Citation:
Between:
And
Telecommunications Workers Union v. TELUS,
2011 BCSC 1761
Telecommunications Workers Union
Date: 20111230 Docket: S112553 Registry: Vancouver
Petitioner
IN THE SUPREME COURT OF BRITISH COLUMBIA
TELUS Advanced Communications, a Division of TELUS Communications Inc.; TELUS Services Inc. and TELUS Advanced Services Inc.; TELUS Communications, a Division of Telus Communications inc. and Telus Communications (B.C.) Inc.; TELUS Management Services, a Division of TELUS Services Inc. Telecome Leasing Canada (TLC) Limited; and ISM Information Systems Management (B.C.) Corporation; (hereinafter referred to as “TELUS” or “the Company”); TELE-MOBILE Company/Societe TELE-MOBILE and TM Mobile Inc.; (hereinafter referred to as “TELUS Mobility”)
And
Respondent
IB S. Petersen
Respondent On Judicial Review of a decision of IB Peterson, an arbitrator acting pursuant to the
Before: The Honourable Mr. Justice N. Smith
Canada Labour Code, R.S.C. 1985, c. L-2, as amended, dated January 24, 2011
Counsel for Petitioner: Counsel for Respondent:
L. M. Lyster
D. L. Richards J. A. Cowan
Vancouver, B.C. October 21, 2011
Vancouver, B.C. December 30, 2011
Place and Date of Trial/Hearing: Place and Date of Judgment:
Reasons for Judgment
Telecommunications Workers Union v. TELUS Page 2
[1] The petitioner Telecommunication Workers Union applies to set aside the decision of a labour arbitrator who upheld the dismissal of an employee for excessive absenteeism.
[2] The respondent employer (“TELUS”) operates a call centre in Prince George, where Bonita Palmer (the “grievor”) was employed as an operator for 25 years. She was dismissed on October 8, 2008, with a letter stating that she had been absent for “an unacceptably high number of shifts” and was therefore not capable of meeting her employment obligations.
[3] A grievance was filed pursuant to the collective agreement between TELUS and the union. TELUS is a federally regulated enterprise subject to the Canada Labour Code. Pursuant to provisions of the code, the minister of labour appointed the arbitrator to hear and determine the grievance.
[4] The union argues that, in dismissing the grievance, the arbitrator not only erred in finding that the employer had cause to dismiss the grievor but also erred in his analysis of the employer’s duty under human rights legislation to accommodate the grievor’s disability.
The Arbitrator’s Findings
[5] The arbitrator heard the matter over a total of 11 hearing days and dismissed the grievance in an 84-page award dated January 24, 2011. It is not the function of the court, on judicial review, to recite and weigh all of the evidence that was before the arbitrator. What follows is a brief summary of what I consider to be his essential findings of fact.
[6] TELUS operates a number of call centres at which operators provide services such as directory assistance, collect calls and account adjustment. Operator Services in Prince George, where the grievor worked, is one such centre. Incoming customer calls are routed by computer to the next available operator, regardless of location. The computer system also measures and records operator performance,

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including the time that operators are “logged on” and ready to accept calls, and operators are expected to meet specific performance standards.
[7] The grievor suffered from a number of health problems, including chronic low- grade depression with major depressive episodes. These conditions, along with other illnesses, resulted in a considerable number of absences from work over many years. These absences were summarized by the arbitrator at paragraph 130 of the award:
She was absent more than 80 days in 1994, about 20 in 1995, more than 150 in 1996. A “Work Force Impact” document from September 2001, shows her absence rates between 1997 and 2001 in contrast to the corporation average (in brackets): 1997, 34.11% [3.69%], 1998, 52.88% [3.38%], 1999, 10.42% [4.10%], 2000, 16.56% [4.26%], and 2001, 20.94% [4.33%]. For 2002, the absence rates were 6.62% [4.39%], 2003, 15.05% [4.30%], 2004, 22.66% [4.26%], 2005, 43.12% [4.53%]. In 2000, she was absent on 40.65 days on 25 occasion; 2001, 39.73 days, 29 occasions; 2002, 12.86 days, 9 occasions; 2003, 26.12 days, 23 occasions; 2004, 49.00 days, 26 occasions; 2005, 17.73 days, 8 occasions; 2006 129.62 days, 15 occasions; 2007, 5.00 days, 3 occasions; and finally, in 2008, 32.88 days, 14 occasions. In 2005, BP was off work for five months, yet she was still absent for 17.73 days on 8 occasions. The 2008 prognosis letter indicated that the number of shifts missed represented 20% absenteeism in 2004, 23% in 2005, 49% in 2006, and 32% in 2007 compared to a team average of 7-8% absenteeism.
[8] Although there were some inconsistencies in the evidence about the precise number of days missed in some years, the arbitrator found that the grievor, “in both relative and absolute terms, had a considerable and significant absenteeism record” dating back to 1994.
[9] When Brenda Laviolette became operator services manager in Prince George in 2001, she reviewed employee files and told the grievor that her absenteeism rate needed to improve.
[10] Operators working in the call centre received annual performance evaluations until 2004 and semi-annual evaluations after that. The subject of absenteeism was regularly raised in the grievor’s evaluations, beginning in 2001. Between October 24, 2002 and June 5, 2006, she received seven formal letters expressing concern about her absenteeism. The last four such letters specifically
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warned her of possible termination if she was unable to attend work on a regular and consistent basis. In addition to the formal letters, there were also a number of discussions in which Ms. Laviolette raised the attendance issue with her.
[11] Throughout this period, the grievor frequently provided information from her doctor in the form of Practitioner Assessment Forms (PAFs). These documents included confirmation that she suffered from depression and anxiety and recommended that she be permitted to get up and move about as needed to reduce stress. In 2004, TELUS agreed to provide these “micro breaks” for five minutes in each hour.
[12] The arbitrator found that by mid-2005, the grievor understood that she was “on her last leg” and was close to termination. The performance review for the first half of 2005 showed an absenteeism rate of 39.1 per cent.
[13] The grievor was off work completely from late July, 2006 to October 2007. Upon her return, she agreed to a return to work plan that, in addition to the five minute breaks every hour, provided her with a consistent five-day work week (as opposed to the normal schedule under which operators worked 8 or 9 consecutive days, followed by three or four days off).
