Transitioning gender in the workplace and human rights

May 24, 2013

Written by Sean Kelly

In Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido, the Ontario Human Rights Tribunal found that a packaging company and management employee discriminated against a transgendered worker on the basis of sex and gender identity in the course of her transition from man to woman.  The case provides some helpful practical advice for employers to work with transgendered and transitioning employees in the workplace.  The case is particularly relevant to Nova Scotia employers given the 2012 amendments to the Human Rights Act that provide protection from discrimination on the basis of gender identify and gender expression.  Nova Scotia, the Northwest Territories, Ontario and Manitoba all explicitly protect discrimination on this ground and it is anticipated other provinces will follow.

What happened?

The Complainant was hired in 2003 as Tony Vanderputten, a shrink wrapper at Seydaco Packaging Corp. (“Seydaco”), a manufacturer of folding cartons and boxes used for pre-packaged foods (i.e., pies and cakes) usually sold in grocery stores.  When hired, the Complainant was living as a man and was a good employee, although prone to interpersonal conflicts including frequent racial remarks.  In 2006, the Complainant was terminated, but was later re-hired a few months later by a different manager.

By 2008, the Complainant was living as a female and was accepted to a gender identity clinic in Toronto.  After hormone treatment the Complainant qualified for genital reconstruction surgery.  The Complainant then began arriving at work dressed as a woman and wearing make-up.  Once at work, the Complainant would change into the gender-neutral jumpsuit employees were required to wear on the floor. 

In 2010, while still in the process of transitioning, the Complainant was dismissed after an altercation with a co-worker.  The Complainant’s actions included:  

  • offering to show a male co-worker the bra she was wearing;
  • asking another male co-worker whether her breasts were getting bigger; and
  • asking a summer student about her menstrual cycles and soreness in her breasts. 

The Complainant filed a human rights complaint.

What did the Tribunal do?

Despite evidence that the Complainant was frequently angry, failed to follow directions, and raised inappropriate questions with co-workers, Adjudicator David Wright found that the Complainant had been subjected to ongoing harassment and discriminatory comments from co-workers.  Seydaco was found to have condoned a poisoned work environment and committed a number of accommodation flaws during the Complainant’s transition.  Although the Tribunal said the Complainant was not a model employee, it recognized that all employees are entitled to a harassment-free workplace. The Complainant was awarded $22,000 in general damages (for loss of dignity and hurt feelings) and eight months’ wages (despite the break in service). 

What was key?

Key factors contributing to the Tribunal’s findings were that the employer: 

  • failed to adequately respond to the Complainant being called various derogatory names and to derogatory drawings on bulletin boards throughout the plant;
  • despite knowledge of the Complainant’s transition, required the Complainant to use the men’s change room; 
  • insisted that the Complainant be treated as a man until her surgery was completed;
  • failed to consider any options that would allow the Complainant to have privacy while changing, despite knowing she was having problems in the workplace; and
  • Inadequately investigating the harassment complaint and blaming the Complainant for being the source of conflict.

What does this mean for employers? 

Employers cannot insist that transgendered and transitioning employees be treated exactly the same as others.  The issues involved in transitioning are complex, especially in terms of social conceptions of privacy, identity, public decency and sexuality. 

Employers should consider any options that  allow the transgendered and transitioning employees to have washroom/locker room privacy while changing.  Allegations of harassment or workplace bullying should be promptly and carefully investigated and employers should always engage in ongoing dialogue with the transitioning employee to ensure that the transition is properly accommodated.

Written by Sean Kelly

In Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido, the Ontario Human Rights Tribunal found that a packaging company and management employee discriminated against a transgendered worker on the basis of sex and gender identity in the course of her transition from man to woman.  The case provides some helpful practical advice for employers to work with transgendered and transitioning employees in the workplace.  The case is particularly relevant to Nova Scotia employers given the 2012 amendments to the Human Rights Act that provide protection from discrimination on the basis of gender identify and gender expression.  Nova Scotia, the Northwest Territories, Ontario and Manitoba all explicitly protect discrimination on this ground and it is anticipated other provinces will follow.

The business case against workplace bullies just got stronger!

May 23, 2013

Written by Alison Strachan and Michelle McCann

“Bullying drops off at the end of high school, but it never goes away – it’s in the workplace”

Professor Shelley Hymel, University of British Columbia on bullying

The Nova Scotia legislature recently passed Bill 61 – the Cyber-safety Act.  The bill received Royal Assent and will come into force at a future date on Proclamation.  What’s behind the bill is set forth in section 2:

The purpose of this Act is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.

If you’re an employer in Nova Scotia, you will want to know that this legislation applies to your workplace.

At first glance, many will view the bill as a reaction to cyberbullying and recent tragic events in Nova Scotia, but this bill goes beyond the schoolyard in addressing the bullying issue.  More about the bill itself can be read in a recent Stewart McKelvey Client Update on the issue.

What is cyberbullying?

Cyberbullying is defined in Section 3 of the legislation as:

(b) “cyberbullying” means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way;

(c) “electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means;

Essentially, whenever an employee uses new electronic technology to scare, intimidate, embarrass, distress intended to harm another person’s health, emotional well-being, self-esteem or reputation, he or she would be “cyberbullying”.  Here’s why we think so.

