In-Depth Analysis

Employers’ Advisor December 2022

Articles:

  1. Court Rules that Placement on Unpaid Leave for Violation of Mandatory Vaccination Policy is not Constructive Dismissal
  2. Roasted: Investigation Conduct Lands Employer Café in Hot Water
  3. Ontario Human Rights Tribunal Rules that it has Concurrent Jurisdiction with Labour Arbitrators over Human Rights Matters

Court Rules that Placement on Unpaid Leave for Violation of Mandatory Vaccination Policy is not Constructive Dismissal

Christian Rocca

In September 2022, the B.C. Supreme Court released its decision in Parmar v. Tribe Management Inc.. This was the first Canadian civil court decision to weigh in on whether an employer is entitled to place an employee on unpaid leave for non-compliance with a mandatory vaccination policy (“MVP”), and whether doing so constitutes constructive dismissal.

Background

The Defendant, a provider of condominium management services, implemented an MVP for its employees to help deal with the threats of COVID-19. The MVP applied to all employees and required them to be fully vaccinated by November 24, 2021. Employees who were non-compliant with the MVP after the deadline were to be placed on unpaid leave.

The Plaintiff objected to the Defendant’s requirement to get vaccinated. She did not claim to have any religious or medical reason for failing to be vaccinated. Rather, she raised concerns over the speed at which the COVID-19 vaccines were developed and distributed, and that there was limited data about their long-term efficacy and health implications for certain people. She stated that she was fearful of negative side effects from getting vaccinated, and cited her family’s health history, including negative health impacts allegedly experienced by family members in the aftermath of receiving a COVID-19 vaccine, as a factor in her position. The Plaintiff proposed various alternatives to vaccination, but she was advised that there would be no exceptions to the MVP.

The Plaintiff was non-compliant with the MVP as the deadline passed, and she was subsequently placed on a three-month unpaid leave. This leave was later changed to one of indefinite duration, after which the Plaintiff notified the Defendant that she considered herself to be constructively dismissed.

The Plaintiff argued that the Defendant fundamentally breached its employment obligations, resulting in her claiming constructive dismissal. She also contended that the MVP was unreasonable in not making an exception for employees who could work from home.

The Decision

The Court found the Defendant’s MVP to be a reasonable and lawful response to the uncertainty created by the COVID-19 pandemic based on the information available to it. In making this finding, the Court emphasized the following:

  • the MVP allowed for religious and medical exemptions;
  • a significant amount of information available indicated that vaccines were the best and safest method to prevent COVID-19 infection;
  • the MVP reflected the Defendant’s statutory obligation to ensure a safe workplace;
  • the MVP struck an appropriate balance between the Defendant’s business interests, the employees’ right to a safe workplace, the Defendant’s clients’ interests, and the interests of the people its clients serviced;
  • the MVP was not arbitrarily or selectively applied;
  • the MVP respected the Plaintiff’s right to choose to be vaccinated by placing her on unpaid leave; and
  • the MVP was to be reviewed as more was learned about COVID-19.

The Court further found that placing the Plaintiff on unpaid leave was not a termination of her employment, but was rather the Defendant’s refusal to accept the Plaintiff’s repudiation of her employment contract due to her non-compliance with the MVP. The Court noted that the Defendant had not filled the Plaintiff’s position, and that she was free to return to her position once she became vaccinated. The Court also stated that the Plaintiff had made a personal choice to remain unvaccinated, and the unpaid leave was a consequence of that choice. As a result, the Court found that the Plaintiff had not been constructively dismissed, and instead she had resigned.

The Court also compared this case to the recent Alberta Court of Queen’s Bench decision Benke v. Loblaw Companies Limited (“Benke”), in which the Court found that an employee had not been constructively dismissed when he was placed on unpaid leave for failing to comply with the mandatory masking policy that his employer had implemented in response to the COVID-19 emergency. Like in Parmar, the Court in Benke found that the Plaintiff had resigned, and that the position he found himself in was the result of a personal choice.

Concluding Thoughts

After months of arbitration decisions addressing the reasonableness of vaccination policies in unionized workplaces, non-unionized employers finally have some guidance from the courts on this similar issue. This decision is instructive for other non-unionized employers who implemented vaccination policies during the pandemic, especially given its finding that, in the circumstances of the case, placing the Plaintiff on unpaid leave was not a constructive dismissal. While this case is welcome news to employers, it is important to remember that the reasonableness of a given vaccination policy will generally turn on the facts of the specific case. Additionally, employers have yet to receive firm guidance from courts as to whether employees who have been terminated (rather than placed on unpaid leave) for non-compliance with an MVP are properly considered to have been terminated for “just cause.”  Employers should carefully considers how non-compliant employees are to be treated in the specific circumstances in each case, especially until there is further judicial guidance on these issues.