[14] On May 26, 2008, Ms. Laviolette gave the grievor a “prognosis letter” to pass on to her doctor. That letter itemized the number of days she had missed for each year beginning with 2000, including 18 days to that point in 2008, and asked that the doctor provide an opinion on her current medical limitations, details of any requirements for additional breaks and an opinion as to whether she was “capable of attending work regularly in the foreseeable future or is a similar attendance pattern likely to persist?” The arbitrator found that this letter, unlike the PAFs that had previously been provided, “specifically sought to address the medical information required in the context of [her] absences and her job description.”
[15] The prognosis letter was never provided although a further PAF dated June 20, 2008 repeated the previous diagnosis and recommended continuation of “current
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accommodations.” The grievor said she had received advice from the union not to provide the prognosis letter.
[16] The grievor’s employment was terminated on October 8, 2008. A letter signed by Ms. Laviolette again set out the number of days missed since 2000, including a total for 2008 that had by then reached 32 days. The letter stated that although the grievor had received many warnings that her job was in jeopardy:
…your record of attendance continues to demonstrate that you are unable to fulfill the commitment of a regular work schedule.
As a result, it has been determined you are not capable of meeting your employment obligations with TELUS.
[17] The arbitrator found that, although there were year to year variations, the grievor’s overall history of absenteeism was “both lengthy and substantial, that it was “excessive” and “significantly outside the range of reasonable expectation.” He also found that, as of the date of termination, she was still not able to attend work on a regular basis. Although he found that the grievor suffered from a disability and her dismissal was therefore prima facie discriminatory, the employer had met the onus of showing it had taken all reasonable steps to accommodate her disability.
Standard of Review–Cause for Dismissal
[18] Prevailing case law clearly establishes that arbitral awards under a collective agreement are subject, as a general rule, to review on a standard of reasonableness: Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59.
[19] In Dunsmuir v. New Brunswick, 2008 SCC 9, at paras.47 and 49, the Supreme Court of Canada referred to the reasonableness standard as a “deferential” one recognizing the fact that:
[47]…certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the

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reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[49] …In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
[20] The union concedes that the reasonableness standard applies to most aspects of the decision at issue, including issues arising out of the collective agreement and cause for dismissal.
[21] In reviewing a decision on the reasonableness standard, it is not the task of the court to ensure that the arbitrator explicitly dealt with every factual issue that arose or every point raised in the parties’ submissions. The Supreme Court of Canada has very recently stated in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , at paras 16-18:
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met…
[18] Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision” (para. 163).
Cause for Dismissal
[22] The Union argues that the arbitrator failed to consider the ultimate issue of whether the Employer had established just cause for the grievor’s termination and

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failed to make an explicit finding on that point. The arbitrator considered arbitral jurisprudence that establishes the right of an employer, in certain circumstances, to terminate an employee for absenteeism even if the absenteeism does not result from any blameworthy conduct. The parties agree that an employee can be dismissed for such “non-culpable” or “innocent” absenteeism only if the employer establishes (a) undue absenteeism in the employee’s past record and (b) that the employee is incapable of regular attendance in the future: Massey-Ferguson Ltd. v. U.A.W., [1969] 20 L.A.C. 370.
[23] The arbitrator considered the evidence in relation to that test, making clear that the onus was on the employer to justify dismissal. He clearly decided the employer had just cause for dismissal on the basis of the employee’s innocent absenteeism—the only cause that was alleged or considered. In my view, there is no ambiguity or uncertainty about that finding or the basis for it.
[24] The arbitrator reviewed the grievor’s attendance record over a 14 year period, including fluctuations in the amount of absenteeism from year to year, and referred to evidence comparing her attendance to a corporate average for many of those years. He concluded at para. 140:
On a “global assessment,” BP’s absenteeism was excessive. It was significantly outside the “range of reasonable expectation for the employees” (Massey Fergusson), and it persisted over a period of 14 years. In my view to quote arbitrator Harris: “Manifestly, the absenteeism … has been excessive” (Sault Area Hospital).
[25] The union alleges that in concluding the grievor’s absenteeism was excessive, the arbitrator made a number of errors, including:
• Failing to make any finding of what the employee’s absenteeism rate was in the months immediately preceding the dismissal.
• Finding that an absenteeism rate of 14.41 per cent in the first six months of 2008 was excessive and failing to recognize that it represented a substantial improvement.
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• Finding that the employee’s absenteeism rate was excessive in the absence of evidence or findings of the average absenteeism rate among her co-workers and without finding what the employer’s absenteeism standard was.
[26] In my view, there was ample evidence on which the arbitrator was able to come to the conclusion he did. The union submission simply invites the court to review the evidence in detail and substitute a different view of the facts. That is precisely what the court is prohibited from doing on a judicial review that is governed by the deferential standard of reasonableness.
[27] There may be cases where the absenteeism at issue is so “close to the line” that an arbitrator must give greater consideration to a more specific comparator group or to the specific levels of absenteeism the employer has said it would or would not tolerate. But the arbitrator must be presumed to have specific expertise on employment issues. The grievor’s absences in this case were of such volume and persistence that the arbitrator concluded they exceeded any level that an employer could reasonably be expected to tolerate. In my view, that was a conclusion clearly open to him on the evidence and in the exercise of his specialized jurisdiction.
[28] The arbitrator was not bound to narrow his focus to the more recent months or to give effect to a purported improvement that the union said occurred in the first half of 2008. Indeed, the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 was critical of a “compartmentalized approach.” In the context of the entire period that the arbitrator considered, the apparent “improvement” was within the range of fluctuation that had been going for years.
[29] The arbitrator may have chosen to give greater or lesser weight to individual pieces of evidence before him, but his finding that the grievor’s absenteeism was excessive can not in any sense be said to fall outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
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[30] The union also argues that the arbitrator erred in finding that the employee had received sufficient warning that her job was in jeopardy. Such a clear warning is required by the applicable case law and the union points out that the last formal warning letter was sent to the grievor more than two years before her dismissal. It therefore argues that she was lulled into a “false sense of security.”
[31] The arbitrator specifically rejected that submission, and found that in addition to the seven attendance letters the grievor received, her absenteeism was discussed verbally with her on more than 20 occasions.
In fact, she was warned repeatedly, verbally or in writing, that her attendance failed to meet the standards the employer reasonably expected of its employees and that failure to improve would place her employment in jeopardy…The discussions and written warnings clearly and unequivocally put her on notice of the severity of the issue and she had ample time and opportunity to improve.
