatic or represent a potential form of violence.

The Human Rights legislation is more robust and it too provides an avenue through which the employer might be expected to guarantee the psychological safety of those at its employ. According to the federal statute and its provincial counterparts, every employee has the right to “freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.” The employee is entitled to bring a claim against harassment under the Human Rights regime only on one or more of the abovementioned enumerated grounds.

Arguably the most important shift in the law took place at the end of last year with the Occupational Health and Safety Act (OHSA). Under the already enacted but not yet consolidated OHSA, “workplace harassment” is defined broadly and is bound to receive liberal interpretation in the courts. According to the Act “workplace harassment” means “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” And “workplace violence” is said to encompass (a) “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker” (b) “an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,” (c) and even “a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.” This shift is significant as it allows casting a wider net on activity that would otherwise not be classified as “harassment,” “violence,” or “bullying.” It also calls for the inclusion of a broader, more unpredictable and less definable form of psychological injury.

Under OHSA the employer is expected to prepare a policy dealing with all matters that relate to harassment and discrimination which is to be reviewed at least once a year. The employer is also expected to develop a program in order to implement the policy. Finally, employers are obligated to post the policy in visible places around the workplace. The amended legislation involves an array of additional procedural and administrative nuances that the prudent employer should take a note of.

In sum, “harassment,” “violence,” and “bullying,” are no longer easily definable concepts. As such, it would behoove the employer to be less hasty in brushing off what once could be regarded as mere workplace “disputes” or “humorous conduct.” With the latest shift in the law, employers can expect an increasing number of claims and complaints on issues involving violence and harassment - complaints that would in earlier times have little to no legal bearing at all. To avoid this confusion and to create a safe environment, the employer would be prudent to provide for an elaborate anti-harassment/anti-violence workplace policy. The employer would also do right to reinforce such policies via mandatory educational sessions involving all employees. Failure to take these measures could increase the employer’s risk of liability.

NOTE: This article relied in part on Carla Gonçalves Gouveia’s “From Laissez-faire to Fair Play: Workplace Violence & Psychological Harassment.”

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?