Vicarious liability and cyberbullying at the workplace

Section 23 of the legislation preserves the right of an injured party to sue “a person” (i.e., an employer) under the doctrine of vicarious liability:

A right of action or a remedy created under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under the common law or by statute.

What is vicarious liability? In a nutshell, it’s liability for the actions of another even though the person being held responsible may not have done anything wrong.  If you’re interested in reading more about vicarious liability, you can go to John Doe v. Bennet a recent decision of the Supreme Court of Canada in which the court upheld a lower court decision saying that a church was responsible for the acts of one of its priests, even though the church was unaware of those acts.

When the Cyber-Safety Act comes into effect, employers may face vicarious liability for cyberbullying acts of employees against co-workers or third parties.  Because what’s good for the goose is almost always good for the gander, an employee may also be held liable for cyber-bullying acts aimed at his or her employer.

The Cyber-Safety Act does not expressly say that employers cannot be liable for cyber-bullying acts of employees, but it has long been accepted under common law that employers can be vicariously liability for acts committed during the course of employment.

Section 21 of the Cyber-safety Act makes cyber-bullying a tort, and provides courts with the power to award the same damages available for other torts (such as battery, negligence, etc.) for acts of cyber-bullying.  Notably, the legislation uses the broad word “person”:

A person who subjects another person to cyberbullying commits a tort against that person.

“Person” is not defined in the legislation.  It is likely that the word will be given a broad interpretation to include employers and employees.

What are the consequences?

We all know that cyberbullying has the potential to end in tragedy.  That is what the legislation intends to prohibit.  The financial consequences of violating the legislation are:

22 (1) In an action for cyberbullying, the Court may

(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;

(b) issue an injunction on such terms and with such conditions as the Court determines appropriate in the circumstances; and

(c) make any other order that the Court considers just and reasonable in the circumstances.

(2) In awarding damages in an action for cyberbullying, the Court shall have regard to all of the circumstances of the case, including

(a) any particular vulnerabilities of the plaintiff;

(b) all aspects of the conduct of the defendant; and

(c) the nature of any existing relationship between the plaintiff and the defendant.

Although there is no guidance on the range of damages that may be awarded, courts will be taking into consideration the particular vulnerabilities of the plaintiff, the conduct of the defendant and any existing relationship between the plaintiff and defendant.

What should an employer do?

Facebook and other social media can be fun, but it can sometimes lead to devastating consequences.  Employers, companies, directors, officers, employees, etc. should be mindful of their social media and technology use policies.  Such policies should be updated to reflect the new tort, once proclaimed, and emphasize the importance of following those policies.  Employees should be aware of the types of behaviour that are prohibited.  If there is a complaint of cyberbullying in the workplace take immediate steps to investigate and deal with it accordingly.

As with all policies – a cyberbullying policy should always be consistently enforced.  We will keep you up to date with further progress on this law.

Written by Alison Strachan and Michelle McCann

“Bullying drops off at the end of high school, but it never goes away – it’s in the workplace”

Professor Shelley Hymel, University of British Columbia on bullying

The Nova Scotia legislature recently passed Bill 61 – the Cyber-safety Act.  The bill received Royal Assent and will come into force at a future date on Proclamation.  What’s behind the bill is set forth in section 2:

The purpose of this Act is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.

If you’re an employer in Nova Scotia, you will want to know that this legislation applies to your workplace.

When is a “date” not a mere technicality? When it’s “particular”!

May 21, 2013

Written by Michelle McCann

Ever wonder what a difference a day makes?  If you were one of countless Nova Scotia Employers who appealed a Notice of Administrative Penalty under the Occupational Health and Safety Act in 2011, it might mean the difference between paying the penalty and having it revoked.  The Labour Board recently released a decision that you will want to know more about.

Discrepancy of one day results in revocation of administrative penalty

On May 15, 2013 the Labour Board released its decision in,  Lafarge Canada Inc. v. Director of Occupational Health and Safety.  This was first decision by the Labour Board to consider whether a Notice of Administrative Penalty should be revoked if the date of contravention listed is off by a single day.

Three Notices of Administrative Penalty were issued to Lafarge Canada Inc., citing a date of contravention as February 24, 2011.  The Report of Workplace Inspection completed by the inspector was dated February 23, 2011.

In a previous case, Kelly Rock Ltd.(Re), the Labour Board revoked a Notice of Administrative Penalty where there was a discrepancy of one month, plus inconsistencies in the file numbers cited on both documents.  The Board reasoned that these discrepancies were more than mere technicalities.  The date was a “particular” required by regulation to be included in the Notice.  Where the date was uncertain, no contravention could be proven.  Further, where such inconsistencies exist,  the fundamental accuracy of these documents is called into question, and the public could lose confidence in the Administrative Penalties system.

What was left to be decided in the Lafarge case was whether a one day discrepancy in date should also result in the revocation of the Notice.

Stewart McKelvey partner Rebecca Saturley, representing Lafarge Canada Inc., argued that the length of discrepancy was irrelevant – the principles of Kelly Rock should apply to any discrepancy in date between a Report of Workplace Inspection and Notice of Administrative Penalty.  The Labour Board agreed and applied the principles of Kelly Rock, dismissing all three Administrative Penalties. 