I consider that to be a pure finding of fact, supported by evidence accepted by the arbitrator, to which the court must defer.
[32] The union also argues that the arbitrator erred in finding that “there was little evidence to support that (the employee’s) absences were beyond her control.” If such a finding had been made, it would be inconsistent with all of the evidence, but in my view the union has taken a single statement by the arbitrator out of context. That statement appears in paragraph 133 of the award, which reads in full:
133. Aside from the depression/anxiety/dysthymia, which the employer broadly speaking knew, BP suffered from “co-morbidites,” including thyroid problems, avoidant personality disorder, and, from time to time, from minor, common ailments, such as colds, influenzas, sinusitis, urinary tract infection, eye problems, etc. When looking at her absences from October 2007 until October 2008, not including the long term absence, when she was off work for 37.88 days on 17 occasions, she was questioned on the reasons for the absences in relation to the records of her family physician. As mentioned earlier, the medical records seemed to indicate that she was off work for minor, common ailments. I accept that some of her BP’s absences were related to depression, anxiety or dysthymia. Other absences may be related to the “co-morbidities.” Other absences, again, may be related to the common ailments. In my view, there was little evidence to support that BP absences generally were caused by circumstances generally beyond her control.
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[33] It is clear from that passage that the arbitrator’s reference to absences that were not beyond the employee’s control relates only to some of the absences that occurred within a limited time period and was intended to point out that some absences were for reasons other than the principal disability that he found to exist. The arbitrator clearly accepted that a significant portion of the employee’s overall absenteeism was beyond her control. More important, the arbitrator throughout the award treated the case as one of non-culpable absenteeism and considered it in the context of the principles and authorities relevant to that issue.
[34] The union argues that the arbitrator improperly relied upon medical evidence of the grievor’s current prognosis, rather than the prognosis as of the date of termination. Although the arbitrator stated, at paragraph 143 that “her current prognosis for regular attendance is poor” he also said, in the next paragraph that :
In Dr. Hashmon’s opinion, as of the time of termination in October 2008, there was no prospect of regular attendance at work. BP past attendance record is a good predictor of her future attendance. In Telus (Archibald), and other cases, arbitrators have accepted that an employer is entitled to rely on a grievor’s entire record of excessive absenteeism to infer that the pattern is likely to continue in the future. In my view, that is a proper and reasonable inference.
[35] The arbitrator heard medical evidence from two psychiatrists who assessed the grievor after her termination. The opinion that he accepted, explicitly stated that the grievor’s “prognosis for regular and consistent attendance in the work place at the time of her termination on October 8, 2008 was guarded.” The arbitrator therefore considered, as he was required to do, the issue of whether the grievor would be capable of regular attendance in the future and found, on the basis of all of the evidence, that she would not.
[36] On review of the entire award, I find that the arbitrator considered the evidence before him, reviewed the applicable authorities governing non-culpable absenteeism and came to a decision that meets the standard of reasonableness.
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Standard of Review–The Human Rights Analysis
[37] Although the union concedes that the reasonableness standard applies to most aspects of the decision at issue, it says the arbitrator’s interpretation and application of human rights law must be reviewed on a standard of correctness. A similar argument was specifically rejected by this court in Canada Post Corp. v. Canadian Union of Postal Workers, 2007 BCSC 1702.
[38] In Dunsmuir, the court made clear that the reasonableness standard extends to a tribunal’s interpretation of “its own statute or statutes closely connected to its function, with which it will have particular familiarity”: at para. 54 (emphasis added). In Nor-Man Regional Health Authority, the Supreme Court of Canada held at para. 49 that the reasonableness standard extended to review of an arbitrator’s application of general common law or equitable doctrines:
[39]
Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord.
Section 15 of the Canadian Human Rights Act, R.S.C., 1985 c. H-6 states: 15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; …
15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
[40]
consideration of whether accommodation does or does not impose undue hardship on the employer are clearly issues dealing with the proper functioning of the workplace and the employment relationship–matters on which the arbitrator is
The identification of bona fide occupational requirements and the
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presumed to have expertise. The relevant provisions of the Human Rights Act must qualify as a statute “closely connected” to the arbitrator’s function under both the Labour Code and the collective agreement and the arbitrator’s application of them must be subject to a deferential standard of review.
Discrimination and the Duty to Accommodate
[41] The arbitrator found that the grievor suffered from a number of physical and mental conditions that amounted to a disability. Because the decision to terminate her was based on her entire absenteeism record, including absences related to her disability, the arbitrator found that the union had established a prima facie case of discrimination and the onus was on the employer to justify the dismissal on the basis of bona fide occupational requirements.
[42] In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, the Supreme Court of Canada, at para. 54, set out a three-part test that an employer must meet in order to establish on the balance of probabilities that a prima facie discriminatory standard is a bona fide occupational requirement:
[43]
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work- related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
The arbitrator considered and applied that test and found that:
• Attendance is a bona fide work requirement in light of the very nature of the employment contract.
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• Attendance requirements were implemented in an honest and good faith belief that they were necessary and that the evidence did not support the employee’s assertion that the employer’s conduct was “malicious and highhanded.”
• The employer had put in place all of the specific accommodations requested by the grievor and her physician over the years, had relaxed the attendance standards for her and had “tolerated significant absenteeism over many years.”
• No further accommodation was possible, other than tolerating continued absenteeism.
[44] I recognize that the union takes issue with some of these findings of fact, but I consider them to be findings that were open to the arbitrator on the evidence before him. Once again, the test is not whether I would have come to the same conclusion on the evidence, but whether the arbitrator’s conclusion was a reasonable and supportable one based on that evidence.
[45] To some extent, the union’s challenge to the arbitrator’s findings turns on interpretation and semantics. For example, the union argues that TELUS did not, in fact, relax its employment standards. TELUS certainly did not tell the grievor that she would be permitted to be absent for a specified number of days over and above the corporate average in each month or year. But I understand the arbitrator’s finding to mean that TELUS effectively relaxed its attendance standard as part of the process of tolerating the grievor’s absence as long as it did.
[46] The arbitrator recognized that there was no evidence quantifying the financial impact of the grievor’s absences or suggesting there was any difficulty replacing her when she was absent. However, he found that Ms. Laviolette had “spent considerable time and effort over the years trying to manage” the grievor’s absences. He concluded that it would not be reasonable to expect the employer to
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simply continue to tolerate her absenteeism and “there has to be limit to accommodation.”