Roasted: Investigation Conduct Lands Employer Café in Hot Water

Matthew Kim

In the recent case of Cho v Café La Foret, the Supreme Court of British Columbia found that the Plaintiff was wrongfully dismissed and awarded him damages equivalent to a reasonable notice period and as well $25,000 in punitive and aggravated damages. The decision, which stands out for its bizarre fact pattern, is instructive employers who are dealing with a complaint of sexual harassment within the workplace.

Background

The Plaintiff, a 60-year old Head Baker of the Defendant, was accused of sexual harassment of a much younger female subordinate employee by briefly touching her on the back of her neck, her shoulder, and later near her right buttocks. The Plaintiff was also accused by the employee of bullying her by refusing to let her eat an afternoon meal the same day as the touching incident.

The complainant left work after a second instance of touching by the Plaintiff. Her husband learned of the incident and confronted a manager, demanding that something be done about the Plaintiff.

Shortly thereafter, the Plaintiff was called into a meeting by the manager and was presented with the complainant’s accusations. The Plaintiff admitted to having touched the employee but denied that the touching was sexual and asserted that he was merely demonstrating where he had experienced pain in the course of discussing a recent therapeutic massage. He offered to apologize or to quit in order to resolve the situation, but was instead told to not come to work temporarily.

The Defendant ultimately decided to seek a letter of apology would be sought from the Plaintiff. The “apology letter” was drafted in the form of an affidavit. A term of the affidavit was that the Plaintiff would not contact the complainant or any other current, former or future female employee of the Defendant for any reason.

The Plaintiff refused to sign the affidavit and was subsequently terminated by the employer. The Plaintiff then commenced a wrongful dismissal lawsuit against the Defendant.

The Decision

The Defendant advanced three reasons for terminating the Plaintiff: the sexual harassment of the complainant, his dishonesty during the investigation, and his unwillingness to apologize or show contrition or remorse. The latter two grounds were found to be unsupported by the evidence and unsubstantiated. Therefore, the court was left to consider whether the alleged sexual harassment was sufficient to justify the dismissal.

The Court found that the touching was sexual in nature, and that however brief, it was intentional, unwarranted and non-consensual. Nevertheless, the Court stated that the Plaintiff’s actions reflected a “gross error of judgment, rather than an act committed for sexual gratification or with the intention of violating [the employee’s] bodily integrity.”

The Court then considered the Plaintiff’s refusal to sign the affidavit and found that there were numerous problems with the contents of the affidavit, and with the Defendant’s request that the Plaintiff sign that document. The affidavit had factual errors and, more importantly, was to be used to facilitate a complaint made to police by the complainant rather than to repair any fractured relationship between the Plaintiff and the complainant. The Court found that it was impossible for the Plaintiff to comply with the terms of the affidavit, which prohibited from contacting the complainant or any “current, former or future female staff of [the Defendant] for any reason.” Effectively, the Court determined, the Plaintiff was being asked to choose between incriminating himself and facing possible criminal charges as a result, or keeping his job.

The Court ultimately concluded that given the Defendant’s willingness to reinstate the Plaintiff if he signed the affidavit, it was his refusal to sign that document that was the real reason for his termination – not his initial misconduct towards the complaint. The Plaintiff’s own actions, in offering continued employment in exchange for the signing of the affidavit, demonstrated that it did not consider the initial misconduct to have irreparably broken the employment relationship.

The Plaintiff was awarded five months of pay in lieu of reasonable notice of termination, with a two-month reduction for the Plaintiff’s failure to mitigate his damages. Perhaps most notably, the Plaintiff was awarded $25,000 for punitive and aggravated damages, with the Court that by refusing to issue his ROE before he signed the affidavit the Defendant placed the Plaintiff in “serious legal jeopardy” and “took advantage of Mr. Cho’s emotional and financial vulnerability by refusing to provide him with an ROE unless he signed the Affidavit.”

