Ontario Government Introduces Digital Rights for Employees

by Stacey R. Ball| May 24, 2022August 14, 2023 | General

Over the last two years, the global COVID-19 pandemic has facilitated significant changes to the way Canadians work. Workplaces have transformed from in-person settings to digital, remote settings at an unprecedented rate. As the way we work changes, so too must the law. This is a daunting task, as changes to workplaces are advancing at lightning speeds.

The Government of Ontario has tried to keep up. In November 2021, the Ontario legislature passed Bill 27, the Working for Workers Act, 2021, which requires employers to introduce policies regarding the “right to disconnect”. This was vital, as employees working remotely due to COVID-19 could otherwise find themselves expected to reply to emails or answer phone calls at all times of the day, even late into the evening. Thankfully, the Ontario government did not stop there. On February 28, 2022, the Ontario government introduced further legislation: Bill 88, the Working for Workers Act, 2022.

Further Digital Rights for Employees: Policies on Electronic Monitoring

Bill 88, like Bill 27 before it, is informed by the current COVID-19 era workplace. If passed, Bill 88 would amend the Employment Standards Act, 2000 to introduce new employee and human rights and protections. Specifically, Bill 88 would require employers with more than 25 employees to introduce written policies on electronic monitoring.

These policies are required to contain the following information:

Whether the employer electronically monitors employees and if so,
1. a description of how and in what circumstances the employer may electronically monitor employees, and
2. the purposes for which information obtained through electronic monitoring may be used by the employer.
The date the policy was prepared and the date any changes were made to the policy.
Such other information as may be prescribed.

Bill 88 does not define “electronic monitoring”, so it may have a broad scope. For example, “electronic monitoring” might include video surveillance (possibly via laptop webcam), GPS tracking in cellphones or company vehicles, and tracking programs on computers, which could potentially have the ability to track the time employees spend on certain websites or software. Such tracking software could be so specific as to track every key employee types on their keyboard. With workplaces moving into the digital world, these forms of electronic monitoring pose a serious risk to employees of being micromanaged. Further, as many employees work from home, their privacy is also an issue. If passed, Bill 88 and its requirement of electronic monitoring policies could go a long way in protecting employees working remotely through the digital world.

Digital Platform Workers’ Rights Act, 2022

Apart from introducing electronic monitoring policies in the workplace, Bill 88 would also enact the Digital Platform Workers’ Rights Act, 2022. This Act, among other things, would establish minimum rights and protections for workers performing “digital platform work”. “Digital platform work” is defined to include “rideshare, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.” This would likely capture those working within the “gig economy” who make a living using apps such as UBER. The rights and protections being afforded to such workers under this new Act include:

The right to information;
The right to minimum wage (currently set at $15 under the Employment Standards Act, 2000);
The right to a recurring pay period and pay day;
The right to amounts earned by the worker, including tips;
The right to notice of removal (i.e., from the digital platform);
The right to have disputes between the worker and the digital platform’s operator resolved in the Province of Ontario; and
The right to be free from reprisal.

The Act, however, avoids classifying such workers as “employees”. These rights apply to such workers regardless of their employment status. Nevertheless, these should be a welcome sight to any individual currently earning their income in the digital gig economy.

A Welcome Sight

The Ontario Government has shown their willingness, through the enactment of Bill 27 and the introduction of Bill 88, to adapt to the ever-changing workplace reality necessitated by the global COVID-19 pandemic. Of course, many employees in 2022 have returned to in-person workplace settings, but that does not mean these new protections will go to waste. It remains to be seen how much of our work will take place in person, online, or through a mixture of both. Regardless of whether your workplace is physical or digital, more protections for workers are always a welcome sight.

Duty of Fair Representation Where Union Does Not Challenge Vaccine Mandate

by Stacey R. Ball| May 23, 2022August 14, 2023 | General

In an earlier blog post this year, we looked at a case suggesting that unions that are unsuccessful in challenging workplace mandatory vaccine mandates are not in breach of their duty of fair representation under the Ontario Labour Relations Act, 1995. The “duty of fair representation” says that a union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing employees or depending contractors.

An even more recent decision, this time at the Canada Industrial Relations Board, seems to support that earlier finding. In Watson v Canadian Union of Public Employees, a union was not only unsuccessful in challenging a mandatory vaccine policy, they actually refused to advance a challenge altogether. Even in this context, unions may not be in breach of their duty of fair representation, which reveals just how difficult it will be to make out such a case.

