Legislative Review and Employment Law Trends 2016

Transcription

1 Legislative Review and Employment Law Trends 2016 David P. Negus April 27, 2016 AIKINS, MACAULAY & THORVALDSON LLP 30th Floor Main Street, Winnipeg Manitoba Canada R3C 4G1 Telephone (204) Fax (204) dpn@aikins.com aikins.com Legislative Review 2016 Two jurisdictions: employers subject to Manitoba labour law (most employers) employers subject to federal jurisdiction and the Canada Labour Code which includes telecommunications (radio, television, telephone) banks, interprovincial transportation, i.e. planes, trains, trucks Legislative Review Manitoba 1

2 Legislative changes in the last year include the following: The Employment Standards Code The Worker s Compensation Act The Domestic Violence and Stalking Act The Accessibility for Manitobans Act Significant changes and additions to the leave provisions in The Employment Standards Code: compassionate care leave increased long term leave for serious illness (new) domestic violence leave (new) Compassionate Care Leave: unpaid leave to care for a family member with a serious illness with a significant risk of death leave was 8 weeks now increased to 28 weeks eligibility was 30 days of employment now 90 days 2

3 Compassionate Care Leave leave can be taken in two periods notice to the employer is required to end the leave early Long Term Leave for serious illness: up to 17 weeks unpaid leave in a 52 week period eligibility 90 days of employment doctor s certificate is required providing evidence reasonable in the circumstances that the employee is unable to work for at least 2 weeks Long Term Leave for serious illness leave must be one continuous period unless otherwise agreed employer s are entitled to ask for a doctor s note confirming employee is healthy enough to return to work 3

4 Domestic Violence Leave effective June 1, 2016: the leave may be taken for reasons that include: to receive medical treatment, to move, to seek legal or law enforcement assistance, to participate in criminal or civil legal proceedings related to domestic violence eligibility employed for 90 days Domestic Violence Leave length of the leave: 10 days used intermittently or in one continuous period; or 17 weeks in one continuous period up to 5 days in a 52 week period can be paid leave Domestic Violence Leave for paid leave employee must provide the employer with reasonable verification that the leave meets the requirements where an employer provides paid sick leave that is greater than the requirement in the Code the employer may require that the employee use those benefits for the paid days of this leave 4

5 The Worker s Compensation Act presumption of Post Traumatic Stress Disorder ( PTSD ): where a worker is: (a) (b) (c) exposed to a traumatic event; and is diagnosed with PTSD; the PTSD is presumed to be an occupational disease unless the contrary is proven The Domestic Violence and Stalking Act: a person can obtain a protection order against someone engaged in domestic violence or stalking amendments include changing the test for obtaining an order by removing the requirement of imminent and immediate protection The Domestic Violence and Stalking Act new factors for consideration include: history of domestic violence or stalking; where such behaviour is repetitive or escalating; mental health concerns, substance abuse; employment or financial difficulties definition of stalking is expanded to include using the internet to threaten or harass 5

6 The Accessibility for Manitobans Act: the Act has been around since 2013 its purpose is to proactively assess, identify and prevent and remove barriers for people with disabilities what is new are regulations with respect to customer service The Accessibility for Manitobans Act customer service regulations require identification and if possible removal of barriers if barriers cannot be removed ensure persons with disability have access Act contemplates future regulations with respect to employment and the workplace Legislative Review Federal 6

7 Legislative Review Federal 2015 the former government passed the Employees Voting Rights Act ( EVRA ) and amendments to the Income Tax Act ( ITA ) affecting unions EVRA changed the certification and decertification process under the Canada Labour Code ITA changes required unions to make detailed disclosures to the CRA 2016 the new federal government is introducing legislation to reverse the 2015 changes Legislative Review Federal Current since June 16, 2015 Canada Labour Code Proposed Canada Labour Code Manitoba Comparison Threshold for automatic certification N/A Over 50% of bargaining unit 65% of bargaining unit Threshold for secret ballot vote on certification 40% of bargaining unit 35% to 50% of bargaining unit 40% of bargaining unit Threshold for secret ballot vote on decertification 40% of bargaining unit 50% of bargaining unit 50% of bargaining unit Remedial certification Remedy for unfair labour practice Remedy for unfair labour practice Remedy for unfair labour practice 7