[47] The arbitrator’s analysis and conclusion was consistent with the general principle stated by the Supreme Court of Canada in Hydro Quebec. The court said the duty to accommodate does change the fundamental nature of the employment contract, which is “the employee’s duty to perform work in exchange for remuneration.”
17 …However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.
18 Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these, circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non- discriminatory.
[48] The arbitrator in this case considered the evidence and reached a similar conclusion. No error of law or overriding factual error has been demonstrated and there is no basis on which this court, applying a reasonableness standard of review, can or should interfere.
Sufficiency of Reasons
[49] Finally, the union argues that the reasons as a whole are deficient and amount to a breach of the procedural duty to provide reasons. That argument is premised on the submission, which I have already rejected, that the arbitrator failed to make specific findings on such matters as whether the Employer had just cause, and the grievor’s absentee rates in the months prior to her termination.
[50] In any case, the argument that arguably deficient reasons amount to an absence of reasons is foreclosed by the decision of the Supreme Court of Canada in

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Newfoundland and Labrador Nurses Union, which neither the parties nor the court had the benefit of at the time this application was argued. In that case the union argued that a correctness standard applied because “the arbitrator’s reasons amounted to ‘no reasons’.” Referring to its decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the court said at para 20 and 22:
[20] …Baker stands for the proposition that “in certain circumstances”, the duty of procedural fairness will require “some form of reasons” for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness…
[22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.
Conclusion
[51] The arbitrator issued a lengthy award that considered the evidence in detail, reviewed the applicable legal principles and clearly set out his reasons for reaching the conclusion that he did. Viewed in its entirety, the award fully meets the requirement for “justification, transparency and intelligibility.” Other arbitrators may or may not have taken a different view of the evidence and reached a different conclusion, but the decision made by the arbitrator clearly falls within the “range of possible acceptable outcomes.”
[52] The application to set aside the arbitrator’s award must be dismissed.
“N. Smith J.”

BC HUMAN RIGHTS TRIBUNAL ON PARENTAL RIGHTS
Cavanaugh v. Sea to Skye Hotel (No. 2) is a decision of the BC Human Rights Tribunal. In that case, a female banquet manager, a single parent with a young child, was terminated. The job entailed being available for functions and coordinate events, which would sometimes require long and irregular hours. The manager understood these requirements when she accepted the job.
However, over the next few months, the employer had concerns about her performance. These were addressed informally and she passed her probationary period. Following an event, where she left early, because of child-care obligations, she was terminated.
The Tribunal did not accept the definition of “family status” in the BC Court of Appeal’s decision in Campbell River as exhaustive. In Campbell River, the Court of Appeal stated that a prima facie case of discrimination might be made out where “ a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty.” In Cavanaugh, the issue, in the Tribunal’s view, was whether the refusal to continue her employment because of assumptions about her ability to work based on family status. The Tribunal found that a traditional approach to discrimination – as applied, for example, to race, gender and sexual orientation – was appropriate.
The complainant need not establish that family status was the only factor in her termination. In Cavenaugh it was a factor. First, the Tribunal found, despite the employer’s concerns about performance, that the manager leaving the event early changed the employer’s view of her. Second, the employer was quite concerned about her changed child-care situation – her daughter was no longer able to spend weekends with the father. Third, the employer felt she was not up the long and irregular hours based on one incident. Thus the Tribunal found that family status was a factor in the dismissal. Once a prima facie case is established, the burden shifts to the employer to show that long and irregular hours were a bona fide occupational job requirement. The employer, which was not represented by counsel, did not argue that it was.
ONTARIO COURT OF APPEAL ON NEGLIGENT INFLICTION OF MENTAL DISTRESS
The facts in Piresferreira v. Ayotte et al. briefly were as follows. P was a 10-year employee who worked as an account manager with Bell Mobility. Towards the end of her employment she received negative performance evaluations. Her manager was critical, demanding, loud and aggressive. In the last days of her employment she had a confrontation with the manager, who pushed her and told her to “get he hell out of his office.” He indicated that he would prepare a performance improvement plan for her. After that P went home and later went on sick leave. She filed a complaint with human resources, which found that the manager had acted inappropriately. He was relocated and ultimately retired. P refused the employer’s offer to return to work. A psychologist and a psychiatrist diagnosed P with post-traumatic stress disorder and a major depressive disorder resulting, among others, from the confrontation with the manager and the manner in which Bell had dealt with it.
Trial judge found the manager and/or Bell liable for battery, wrongful dismissal, intentional and negligent infliction of mental distress, and awarded in excess of $500,000.
The focus of the Ontario Court of appeal’s decision was on the trial judge’s decision that the manager and Bell were liable for the tort of negligent infliction of mental distress. The trial judge had found that the manager and the employer owed a duty of care based on the contractual relationship to ensure a safe and harassment free work environment, in accordance with Bell’s Code of Business Conduct. However, the Appeals Court found that the trial judge erred in basing the standard of care on a breach of a contractual duty. For concurrent liability to exist, there must be a duty of care that would exist even in the absence of a contractual obligation. The Court then noted (erroneously, with respect (see below)) that no Canadian appellate court has recognized a cause of action for negligent infliction of mental distress, and proceeded to apply the test articulated by the House of Lords in Anns v. Merton London Borough Council. The Ontario Court of Appeal accepted that the employment relationship put the parties in a relationship of proximity and that the damages the flowed were reasonably foreseeable. However, in the Court’s view, the “general duty postulated would require employers to take care to shield employees from the acts of other employees that might cause mental suffering,” a broader framework than that set out in Honda Canada. In the Court concluded that the tort of negligent infliction of mental distress was not available.
The Court also set aside the finding of intentional infliction of mental distress. While the manager’s conduct was flagrant and outrageous, the evidence did not support a finding that the manager intended or knew that the harm was substantially certain to follow. The court assessed “generously” from the battery at $15,000. It also found that $45,000 for the manner of dismissal had a solid foundation and agreed that a 12 months’ notice period was appropriate.
It appears that the Ontario decision conflicts with the decision of the British Columbia Court of Appeal’s decision in Sulz v. Minister of Public Safety and Solicitor General. Moreover, Sulz was not argued before the Ontario court. It will be interesting to see how this works out?
