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Community Social Services Employers’ Association of BC www.cssea.bc.ca0

Community Social Services Employers’ Association of BC

Suite 800, Two Bentall Centre, 555 Burrard Street

Box 232, Vancouver BC, V7X 1M8

Tel 604.687.7220

Toll free 1.800.377.3340

Fax 604.687.7266

www.cssea.bc.ca

Hot Issues in HRLRPresented by Vanessa Wong, Anne Campbell, and Tamina Mawji


Hot Issues

1. Challenges of sick notes – Vanessa Wong

2. Will you still need me, will you still feed me, when I’m 64? – Anne Campbell

3. Provision of references for departing employees – Vanessa Wong on behalf of Tamina Mawji


Challenges of Sick Notes

“In my capacity as your G.P., I’ve written you out a new style fit note.”


Realistically . . .

• XYZ MEDICAL CLINIC• 4321 Main Street

• This patient is

unfit for

work/school at

present.

• Dr Stamp

• October 1, 2018

• XYZ MEDICAL CLINIC• 4321 Main Street

• Away until December 31, 2018.

• Dr Brief

• October 1, 2018

4

Trump Doctor’s Note


Obligations of Employee (CA)

Article 19.2(a) – Employee to Inform Employer

The employee will inform the Employer as soon as possible of her inability to report to work because of illness or injury.

The employee will make every reasonable effort to inform the Employer of her return to duty in advance of that date.


Obligations of Employee (Case Law)

1. Duty to report truthfully and accurately on medical condition at all times

2. Duty to report "fully" means reporting what the employee knows as to their restrictions and abilities and which would reasonably be viewed as useful information to the Employer


Dishonesty

BC Public School Employer’s Association v. BC Teachers Federation, 2014, Korbin

• Learning Assistance Teacher• 23 years of service• Chronic sleep disorder• Google – quilting teaching business and travel blog


Dishonesty


• Termination upheld• Deliberate• Misrepresented• Uncooperative and evasive• Failed to acknowledge misconduct• Persistent


Dishonesty


“The evidence establishes that, when faced with spending time on work that she disliked, the grievorreported low energy; however, when undertaking activities that she found enjoyable and stimulating, she displayed excitement and enthusiasm. Absence of satisfaction or pleasure in one’s paid work is not a medical condition that substantiates a claim for sick leave.”


Dishonesty

Toronto (City) v Toronto Civic Employees’ Union, Local 416, 2017, Sheehan

• Solid Waste Collection Operator• 7 months of service • Rear-ended – sore neck and stress• Instagram – Jamaica!


Dishonesty


#NoMoreDrinking#IWasInAComaYesterday#HangOver#BartenderWasntPlayingWhenHeSaidHezGonnaMessMeUp

“Not a care in the world . . . #LifeisGood#Jamaica#IslandGirl#LoveTheWater#Vacation#Relaxation#Happy”


Dishonesty


• Termination upheld• Self-incriminating Instagram photos• Significant gaps and inconsistencies • Failed to acknowledge misconduct


Dishonesty

Canadian National Railway Company v Unifor, Council 4000, 2017, Flynn

• Service Delivery Representative• 8.5 years of service • Absent from work for a day• Forged doctor’s note• Substance abuse


Dishonesty


• Termination upheld• Forging of medical notes serious offense • Mitigating factors are important (extensive disciplinary history)


Dishonesty


• What about the substance abuse argument?• Must substantiate a link between the misconduct and medical condition


Lessons Learned

1. Question long accommodations

2. Check social media accounts

3. Contact the doctor’s office to confirm the employee’s attendance

4. Conduct an investigation to identify gaps and inconsistencies, including interviewing the employee

5. Before issuing discipline up to including termination review mitigating factors

6. Be in the know: BestFakeDoctorNotes.net


When to Ask for Sick Note (CA)

Article 19.2(b) – Employee to Inform Employer

The Employer may request proof of illness.

The Employer’s request will not be unreasonable or discriminatory.


When to Ask for Sick Note (Policy)

• Impact on culture

• “3 consecutive days” vs “when absenteeism is an issue”


When to Ask for Sick Note (Case Law)

Honda Canada Inc. v. Keays, 2008, Supreme Court of Canada

• Chronic fatigue syndrome

• Disability insurance benefits ends

• Returns to work and absences continue

• Employee directed to provide sick notes to substantiate each absence

• Employer directs Mr. Keays to meet with their doctor

• Mr. Keays refuses

• Employment terminated


When to Ask for Sick Note (Case Law)

Honda Canada Inc. v. Keays, 2008, Supreme Court of Canada

“I accept the need to monitor the absences of employees who are regularly absent from work is a bona fide work requirement in light of the very nature of the employment contract and responsibility of the employer for the management of its workforce”


Takeaways

• Question objectivity of medical information provided by employee’s doctor

• Engage the union early on

• Be patient


Doctor’s Notes – Do’s and Don’ts (CA)

Article 19.2(b) – Employee to Inform Employer

The Employer will not request a diagnosis of the employee’s condition.


