Employer Obligations

1. Employer Obligations Vancouver Seminar November 30, 2012 Carolyn MacEachern & Joe Scafe

2. DUTY TO INQUIRE Evolving concept in human rights Employer may have duty to accommodate before employee advises of a disability When must an employer inquire whether an employee has a disability or the disability is related to conduct?

3. DUTY TO INQUIRE • Willems-Wilson v. Allbright Drycleaners Ltd (1997), 32 CHRR D/71 • Employee had a history of emotional problems • Employer was aware she was unstable • Termination during hospitalization was discrimination

4. DUTY TO INQUIRE • Mackenzie v. Jace Holdings Ltd (cob Thrifty’s), 2012 BCHRT 376 • Employee fired for poor performance, disruptive behaviour, insubordination • Employee exhibited signs of depression • Manager denied knowing the employee was depressed • Thrifty’s should have known she was depressed, failed the duty to inquire, was found liable for discrimination.

5. DUTY TO INQUIRE • How disruptive must an employee’s behaviour be to trigger the duty? • Rezaei v. University of Northern British Columbia and another (No. 2), 2011 BCHRT 118 • Employee made inappropriate and unsubstantiated accusations against superiors • Employee claimed discrimination 2 years after employment ended • Nothing fell “so far out of the norms of communication among individuals holding firm views on matters of dispute”

6. DUTY TO INQUIRE • Drug use may trigger the duty to inquire • Wilson v. Transparent Glazing Systems (No 4), 2008 BCHRT 50 • Work criticized and suspicion of on-site drug use • Employer knew employee took “medication” for back pain and migraines • Employer failed to inquire whether job performance was related to employee’s disability/medication

7. DUTY TO INQUIRE • Denial of disability • Geldreich v. Whisper Creek, 2009 BHCRT 178 • Employee fired for smoking marijuana at work, claimed discrimination • Had previously twice denied using drugs at work • Casual drug use does not trigger the duty to inquire

8. DUTY TO INQUIRE • Employer should question resignation connected to mental disability • Alberta (Department of Justice) v. Alberta Union of Provincial Employees, [2011] AGAA No 60. • Greivor resigned before she thought she would be fired • Employee expressed second thoughts • Employer knew she was unstable but accepted the resignation • Knowledge of disability should have influenced the “ease with which the Employer relied upon her expressed intention.”

9. DUTY TO INQUIRE • Before taking action against an employee employers should consider: • Whether that employee has disclosed a mental or physical disability, • Whether that employee has exhibited conduct which could indicate a disability

10. INVESTIGATIONS Employers required to consider all of the facts when making discipline and dismissal decisions Always conduct an investigation before making decision regarding discipline or dismissal Investigations must be objective and fair Do not jump to conclusions or make assumptions

11. INVESTIGATIONS Vernon v. British Columbia (Liquor Distribution Branch), 2012 BCSC 133 Manager of liquor store dismissed for just cause 30 year employee Employer alleged gross workplace misconduct including bullying, harassing and intimidating subordinates

12. INVESTIGATIONS Manager had “no-nonsense” approach Employer received complaint that manager had harassed a staff member Employer conducted an investigation prior to making decision to dismiss

13. INVESTIGATIONS Employer interviewed the complainant, the employee and witnesses Court found investigation process was flawed Wrong person conducted the investigation Merit of complaint decided before the investigation was finished

14. INVESTIGATIONS Court characterized interviews as “interrogations” Investigator mistakenly concluded that the employee denied all of the allegations Court determined investigation was neither objective or fair No just cause

15. PRIVACY R. v. Cole, 2012 SCC 53 Teacher was charged with possession of child pornography and unauthorized use of a computer Pornography found on work-issued laptop Teacher was allowed to use laptop for incidental personal purposes

16. PRIVACY Technician found photos of an underage female student Principal seized the laptop and handed it over to the police Police viewed contents of laptop without a warrant and created a mirror image of the hard drive for forensic purposes

17. PRIVACY Teacher argued that computer material was not admissible in court as breach of his privacy rights under Canadian Charter of Rights and Freedoms The privacy issue made it all the way to the Supreme Court of Canada