JUDICIAL REVIEW – SUPREME COURT OF CANADA
A couple of days ago the Supreme Court of Canada released its decision inSmith v. Alliance Pipeline Ltd., a judicial review arising out of decisions of arbitration panels under the National Energy Board Act and related court proceedings.
The pipeline company failed to perform agreed-upon reclamation work in connection with a pipeline. The landowner then did the work himself, but the pipeline company only paid part of the invoice. The dispute went to arbitration under the NEBA. The dispute resolution under that act is supposed to be an expeditious and inexpensive process. What followed was anything but. A first arbitration panel failed to decide the matter because a member was appointed to the bench. In the meantime, the pipeline company commenced court proceedings before the Queen’s Bench, which it later discontinued. The landowner recovered only a portion of its court costs. The second arbitration panel awarded costs to the landowner on a client-solicitor basis, including the costs incurred in the process before the court. The Federal Court of Appeal set aside the decision.
The Supreme Court of Canada restored award of the second arbitration panel. The first issue in a judicial review is to decide the standard of review, or, in other words, when is a court going to interfere in a decision of an administrative tribunal? In some instances, the decision must be correct (for example, on constitutional issues), in other, not unreasonable (Dunsmuir v. New Brunswick)? In this case, the panel’s decision was subject to review only if it was found to be unreasonable. First, the panel interpreted the cost provision of the NEBA, its home statute. Second, Parliament endowed the panel with wide discretion to award costs. Third, the exercise of that discretion raises questions where legal issues cannot be easily separated from factual issues.
The Supreme Court found that the panel’s award of costs was justified. First, the statute provided that panel could award costs for “all legal, appraisal and other costs.” In the context of modern law of expropriation, costs should generally be awarded on a client-solicitor basis. Second, a cost award on that basis is consistent with the purpose of the NEBA. Third, on the facts in the case at hand, justice can only be done by complete indemnity. The Court noted that the landowner had spent an inordinate amount of money in what should have been an expeditious process.
CHILDCARE RESPONSIBILITIES AND HUMAN RIGHTS
In three recent decisions the Canadian Human Rights Tribunal concluded that childcare responsibilities fell within the protected ground of “family status” (Richards v. Canadian National Railway). While this does not mean that employers must accommodate all childcare issues, it does suggest that they should not be dismissed lightly, especially in the federal jurisdiction. In Richards(and related cases) three female employees, fired for refusing transfers due to parental responsibilities, and the Tribunal concluded that they were discriminated against based on “family status.” The Tribunal reinstated them with back pay, $15,000 for pain and suffering, and $20,000 as compensation for “reckless” discrimination.
The female complainants, two were single mothers with primary custody, had been laid off and were recalled, as per the collective agreement, to work at another terminal for an unknown period of time. CNR initially granted an extension for them to report to work. However, when they failed to report for work in Vancouver, they were terminated.
The Tribunal adopted a broad approach towards the scope of “family status.” Unlike the narrower approach by the BC Court Appeal in the 2004 decision inHealth Sciences Association of British Columbia the Campbell River v. North Island Transition Society, which required a serious interference with substantial parental or family duty or obligation of the employee, the Canadian Human Rights Tribunal was of the view that this approach effectively established that some grounds, such as family status, being deemed less important. The Tribunal found that the extension to report for work in Vancouver was not reasonable accommodation. It found to be CNR insensitive to the complainants, including a lack of response to requests for accommodation, and failure to meet and discuss the situation. CNR’s failure to meet the procedural obligations of the duty to accommodate was a violation of the Canadian Human Rights Act. CNR neglected to conduct any meaningful individualized assessment of the complainants’ situations and investigate any alternative forms of accommodation. As well, the Tribunal noted that CNR did not prove that granting a leave of absence to the complainants would have cost CNR undue hardship.
ABSENTEEISM MANAGEMENT PROGRAM CONSTITUTES SYSTEMIC DISCRIMINATION
In a recent decision, Coast Mountain Bus Company, the British Columbia Court of Appeal upheld a decision by the Human Rights Tribunal, which concluded that the company’s attendance management program resulted in systemic discrimination against employees with chronic and recurring disabilities, and that the program was not exempted as a bona fide occupational requirement. The employer successfully filed an application for judicial review in the British Columbia Supreme Court. The Court of Appeal set aside that decision.
The attendance management program at Coast Mountain was a multi-level program beginning with the identification of employees with high absenteeism and ending with the potential termination of the employee. Employees were placed in the program if they had absence rates consistently higher than the average absence rate of the other employees. One of the levels included a medical assessment from the employee to determine his or her ability to attend work on a regular basis and to ascertain whether the employee had a medical disability. Inquiries of the employees and doctor about the accommodation were only made if the employee was unable to return to work, and did not include periodic absences. The absence rate included days missed for Short-Term and Long-term Disability and Workers Compensation.
The Human Rights Tribunal had concluded that the program was prima faciediscriminatory for a number of reasons, including the use of average absenteeism rates for employees, and the inclusion in the employees’ attendance records of partial day absences when they were on a gradual return to work program. The Tribunal concluded that Coast Mountain failed to establish that it was not possible to further accommodate employees with chronic or recurring disabilities short of undue hardship. The Tribunal reasoned that the employer treated employees with chronic or recurring disabilities as “attendance problems.” It imposed a standard, average attendance, which the employees were unable to meet. As well, while the employer introduced evidence of the substantial cost of employee absenteeism, it did not provide any evidence by which the cost related specifically to employees with chronic or recurrent disabilities could be assessed.
The basic approach for determining whether a prima facie case of systemic discrimination has been established, is the same as in cases of individual discrimination, and poses the following questions:
1. Does the employee have (or is perceived to have) a disability?
2. Did the employee receive adverse treatment?
3. Was the disability a factor in the adverse treatment?
In a case of systemic discrimination, the complainant must demonstrate that an employer’s procedure, policy or practice is discriminatory against a class of employees, sharing a protected characteristic.