Background and Facts

The complainant, in this case, was a flight attendant with Air Canada. On August 13, 2021, the Government of Canada announced that it would require all employees in the federally regulated air transportation sector, such as Air Canada, to be vaccinated by no later than the end of October, 2021. That same day, the Union emailed their members to voice their support for the vaccine mandate, arguing that vaccination was a “proven strategy to mitigate the threat of COVID-19.” Already, we see that the Union here was supportive of the new policy. By the end of August, Air Canada had implemented a mandatory vaccine policy requiring vaccination by October 31^st, failing which employees faced discipline up to termination.

Despite their support for vaccinations, the Union also communicated that they would challenge any discipline, including termination, which resulted from the new workplace vaccination policy. Nevertheless, they remained of the view that “vaccines were critical to providing a safe work environment for employees and ensuring a recovery of the airline industry.”

Should the Union Challenge the Policy?

The Union received two separate legal opinions on the viability of the vaccine policy. They concluded that the Air Canada policy would likely withstand a challenge through grievance arbitration. Furthermore, it was decided that a challenge pursuant to the Canadian Charter of Rights and Freedoms would also be unsuccessful. The policy would likely be deemed reasonable at arbitration (and this is not surprising, given that many similar policies have already been deemed reasonable, for instance, as discussed in this and this earlier blog post).

Based on this, the Union told its members that it would be focusing its efforts on the implementation and administration of the vaccine policy, rather than on the policy itself, and supporting members experiencing discipline pursuant to the policy.

The Duty of Fair Representation Complaint – What Was the Result?

The Canada Industrial Relations Board had to decide whether the union acted in a manner that was arbitrary, discriminatory or in bad faith in making its decision not to pursue a grievance challenging the employer’s mandatory vaccination policy. A summary of what this means was helpfully provided in a separate Board decision:

A union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis.
A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration.
A union must not act in bad faith; that is, with improper purpose.

The Complainant’s main argument here was that the decision not to pursue a policy grievance was arbitrary. In the Complainant’s view, the Union did not “seriously or sufficiently consider the prejudicial impact of the policy on a number of bargaining unit members who will not comply with the policy due to medical or other personal reasons.” As union members, they have no individual right to seek remedies in the courts – the union’s efforts are their only hope.

In answering these questions, the Board began by acknowledging that an employee represented by a union does not have a right to pursue a grievance to arbitration – this is the role of the union as the exclusive bargaining agent. The union’s duty of fair representation does not impose on them an obligation to take all grievances to arbitration. The union has no obligation to advance grievances that, in its best judgment, are not likely to succeed.

The Board did not agree that the Union’s actions were arbitrary. They note that the Union was well aware of the objection of certain employees to the vaccination policy. As events unfolded, the Union regularly communicated with their members and kept them up to date on any and all developments. The Union quickly obtained legal opinions on the new policy and shared the results of those opinions with their members. It was decided that the likelihood of success in challenging the policy was very low. In the Board’s view, “the union turned its mind to the issues at play and was fully engaged with its membership.” The Union had not been acting arbitrarily.

The Board noted that this case is distinguishable from other cases where mandatory vaccine policies were held unreasonable (such as the Electrical Safety Authority decision, as discussed in this blog post). The employer in Electrical Safety Authority was not under a government order to establish a vaccination policy. Here, Air Canada implemented a vaccine policy in compliance with an order issued by the federal government directing airlines to adopt vaccination policies.

Given all of the above, the Board was not persuaded that the Union had acted in a manner that was arbitrary, discriminatory or in bad faith. As such, the duty of fair representation complaint was dismissed.

Secretly Recording Co-Workers: Just Cause for Dismissal?

In a recent decision of the British Columbia Supreme Court, Justice Branch was tasked with determining whether or not “the surreptitious recording of one’s fellow employees” could serve as a proper basis for dismissal.

The Parties

This case concerned the termination of Mr. Shalagin from his position as a senior financial analyst with the defendant employer, Mercer Celgar Limited Partnership (“Mercer”), a pulp mill. He had been working with the company since 2010. As senior financial analyst, Mr. Shalagin had access to sensitive financial and planning information.

Mr. Shalagin was not subject to any employment contract while working with Mercer, but was bound by the company’s Code of Business Conducts and Ethics (the “Code”) and a confidentiality policy. Under the Code, Mr. Shalagin was required to “conduct himself with honesty and integrity and to adhere to the highest ethical standards in carrying out his duties” on behalf of Mercer. The Policy further required him to be honest and ethical in dealing with other employees and third parties such as customers.

Mr. Shalagin had many issues with his employer including perceived discrimination, but above them all was his disagreement with the company’s view of his bonus determination formula and entitlement. He threatened Mercer with litigation over that bonus, and they decided to terminate him without cause in response.