The computer glitch

The Director’s explanation in both cases was that the errors were generated by a system-wide computer glitch. Neither case explains in detail the computer glitch suffered by the department, nor does either case give any indication of how many Notices of Administrative Penalty may have been affected by this glitch. 

What this means for employers

If you are issued an Administrative Penalty – check that all of the information corresponds with the Report of Workplace Inspection.  If not, contact a lawyer to consider an appeal.

The Labour Board has not yet determined how they will deal with the countless appeals of Notices of Administrative Penalties, where date discrepancies exist.  Employers with an outstanding appeal who can identify a similar discrepancy should also consider contacting the Labour Board, or their lawyer.

Written by Michelle McCann

Ever wonder what a difference a day makes?  If you were one of countless Nova Scotia Employers who appealed a Notice of Administrative Penalty under the Occupational Health and Safety Act in 2011, it might mean the difference between paying the penalty and having it revoked.  The Labour Board recently released a decision that you will want to know more about.

Expense Claims: Senator Duffy; ‘Wright’ and Wrong

May 17, 2013

Written by Twila Reid

Many employees have expense accounts, or are reimbursed for business expenses, including travel claims. According to a 2007 report by the Association of Certified Fraud Examiners (ACFE), every year the typical Canadian organization loses 5% of annual sales to fraud.  Unfortunately, most employees do not have acquaintances willing to repay $90,000 in inappropriate expense claims.

While the Senate may be a job for life, most employers ask whether they can terminate an employee for cause when they discover inappropriate expense claims.  The inquiry is highly contextual, with an emphasis on proportionality of the punishment to the severity of the offence and procedural fairness.

In order to summarily dismiss an employee for expense claim fraud, an employer must prove dishonesty or fraudulent intent. A single act of dishonesty does not necessarily provide an employer with a licence to dismiss; a contextual approach must be taken to cases of erroneous or fraudulent expense claims.

Factors to be considered include:

  • Whether there was deliberate, premediated deception;
  • Whether the employee was in a position of trust or leadership;
  • Whether the industry requires especially rigorous standards of public confidence;
  • attempts by the employee to cover up or attempts to confess/express remorse;
  • efforts of repayment by the employee;
  • length of employment/employment record; and
  • the severity of the economic harm.

Given the seriousness of an accusation of dishonesty or fraud, employers must take caution when raising concerns about fraudulent expense claims. Unfairness in the investigation and dismissal exposes an employer to increased damage awards.

A claim which is fraudulent will likely be cause for summary dismissal.  A claim which arguably results from a misunderstanding of company policy, or a disagreement on “businesss” will be much less likely to constitute cause, unless there has been a history of similar behaviour in the past with proper progressive discipline. 

Consider the following strategies to minimize unauthorized expense claims:

  • Always have clear written policies as to what expenses are reimbursable, and require advance approval. Once you have established a clear policy, ensure employees know what they can claim, how to submit claims, what review mechanisms are in place, and know the consequences for breach of the policy.
  • Resist providing company credit cards to the most senior trusted executives.  Company credit cards tend to be paid by the company without as much scrutiny as expenses seeking reimbursement.
  • Ensure expenses are submitted in a timely fashion, and have someone in management (not just an accounting clerk) responsible for approval.  For items like business lunches, etc. ensure the reimbursement voucher requires the employee to name and specify who the lunch was with (and how it was connected to business).
  • Sort out the details of any questionable expense claims immediately, do not wait until year end.
  • Conduct regular and frequent review and reconciliations of expense accounts.

 

Written by Twila Reid

Many employees have expense accounts, or are reimbursed for business expenses, including travel claims. According to a 2007 report by the Association of Certified Fraud Examiners (ACFE), every year the typical Canadian organization loses 5% of annual sales to fraud.  Unfortunately, most employees do not have acquaintances willing to repay $90,000 in inappropriate expense claims.

While the Senate may be a job for life, most employers ask whether they can terminate an employee for cause when they discover inappropriate expense claims.  The inquiry is highly contextual, with an emphasis on proportionality of the punishment to the severity of the offence and procedural fairness.

Mitigation: An offer of re-employment and the reasonable person test

May 15, 2013

Written by Lisa Gallivan and Alison Strachan

Constructive dismissal and mitigation have been getting attention over the last month or so.  Some of these cases have their origin in the economic ‘crisis’ of 2008 that resulted in downsizing or restructuring.  In the most recent of these decisions, Bannon v. Schaeffler Canada Inc., the Ontario Superior Court of Justice has the latest word on when it’s reasonable to refuse an alternative offer.  This decision turned on whether it was reasonable for a 56 year-old employee with 36 years’ service and some physical limitations to refuse an offer of a new job with a loss of $3.39 an hour and involving different  terms and conditions of employment.

What happened?

Here’s what the court said:

The auto industry fell victim to the economic calamity of 2008 and the defendant experienced a precipitous decline in its business.  This resulted in the elimination of certain jobs within the company and extensive layoffs. … the plaintiff was advised that his job had been eliminated but he was entitled to exercise his seniority rights and  take a setter position pursuant to the defendant’s Lay Off and Recall Policy.