Concluding Thoughts

Sexual harassment claims are by their very nature difficult to handle. As the case demonstrates, individuals are rarely able to consider and evaluate such an emotionally fraught situation in an even-handed and dispassionate way. Employers dealing with sexual harassment claims are advised to speak to a lawyer experienced in such complex claims, especially if they are considering termination as a result.

Ontario Human Rights Tribunal Rules that it has Concurrent Jurisdiction with Labour Arbitrators over Human Rights Matters

Ernest Tam

Recently, the Human Rights Tribunal of Ontario in Weilgosh v. London District Catholic School Board determined that the Tribunal had concurrent jurisdiction to decide claims of discrimination and harassment falling within the scope of a collective agreement governed by the Ontario Labour Relations Act, 1995 (the “LRA”) and the Ontario Police Services Act (the “PSA”).

Background

In the case of Northern Regional Health Authority v. Horrocks, the Supreme Court of Canada previously found that labour arbitrators may have exclusive jurisdiction to decide human rights claims, depending on the statutory provisions of a province’s labour relations statute and human rights code. In that case, the Supreme Court of Canada determined the Manitoba Human Right Commission did not have concurrent jurisdiction to determine such claims from unionized employees, and instead labour arbitrators had exclusive jurisdiction to determine those claims.   In Weilgosh, the Tribunal considered this same issue, but in the context of Ontario’s legislation and human rights scheme.

The Decision

The Tribunal considered the two-step test articulated by the Supreme Court in Horrocks to resolve jurisdictional questions between labour arbitrators and competing statutory tribunals. This test is outlined as follows:

First, the relevant legislation must be examined to determine whether it grants the arbitrator exclusive jurisdiction and, if so, over what matters (Morin, at para. 15). Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has the exclusive jurisdiction to decide all disputes arising from the collective agreement, subject to clearly expressed legislative intent to the contrary.

If at the first step it is determined that the legislation grants the labour arbitrator exclusive jurisdiction, the next step is to determine whether the dispute falls within the scope of that jurisdiction.

The Tribunal’s decision primarily focused on the first step of the Horrocks analysis, which required it to consider whether the LRA or PSA grant exclusive jurisdiction to a decision-maker. The Tribunal found that an arbitrator appointed under the LRA has exclusive jurisdiction to decide human rights claims falling within the scope of a collective agreement, subject to a clear legislative intent to displace this inherent jurisdiction. These powers were inherent in section 48 of the LRA, which, among other things, provide for a mandatory dispute resolution clause granting a labour arbitrator the exclusive jurisdiction to decide disputes arising from the interpretation, application, or violation of a collective agreement, and empowering a labour arbitrator to interpret and apply human rights statutes. The Tribunal reached the same conclusion for the PSA.

However, the Tribunal went on to find that the Ontario Human Rights Code (the “Code”) demonstrates a clear legislative intent to displace the labour arbitrator’s exclusive jurisdiction. Accordingly, the Tribunal in Weilgosh found that the Tribunal and labour arbitrators have concurrent jurisdiction to decide human rights claims falling within the scope of a collective agreement in Ontario.

In reaching this determination, the Tribunal relied on Ontario (Human Rights Commission) v. Naraine, a 2001 Ontario Court of Appeal decision which upheld concurrent jurisdiction between labour arbitrators and the Tribunal. The Tribunal also found that the broad language used in the Code signals a legislative intent that the Tribunal maintain concurrent jurisdiction. For example, section 45 of the Code gives the Tribunal the power to “defer an application in accordance with Tribunal rules” and section 45.1 provides the Tribunal with the broad power to dismiss an application if it is “of the opinion that another proceeding has appropriately dealt with the substance of the application”. Additionally, the Tribunal found that there was no language in the Code expressly limiting the scope of the Tribunal’s jurisdiction with respect to other decision-makers, which further supported a finding of concurrent jurisdiction.

Concluding Thoughts

This decision does not necessarily mean that the Tribunal will address all applications involving unionized workplaces filed with it, since the Tribunal may still defer consideration of an application to a labour arbitrator under the Code. It is likely that where there are parallel proceedings, the Tribunal will defer the matter to arbitration. Ultimately, the effect of Weilgosh is that labour arbitrators are not afforded exclusive jurisdiction over human rights matters and therefore unionized employees with human rights complaints have more than one forum to raise their dispute.  This may be of particular importance in cases where a union declines to file a grievance on behalf of its member (perhaps because of the perceived weakness of the case). In such circumstances, the member will be able to turn to the Tribunal to pursue their claim even where the union has declined to do so.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

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