Following his termination, Mr. Shalagin commenced a number of proceedings against his employer including an Employment Standards Act complaint, a human rights complaint and a wrongful dismissal complaint.

The “Surreptitious” Recordings

During Mr. Shalagin’s human rights proceeding, it was revealed that Mr. Shalagin had taken a number of surreptitious recordings while with Mercer. It was revealed he had made recordings during the following meetings:

several one-on-one training sessions from 2010 to 2014;
over 100 “Toolbox Talk” and safety meetings, at which he often presented personally (and where the meetings involved 20 to 30 people); and
at least 30 one-on-one meetings with supervisors and human resources personnel about compensation and recruitment.

It is clear that these recordings happened on many, many occasions. Notably, Mr. Shalagin never had permission to make these recordings. He admitted to knowing that the participants would have felt uncomfortable had they known they were being recorded. Some of these recorded conversations included confidential company information. Some recordings picked up sensitive personal family details of other employees.

However, there was no evidence to suggest that these recordings were ever shared with anyone other than the B.C. Human Rights Tribunal and Mercer. There was no evidence that Mr. Shalagin sought to obtain a financial benefit from the recordings.

Based on the new evidence that arose as part of the human rights proceeding, Mercer changed its position: instead of firing Mr. Shalagin without cause, they would now rely on just cause for his termination.

Was There Just Cause?

Justice Branch notes, firstly, that misconduct discovered post-termination can indeed constitute just cause. To rely on that post-termination conduct, the Court must determine whether the alleged misconduct “was something a reasonable employer could not be expected to overlook, having regard to the nature and circumstances of his employment.”

The key issue for Justice Branch, therefore, was whether or not Mr. Shalagin’s decision to surreptitiously record his co-workers amounted to just cause. Did the recordings “go to the root” of Mr. Shalagin’s contract, and “fundamentally struck” at his employment relationship? Although he was legally permitted to record the conversations, this is not the real issue: what matters is not the legality of the recordings, but whether his actions in making the recordings “fundamentally ruptured the relationship, such that the mutual trust between the parties is broken.”

Earlier jurisprudence has shown that surreptitious or secretive recording of a conversation in the workplace context can cause “material damage to the relationship of trust between employee and employer.” On this basis, Justice Branch held that the secret recordings indeed were a just cause for Mr. Shalagin’s termination. Justice Branch commented:

“I find that Mercer has established just cause: […]

b) Although the initial recordings said to be for the plaintiff’s own language training purposes may not, on their own, have supported just cause, they demonstrate how the plaintiff’s sensitivities towards his colleagues’ privacy began to loosen. He knew that his fellow employees would be uncomfortable with even these early recordings, yet he continued to make them. I find that he knew it was wrong, if not legally, at least ethically. … […]
d) With his sensitivities lowered, he carried on to record ever more sensitive conversations, including conversations that involved personal information on other employees. The conversations included personal details about his co-workers that had nothing to do with the workplace. […]

h) I accept that the plaintiff was not acting with malice in making the recordings and that this is a mitigating factor. However, the fact that his stated bases for the recordings were all unnecessary or ill-founded, and several were designed to benefit him alone, weighs on the other side of the ledger. Likewise, the fact that the recordings captured personal information from his subordinates and colleagues and, thus, could not have supported his alleged purposes in any case, also weighs against his position.
i) I accept that the fact that the plaintiff did not publish the recordings and did not seek to make use of them for his own benefit outside of the ongoing legal proceedings is a mitigating factor as well. However, on the other side of the ledger, the sheer volume of recordings, and the length over which they occurred, generally offsets this factor.
j) I accept the evidence provided by Mr. East and Ms. Ketchuk that they felt violated by the recordings. I also accept that this reaction was reasonable in the circumstances. Ms. Ketchuk clearly treated the plaintiff as a protegée and felt that the trust she invested in him had been violated—a trust that included telling him about personal family matters, which were recorded.
k) Looking at the effect on employment relationships more broadly, accepting the plaintiff’s argument may encourage other employees who feel mistreated at work to routinely start secretly recording co-workers. This would not be a positive development from a policy perspective, particularly given the growing recognition that the courts have given to the importance of privacy concerns.[…]”

Mr. Shalagin’s claim for wrongful dismissal damages was therefore dismissed, as the employer had successfully established after-acquired cause for his termination.

This case should be a lesson to employees that although secretly recording conversations with your employer or fellow employees may be legal, it will not prevent your employer from termination you for cause.