However, this new ‘setter’ position would result in an hourly rate reduction for the 36 year employee from $28.54 to $25.15 and the plaintiff did not believe that he had the technical knowledge or physical ability to do the job being offered.  He was 56 years old, had back problems when he was on his feet for a long time and didn’t feel he had the strength or agility required for the job.  Because of this, his response was less than enthusiastic.  The next day, he reiterated his concern that he would not be able to meet the demands of the job and by the end of the day, was called to a meeting where he was given a letter saying his employment in his present position was terminated effective that day.  The letter set out severance terms that included a lump sum payment of eight and one-half months at his current hourly rate.

What happened next?

The plaintiff was not happy with the payment and sued the defendant saying he was entitled to 18 to 24 months notice of termination.  Although the defendant didn’t take serious issue with the suggested notice, it argued that the plaintiff failed to mitigate his damages by not accepting the offer of alternative employment it had made to him.  The plaintiff made two counter points:

  1. The duty to mitigate only arose after his termination and since he was not offered a job after he was presented with the termination letter, the defendant could not argue that his refusal to accept alternate work was failure to mitigate; and,
  2. The evidence supported his position that his refusal to take the setter job was reasonable in the circumstances.

What did the court say?

  1. No
  2. Yes

Why?

In the circumstances, the plaintiff had three choices:  accept the new job, accept the new job but sue for damages resulting from the reduction in his hourly rate, or reject the new offer and sue for damages for wrongful dismissal.  Because the plaintiff chose the latter, the issue of mitigation arose.

What would a reasonable person in the plaintiff’s circumstances have done?  Quoting from Evans v. Teamsters, [2008] 1 S.C.R. 661 a reasonable person should be expected to accept re-employment “where the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships are not acrimonius”.  The court said there was no acrimony in this case and acceptance of the alternative employment would not have required him to work in an atmosphere of hostility, embarrassment or humiliation, but said acceptance of the alternative employment was unreasonable:

…It is my opinion, that given his age, physical limitations, the different nature of the work, the changes in working conditions and the many years that had passed since he had done such work, …the plaintiff’s decision not to accept the new job was reasonable.

The court assessed reasonable notice at 20 months, less the eight and one-half months previously paid.

 

 

 

Written by Lisa Gallivan and Alison Strachan

Constructive dismissal and mitigation have been getting attention over the last month or so.  Some of these cases have their origin in the economic ‘crisis’ of 2008 that resulted in downsizing or restructuring.  In the most recent of these decisions, Bannon v. Schaeffler Canada Inc., the Ontario Superior Court of Justice has the latest word on when it’s reasonable to refuse an alternative offer.  This decision turned on whether it was reasonable for a 56 year-old employee with 36 years’ service and some physical limitations to refuse an offer of a new job with a loss of $3.39 an hour and involving different  terms and conditions of employment.

Workplace Confidentiality: More about insisting on privacy!

May 8, 2013

Written by:    Alison Strachan and Michelle Black

In almost every profession – whether it’s law or journalism, finance or medicine or academia or running a small business – people rely on confidential communications to do their jobs.  We count on the space of trust that confidentiality provides.  When someone breaches that trust, we are all worse off for it.

Hillary Clinton

The common law privacy right, or the tort of intrusion upon seclusion, arrived in Canada with Jones v. Tsige.  That case arose when a bank employee used her computer to snoop on the banking records of a co-worker.   The decision brought the issue of privacy in the workplace into the limelight. It is interesting to see what arbitrators and adjudicators have been doing with this issue.  Some general themes emerge from recent cases that may also apply to discipline in the non-union context.  Let’s have a quick look.

Arbitrators take the issue seriously

Arbitrators are quick to agree that confidentiality of certain records, such as medical records, is critically important.  Canada Labour Board adjudicators generally agree that confidentiality of client records (e.g., bank records) is critically important.  Where the cases differ is when the adjudicator’s eye turns to the issue of mitigation: the reason “why” the snooping occurred, whether or not the employee was aware of a confidentiality policy, whether there is remorse, and whether the snooping is likely to happen again.  Even where mitigation favours reinstatement, arbitrators impose lengthy unpaid suspensions.  The issue is taken seriously.

Here’s what a few have said

Most arbitrators find that there should be a zero tolerance standard when looking at confidential information in the medical context:

…I again wish to stress that the ‘zero tolerance’ standard should be the norm and that only in compelling circumstances should termination not be the result of deliberate breaches of the Act, Standard or confidentiality policies. …

That quote is from Arbitrator Rayner in Bluewater Health and O.N.A. (Hardy) (Re) 2010 CLB 33129.  The arbitrator said that the vulnerability of patients to the misuse of their medical records by employees with access to those records is obvious.  In the Bluewater matter there were two grievors: one, a part time nurse with two years’ service, accessed the medical records of four patients she had no connection to for very short periods – a matter of seconds.  The grievor characterized this as ‘accidental access’. The other grievor, a 15-year employee with a good work record, accessed the medical records of two patients –  her daughter and her father.  Her reason?  She testified that she accessed her daughter’s records because her daughter suffered from severe cerebral palsy and she was the primary caregiver.  She said that she accessed her father’s records because she wanted to explain and discuss what she discovered about his condition with him.  In both cases, neither grievor had obtained consent, either express or implied, to access the patient records that they did.

What did Arbitrator Rayner do?  He upheld the discharge of the first grievor, rejecting her de minimis argument focusing on the fact that she failed to report any “accidental access” required by policy.  With the second grievor, he found that mitigation justified reinstatement without compensation, but with no loss of seniority.