Doctor’s Notes – Do’s and Don’ts (Case Law)

Do’s• Treatment recommended

and being followed• Restrictions and

limitations• Next appointment• Referred to specialist• Estimated date of return

to work • Any job modifications

(temporary or permanent)• Pay for form completion

Don’ts• Request diagnosis• Contact the doctor directly

without the employee’s written consent

• Forget to reduce your request to writing to avoid ambiguity/confusion


Law Developments

Will you still need me, will you still feed me, when I’m 64?

Challenges employers face with aging employees


Accommodation of aging workers

British Columbia eliminated mandatory retirement on January 1, 2008



Section 13 of the BC Human Rights Code prohibits discrimination in employment on the basis of age

• “Age” means “an age of 19 years or more” for the purposes of the Code.

• Bona fide retirement, superannuation or pension plans or bona fide group or employee insurance plans may continue to operate.



Benefits Issues:

• Subsection 13(3)(b) of the BC Human Rights Code

continues to permit age-related distinctions in the

operation of the bona fide benefit and pension plans.

• Employees may work past age 65, but may no longer

be eligible for certain benefit plans, e.g., LTD.



•Age is a protected ground in every Canadian

province

•Bona fide occupational requirement

•Accommodation obligations



PERFORMANCE MANAGEMENT IS VERY

IMPORTANT AND CAN’T BE IGNORED



Malik v New Brunswick Human Rights Commission, 2012 NBQB 163

Termination of a problem employee at age 65

was discriminatory because, despite previous warnings

and reprimands, there was no “culminating incident”

following the complainant’s 65th birthday.



Age concerns begin during the hiring process.

Tearne v Windsor (city), 2011 HRTO 2294

Cannot rely on perceptions in hiring that older

workers lose strength or ability where

individual testing can be used to identify

individual capabilities despite age.


Accommodation of aging workersContinued.

Age concerns begin during the hiring process.

Tearne v Windsor (city), 2011 HRTO 2294

Cannot rely on perceptions in hiring that older workers

lose strength or ability where individual testing can be

used to identify individual capabilities despite age.



Holowaychuk v Strata Plan No. NW332, 2008 BCHRT 274

• The Strata argued Ms. Holowaychuk does not have a physical disability ….. just the “normal aches, pains, and limitations of old age”.

• “This argument: that Ms. Holowaychuk is not disabled, just old, is remarkable. It is not, however, consistent with the Tribunal's case law on the issue of disability, or the purposes of the Code. It is entirely unpersuasive.”



•Other challenges emerge in the context of

internal promotions and succession planning.

• Syndicat Canadien de la Fonction Publique

(2012) D.A.T.C. No 90

Arbitrator Flynn held the demotion imposed

on a 60 year-old employee to be

discriminatory.



Cowling v Her Majesty the Queen in Right of Alberta Employment and Immigration, 2012, AHRC 12

Cannot weed out older workers through requirement that applicants be available for5 to 10 years



Comeau v Cote, 2003 BCHRT 32

“It was very hard work and was very hot. All the workers were sweating from the exertion and the heat.”



Miu v Lanart Aluminum and Tam,

2006 BCHRT 219

Age discrimination - employment advertisement


Accommodation obligations

• Participate in discussions regarding possible

accommodation solutions.

• Cooperate with any experts whose assistance is required

to manage the accommodation process or when

information is required that is unavailable to the person

with a disability.

• Meet agreed upon performance and job standards once

accommodation is provided.


Accommodation obligations



Employers can no longer ignore performance issues and “wait for retirement”.



The employer is required to:

• Accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise.

• Obtain expert opinion where needed.

• Take an active role in ensuring that alternate approaches and possible accommodation solutions are investigated, and canvas various forms of possible accommodation and alternative solutions, as part of the duty to accommodate.



Some general principles of accommodation apply

• Consider flexible and part-time solutions.

• Be prepared to accommodate possible lengthier recovery time following injury.

• Make us of ergonomics, occupational therapy and related disciplines.

• Be aware of discrimination and duty to accommodate when managing “performance”.


Provision of References for Departing Employees


Topics We Will Discuss:

• Are Employer Fears Well-Founded?