Unsigned Employment Contract Upheld by B.C. Court

by Stacey R. Ball| May 21, 2022August 14, 2023 | Employment Contracts

Many employees might believe that because they never physically signed their written employment agreement, it does not apply to them. A recent decision of the Supreme Court of British Columbia, however, might suggest otherwise. Here, a termination provision found within an unsigned employment contract was upheld.

The Facts and Impugned Termination Provision

The employee in this case had worked for the defendant employer for approximately fourteen months before being terminated without cause. The employee was 34 years old when his employment was terminated. When he was terminated, the employee was given two weeks’ pay in lieu of notice. This amount sufficiently provided the employee with their statutory minimum entitlements under the Employment Standards Act. However, the employee felt he was entitled to much more and claimed nine months’ reasonable notice or pay in lieu of notice.

According to the employer, the statutory minimum of two weeks’ pay is all the employee was entitled to under his employment contract. That employment contract contained the following termination provision, the wording of which was not in dispute:

c) Termination Without Cause. The Company may terminate your employment at any time in its sole discretion, for any reason, without cause or serious reason, upon providing to you:
that minimum amount of advance notice (or pay in lieu) to which you are entitled on termination of employment under the applicable employment or labour standards statute or law in the province where you are assigned to work for the Company at the time your employment is terminated (the “Act”), and
any other minimum amounts or entitlements to which you are entitled on termination of employment under the Act, including: (A) statutory severance pay; and/or (B) for that minimum period required by the Act, continuation of any benefits in which you are enrolled as of the date you receive notice of termination.

In the employee’s opinion, this termination clause was illegal and unenforceable because, among other things, he never signed it and never agreed to its terms. Of course, the employer’s position was that the termination clause was enforceable and limited the employee to the statutory minimum. As a result, the key issue in this case concerned whether or not the contract’s termination provision was enforceable notwithstanding that the employee never signed it. If enforceable, the termination provision would indeed operate to limit the employee’s entitlements to the statutory minimum.

The Enforceability of the Employment Contract

Even if the employee had not signed the agreement, the employer believed the trial judge could infer from all the surrounding circumstances that the terms of the contract were set out and were accepted by the employee and thus binding on him. Notably, the employee was sent a variety of different employment contracts that had been revised per his input. However, despite his many requests to the contrary, the termination provision was never changed. His input as it pertained to the termination provision was never adopted by the employer.

Given the above, the trial judge determined the employee was aware that the termination clause was non-negotiable. Despite his many attempts to negotiate the term, it remained unchanged. The employee had been successful in negotiating other terms resulting in significant improvements in his favour, but never the termination provision. Ultimately, the trial judge determined as follows:

“[67] When viewing the evidence as a whole, I am satisfied that the October 30, 2019 document, even if unsigned, represents the employment contract negotiated between the parties. As such, I find the plaintiff knew the termination clause was part of the contract and that he was bound by it. For reasons already stated, I agree the plaintiff’s credibility is diminished on that aspect and I specifically find I cannot rely on his statement that he never agreed to the termination clause.” (emphasis added)

In the end, the trial judge held that the termination clause was clearly part of the employment contract and that it was clear and therefore enforceable. The employee was entitled to no more than the statutory minimum as stated in the employment contract.

Alberta Court Upholds 4 Week Termination Clause

by Stacey R. Ball| March 9, 2022August 13, 2023 | General

In Lawton v Syndicated Services Inc., the Alberta Provincial Court upheld a termination clause in an employment contract that limited an employee’s notice period to just four weeks.

The Facts

Mr. Lawton was a former employee of Syndicated Services Inc. He commenced employment in August of 2018 as the Chief Operating Officer making a salary of $158,000 per year. Importantly, Mr. Lawton negotiated a term into his employment contract that required four weeks’ notice in the event his employment with Syndicated was terminated.

In 2020, the business was suffering dramatically. There had been a significant drop in the industry in which they operated. The sudden impact of the COVID-19 pandemic was, as described by the trial judge, “the nail in the coffin.” The company experienced a loss of $200,000 in 2020. In response, Mr. Lawton was terminated at the end of April 2020 having only worked with the company for approximately twenty months.

In the proceeding before the court, Mr. Lawton was claiming against his former employer $64,583.84 in severance pay (being approximately 21 weeks’ notice – far more than the 4 weeks agreed to under the contract), $15,000 in benefits, and $10,000 in enhanced damages.

Was Mr. Lawton Entitled to More Notice?

