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The legal playing field may be tilting away from employees

Employers often criticize workplace laws and court decisions as being tilted against their favour.

Employers often criticize workplace laws and court decisions as being tilted against their favour. With the broad and always-expanding reach of human rights laws, higher severance awards and a diminished ability to argue cause for dismissal, their sentiments may not have been unfounded. However, a string of recent court cases that have fallen decidedly in their favour may mean that is no longer the case.

  • Bad faith damages may no longer exist. Since the Supreme Court’s recent decision in Honda, lower courts have been struggling with whether they can even award compensation to an employee based on the manner of dismissal. In one recent Ontario case where the trial judge found that the employer committed a “litany of errors” at the time of termination -- which led to an employee’s depression -- the Court of Appeal overturned the award, finding that such conduct was not “unduly” insensitive. In another recent Saskatchewan case, the court wrote that as bad as the employer’s behaviour was, the stress and depression that the employee suffered was not related to the manner that he was treated.
  • Fired employees may have to return to their old jobs. In light of the Supreme Court’s decision in Evans, employees who have been constructively dismissed will generally be without an adequate remedy after the court imposed a requirement that they should remain in their jobs unless doing so would be intolerable. As well, dismissed employees who have been asked to return to their old jobs may have to do exactly that or otherwise risk being losing a case against their former employer.
  • The point of “undue hardship” in accommodating an employee’s disability at work has been rewritten. In Hydro Quebec, the Supreme Court ruled that a large organization was not required to create a new position in order to accommodate an absence-prone employee’s particular illness. Accommodation does not require the employer to alter the essence of the contract, which is that the employee must perform his or her job, the Court wrote. Instead, if the proper operation of its business would be especially restricted, employers can fire disabled employees without infringing human rights laws.
  • Drug and alcohol use may no longer constitute a “disability” under human rights legislation. In light of this, employers might not be required to accommodate employees with an alcohol or drug dependency. In an Alberta appellate decision, the court upheld an employer’s right to perform mandatory pre-employment alcohol and drug screening tests, arguing that the recreational use of drugs and alcohol is not protected under legislation.
  • Employees must perform their jobs “in good faith.” In the RBC case, the Supreme Court found that a group of employees who organized a mass departure that essentially crippled their employer’s office had no duty to compete fairly with their former employer but rather they must perform in good faith while still employed. Because they left without notice and took most of their clients with them, the group was ordered to pay damages.
Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com

 
 
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