• Sources of Potential Liability:

• Defamation for providing an unsatisfactory reference?• Review of Papp v. Stokes Economic Consulting Inc., 2017 ONSC 2357,

aff`d 2018 ONSC 1598

• Aggravated or punitive damages?

• Effect on mitigation efforts?

• Best Practices


Introduction – The Dilemma


Consequences of Providing a Negative Reference


Papp v. Stokes Economic Consulting Inc.

• Papp was dismissed from his job without cause

• Papp asked his previous supervisor, Stokes, for a reference as he searched for new work

• Papp applied for a job as a Socio-Economic Statistician with the Yukon Government

• Papp was the top ranked candidate after the interview stage

• Dr. Stokes indicated that Papp had an attitude problem and did not develop good working relationships and there was no way he would rehire Mr. Papp.

• As a result, Mr. Papp was not offered the position.


The Test

Elements of a Defamation Claim:

• The reference provided by Mr. Stokes tended to lower his reputation in the eyes of the Yukon Government

• The words in fact referred to him; and

• The words were published, meaning they were communicated to at least one person other than Mr. Papp

Defences Relied Upon:

• Justification

• Qualified Privilege


Sister Judgment – Kanak v. Riggin

• Kanak, a Senior Cost Control Analyst was laid off after employer was acquired by another organization

• More than a year later, Kanak received a conditional offer of employment subject to positive reference check

• Riggin stated in his reference:• There was a lot of conflict between Kanak and her supervisor

and other employees

• Kanak did not take direction well

• Kanak does not handle stress well

• He would not hire her in the same position but would hire her in an autonomous financial role


Kanak v. Riggin

• As a result, prospective employer revoked its conditional offer of employment

• Kanak brought a claim for defamation and alleged comments were motivated by malice

• Court found statements were defamatory

• Onus shifted to defendant to establish a defence

• Qualified privilege accepted by the court

• Court cites policy concern


Other Potential Consequences to Employers?

52


Aggravated Damages

• Wallace v. United Grain Growers Ltd, (1997) 3 SCR 701

• Keays v. Honda Canada Inc, 2008 SCC 39

• Unsuitable or lack of reference may fit this framework:

1. Mental distress caused by not being provided with an appropriate reference

2. Damages caused by not being able to local suitable alternative employment because an appropriate reference has been declined


Shinn v. TBC Teletheatre BC

• Shinn employed less than 1.5 years

• On dismissal, Shinn requested reference letter

• Letter issued by employer was not considered favourable to Shinn

• Shinn did not show letter to any prospective employer

• At trial, judge found the letter not to be satisfactory or adequate

• Notice period was increased


Copy of Reference Letter

To Whom It May Concern:

Re: Letter of Reference

This letter is to confirm that Steve Shinn was employed at TBC Teletheatre B.C. in the position of Director of Marketing. Steve held that position from August 1996 to November 1998. Due to economic conditions, the position he held has been eliminated and regrettably, there were no other positions available within the organization.

As Director of Marketing with TBC, Steve was responsible for carrying out the Marketing Plan then in place and for producing a plan for the next year. The major elements of the plan were the development of a customer loyalty program, strategic media buys and the implementation of on site promotions and customer education.

Furthermore, Steve was responsible for handling customer complaints as well as being the point of contact for the Outlet Operators in joint marketing programs with them. Finally, he was also responsible for Public Relations, which included writing press releases and disseminating them.

Sincerely,

Dan Higgins, General Manager


Court of Appeal Reverses Trial Court Decision

• Employer not required to provide references

• Failure to do so does not automatically constitute bad faith


Principles – Aggravated Damages Case Law

• Certain contexts where the failure to provide a reference could be considered unfair or in bad faith:• Ex-employee repeatedly asks for a reference and requests are

unreasonably denied

• Defendant employer promises to provide a reference and renegsfor no good reason

• Especially where good employee + long service

• Contrast to contexts where failure to provide reference did not amount to bad faith:• After a single request where employee did not follow up or no

evidence of a refusal

• Where the ex-employee did not take defendant employer up on its offer and no evidence that lack of reference had a negative effect


Effect of Lack of Reference on Notice Period and Mitigation


Notice Period & Mitigation Case Law Principles

• Courts accept that absence of a suitable reference can hinder job search efforts

• Can impede mitigation efforts and would not justify discounting the notice period

• Example: Liboiron v. IBM Canada Ltd., 2015 BCSC 1523:

• 32 year employee dismissed without cause

• At the time of the dismissal Liboiron was 58 years old

• Never was subject of any discipline or reprimand

• Was provided ESA minimum notice period

• Was provided 2 line verification of employment letter


Practice Points & Takeaways

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