In determining how much notice Mr. Lawton was entitled to, the trial judge noted that after only 20 months’ service, he would be entitled to only one week of notice under the Alberta Employment Standards Code. Nevertheless, the parties agreed to a term permitting four weeks’ notice under the employment contract. The contract, in Mr. Lawton’s particular circumstances, consequently provided for a benefit that was greater than the minimum entitlements of the Employment Standards Code. In commenting on that term, the trial judge stated:

“The employment contract had the term “Termination of this contract requires 4 weeks notice”. This term is clear and unambiguous. Parties are entitled to negotiate terms of employment contracts and where the terms do not interfere with statutory requirements they ought to be enforced.”

As a result, Mr. Lawton’s claim for increased severance pay was dismissed as he was paid exactly what he was entitled to under his contract.

The Takeaway: Distinctions in Alberta vs Ontario Law

This case is interesting in that the result departs from what might be expected under Ontario law. The four week termination provision was not contrary to law here because it provided a benefit greater than the statutory minimum. However, this was only the case because Mr. Lawton’s tenure with the company was so short. Had he been working there longer, Mr. Lawton may have been entitled to more according to the statutory minimum than he was contractually entitled to receive under the employment contract. In a hypothetical context where Mr. Lawton may be entitled to, for example, six weeks’ notice under statute, it would be impossible for the contractual term of only four weeks’ notice to be enforceable.

What this suggests is that in Alberta, courts are willing to interpret employment contracts and their unique termination provisions based on the particular circumstances of the case and not on whether the impugned termination clause might violate minimum employment standards in a different context. This is very different from employment law in Ontario, where the fact that a contract could violate the Employment Standards Act may be enough to invalidate the contract’s terms, whether or not it results in any actual violation of the Employment Standards Act.

Terminating Probationary Employees: Canada (AG) v Alexis

This decision concerns the termination of a public sector employee and the interplay between two pieces of legislation: the Federal Public Sector Labour Relations Act and the Public Service Employment Act. The legal principles discussed herein may not be relevant outside the context of a public sector employee. However, the legal principles and tests may be similar to those applied by labour arbitrators in the private sectors.

Facts

In June of 2015, Ms. Victoria Alexis was terminated from her position with the Royal Canadian Mounted Police after approximately six months of work. Her problem, however, was that she was subject to a twelve-month probationary period. This did not stop Ms. Alexis from grieving her termination all the way to the Public Service Labour Relations and Employment Board (the “Board”). The question for the Board was whether the employer established a valid employment-related reason for rejecting an employee on probation, and also whether the employee is able to demonstrate that the termination was actually effected not for an employment-related reason but rather for “some other contrived reason or that it was disguised discipline, a sham, a camouflage, or in bad faith”.

Ultimately, the Board sided with Ms. Alexis. They found her termination was made in bad faith, and that her termination was for reasons that were illegitimate and not employment-related. She was consequently reinstated to her position and awarded compensation for lost wages and benefits.

At the Federal Court of Appeal

The Attorney General of Canada appealed the Board’s decision to the Federal Court of Appeal. In their view, the Board applied the wrong legal test. The Federal Court of Appeal held otherwise:

“Contrary to what the Attorney General submits, a review of the adjudicator’s decision in its entirety demonstrates that the adjudicator in fact followed and applied the accepted test for reviewing an employer’s decision to release an employee during the probationary period.”

The Attorney General argued that the Board did not have jurisdiction to hear termination grievances from probationary employees. It seems this is generally true, but not where the termination of an employee on probation is a “camouflage, shame or made in bad faith.” Case law suggests that the Board can intervene in those circumstances. Furthermore, it is well known that the burden rests on the employee to establish that the termination was a camouflage, sham or conducted in bad faith.

The Federal Court of Appeal ultimately decided that the Board did not stray away from the accepted legal test. The Board properly considered the evidence in drawing their conclusion that the employer acted in bad faith. The particular evidence included:

the employer had not provided the respondent mentoring and that its assertion to have done so was disingenuous (at para. 238);
the employer had not provided the respondent with training (at paras. 232 and 243);
the employer had provided the respondent with only five working days to improve her performance after being warned it was unsatisfactory (at paras. 224 and 229); and
the individual who made the decision to terminate the respondent and signed the termination letter had no knowledge of the respondent’s alleged failure to improve after the date she signed the termination letter, despite her intention that the respondent should have been given an opportunity to improve before being terminated (at paras. 226-230).

In the Federal Court of Appeal’s opinion, the above factors were sufficient to enable the Board to make their finding of bad faith. Where a release of an employee on probation is a sham, camouflage or made in bad faith, it is not a valid release on probation (which would be outside the Board’s jurisdiction) but instead is a termination which the Board may remedy pursuant to the Federal Public Sector Labour Relations Act.