In Timmins & District Hospital and O.N.A. (Peever) (2011), 208 L.A.C. (4th), Arbitrator Marcotte agreed with Arbitrator Rayner that “zero tolerance” is the norm.  In Timmins, the grievor was a Registered Nurse, with 22 years’ service who was discharged for breach of confidentiality after accessing the clinical mental health records of a patient.  Her reason?  The patient whose records the grievor accessed had been married to the grievor’s son who was then embroiled in a custody dispute with the patient.  Arbitrator Marcotte was unable to find any compelling circumstances to mitigate the penalty of discharge saying that, based on his conclusions that she knowingly accessed the information in violation of the employer’s ethics and confidentiality policies and applicable privacy legislation without remorse, there was no assurance that her actions would not re-occur.

And then there’s social media – where a breach of confidentiality can go viral with one click

One of the first “social media” confidentiality cases also arose out of a health care employment relationship.  In CAW-Canada, Local 127 (J.C.) v. Chatham-Kent (Municipality), [2007] O.L.A.A. No. 135 (QL),  the grievor was a personal caregiver with eight years’ service and some history of discipline.  She was discharged after making a number of blog entries and posting photos accessible to anyone with internet access (i.e., the world).  Some of the photos she posted were of co-workers and one was of a resident patient.  In her blog entries, the grievor criticized management decisions, identifying one manager by first name and another by initials.  Some comments were derogatory and laced with coarse language.  The grievor also complained about several residents using their first names and even revealing one resident’s diagnosis.   The employer had a training manual saying that each employee was required to ensure that all information obtained during the course of duty was to be kept from social conversation and to remain confidential.  The manual clearly said that discipline, including termination, would follow such disclosure.  Arbitrator Williamson recognized that health care sector employees “are held to a high standard in matters of maintaining the confidentiality of personal information” and upheld the discharge.

The facts in Credit Valley Hospital v. Canadian Union of Public Employees, Local 3252 (Braithwaite Grievance) (2012), 214 L.A.C. (4th) 227 were tragic.  A part-time Environmental Service Representative (non-medical position), with five years’ service was discharged when, after assisting in cleaning up a suicide scene, he took two pictures with his cell phone and later posted them on Facebook with the following captions:  “Mother pleads with kid not to jump…” and “This is what I have to clean up”.  The employer said these actions breached the patient, employee and even the hospital confidentiality, relying on an Employee/Volunteer Confidentiality Form that the grievor had signed when hired.  This form said patients and staff members had a reasonable expectation that their personal information would be treated in complete confidence and that confidential information included verbal, written and electronic data concerning patients, staff and hospital business.  The policy said that disclosure without authorization would result in disciplinary action up to and including dismissal.  During the hearing, the grievor claimed to be unaware that the suicide victim was a patient.  Arbitrator Levinson upheld the discharge saying that the grievor had “constructive knowledge” that the victim was a patient and that the grievor’s actions were culpable.  In addition, the arbitrator noted that the grievor was neither remorseful nor did he fully accept responsibility for his misconduct.  This undermined positive rehabilitative prospects.  Although noting that there might have been some “spur of the moment” lack of judgment on the grievor’s part, Arbitrator Levinson found that once the photos were posted on Facebook, they had the “hallmark of premeditation”, given the passage of time between when the pictures were taken and when they were posted, and given the fact that they were posted during the grievor’s break.  Arbitrator Levinson said:

…By his actions of taking the pictures and posting them on his Facebook page with comments that others viewed, Mr. Brathwaite without any justification has put his own self-interest and feelings ahead of the well-known, the well-understood and the all-encompassing fundamental obligation on employees to maintain the confidentiality of patient information. …

So, by 2012, arbitrators in Canada recognized a well-known, well-understood and all-encompassing fundamental obligation on health care employees to maintain the confidentiality of patient information.

And now, some “order in the court” on the issue

Earlier this year, we blogged about a wrongful dismissal decision, Steel v. Coast Capital Savings Credit Union; that blog can be read here.  That decision will be of interest to non-union employers who place a high expectation on their employees to ensure privacy and confidentiality of clients.  Briefly, Ms. Steel was a 20-year employee, most recently working as a Helpdesk analyst in the IT Department of the credit union.  In her position, she had access to any document or file in the organization, her work was unsupervised, and no one monitored what documents she accessed or for what reason or purpose.  Why?  It would not be practical.  Further, Ms. Steel’s job description required that she “Respect the privacy and confidentiality of all customer and staff information at all times”.  In her job, Ms. Steel could access employee personal folders when she was assisting with technical problems.  Her access, however, was restricted by protocol: (a) the employee whose personal folders were to be accessed had to provide consent; or, (b) the VP of corporate security had to authorize it.  Nevertheless, Ms. Steel, who had signed off on the employer’s Acceptable Use Policy, Code of Conduct Policy and Information Confidentiality Policy, accessed a spreadsheet in a co-worker’s personal file that contained confidential employee information including pay grades and seniority dates.  After an investigation by the employer, Ms. Steel was terminated for cause.  The Court agreed that the employer had cause, saying:

Ms. Steel occupied a position of great trust in an industry in which trust is of central importance.  In her position [she] was given the ability to access confidential documents.  The employer established clear policies and protocols known to Ms. Steel at the relevant time that were to govern access to confidential documents.