The Court of Appeal but did not accept all the factual findings of the Tribunal and, it is fair to say, was critical of the sweeping language used in the decision. Nevertheless, the Court found that the Tribunal did not reach the conclusion that the mere application of the attendance management programs to employees with disabilities constituted systemic discrimination. It was the program, as applied by the employer, which resulted in discrimination. While it is not discriminatory for an employer to require employees to establish that their non-attendance at work is due to a disability, there was evidence, which could support a finding of systemic discrimination, including the use of average absenteeism rates. The Court of Appeal did not find that Level 1 and 2 of the program, which identified employees with attendance issues and sought medical information related to medical conditions, constituted prima facie discrimination. However, the placement of employees at Level 3 on the basis of absences due to disability constituted adverse treatment. Their employment was put in jeopardy for failing to meet attendance parameters set without regard to disability. Disability was a factor in the adverse treatment to the extent that absences due to disability caused employees to be placed at Level 3 and established a prima facie case.
With respect to the next step on the analysis, bona fide occupational requirement–was the discriminatory treatment justified–the Court relied on the well-established principles from the 1999 decision of the Supreme Court of Canada in Meorin:
1. Was the standard adopted for a purpose or rationally connected to the function being performed?
2. Was the standard adopted in good faith?
3. Was the standard reasonably necessary to accomplish the purpose – could the employer accommodate the employees without incurring undue hardship?
The real issue in Coast Mountain, as is quite often the case, was the third question. The employer failed to meet that standard. The court also referred to the decision in Hydro-Québec, where the Supreme Court of Canada made it clear that there are limits to the duty of accommodation. The Supreme Court of Canada stated that where an employee with chronic absenteeism is unable to resume work in the reasonably near future, despite accommodation, the employer would have established undue hardship. The employer, however, must show that it is impossible to do so without undue hardship. In the case at hand, the Tribunal did not err that the issue was whether Coast Mountain had demonstrated that it was impossible to accommodate the employees without experiencing undue hardship. The Court noted that that there was no evidence as to the cost of accommodating employees with disabilities, and that the employer advanced no other ground of undue hardship.
In conclusion the British Columbia Court of Appeal found that the chambers judge erred in setting aside the Tribunal’s decision. This case may be headed for the Supreme Court of Canada.
LEGAL COSTS IN HUMAN RIGHTS COMPLAINTS – NOT AVAILABLE IN BC – UNLESS MISCONDUCT
In Senyk v. WFG Agencies, Ms. Senyk, a commercial insurance sales person, complained to the BC Human Rights Tribunal that her former employer discriminated against her on the basis of physical and mental disability contrary the Human Rights Code.
Ms. Senyk was in her late 50’ and had worked for the employer for more than 30 years. She alleged, first, that managers harassed her between 2000 and 2004, creating a toxic work environment, resulting in a physical and mental breakdown in the spring of 2004. She went on medical leave. Second, she complained that the employer discriminated against her in 2006 when it terminated her employment.
The Tribunal found in favour of Ms. Senyk on the second allegation. WFG terminated Ms. Senyk in the spring of 2006, while she was on medical leave, and in receipt of long-term disability benefits (LTD). The employer chose to terminate her by way of email. The email noted that she had been absent for two years and that the employer could no longer guarantee her a position if and when she was able to return to work. Early in her absence, Ms. Senyk’s clients had been reassigned to other agents and these had, given the passage of time developed relationships with the clients.
The employer did not, in making the decision to terminate Ms. Senyk, did not make inquiries as to the possibilities of her returning to work. The employer knew that she continued to receive LTD and assumed that she remained totally disabled. The employer acted upon the belief that, after an employee had been absent for two years, the employer was free to terminate employment. However, there was evidence before the Tribunal, which it accepted that Ms. Senyk wanted to return to work when she was well enough to do so. The termination had a serious impact on Ms. Senyk’s health, although the Tribunal was not in a position to make a conclusive finding. The termination did not affect her LTD payments.
The employer’s position was that Ms. Senyk’s employment contract was frustrated because of the employee’s inability to return to work due to disability. Terminating an employee for disability related reasons is prima facie discriminatory. The question then becomes whether the employer has fulfilled its duty to accommodate. The Tribunal accepted that a two-year absence is a lengthy, but not sufficient to frustrate the contract, given her length of service, 34 years. Moreover, the Tribunal considered that the employer contributed o her becoming ill and going on a leave, as well as its aggressive workplace culture. The employer did not contact Ms. Senyk to warn her that her employment was in jeopardy, giving her an opportunity to provide medical evidence with respect to her condition. As well, the Tribunal was not impressed with the method of termination, email. Finally, there was little cost to WFG of continuing to employ her. In the circumstances, WFG failed to establish a justification for the termination.
The Tribunal did not order lost wages to Ms. Senyk, as she had been unable to work for medical reasons. She could not, therefore, establish a wage loss. The Tribunal refused Ms. Senyk’s request for common law reasonable notice. Such remedy is only rarely available in a human rights complaint, except perhaps, where a complainant is rendered incapable of working as a result of the respondent’s discrimination.
Ms. Senyk requested $50,000 on account of “injury to dignity, feelings and self-respect.” The Tribunal rejected her reliance on common law cases ordering increased, aggravated and punitive damages. The remedies under the Human Rights Code are meant to be remedial in nature, not punitive. However, the Tribunal considered that she was especially vulnerable at the time of termination. The termination had significant effects on Ms. Senyk’s health and, over time, worsened her depression, anxiety and likely her drinking problem. In two previous cases from 2007, the Tribunal awarded $20,000 and $25,000. In this case, the Tribunal found that an award of $35,000 was appropriate.
Ms. Senyk also requested legal costs, estimated at $40,000. In the past, the Tribunal has ordered, fairly limited costs, without reference to a party’s actual costs, and on the basis of a party engaging in improper conduct in the Tribunal’s process. In this case, the Tribunal noted that the case involved the presentation of sophisticated and extensive legal submissions. WFG is a large enterprise, represented by effective counsel. Exert evidence was required. Witnesses were subject to extensive cross-examination. The Tribunal noted that it would be “unrealistic to expect that any but the most exceptional of self-represented parties to have been able to effectively address the factual and legal issues raised in this case.” It would be “entirely unrealistic to expect some complainants to represent themselves.” The Tribunal ordered the employer to pay Ms. Senyk’s “reasonable costs.” The Tribunal retained jurisdiction to determine the actual amount of reasonable costs if the parties failed to agree.
