In-Depth Analysis

Employers’ Advisor – Atlantic Canada Labour & Employment Law Year in Review

Articles:

  1. Nova Scotia
  2. Newfoundland
  3. New Brunswick
  4. Prince Edward Island

2019 saw a number of changes to the legal landscape across Canada. We experienced a year of legalization of cannabis for recreational use, the continuing impact of the #MeToo movement, and a federal election; all of which has impacted workplaces from coast to coast. This issue will provide a look back at some of the developments in labour and employment law across Atlantic Canada and upcoming changes for 2020.

Nova Scotia

In the construction industry, employer friendly amendments to the Nova Scotia Trade Union Act General Regulations came into force which require applications for certification to be made Monday to Friday when a more representative number of employees is generally present on site.  Prior to this, when more than 50% of employees in the construction industry working on the date of the application for certification demonstrated support, the workforce could become unionized without a vote.  Therefore, when applications were made on weekends (typically when a smaller number of employees were on site), it would have a profound impact on workplaces where a small number of employees would trigger the unionization of a larger group of employees.

Workplace harassment has been a hot topic throughout 2019 for Nova Scotia employers in all industries.  In Harpell v Lawton’s Drug Store, 2019 NSLB 56 (CanLII), the Nova Scotia Labour Board dismissed an appeal under the Occupational Health and Safety Act (the “Act”) concerning an alleged violation of s. 45 of the Act, which prohibits discriminatory action by an employer against an employee who has acted in compliance with or has sought enforcement of the Act. In this decision, the complainant filed a discriminatory action complaint against the employer alleging she had been terminated as a result of her reports to management of harassment and bullying by a co-worker. An Occupational Health and Safety Officer began to investigate the complaint, which was challenged by the employer on the basis of jurisdiction and ultimately stopped. The complainant appealed that decision to the Nova Scotia Labour Board. The Board found that the type of harassment and bullying the complainant was alleging was not covered under the Act or the Violence in the Workplace Regulations, noting that to broaden the scope of protection was the role of the legislature, not the Board and that even if it had been, the complaint would have failed because the complaint did not relate to compliance or enforcement of the Act.

Unrelated to this decision, in October of 2019, an opposition bill was introduced that would amend the Act to expand the definition of violence to encompass workplace harassment and bullying, so this is something to keep an eye on for 2020.

In the category of workplace conduct that we wish we didn’t need to talk about, a Nova Scotia arbitrator recently upheld the just cause termination of a grievor for masturbating at work in Unifor, Local 2215 v IMP Group Limited (Aerospace Division), 2019 CanLII 42096. The employer received complaints about the grievor masturbating in one of the stalls in a workplace bathroom. The employer confronted the grievor and warned him of the inappropriateness of the behaviour.  While the grievor ceased the practice for a time, he continued masturbating at work, attracting more workplace complaints.  After an investigation, the employer terminated the grievor’s employment.  At arbitration, the union argued that the grievor’s behaviour was as a result of a sex addiction and termination was not appropriate.  Arbitrator Gus Richardson. QC dismissed the grievance and upheld the termination, finding that the grievor knew or ought to have known that his behaviour violated the employer’s policies, that the allegation of a sex addiction to explain the behaviour was not well-founded and termination for cause was justified in the circumstances.

In Nova Scotia, 2019 brought with it the introduction of leave for victims of domestic violence. Employees are entitled to unpaid leave of up to ten (10) intermittent or consecutive days per year and up to sixteen (16) consecutive weeks. Up to three (3) days per calendar year must be paid. The leave applies to situations in which an employee is abused by their current or former intimate partner, their child, a person under 18 years of age who lives with them or an adult who lives with them who is related to them by blood, marriage, adoption or foster care, or an employee’s child who is abused by the child’s current or former intimate partner, or a person who lives with the child.