18. PRIVACY SCC agreed that police infringed privacy rights under s. 8 of the Charter However, SCC agreed that conduct of police not an egregious breach of Charter SCC concluded that evidence from the laptop was admissible in court

19. PRIVACY Vancouver School District (2011), 212 L.A.C. (4th) 248 (Sanderson) Grievor was dismissed with just cause for viewing and distributing pornographic material using the employer’s computer while at work Dismissal upheld

20. PRIVACY Grievor uncooperative in the investigative meetings Deliberately tried to minimize his involvement and avoid responsibility for his actions Conduct was premeditated and egregious No evidence that grievor had accepted personal responsibility

21. RELEASES • Release of claims recommended in dismissal situation • There needs to be consideration for a release • Releases are generally enforceable even if an employee later has regrets • However, courts will strike down releases where unconscionable

22. RELEASES • Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 • Employee was 63 years old with 20 years of service • Offered a severance package that was conditional on signing a release • Severance offered was only 2 days above ESA entitlement

23. RELEASES • Court concluded that release was not enforceable • Employee was caught off guard by dismissal meeting • The notice was “grossly inadequate” • Employer did not advise employee of rights under ESA • Court awarded 12 months’ notice plus benefits

24. RELEASES Mielke v. Delta, 2010 BCHRT 170 Employee dismissed without cause because “not a good fit” Employee accepted a severance package and signed a release Employee then applied for another position with the same employer

25. RELEASES Employer did not consider the application Employee filed a human rights complaint based on age and physical disability Employee said signed the release “with reservations” Tribunal dismissed the complaint

26. WORKSAFE AMENDMENTS Recent legislative changes Mental stress now includes mental disorders caused by a significant work-related stressor Includes bullying and harassment Employees who suffer mental disorder because of bullying and harassment can file WorkSafe claims

27. WORKSAFE AMENDMENTS • What is bullying and harassment? • Inappropriate or vexatious conduct or comments; • Committed or made by a person towards a worker; • Which the person knew or ought to have known would cause the worker to be humiliated, offended or intimidated; • Does not include reasonable actions related to management, direction or place of employment • Conduct must arise out of circumstances related to work

28. WORKSAFE AMENDMENTS Employer required to take all reasonable steps to ensure health and safety of employees Expanded obligations on employers and workers to ensure harassment free workplace Proposed changes to Occupational Health and Safety Policy WorkSafe considering feedback received on these proposed changes

29. WORKSAFE AMENDMENTS • Employer obligations: • Perform a risk assessment of the workplace • Develop and implement policies and procedures • Inform workers of the risk, policies and procedures • Investigate and document complaints and incidents • Take corrective action • Advise victims to consult physician

30. WORKSAFE AMENDMENTS • Worker obligations: • Protect themselves and others • Refrain, report, comply • Supervisor obligations • Apply and comply with employer’s policies and procedures

31. CRIMINAL RECORDS CHECKS Information and Privacy Commissioner report The most invasive pre-employment screening measure Could result in an individual being unfairly denied employment Must respect the privacy rights of the subjects of criminal records checks

32. CRIMINAL RECORDS CHECKS • Best Practices • Do not conduct Police Information Checks • Collect the minimum amount of personal information • Only use them for sensitive positions • Terminate only if the crime is related to the position • Conduct the check only after a conditional offer of employment

33. CRIMINAL RECORDS CHECKS • Best practices (cont.) • Use certified criminal records checks sparingly • Results should go to the individual first • Do not require additional checks for changes in position • Use ongoing checks only in very sensitive positions • Checks should not be conducted by the manager

34. SOCIAL MEDIA BACKGROUND CHECKS • Office of the Information and Privacy Commissioner’s report • May unearth more information than a local government is authorized to collect • Must have individual’s consent to collect • May inadvertently collect information about third parties

35. SOCIAL MEDIA BACKGROUND CHECKS • Office of the Information and Privacy Commissioner’s recommendations • Do not perform checks from personal accounts • Do not contract a third party to conduct checks • Do not assume checks are untraceable