The court found that the ‘trust’ fundamental to Ms. Steel’s position was broken beyond repair.

If it’s private and confidential, why wouldn’t we insist on it?

The outcome of an arbitration or court case can never be 100% predictable because of the large role that individual facts play.  What is predictable is that allegations of confidentiality breaches will continue, whether as a result of human curiosity or snooping.  Nonetheless, employers are equipped with strong guidance from arbitrators as well as the courts.  Decision makers are saying that in some industries, ‘zero tolerance’ is the standard and unless there are sufficient mitigating circumstances, dismissals should be upheld.  Even in cases where mitigation does play a role, arbitrators are saying lengthy unpaid suspensions are appropriate. 

Employers, whether unionized or non-unionized, in the health care, banking or any other sector where confidentiality is an expected condition of employment, should continue to educate employees through codes of conduct or confidentiality policies and should clearly say discipline will follow when these policies are violated.  As in all cases, policies and discipline must always be consistent and equally applied.  Hillary Clinton summed it up in the quote opening this article: We count on the space of trust that confidentiality provides. When someone breaches that trust, we are all worse off for it.  Why wouldn’t we insist on it?

 

 

Written by:    Alison Strachan and Michelle Black

In almost every profession – whether it’s law or journalism, finance or medicine or academia or running a small business – people rely on confidential communications to do their jobs.  We count on the space of trust that confidentiality provides.  When someone breaches that trust, we are all worse off for it.

Hillary Clinton

No means no: including workplace sexual harassment!

May 6, 2013

Written by:  Lisa Gallivan and Alison Strachan 

[76]        I also found some of his testimony to be implausible.  For example, he admitted that he had given the applicant chocolate and roses, but denied that his act was a romantic or sexual advance.  Even if it is true that he also gave chocolate and roses to other women in the bar, in my view, it is a notorious and undisputed fact that when a man gives a woman both chocolate and roses in mainstream society, the act has romantic connotations.

Adjudicator Ken Bhattacharjee, Smith v. Rover’s Rest and Bruce Dorman

Two decisions addressing sexual harassment were recently released by Adjudicator Ken Bhattacharjee.  Both involved some fairly extreme facts.  What may be even more extreme is that both cases occurred recently in Canada.  Employers and small business owners will want to know more about these cases.

What are the cases and what happened?

In Smith and The Rover’s Rest and Bruce Dorman (“Rover’s Rest”), the applicant was a bartender.  In Vipond and Ben Wicks Pub and Bistro and David Doherty (“Ben Wicks”), the applicant was a waitress.    Both complained of similar harassment by co-workers who just happened to be owner/managers of bars.  Both managers, it turned out, were jealous of the applicant’s when they spurned “romantic” advances and developed relationships with male customers.

In Rover’s Rest the respondent was fixated on the bartenders “buttocks”, patting her frequently with his hands and telling her she had a “nice ass”, etc.  On one occasion, after returning from a golf tournament, he told her he was having a hard time concentrating on the golf course because all he could think about was “her ass”.  He gave her chocolate and roses.  When she threw the chocolate out and left the roses on the bar, he got angry.  The situation went from just plain wrong to bizarre and eventually the bartender was terminated.  Her manager said she was terminated because: “she was damaging the reputation of [the] bar … customers told him that she made crude jokes”.  The termination letter was delivered to her home.  It did not say she was being terminated for cause, but said, in part:

Your leaving here is a very personal loss for me, I have told you how I feel about you, (still do) and was disappointed when you decided that we couldn’t have the relationship that I wanted.  But that’s life, we all make our own choices, and then have to live with them.

The applicant received several more letters, each increasingly more repugnant and insulting.  If you read the extracts from those letters in the decision, you will understand why the applicant was left feeling depressed and unable to find a job

In Ben Wicks, after the bar closed one night, the waitress was subject to incredibly bizarre sexual comments by her intoxicated manager.  When the waitress reminded him he was married, he told her she was the “only person whom he would cheat on his wife with”.  Although her manager didn’t make any further explicit sexual advances towards her, he occasionally did put his hand on her when he was talking and she had to tell him not to touch her.  The manager also got jealous about her interactions with male customers.  On one occasion, he pulled her into a back room and screamed at her telling her that she should be working instead of talking to a customer.  Eventually, after her horus were substantially cut back, the applicant resigned.

Was what happened sexual harassment?

If you guessed “yes”, you’re right.  In both cases, Adjudicator Bhattacharjee found the actions amounted to sexual harassment.  Here’s what he said in Rover’s Rest:

[120]     I find that, overall, the individual respondent’s Code-related mistreatment of the applicant was serious. The individual respondent subjected the applicant to sexual harassment and advances, a poisoned work environment, discrimination and harassment because of her sex, and reprisals, by, among other things, repeatedly asking her out, invading her personal space, touching her body, hugging her, patting her buttocks, making comments about her buttocks, stating that he was going smack her bare ass, giving her chocolate and roses, monitoring her interactions with male customers, wrongfully accusing her of sleeping with those customers, terminating her employment, delivering sexist and misogynist letters to her, intimidating her by making repeated, uninvited visits to her house, and making an implicit threat of physical violence.

