THE YEAR’S TOP 10 DEVELOPMENTS IN THE WORLD OF EMPLOYMENT LAW
Decisions should prod firms and staff to know their rights, Howard Levitt writes.
For all of you who waited until now to learn what the most important developments in employment law were in 2017, here is my list:
The sky opened and the floods unleashed on workplace sexual harassment
Bill Cosby’s and Harvey Weinstein’s stories began as newsworthy but anomalous; both captured prurient public interest as much as anything else. But they caught a responsive chord in the zeitgeist and the #MeToo movement exploded, with revelations in sector after sector. What is cause for discharge is a function of public policy and reflects contemporary mores. As a result, predatory sexual misconduct, which might not have been legal cause for discharge only months ago, may well be today.
The end of employee privacy Ironically, in an era with increasing public policy focus on privacy rights and concomitant privacy acts and commissioners, we have never been so invasively monitored. Employers, more than ever, are monitoring employees’ social media and internet usage, both on and off work — and are disciplining, even discharging, employees they view as damaging their brand.
3. Bottiglia v Ottawa Catholic School Board
This case provided, as I have long advocated, the right of employers to require employees to submit to independent medical examinations when the information received from their own doctors is deficient and further inquiry from their doctors seems unlikely to provide sufficient information. The court noted that employers need probative medical information in order to fulfil their obligation to accommodate employees with modified work. There will be an interesting interplay between this case and the Ontario government’s limitations on seeking medical certificates.
4. Wood v Deeley Imports and North v Metaswitch Corp. decisions
The Deeley case was the Ontario Court of Appeals’ decision that employment contracts below the provisions of the Employment Standards Act are void and that the affected employee will receive wrongful dismissal damages. (It’s the principle first espoused in a decision I successfully argued at the Supreme Court of Canada in 1992, in Machtinger v HOJ). The reasons, the court explained, is that: courts interpret employment agreements differently from other commercial agreements, they prefer interpretations of termination clauses that provide greater benefits to employees, and they favour an interpretation of employment standards legislation that encourages employers to comply and extend protection to as many employees as possible. The Metaswitch decision, following Deeley, found that a severability provision in an employment contract cannot be used to validate a termination clause that would otherwise be invalid.
5. McLeod v 1274458 Ontario Inc.
This case provided that an employer cannot provide working notice to employees who are already on a medical leave. It thereby extended greater rights to such employees for wrongful dismissal damages.
6. Brake v PJ-M2R Restaurant Inc.
This case should have a significant impact on severance negotiations insofar as it provides much greater severance rights for employees than before. Previously, all earnings during the period of working notice have been deducted. In this decision, the Ontario Court of Appeal held that such earnings should not be deducted both during the statutory notice period and when the earnings are significantly less than the employee’s previous earnings and the employee took the new job out of economic necessity.
7. Legalization of cannabis
Employers have apprehensions about their preparedness to deal with intoxicated employees in their workplaces. They need not be concerned. Whether marijuana is legalized or not, employers have a right to require employees to be sober at work and can discipline or discharge them otherwise. Medical prescriptions do not change that fact. If an employee has such a prescription, they could be asked to use a different form of painkiller. Cannabis can be treated in the same fashion as alcohol in the workplace.
8. Papp v Stokes
The Ontario Superior Court in this decision reminded employers they cannot be sued for honestly providing a bad reference, even if it is very damaging to the employee’s future prospects. It is different if the reference is provided in bad faith.
9. Stewart v Elk Valley
Contrary to company policy, an employee failed to disclose his drug use, and claimed that lying about it was a symptom of the addiction. The Supreme Court of Canada had no patience for this argument and found that employers could enact such policies to ensure a safe workplace and that addiction provided no excuse.
10. Krishnamoorthy v Olympus Canada
The Ontario Court of Appeal found that if a company sells its assets to another company and the second company hires an employee from the vendor and signs a contract with that employee on worse terms than that employee had previously, that contract is binding. Of course, if the terms were much worse, the employee could refuse to accept that employment and sue the predecessor for wrongful dismissal.
Financial Post
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.