There is a question whether the cost award would be upheld on judicial review. The cost award is largely based on decisions of the federal Human Rights Tribunal and the Federal Court under the Canadian Human Rights Act and different statutory language. It does not deal satisfactorily with the differences in the statutory language such as the express power to award costs for “improper conduct in the course of the complaint” (s. 37(4)(a)). Moreover, the decision ignores section 47 of the Administrative Tribunal’s Act, which expressly provides for the power to award “costs … in connection with an application.” The B.C. legislature expressly excluded the Tribunal from exercising that power. Presumably the legislature could have given the Tribunal this power had it wanted to do so.
However, in two more recent cases, the Federal Court of Appeal and the BC Human Rights Tribunal have had the opportunity to deal wit the issue of costs.
In the Attorney General of Canada v. Mowat and the Canadian Human Rights Commission, 2009 FCA 309, the court concluded that the language of the Canadian Human Rights Act did not include the power to award costs. Noting that the term “costs” is a legal term of art, an expression that though usage by legal professionals, has acquired a distinct legal meaning, and that the power to award costs must be founded upon express statutory language, the court concluded that “compensate … for any expenses … as a result of the discriminatory practice” did not include the power to award legal costs. The court reviewed the Commission’s practice and decisions and, as well, compared the language of the statute to that found in various provincial statutes.
In Kerr v. Boehringer Ingelheim (Canada) Ltd., 2010 BCHRT 62, the BC Tribunal concluded that the employer had discriminated against Ms. Kerr and found that the appropriate remedies included wage loss compensation and $30,000 for compensation for injury to dignity, feelings and self-respect. Ms. Kerr also sought legal costs, partly, not surprisingly relying on the decision in Senyk, discussed above.
The employer opposed costs, arguing that the BC Human Rights Code itself provides no basis for an award of costs; the Administrative Tribunals Act – legislation dealing with, among others, the powers of administrative tribunals such as the BC Labour Board and the Human Rights Tribunal – denied the Tribunal the power to award costs; the Human Rights Tribunal does not have inherent jurisdiction (like the courts) but only the jurisdiction given to it by the legislation; and, of course, the Federal Court of Appeal’s decision in Mowat.
The decision in Kerr was that the Tribunal does not have the jurisdiction to award legal costs for the cost arising after the filing of the complaint. While the employer’s submissions in this case against the Senyk approach are very compelling and sound in law, ultimately, won the day, the Tribunal may well find some backdoor way to award costs.
FAILURE TO ACCOMMODATE MAY BE EXPENSIVE – EVEN IF YOU DO “ALMOST” EVERYTHING
Human rights law is a minefield for many employers. No area is more complicated than the duty to accommodate employee disabilities. Mistakes can be costly. In a recent case, the BC Human Rights Tribunal ordered MacDonald’s Restaurants to pay a former employee more than $50,000, including the highest award in respect of compensation for injury to dignity, feelings and self-respect – $25,000.
Ms. Datt immigrated to Canada in 1981 with her family. That same year, she found employment with MacDonald‘s as a crew member, rotating between different work stations – serving the public, food preparation, cashier and the drive though. Over time, her responsibilities increased and she took on certain management duties. Ms. Datt loved her work and the work place. MacDonald’s found her performance excellent.
In a restaurant food safety is paramount. MacDonald’s is subject to the Health Act and associated regulations, requiring, among others, hand washing to prevent food contamination. MacDonald’s has policies requiring all employees, including managers, to wash their hands “frequently” and after restroom breaks, touching door knobs and the like.
In January 2002 Ms. Datt developed a painful skin condition on her hands and went on short term disability, provided by GWL, MacDonald’s disability carrier. She returned briefly for a few weeks in April and eventually went on LTD. Ms. Datt was under the care of a skin specialist. He advised that she was unable to return to work. After some improvement in her condition, Ms. Datt tried a second return to work in January 2003. Her condition flared up and she went on LTD. A third return to work in July 2003 did was not successful either. During the attempts to return to work, her duties were not modified.
Her skin specialist wrote several reports to GWL. The thrust of these reports were that Ms. Datt could not do “wet work or frequent hand washing” or restaurant work. She also could not wear plastic gloves. Ms. Datt believed she could do certain jobs at MacDonald’s, such as hosting or cashier.
In August 2004, GWL provided Ms. Datt was provided with a 3 month job search program and LTD. MacDonald’s terminated her on November 8, 2004.
There was no dispute that Ms. Datt had a disability and that the disability had adversely affected her employment. MacDonald’s argued that it had met its obligation to accommodate to the point of undue hardship, and that its hand washing policy – that all employees must wash their hands – was a bona fide occupational job requirement.
The Human Rights Tribunal agreed with Ms. Datt’s complaint that MacDonald’s had failed to accommodate her disability. There was no doubt that hand washing was rationally connected with the performance of her job. The policy was adopted in good faith and to fulfill a work-related purpose, prevention of food contamination.
Undue hardship means that some hardship is acceptable, considering the size of the employer, the financial costs and other factors. An employer must take the necessary steps to inform itself of the nature of the employee’s medical condition, the prognosis and the employee’s capacity for alternate work. An employee must assist the employer in this process.
The panel member stated that it is necessary both to consider the procedure of the employer’s inquiry and the substantive result of those inquiries, i.e. can the employee be accommodated, to determine if the Human Rights Code has been breached. MacDonald’s could not rely on GWL for the primary responsibility to accommodate Ms. Datt’s disability.
While Ms. Datt’s skin specialist had found that she could not do restaurant work or do “frequent hand washing,” the panel was critical of MacDonald’s for failing to follow up with him to find out what he meant by the terms “frequent hand washing” and “restaurant work.” The panel found the skin specialist’s opinions to be equivocal. Thus, MacDonald’s did no ask the right specific question. It did not turn its mind to the possible ways to accommodate Ms. Datt. The Tribunal found that MacDonald’s made no real attempt to see if there was any work available for her.
With respect, on the evidence, it was clear that there was no job for Ms. Datt at MacDonald’s at end of the day. The employer failed to ask the “right” specific question. The panel did not cut MacDonald’s any slack. It is crucial for employers facing a situation with an employee with a medical condition to carefully consider what to do.
The panel awarded wage loss for the time between the termination and the hearing, $35,000 less mitigation. Importantly, the panel also gave Ms. Datt the highest award to the present time, $25,000, based on little other than her testimony of the emotional and financial stress of having been terminated.