Newfoundland

In Newfoundland & Labrador, the past year marked the introduction of family violence leave.  As of January 1, 2019, the Labour Standards Act was amended to include three (3) days of paid family violence leave and seven (7) days unpaid family violence leave per year where an employee or a person to whom the employee is a parent or caregiver has been directly or indirectly subjected to, have been a victim of, have been impacted or seriously affected by or have witnessed family violence.  The leave is to allow the employee or a person to whom the employee is a parent or caregiver to seek and receive medical attention, counselling or other services. 

On July 1, 2019, amendments to the Workplace Health, Safety and Compensation Act came into force which added a post-traumatic stress disorder (“PTSD”) presumption, making it easier for those with PSTD to obtain benefits. Where a worker is exposed to a traumatic event or events in the course of employment and is diagnosed with PTSD, the PTSD is presumed to have arose out of and in the course of employment.

In line with Nova Scotia and New Brunswick, January 1, 2020 will mark the introduction of amendments to the Occupational Health and Safety Regulations that will address workplace harassment.

The Newfoundland and Labrador Human Rights Commission considered discrimination in employment based on marital status in McBreairty v College of the North Atlantic, 2019 CanLII 97520 (NL HRC), released in October 2019. The complainant was employed by the college as an instructor. She applied for a position at the college’s Qatar campus and was successful but her initial contract was not renewed.  The complainant alleged that her contract was not renewed and she was screened out of other job competitions at the college due to an acrimonious relationship between her former husband and the college. The complainant’s husband had been employed by the college but was dismissed for cause. The complainant and her husband had engaged in a lengthy back and forth with the college regarding a number of issues. The college argued that the complainant was not provided with a contract renewal or offered any subsequent positions was as a result of either the fact that she was not approved to stay in Qatar beyond the contract or because she lacked the required skill, ability or qualifications for the positions for which she had applied. The adjudicator found that the college did not discriminate against the complainant on the basis of marital status and that any animosity that existed was as a result of her own actions and dismissed the complaint.

In Newfoundland & Labrador, accommodation for medical cannabis remained a live issue in 2019. In a positive decision for employers, the Newfoundland & Labrador Supreme Court dismissed an application for judicial review of an arbitration decision which found that the employer had met its duty to accommodate a grievor who was denied employment due to his use of medically prescribed cannabis in International Brotherhood of Electrical Workers, Local 1620 v Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48 (CanLII).  This is a decision that all employers struggling to deal with cannabis in the workplace should read.  The grievor was a labourer who suffered from chronic pain due to Crohn’s disease and osteoarthritis for which he was prescribed cannabis. The employer was involved in safety-sensitive work on the Muskrat Falls project site. The prescription authorized the grievor to purchase dried marijuana but did not specify dose or frequency of use. The grievor had worked on the project site until he was laid off and reported his cannabis prescription to his supervisor. Prior to his lay-off, the grievor was never involved in any reported safety-related incident. The grievor subsequently applied for two (2) vacant safety-sensitive positions with another employer involved with the project. He was offered one of the positions subject to a drug and alcohol/medical exam. When he attended for his screening, he disclosed his cannabis prescription and use and was not awarded the positions. The employer refused to hire the grievor as a result of his cannabis use and there were no other non-safety-sensitive positions available. The arbitrator found that the grievor’s cannabis use created a risk of the grievor’s impairment on the job site and the employer was not able to readily measure impairment from cannabis. Therefore, the arbitrator found that the inability to measure and manage the risk of harm constituted undue hardship for the employer and dismissed the grievance. The Newfoundland & Labrador Supreme Court reviewed the decision of the arbitrator and upheld the arbitrator’s decision, confirming that it would constitute undue hardship for the employer to employ the grievor in a safety-sensitive position when the risk of impairment on the job could not be alleviated by a reliable measure of impairment.