The Attorney General’s action was consequently dismissed.

COVID-19 Vaccine Policies: Failure by Employee to Accept Reasonable Alternative

by Stacey R. Ball| March 7, 2022August 13, 2023 | General

We have encountered a great deal of arbitration decisions relating to COVID-19 vaccination in the early days of 2022. Most of these decisions, to the dismay of non-vaccinated Canadians, uphold mandatory vaccination workplace policies and the associated discipline for failing to comply – even to the point of outright termination of employment without cause. This is the case even where the policy provides for no alternative to vaccination.

Given the above, it is not so surprising that Arbitrator Stout, in a recent decision, upheld a mandatory vaccination workplace policy that did provide a reasonable alternative.

Hydro One’s COVID-19 Vaccination Policy (the “Policy)”

In this case, the employer Hydro One implemented a policy requiring all their employees to provide proof of vaccination status or confirmation of a medical exemption, or alternatively that the employee declined to disclose their vaccination status. Employees who either declined to disclose their vaccination status or remained unvaccinated pursuant to a medical exemption were provided an alternative: they were to undergo regular COVID-19 rapid antigen testing (RAT) prior to coming in for work. This is a much more accommodating policy than those that enabled employers to terminate unvaccinated employees without first offering them an alternative.

Nevertheless, a number of Hydro One employees refused to provide proof of vaccination and also refused to provide a negative RAT. They were consequently in violation of the Policy and placed on an unpaid leave of absence.

In addressing the situation, Arbitrator Stout began by commenting on the legitimacy of the Policy itself:

“I begin by noting that the Policy is reasonable, and it is necessary to address the on-going health and safety issues arising from the current COVID-19 global pandemic.”

This is consistent with earlier arbitration decisions regarding COVID-19 vaccinations, which all seem to emphasize the vital importance and necessity of being vaccinated in light of the global pandemic.

Ultimately, Arbitrator Stout held that it was reasonable for Hydro One to suspend workers who refused to comply with the Policy, either by not being vaccinated or by refusing to comply with regular testing. He wrote:

“I am also of the view that prohibiting employees from attending work if they do not provide proof of vaccination or a negative COVID-19 RAT is fair and reasonable in the circumstances of this pandemic. Hydro One is complying with their obligations under the Occupational Health & Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve. The Policy is a reasonable compromise that respects employee rights and balances the various important interests.”

Perhaps the Policy “respects employee rights” by providing them with the reasonable alternative to vaccination. As it relates to failure to comply with the reasonable alternative, the RAT, Arbitrator Stout wrote:

“In terms of accommodating the Grievors with remote work, I agree with Hydro One that such an accommodation is not necessary or required in these circumstances. Most of the Grievors could not perform their work remotely in any event. It is also not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status (i.e., RAT). If employees refuse the reasonable alternative, then that is their free choice but Hydro One has no further obligation to accommodate such individuals.”

It would appear that where an employer has implemented a COVID-19 Policy and has provided within a reasonable alternative to vaccination, considering the circumstances of their workplace (i.e., is remote work necessary?), then the employer has already met their obligations and the failure of an employee to accept the reasonable alternative is a decision of the employee not to be in compliance with the policy. The employer owes them no further accommodations.

Unfair Investigation Leads to Termination: Rejected by Courts

On March 7, 2019, Mr. Czerniawski had an argument with a co-worker. The encounter quickly became heated. Emotions were high, voices were raised and, allegedly, threats were made. Mr. Czerniawski was instructed to leave the work premises but refused to do so. Police were called and Mr. Czerniawski was escorted out of the building. He was then told not to return to the workplace until advised to do so. Despite this warning, Mr. Czerniawski appeared at work on March 11, 2019, to deliver a letter detailing his side of the story as he was never interviewed about the event.

An investigation was conducted that found Mr. Czerniawski had made his employees uncomfortable and fearful. The investigation report concluded that Mr. Czerniawski had verbally abused his co-workers and threatened them. The fact police were required to remove Mr. Czerniawski from the workplace caused fear. His return days later, uninvited, also made his employees uneasy and anxious. Notably, all these findings were made without ever hearing Mr. Czerniawski’s side of the story.

On March 14, 2019, Mr. Czerniawski was terminated. There were two stated grounds for dismissal:

) Mr. Czerniawski was acting in a threatening manner to co-workers in an attempt to intimidate them, causing them to fear he would become violent; and
) Mr. Czerniawski was insubordinate by refusing to leave the workplace and then by returning to the workplace to deliver his letter.