And, here’s the verdict out of Ben Wicks:

[25]  …I find that the individual respondent harassed the applicant by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome.  …

What should employers do to ensure that this does not happen?

All employers should be aware of legislated obligations.  There is no excuse for not having a policy setting out what is expected of employees.  If you do not have one - get one.  If you have a policy, get it out, make sure employees are aware of it and that it’s up to date.

What goes in a policy?

Start with the definition of “sexual harassment” provided by the Supreme Court of Canada almost 25 years ago in Janzen v. Platy Enterprises:

  • Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.

Look around your workplace and consider what types of sexual harassment might occur there.  Are there any harassment cases you should be aware of particular to your workplace?  Describe what type of behaviour is prohibited, but at the same time make sure employees know your policy examples are not exhaustive.  Have a complaint mechanism and thoroughly investigate alleged sexual harassment.  Make sure everyone is aware of the policy.   Last, but not least, take disciplinary steps if you confirm that it’s happening at your workplace and be consistent.

What’s the cost if you don’t?

Aside from what is probably the worst publicity a company can get (decisions are more publicly available and circulated than ever before), the applicant in Rover’s Rest was awarded $35,000 for violation of her right to be free from discrimination and for injury to dignity, feelings and self-respect. The applicant in Ben Wicks was awarded $18,000.  These damages were in addition to other damages for lost income, counselling and harassment training in the workplace.

Written by:  Lisa Gallivan and Alison Strachan 

[76]        I also found some of his testimony to be implausible.  For example, he admitted that he had given the applicant chocolate and roses, but denied that his act was a romantic or sexual advance.  Even if it is true that he also gave chocolate and roses to other women in the bar, in my view, it is a notorious and undisputed fact that when a man gives a woman both chocolate and roses in mainstream society, the act has romantic connotations.

Adjudicator Ken Bhattacharjee, Smith v. Rover’s Rest and Bruce Dorman

Two decisions addressing sexual harassment were recently released by Adjudicator Ken Bhattacharjee.  Both involved some fairly extreme facts.  What may be even more extreme is that both cases occurred recently in Canada.  Employers and small business owners will want to know more about these cases.

I don’t “like” your decision

April 26, 2013

 

What if the person staring back at you, the person who will be making a decision on something that will directly affect your future, has already publicly denounced your position?

Sounds like bias doesn’t it?

According to a recent decision from the Alberta Court of Appeal, it is.

In Beaverford v Thorhild (County No. 7), 2013 ABCA 6, Beaverford applied to the Subdivision and Development Appeal Board (“SDAB”) for a gravel extraction development permit.  A hearing was held before a panel of the SDAB and one of the members on that panel was Councillor Wayne Croswell.

Turned out that one did not need to attend the hearing to know Croswell’s feelings on the subject of gravel pit development … a quick trip to Croswell’s Facebook page revealed all.  Apparently, decision-maker Croswell was questioning “why the County of Thorhild was approving gravel pits and, effectively, giving away millions of dollars worth of gravel when the County may require use of that resource in the future”.  He was clearly opposed to the consulting company Beaverford had retained, and called the site Beaverford had selected for gravel extraction a “waste land for private profit”.

At the hearing, Beaverford claimed that Croswell was biased and that he should be excluded from the panel.  To support his claim, Beaverford produced various posts found on Croswell’s Facebook page.  Additionally, he produced a flyer and a letter to Croswell’s constituents, in which Croswell explained the grave concerns he had with gravel pit development.

Nonetheless, the SDAB dismissed Beaverford’s objection, allowed Croswell to remain on the panel, and ultimately rejected Beaverford’s permit application.

The Alberta Court of Appeal felt differently, granted Beaverford leave to appeal and then accepted his appeal:

This is a case where an elected county councillor, who had publicly advocated positions directly adverse to, or limiting of, developments of the precise sort which was proposed here, also took a key role in the SDAB panel which decided the specific proposed development in this case adversely to the development applicant.

The Court discussed the test for finding a reasonable apprehension of bias and concluded that because Croswell had expressed his adverse views publicly, he was unable to approach Beaverford’s hearing with an open mind.

What does this mean?

Decision-makers at all levels are, of course, human.  They have opinions and thoughts about current events just as the rest of us do and sometimes, they will wish to make those opinions public.  However, doing so may be to their detriment.  The quantity and/or quality of a decision-maker’s online remarks may very well lead to a sustained claim of bias, rendering the challenged decision void.  This means that, in the brave new world of online declarations of opinion you might not have to “like” it when someone has already put, on public display, opposition to your position.

 

What if the person staring back at you, the person who will be making a decision on something that will directly affect your future, has already publicly denounced your position?

Sounds like bias doesn’t it?

According to a recent decision from the Alberta Court of Appeal, it is.

When will breach of safety rules = termination?

April 23, 2013

Written by Michelle McCann

Breach of workplace safety rules is a serious matter, but not always serious enough to justify termination.  The fact that the employee’s violation creates a safety hazard is an important factor, but only one among many factors that a Court will consider when deciding whether a termination is justified. 