New Brunswick

In New Brunswick, amendments to the Occupational Health and Safety General Regulations came into force on April 1, 2019 which specifically address harassment in the workplace.  New Brunswick employers are now required to establish a written code of practice for harassment at the place of employment. The code of practice for harassment must include:

  • a statement that every employee is entitled to work free of harassment;
  • the identity of the person responsible for implementing the code of practice;
  • a statement that an employee shall report an incident of harassment to the employer as soon as the circumstances permit;
  • the procedure the employer shall follow to investigate and document any incident of harassment of which the employer is aware;
  • the manner in which affected employees shall be informed of the results of an investigation;
  • the procedure the employer shall follow to implement any corrective measures identified as a result of the investigation;
  • the follow-up measures to be used with affected employees; and
  • the identification of training needs.

The code of practice for harassment must be sufficient to provide for the health and safety of the employees to the extent possible and copies must be readily available for employees on request. The code of practice must also be implemented and followed.

The privacy provisions in these regulations prohibit an employer from disclosing the identity of any person who is involved in an incident of harassment or the circumstances related to the incident except when necessary in order to investigate the incident, when required in order to take corrective measures in response to the incident, or as required by law. 

Employees and supervisors must be provided with training on the code of practice for harassment and training records kept. The code must be reviewed annually and must be updated when there is a change in conditions in the place of employment.

Bad behaviour of both employees and employers was considered by the New Brunswick courts in 2019.  Martin, Allain, LeBlanc, Bourque v Total Credit Recovery, 2019 NBQB 102 (CanLII) was a summary judgment motion brought by the plaintiffs in relation to an action for damages for wrongful dismissal against their former employer. The summary judgment motion was granted and the plaintiffs were awarded damages for pay in lieu of notice of termination, loss of vacation pay and loss of benefits. In addition, the motion’s judge also considered the plaintiffs’ claims for punitive damages against the employer. The employer had been aware that it would be ceasing its operations, and advised its clients of its closure in advance, but failed to advise the employees of the closure until the day the closure took place, providing them with only two (2) weeks’ pay in lieu of notice of termination.  The motion’s judge found that this aspect of the employer’s conduct in the manner of dismissal was egregious and awarded the plaintiffs an additional four (4) months’ notice in punitive damages.

In Abrams v RTO Asset Management, 2019 NBQB 129 (CanLII), the plaintiff brought an action for damages against his former employer for wrongful dismissal. The employer brought a motion for summary judgment to dismiss the claim, alleging that it had just cause to dismiss the plaintiff. The basis for the just cause termination was the plaintiff’s involvement in a relationship with another employee whom he was obliged to supervise. The plaintiff provided advice to the employer based on his desire to benefit the employee; provided the employee with inside information about future events; failed to report the relationship to the employer as required; and lied to the employer when questioned about the relationship. The motion judge found that the plaintiff engaged in the alleged behaviour; was aware that it was wrong and could have serious consequences; but continued with the relationship anyways. In light of these findings, the for cause termination was justified.

Prince Edward Island

Like Nova Scotia, New Brunswick and Newfoundland & Labrador, Prince Edward Island also focused on workplace harassment in 2019. Amendments to the Occupational Health and Safety Act Regulations addressing workplace harassment moved through the legislative process in 2019 and will come into force on July 1, 2020.

Harassment will be defined as:

  • any inappropriate conduct, comment, display, action or gesture or any bullying that the person responsible for the conduct, comment, display, action or gesture or the bullying knows, or ought reasonably to know, could have a harmful effect on a worker’s psychological or physical health or safety, and includes:
    • conduct that is based on any personal characteristic such as, but not limited to, race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, gender identity or pregnancy; and
    • inappropriate sexual conduct that is known, or ought reasonably to be known, to the person responsible for the conduct to be unwelcome, including, but not limited to, sexual solicitations or advances, sexually suggestive remarks, jokes or gestures, circulating or sharing inappropriate images, or unwanted physical contact.

Harassment will also include:

  • repeated inappropriate conduct, comments, displays, actions or gestures or incidents of bullying that have a harmful effect on the worker’s psychological or physical health or safety;  and
  • a single occurrence of inappropriate conduct, comment, display, action or gesture or bullying that has a harmful effect on the worker’s psychological or physical health or safety but does not include reasonable action taken by an employer or supervisor relating to management and direction of the workers or of the workplace.