8 not insisting on safe work practices can land you in jail mental illness is not a free pass when an employee s actions constitute termination for cause suspending an employee in a non-union environment can be constructive dismissal Her Majesty the Queen v. Kazenelson, 2016 ONSC 25: December 24, 2009, five construction workers fell from a stage swing on a residential building there were six workers on the platform but only two secure life lines and only one worker secured himself when the platform split four workers were killed and one survived the 100 drop, albeit with serious injuries Her Majesty the Queen v. Kazenelson Section of the Criminal Code provides: Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work or task the project manager (Kazenelson) was found guilty under the Criminal Code of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm 8

9 Her Majesty the Queen v. Kazenelson the court accepted that Kazenelson was under pressure to complete the project, but he knew that the stage swing had more workers than life lines and he took a risk by not requiring the workers to be secure Kazenelson was sentenced to a term of 3.5 years on each count to be served concurrently with one another Kazenelson is currently appealing the sentence and is out on bail Bellehumer v. Windsor Factory Supply Ltd., 2015 ONCA 473: the issue in this case was whether the employer was obligated to set aside the termination of an employee who subsequently disclosed a disability the employer had been accommodating the employee for various disabilities including: alcoholism, thyroid and cardiac issues in addition the employee was working in the warehouse versus another location because he found it less stressful Bellehumer v. Windsor Factory Supply Ltd. after being disciplined in the workplace the employee uttered violent threats towards a co-worker and was terminated for cause subsequent to his termination the employee disclosed that he suffered from a mental health disability the employee argued the conduct giving rise to the termination should have been accommodated and in failing to do so the employer discriminated against him 9

10 Bellehumer v. Windsor Factory Supply Ltd. the Ontario Court of Appeal upheld the trial judge s conclusion that the disability had not been disclosed prior to the termination as a result the termination for inappropriate workplace behaviour did not amount to discrimination Bellehumer v. Windsor Factory Supply Ltd. the Court went on to confirm that inappropriate conduct which may give rise or be influenced by a disability may still merit discipline, so long as the discipline is the same as would have been imposed on any other employee engaging in the same conduct, 2015 SCC 10: a case from the Supreme Court of Canada addressing the issue of constructive dismissal in the context of a suspension of a non-union employee Mr. Potter was appointed for a 7 year term but the relationship soured and the parties began to negotiate an early end to the employment 10

11 Mr. Potter went on sick leave, but just before his expected return to work the employer advised that he ought not to return until further direction no direction was forthcoming, but the employer unbeknownst to the employee was recommending termination for cause after 7 weeks and no information from the employer Mr. Potter commenced an action for constructive dismissal Constructive dismissal can occur in two ways: (1) an employer unilaterally changes a substantial express or implied term of the employee s employment; or (2) an employer may demonstrate through its conduct that it does not intend to be bound by the terms of employment 11

12 The test for constructive dismissal has two branches: (1) a single unilateral change by the employer? If so: (a) (b) does that change substantially alter an essential term of employment? would a reasonable person in the same situation feel that an essential term was substantially changed? (2) has there been a series of acts, that taken together, show the employer intended to no longer be bound by the employment? Other Judicial Conclusions: even if the employer had the authority to suspend it was subject to being forthright with the employee and providing a business justification in this case no reason was provided for the suspension, which the court found was not being forthright the court also found there is a duty to provide work to an employee 12

13 Lessons for Employers: constructive dismissal remains highly fact based and difficult to determine even a non-disciplinary suspension may constitute constructive dismissal unless: suspension is with pay; suspension is relatively brief; employer has a legitimate and reasonable business purpose for imposing the suspension; and employer, candidly and forthrightly communicates the reason for the suspension to the employee Path Forward: To minimize the risk of a constructive dismissal claim, employers should consider including an express right to suspend an employee for administrative reasons (versus disciplinary reasons) in the employee s employment agreement or offer letter. 13

14 QUESTIONS? 14