That is the lesson that can be drawn from a recent Ontario Court of Appeal case, Plester v. PolyOne Canada Inc., 2013 ONCA 47.  The employer, PolyOne, is a manufacturing company.  Its manufacturing processes are complex and potentially dangerous.  PolyOne had invested a great deal in creating a strong culture of workplace safety, including the creation of “Cardinal Rules of Safety”.  Two of those rules of safety included that machinery being worked on be “locked out”, and that employees immediately report any violations of safety policy.

A line supervisor, Plester, who had worked for PolyOne for 17 years, failed to lock out a machine before attempting to fix it. The lock out process is an important safety measure to ensure a machine is properly shut off and cannot start up again during maintenance.

Plester delayed reporting his violation until the next day, by which point it had already been reported by his subordinates.

While acknowledging that an employer’s ability to respond strongly and swiftly to violation of workplace safety rules was important, the Court of Appeal held that termination was not warranted in this particular case.  Noting the long and relatively unblemished service record of the employee, the fact that he intended to report his violation, and the fact that his mistake did not appear to have put any other persons at risk, the Court held dismissal was not warranted.

The Court was not persuaded by the employer’s argument that the conduct was such a serious violation of trust that a continued employment relationship was impossible.

This decision suggests that a violation of workplace safety does not override the contextual analysis undertaken by the courts in assessing whether the termination was justified, in all of the circumstances. The employee’s history, record, length of service, and the consequences resulting from the safety violation will also be taken into account.

Even in the face of a relatively serious safety violation, employers should turn their mind to these and any other relevant factors when assessing whether termination is warranted.

Written by Michelle McCann

Breach of workplace safety rules is a serious matter, but not always serious enough to justify termination.  The fact that the employee’s violation creates a safety hazard is an important factor, but only one among many factors that a Court will consider when deciding whether a termination is justified. 

Never call an employee a “crack head”!

April 18, 2013

Written by Alison Strachan

Adjudicator Maureen Doyle of the Ontario Human Rights Tribunal recently released a decision that reminds us that interpersonal relationships at work can explode, things can happen that should not, and there is no guarantee that common sense will always prevail.  In Halliday v. Van Toen Innovations Incorporated and Geoffrey Van Toen 2013 HRTO 583, Adjudicator Doyle found a respondent personally liable for creating a poisoned work environment and awarded a former employee $25,000 for injury to his dignity, feelings and self-respect in addition to lost wages.

You will want to know more about this decision.

What happened?

The applicant, Bill, was a vehicle sales agent who located vehicles for the respondent company, Van Toen Innovations Incorporated (“Van Toen”).  Bill was a recovering addict, who had been addicted to crack cocaine for more than 20 years.  During the majority of his employment with Van Toen Bill was “clean and sober”.  Bill got along well with the personal respondent, Geoffrey Van Toen.  So well that Geoffrey invited Bill out for drinks.  Bill refused explaining that he was a recovering addict.  Over time, Bill shared more and more of his past with Geoffrey.

Things went well until November 2009 when Bill realized that he hadn’t been paid for a couple of weeks and called Geoffrey.  The conversation got heated; Geoffrey called Bill a “fucking crack-head” and said Bill would get paid when he got paid.  Four days later, a colleague of Bill’s forwarded an email that had been sent to her by Geoffrey in which he said:

…we suspect Bill has been stealing from us for months (he is a former crack head – not to put that against him) …

Bill testified that this made him feel embarrassed and ashamed as he had not shared his disability with other co-workers.   A few days later, Bill sent an email to the chairman of Van Toen advising that he was resigning and asking to be paid outstanding pay. The chairman apologized for Geoffrey’s actions and told the applicant his commission would be paid as soon as possible.

Then what happened?

Further emails were sent from Geoffrey to “undisclosed recipients” announcing that Bill no longer worked for Van Toen and hinted at possible legal action against Bill.  One also said:

We will be calling all of his clients to confirm if he has been paid direct by any dealers.  We had worked with Bill to curtail his crack addiction helping him into rehab last year among other things.  He has now slipped and made short cuts with a few dealers and clients.  He has also made physical threats towards myself and our company.

The situation was difficult for Bill and by April 2010, he had fallen “back into full-blown addiction”.  By June 2010 he was homeless.  While in detox, Geoffrey sent Bill an email vilifying him.  At this point, Bill decided to file a human rights complaint.  When Geoffrey discovered Bill’s human rights complaint, he allegedly threatened physical violence.  There was evidence of an incident that led to a criminal trial and a Peace Bond ordering Geoffrey to stay away from Bill.

None of this should have happened and here’s why

Employees have a right to privacy.  Employers should only release information to other employees or, in this case third parties, who need to know the information for a specific purpose.  In this case, when Bill shared that he was a recovering addict with Geoffrey, Bill had a right to expect that this information would not be used to harass or intimidate him.  What happened in this case was tragic and inexcusable. It is a clear and strong reminder of what you don’t do with information about a disability in the workplace.

Written by Alison Strachan

Adjudicator Maureen Doyle of the Ontario Human Rights Tribunal recently released a decision that reminds us that interpersonal relationships at work can explode, things can happen that should not, and there is no guarantee that common sense will always prevail.  In Halliday v. Van Toen Innovations Incorporated and Geoffrey Van Toen 2013 HRTO 583, Adjudicator Doyle found a respondent personally liable for creating a poisoned work environment and awarded a former employee $25,000 for injury to his dignity, feelings and self-respect in addition to lost wages.

You will want to know more about this decision.