Mental Distress Damages
In a case released by the Supreme Court of Canada in August, Fidler v. Sun Life, the Court has clarified that damages for mental distress resulting from a breach of contract are payable “where such damages were in the reasonable contemplation of the parties at the time the contract was made.” It is not necessary for such damages to be founded on separate actionable conduct on the part of the employer, for example, defamation, fraud or oppression. The Court upheld a $20,000 mental distress award from an Ontario trial court to a woman suffering from chronic fatigue syndrome, whose disability benefits had been terminated by the insurer because it was of the view that she was capable of working. On appeal, the Ontario Court of Appeal added another $100,000 in punitive damages to the trial judge’s award. However, that award was set aside by the Supreme Court. Punitive damages are not compensatory but designed to address retribution, deterrence and denunciation. While the insurer’s handling of the claim was “overwhelmingly” inadequate, it did not (on the factual findings of the trial court) amount to bad faith. The court noted that to attract punitive damages, the impugned conduct must depart markedly from ordinary standards of decency — the exceptional case that can be described as malicious, oppressive or high-handed and that offends the court’s sense of decency.
Human Rights Damages Increasing
A recent case from the B.C Human Rights Tribunal, Toivanen v. Electronic Arts (Canada) Inc., illustrates the need for employers to deal with disabled employees. Video game makers Electronic Arts terminated an employee diagnosed with stress and depression in connection with a request for a medical leave of absence. Unable to work, the employee went on to receive long term disability payments. The damages ordered by the Tribunal included almost $70,000 for lost value of the employee’s stock options, $20,000 in severance pay (with no deductions for LTD benefits), and — in one of the highest awards in B.C. under this heading — $20,000 for “injury to dignity, feelings and self respect.” The Tribunal noted that the employer should have investigated the change in the (previously good) employee’s behaviour. The Tribunal’s decision emphasized that the dismissal was the most disturbing act by the employer, exacerbating her illness. The employee’s career was her life and the termination “blew her life apart.”
THE VALUE OF WRITTEN EMPLOYMENT CONTRACTS
Many employers rely on oral agreements or brief offers of employment. Recent cases from the B.C. Supreme Court highlight the importance of properly phrased employment contacts. The costs are typically minimal and the benefits can be substantial.
In Macaraeg v. E Care Contact Centers Ltd. a customer service representative, terminated after less than 2 years employment, commenced an action for wrongful dismissal and for unpaid overtime. Her signed written “offer of employment” was silent on the issue of overtime. She claimed she had worked 12 hours days. She also made acclaim on behalf of other employees for overtime under the B.C. Class Proceedings Act. The Employer, E Care, brought an application, seeking the court’s decision on two legal points: (1) whether the overtime entitlements under the Employment Standards Act were implied terms of the employment contract; and (2) whether Ms. Macaraeg was entitled to bring her claim for statutory overtime entitlements in the court or if she had to pursue those claims through the mechanism provided for under the Employment Standards Act.
Following a detailed analysis of some 30 years of case law, Madam Justice Wedge rejected the “traditional” answer to these two questions. First, she concluded that terms of an employment contract failing to meet the minimum statutory requirements will be replaced with either the common law or statutory requirement, whichever is more generous to the employee. Where no rights exist at common law, the void provisions will be replaced by the statutory requirements. In particular, the court relied on the 2003 decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. OPSEU which concluded that Ontario human rights legislation was incorporated into the employment contract, in that case a collective agreement. In the result, the court concluded that “employment rights of employee conferred by statute are implied into employment agreements irrespective of the parties’ subjective intentions.” The statutory entitlement to overtime was implied into the employee’s employment contract.
Second, on the entitlement to bring an action in court, the court analyzed the case law and the provisions of the Employment Standards Act in considerable detail. Traditionally, an employee would have had to pursue claims for statutory benefits, such as overtime (unless provided for in the employment contract) through the Employment Standards Branch as decided in the 1988 case of Sitka Forest Products Ltd. v. Andrews. The express and stated purposes of the Act are to ensure that employees receive minimum standards of compensation and to provide for efficient means of resolving disputes. The court noted that provisions of the Act contemplated that employees could pursue claims though alternate means and, as well, that the legislature did not give the Employment Standards Branch exclusive jurisdiction. Madam Justice Wedge noted that the Supreme Court of Canada since the decision in the Sitka Forest Products case has issued several decision confirming that employment standards legislation must be interpreted in a manner that expands the protection and benefits provided to employees. The court concluded that the rights sought to be enforced were not pure statutory rights, but were implied terms of her employment agreement. The rights could be pursued though the courts.
The importance for employers of the decision in Macaraeg is clear. In University of B.C. v. Wong the court upheld the notice provision of the written employment contract. The employee was terminated during a twelve month probationary period. The contract provided:
“An employee terminated during the probationary period for reasons other than just cause shall receive or pay in lieu of notice in accordance with the provisions of the Employment Standards Act.”
An arbitrator had ruled that Mr. Wong was entitled to (much higher) common law reasonable notice and awarded him $100,000. The B.C. Court of Appeal held that on a plain reading of the contractual language, the notice provisions under the Employment Standards Act were incorporated into the contract and, therefore, Mr. Wong was entitled to only one week’s notice.
Consider another recent case from the B.C. Supreme Court, Strauss v. Albrico Services (1982) Ltd.. In that case, a 47 year old journeyman insulator, without a written employment contract, was terminated for theft after 16 years service. He used a company gas card to buy gas for purposes. While the court recognized that theft is a serious matter, it is necessary to analyze all the circumstances surrounding the alleged misconduct: (1) Does the evidence establish the employee’s deceitful conduct on a balance of probabilities; and (2) does the nature and degree of the dishonesty warrant dismissal? In this case, the court was not satisfied that the employer’s instructions were sufficiently clear and, therefore, the employer did not have just cause, The court then went on to determine reasonable notice. In Peterson v. Wilson Logistics (Canada) Inc., the court noted:
“One month of notice for each year of employment is a sound starting point but is no more than a guideline. Rather, notice should be determined … in the context of each case. “
Mr. Strauss was awarded 16n months notice. However, because he had successfully mitigated his loss through other employment, he ended up not having suffered a loss.
In Proctor v. Wal-Mart Canada Corp., the court concluded that continuing dishonesty on the part of a manager justified dismissal. In that case, a manager was dismissed for taking advantage of fictitious discounts and for attempting to conceal his original misconduct, lying and attempting to obstruct the employer’s investigation.