The events leading to Mr. Czerniawski’s termination were surprising given that, for all intents and purposes, he had a clear track record with the employer. He was known to be “highly competent” and “very dependable” and “a very solid steady worker”.

Mr. Czerniawski challenged his termination, arguing that he was wrongfully dismissed and that, despite the investigation’s findings, there was not cause for dismissal.

Was There Just Cause for Dismissal?

The trial judge was tasked with deciding whether Mr. Czerniawski’s conduct was “so grievous” as to justify dismissal without notice. In making this determination, one must consider the particular facts of the employee’s misconduct and their overall tenure and disciplinary history. The goal is to achieve proportionality: one must balance the severity of misconduct with the discipline imposed. Termination is, of course, the most severe disciplinary sanction.

In reviewing all the evidence, the trial judge came to the conclusion that the employers’ witnesses likely overstated their evidence. Despite what was alleged against him, it was “clear” on the evidence that the employee did not threaten or physically assault anybody on March 7, 2019.

The trial judge commented specifically on the decision not to involve the employee in the investigation. The trial judge stated:

“[33] I do not agree with the defence submission that everyone knew what had happened and there was no need to include the plaintiff in the investigation. While the plaintiff was aware that he had a verbal dispute over work distribution and that he failed to go home when asked to do so on March 7, 2019, he was not made aware of the particular allegations that his behaviour was threatening, offensive and intimidating, that co-workers allegedly feared violence from him and that there was a genuine concern for employees’ safety, all of which were relied upon as a basis for terminating the plaintiff’s employment.

[34] Had the plaintiff been allowed to respond to the allegations as he requested on March 7, 2019 or as part of the investigation, the employer’s decision may have been more proportional to the misconduct which occurred. While having to call the police when he refused to leave the workplace was undoubtedly upsetting to co-workers and caused a disruption of the workplace, the plaintiff returned to his own workstation after the meeting with Mr. Sandras and Mr. Beliski. He cooperated with the police when they arrived, left peaceably and there were no threats, intimidation or violence.” (emphasis added)

Ultimately, the trial judge found that Mr. Czerniawski’s conduct was “not so egregious” as to justify terminating him without notice.

The lack of a proper investigation, in this case, led to the implementation of disproportionate punishment. Had a proper investigation been conducted, the employer would have been better informed of the circumstances and would have been more likely to arrive at an appropriate punishment. In addition, a proper investigation where the employee is interviewed might actually enable the employer to properly terminate the employee in circumstances where the employee actually admits to the misconduct or does something even worse.

Employment Contract Successfully Limits Common Law Reasonable Notice

by Stacey R. Ball| March 5, 2022August 13, 2023 | Employment Contracts| | General

It is well known that employment contracts of an indefinite period (i.e., not fixed term contracts) give rise to a duty wherein employers must give reasonable notice, or pay in lieu of such notice, to employees whose employment is being terminated without cause. The Employment Standards Act, 2000 provides the absolute minimum period of notice required by such a duty. Reasonable notice under common law, however, can and typically does greatly exceed the statutory minimum requirements, such that a person who may only be entitled to 4 weeks’ notice under the ESA may find themselves entitled to 4 months’ notice at common law.

Obviously, employers will want to avoid having to pay common law reasonable notice if they can. Luckily for them, as the following case demonstrates, all that is required is some carefully crafted contractual language.

Vienneau v. Joy Global (Canada) Ltd.: The Employment Contract

This case concerned the without cause termination of Mr. Vienneau, a 50-year-old employee who had been working with the defendant for over five years. When he was terminated, he was paid only four weeks’ salary in lieu of notice. This, he believed, was too little, and so he commenced an action against his former employer seeking damages as payment in lieu of reasonable notice.

Mr. Vienneau, unfortunately, encountered one major obstacle: his employment contract. Although the contract’s termination clause must be read and understood in its entirety, the following sentence is of particular note:

“… Specifically, you understand and agree that your acceptance of this Employment Agreement limits your ability to claim any further damages for termination pay, termination notice, severance pay, payment in lieu of reasonable notice, or any other damages, other than as provided for in this Employment Agreement and that you are giving up any right to claim reasonable notice under common law. …” (emphasis added).

Does the above clause therefore displace the common law presumption of reasonable notice or pay in lieu thereof? Is. Mr. Vienneau consequently limited to his statutory entitlements under the ESA?

