Download Legal Update: "Managing Human Resource Exposure"

Presentation to Financial Executives International
(FEI)
Tuesday, January 20, 2009, Winnipeg Winter Club,
8:00 - 9:15 a.m.
Legal Update: "Managing Human Resource
Exposure"
Human Rights, Employment Standards,
Recent Important Cases
Grant Mitchell, Q.C.
Issue #1: Overtime
Exemption — standard hours of work and overtime
2(4) Division 2 (standard hours of work)
and Division 3 (overtime) of Part 2 do not apply to any
of the following:
(a) an employee who performs management
functions primarily;
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(b) an employee who has substantial control over
his or her hours of work and whose annual
regular wage is at least two times the Manitoba
industrial average wage, as defined by
regulation.
- note absence of word “unfair” from (a)
- Labelle v. Fairmont Hotel (Dec. 15/08)
- Koropeski v. American Biaxis Inc, [2008] MJ 396
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SCC cases:
- Evans v. Teamsters, Local 31, [2008] SCC 20
- employee terminated, then invited to return to work
- refused to come unless his wife got a job too
- and if the termination notice were rescinded
- trial judge agreed and gave 22 months notice
- SCC said he should have gone back to work to
mitigate his damages
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- difference between “severance” and “notice”
- must return to work unless unreasonable to do so
- look for embarrassment, humiliation, hostility
- if working conditions similar and if work not
demeaning
- if personal relationships are not acrimonious
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Keays v. Honda Canada Inc., [2008] S.C.C. 39
trial judge awarded $500,000 in punitive damages
- 14 year employee developed Chronic Fatigue
Syndrome
- got 15 months basic notice + 9 months of Wallace
damages
- Ont CA upheld the Wallace damages, but reduced
punitives to $100,000
- SCC removed both Wallace damages and
punitives, altogether
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- Wallace damages gone, replaced by “aggravated
damages” – a lot harder to get
- punitive damages reserved for most extreme cases
- look for independent actionable wrong
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Aggravated damages where:
- apply when employee's reputation attacked in bad
faith
- or when reason given for decision is false
- or when termination is to avoid an employee
entitlement such as pension
*also note that aggravated damages are arguably not
taxable (same as punitives) – Wallace damages taxable
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Hydro Quebec, [2008] SCC 43
- duty to accommodate scaled back
- employee missed 960 days in a 7.5 year time span
(1994 - 2001)
- various accommodations provided over the years
- many graduated returns to work after depressive
episodes
- personality disorders made relations with various
supervisors difficult
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- her doctors put her off work for an indefinite period
of time which had reached 5 months at the time of
the termination of her employment for frustration
of contract
- arbitrator dismissed the termination grievance, but
Court of Appeal reversed that, saying that the
employer had not shown that it was impossible to
accommodate her
- SCC says test is not "impossibility", but undue
hardship
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"If the characteristics of an illness are such that the
proper operation of the business is hampered excessively
or if an employee with such an illness remains unable to
work for the reasonably foreseeable future even though
the employer has tried to accommodate him or her, the
employer will have satisfied the test.“
- decision is also consistent with the SCC's decision
in January, 2007 in McGill Hospital, [2007] 1
S.C.R. 161
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- Court also found that accommodation efforts are to
be evaluated based on the entire period of
employment, not just a snapshot at the point of
termination
- some hope for employers that employment
relationships can be terminated for frustration
without violating the duty to accommodate
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