An employer who knows or ought reasonably to know that harassment in the workplace is occurring must ensure that:

  • the source of the harassment is identified and the harassment stopped; and
  • reasonable steps are taken to remedy the effects of the harassment and to prevent or minimize future incidents of harassment. 

Prince Edward Island employers will be required to keep the details of the harassment complaint confidential, unless, and to the extent that disclosure is necessary in order to report the incident of harassment or to cooperate in the investigation of the complaint. Workers must also cooperate in the investigation of complaints.

Employers will also be required to develop and implement a written policy to prevent and investigate harassment in the workplace that includes the following:

  • a definition of harassment that is consistent with the definition of these regulations;
  • a statement that every worker is entitled to work free of harassment;
  • a commitment that the employer shall ensure, as far as is reasonably practicable, that no worker will be subjected to harassment in the workplace;
  • a commitment that the employer shall take corrective action respecting any person under the employer’s direction who subjects a worker to harassment;
  • information or procedures about how to make a harassment complaint to the employer or supervisor, how to make a harassment complaint to a person other than the employer or supervisor, if the employer or supervisor is a subject of the complaint, how a harassment complaint will be investigated, and how the complainant and subject of the complaint will be informed of the results of the investigation and any corrective action that has been or will be taken as a result;
  • a statement that the employer shall not disclose any identifying information about any person involved or the circumstances relating to the complaint to any person unless disclosure is  necessary for the purposes of investigating the complaint or taking corrective action with respect to the complaint, or permitted by law;
  • a statement that the employer’s harassment policy is not intended to discourage, prevent, or preclude a complainant from exercising other legal rights pursuant to any other law;
  • a statement that the employer’s harassment policy does not preclude a worker from filing a complaint under the Human Rights Act R.S.P.E.I. 1988, Cap. H-12; and
  • a statement that the employer shall not reprimand, seek reprisal or discriminate against a worker who has made a workplace harassment complaint in good faith.

A copy of the policy must be made readily available to employees.

Prince Edward Island employers will also have an obligation to conduct an investigation into the complaint. Investigations may be referred to an impartial person either within or outside of the workplace who is not directly involved in the incident or the complaint; is not directly under the control of the person who is the subject of the complaint or otherwise in a conflict of interest; and has knowledge of the workplace harassment provisions, and the regulations and other applicable laws. If an investigation is carried out by an impartial person, that person must make a determination as to whether the harassment occurred and may also make recommendations. If recommendations are made, the employer will be required to determine the corrective action required in the circumstances and implement the corrective action.

The ever-present question of whether off-duty conduct can constitute just cause for dismissal was considered by a Prince Edward Island arbitration panel in Canadian Union of Public Employees, v A Nursing Home Inc., 2019 CanLII 67551 (NB LA). The grievor was terminated for cause after pleading guilty to a charge of assault. The charge arose from an off-duty incident in which the grievor was wrestling with a 15 year-old. At the time of the charges, the grievor was employed as a resident care worker at a nursing home providing personal care to vulnerable seniors. The majority of the panel concluded that although the grievor had a clean disciplinary record, there was a serious reasonable negative impact on the reputation of the employer as there was a clear nexus between the grievor’s employment providing personal care to vulnerable persons in a setting which generally lacks direct and continuous supervision and the interaction with a vulnerable person resulting in the assault and the grievance was dismissed.

The past year revealed a clear emphasis on harassment in the workplace, as well as domestic and family violence. This emphasis reveals a shift in thinking towards psychological and mental health issues. It will be interesting to see how the law on these topics will continue to progress throughout the coming year so stay tuned to see what 2020 will bring.

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This publication is not intended as legal advice, but rather to keep readers informed on current issues.  As individual circumstances may vary, readers with questions about issues raised by this article, or any other legal issue are encouraged to contact a Mathews Dinsdale lawyer for assistance.

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