January 13, 2015

Hicks Morley writes about changes to the federal holiday formula under the Canada Labour Code that will come into effect March 16, 2015:

Effective March 16, 2015, significant reforms to the general holiday provisions of Part III of the Canada Labour Code will come into force. The amendments include the introduction of a new “holiday pay” formula and the elimination of certain qualifying requirements. In this FTR Now, we highlight key aspects of these pending changes and the impact they will have on federally regulated employers.

In an article from the December 19, 2014 edition of the Lawyers Weekly, Luis Milan writes about a Quebec Court of Appeal decision which overturned a lower court’s decision which had raised the rules of procedural fairness too high in the case of a workplace investigation. The lower court ruled that the investigation into workplace harassment was flawed for a variety of reasons: the respondent to the complaint was not provided with complete copies of all statements of the complainants and witnesses, one member of the investigation team was replaced part way through the investigation violating the “who hears must decide” principle, and summoning the respondent to meetings without enough notice to adequately prepare:

The appeal court said that workplace investigations into psychological harassment should not be held to the same procedural fairness standards as disciplinary hearings held by a professional corporation and should not be viewed as adversarial in nature, as is the case with administrative or judicial tribunals. Individuals accused of psychological harassment in the workplace therefore should not expect to receive a full copy of the complaints made against them, but instead will have to make do with redacted copies. While pointing out that an “allegation of psychological harassment is not a trivial matter,” the appeal court noted that an investigation should be conducted diligently and within a reasonable time frame.

“It should be reminded that an employee convened to respond to such an allegation during an employer’s investigation is not preparing to appear before a court of justice and cannot demand weeks nor even days to reflect and prepare,” said Justice Marie-France Bich, adding that complainants too have rights, including the right to have their complaint be heard diligently.

“The appeal court held that while it is important to treat people accused of being harassers fairly, it does not mean that an internal investigation should be [turned] into an adversarial process as if it was before the courts of justice, encumbered with rules of procedural fairness,” said Chabot.

Moreover, investigators should be given sufficient latitude to conduct their examinations, so long as they act in a reasonable manner, added the appeal court.

In R v Thomas, the Alberta Provincial Court sentenced Roslyn Rhae Thomas after she pleaded guilty to six counts of fraud over $5000. While working in the payroll departments of six separate employers, Ms. Thomas defrauded those companies of over $1.8M. Ms. Thomas was sentenced to serve 6 years’ incarceration in addition to paying restitution totalling over $1.85M in restitution:

  •  http://www.albertacourts.ab.ca/jdb_new/public/pc/2003-NewTemplate/pc/Criminal/2014/2014abpc0280ed1.pdf

In Schimanksi v B & D Walter Trucking, the court ordered judgment for 4 months’ pay in lieu of notice to a 67 year old bookkeeper with 18 months’ service. The court also ordered aggravated damages in the amount of $2,500 for mental distress on the following basis:

[41] In this case, the following actions and circumstances surrounding the Plaintiff’s dismissal justify an award of damages in her favour for mental distress. I point out that no one of these factors on its own justifies a compensatory award for mental distress, however, looking at them jointly leads to a different conclusion:

1. Proposing that she receive less than the statutory requirements provided by ss230(1)(b) and 235(1)(a) and (b) of the Canada Labour Code RSC, 1985, cL-2.

2. Requiring a release from her before they would pay any of the minimum severance required by law.

3. Withdrawing the severance proposed and alleging just cause based upon post-termination conduct.

4. Filling in and filing the Record of Employment showing her as dismissed.

5. Failing to provide her with the letter of reference promised and alleging that she acted improperly by breaching confidentiality without offering her any opportunity to explain.

6. Maintaining the allegation of just cause throughout the proceedings.

[42] I am satisfied that all of these factors contributed to the Plaintiff’s distress, which required her to attend her doctor and obtain medication to help with her anxiety and sleeplessness.

Just cause for termination was premised on the plaintiff’s breach of confidentiality by using the office of the defendant’s client to send settlement documents effectively telling the client about the termination. However, because the alleged breach occurred after termination and had nothing to do with the conduct or actions of the employee in the performance of her duties while employed and therefore could not justify termination for cause.

Two employees of the City of Hamilton public works department have been suspended pending an investigation for bringing pot brownies to a potluck at work. One coworker who ate a brownie was taken to hospital in life threatening condition:

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