Displacing Common Law Reasonable Notice

In Machtinger v. HOJ Industries Ltd., the Supreme Court of Canada acknowledged that:

“ … Absent considerations of unconscionability, an employer can readily make contracts with his or her employees which referentially incorporate the minimum notice periods set out in the Act or otherwise take into account later changes to the Act or to the employees’ notice entitlement under the Act. Such contractual notice provisions would be sufficient to displace the presumption that the contract is terminable without cause only on reasonable notice. …” (emphasis added).

It is clear that an employment contract can specify terms that displace common law reasonable notice, provided that the employment contract is otherwise legally enforceable.

In Mr. Vienneau’s case, the trial judge felt it would be “nonsensical” for Mr. Vienneau to believe he was entitled to common law reasonable notice given that the termination clause clearly states he would be giving up “any right to claim reasonable notice under common law.”

As a result, it was the trial judge’s view that the termination clause converted the “floor” of the ESA‘s minimum notice period into a “ceiling”, such that nothing could be awarded in addition to the statutory minimum notice. This case can serve as a lesson to employers about how they can protect themselves through their contracts in the event they must terminate an employee without cause. It can also serve as a warning to employees to read their employment contracts carefully, and to have a lawyer review the contract to ensure they are best protected in the event they lose their job.

Successor Employers and Reasonable Notice Periods

In the event of a termination without cause, employees are generally entitled to a reasonable notice period. The purpose, of course, is to provide dismissed employees with an opportunity to find alternative suitable employment. At common law, reasonable notice periods are calculated with reference to a number of well-known considerations, including:

The character of the employment;
The employee’s length of service;
The employee’s age; and
The availability of similar employment.

However, imagine that you have worked with your employer a very long time when, suddenly, the employer’s business is bought by somebody new. The purchaser then offers to continue your employment, and you agree. What happens to the length of service you’ve accumulated with the prior employer? Do you have to start all over?

To find our answer, we will turn to Kitchen v Brandt Tractor Ltd., a decision of the Court of Queen’s Bench of New Brunswick, where a scenario similar to this took place.

The Facts

Mr. Kitchen was an employee of Wallace Equipment Ltd., a company specializing in the sale of heavy equipment. Mr. Kitchen had worked there for eight years when the company was purchased by somebody new: Brandt Tractor Ltd. Brandt, the new owners, offered Mr. Kitchen continued employment following the purchase, and he agreed. Three years and eight months later, Brandt terminated Mr. Kitchen without cause. He was provided four weeks’ working notice.

Mr. Kitchen’s length of service with Brandt was just under four years. If, however, his time with Wallace is included in calculating his total length of service, he would have just under twelve years’ worth of service. This could significantly alter the period of reasonable notice he was entitled to. Of course, Mr. Kitchen took the position that his length of service with Wallace should be included. Was he right?

Should Mr. Kitchen’s Prior Years of Service with Wallace be Included for the Purpose of Calculating Reasonable Notice?

Mr. Kitchen relied on a decision of the New Brunswick Court of Appeal to show that his prior years of service with Wallace should be included. In that decision, the Court of Appeal discussed the common law with respect to successor employers (such as Brandt):

“At common law, a contract of employment for personal service is not assignable without the consent of both parties, so that, where there is no such consent, a sale or transfer of a business from an employer to another terminates the contract of employment with the employee. At that point, the employee is entitled to sue the vendor or transferor for wrongful dismissal and damages in lieu of notice. If the purchaser of the business continues to employ the employee, there is an implied term in the new contract that the employee will be credited with the past years’ service with the vendor or transferor on such matters as notice of termination, unless the employee is expressly advised otherwise. Once the employee accepts employment with the successor employer, however, a new contract of employment is created and the employee, as against the new employer, would lose whatever benefits had accrued by way of the length of service with his previous employer if properly informed by his new employer.”

Based on the above, where an employee continues working for a successor employer, even one who, like Brandt, purchased the assets of the predecessor employer, there is a rebuttable presumption that the previous years of service count towards calculating reasonable unless the successor employer has advised the employee otherwise.

Therefore, the question becomes whether or not Brandt rebutted the above presumption by informing Mr. Kitchen that his service with Wallace would not count towards reasonable notice. The trial judge looked at the employment contract to determine whether it expressly excluded Mr. Kitchen’s years of service with Wallace from the calculation of reasonable notice on termination. The trial judge held that the employment offer made by Brandt to Mr. Kitchen was not sufficient to put him on notice that, if he accepted employment, his prior years with Wallace would be discounted.

For that reason, his years of service with Wallace were included. Despite working with Brandt for less than four years, Mr. Kitchen was credited with eleven years and eight months of service in calculating his reasonable notice period.