Employment Law: Meiorin, Giang & Bubb-Clarke Cases

Employment Law Cases

• BC v BCGSEU (Meiorin) Case:
  • Issue: A female firefighter couldn't pass a fitness test that disproportionately affected women due to physiological differences.
  • Key Legal Principle: The Supreme Court of Canada established the Meiorin test.
    • Employers must prove that a workplace standard is a bona fide occupational requirement (BFOR).
  • Impact: Employers must demonstrate that a discriminatory standard is necessary and accommodation is impossible without undue hardship.
• Giang v DBG Canada Case:
  • Issue: An employee alleged discrimination based on disability.
  • Key Legal Principle: Employers must accommodate employees with disabilities unless doing so causes undue hardship.
  • Impact: Reinforces the duty to accommodate under human rights legislation.
• Bubb-Clarke v TTC Case:
  • Issue: An employee with a sleeping disorder was offered a janitorial position instead of driving machinery due to seniority rules.
  • Key Legal Principle: Unions have a duty to accommodate employees.
    • This applies even if it requires adjusting collective agreement provisions.
  • Impact: Collective agreements cannot be used as a defense to avoid accommodation obligations.
• Essex Police Services Board v Essex Police Association Case:
  • Issue: An employee with a back disability requested an accommodated job.
    • This could be either a modified position or a replacement of an existing one.
  • Key Legal Principle: Employers must consider job restructuring or reassigning employees as forms of accommodation.
  • Impact: Accommodation may involve significant modifications to existing workplace structures.
• Lane v ADGA Case:
  • Issue: An employee, Lane, was terminated after exhibiting manic behavior attributed to bipolar disorder
  • Key Legal Principle: Firing an employee without exploring accommodations for a disability is discrimination.
  • Impact: Employer's duty to accommodate mental health conditions is highlighted.
• Sidhu v Broadway Gallery Case:
  • Issue: A pregnant employee was told not to lift more than 4.5kg; the employer cut hours instead of offering accommodations.
  • Key Legal Principle: Employers must explore accommodations, such as modified duties, before reducing work hours.
  • Impact: Pregnancy-related protections are reinforced under human rights law.
• Canada (AG) v Johnstone Case:
  • Issue: CBSA discriminated against an employee based on perceived family status by not accommodating childcare needs.
  • Key Legal Principle: Family status discrimination includes barriers to work caused by childcare responsibilities.
  • Impact: Employers must accommodate parental obligations where it’s reasonable.
• BC Human Rights Tribunal v Schrenk Case:
  • Issue: Workplace discrimination was committed by a coworker, not the employer directly.
  • Key Legal Principle: Human rights protections extend to workplace harassment, even when committed by non-employers.
  • Impact: Employer responsibility for workplace discrimination is expanded.
• Hydro-Québec v Syndicat Case:
  • Issue: An employee with a chronic illness was often absent.
    • The employer claimed accommodating the employee would cause undue hardship.
  • Key Legal Principle: Employers must accommodate unless the employee cannot work for the reasonably foreseeable future despite accommodations.
  • Impact: The undue hardship test is clarified in the context of disability accommodation.
• Key Takeaways from Cases: Accommodation is a legal imperative. Employers must change working conditions unless it causes excessive difficulty or expenses.
  • Discriminatory policies are only acceptable if they are proven to be essential and justifiable, as the Meiorin test clarifies.
  • Unions and employers must collaborate and fulfill accommodation responsibilities.
  • Employers must consider accommodations for mental health and family status related issues.
    • Co-workers/third parties can be also held accountable for discrimination.

Chapter 4: The Employment Contract

• Consideration in an employment contract entails the employee trading labor for wages from the employer.
• Employment contracts can be oral, but written form is mandatory when contract is for longer than a year -When the offer letter makes employment conditional to employee signing a formal written agreement.

Oral Contracts of Employment and Reasonable Notice

• Employers require a written contract to exclude a non-unionized employee's entitlement to reasonable notice. This will restrict any notice pay requirements to the ESA
• Employees without a written contract that limits termination entitlements to only those in the ESA are entitled to common law notice.
• An offer of employment that refers to a company policy restricting termination entitlements to the ESA can be sufficient.

Common Law Implied Terms

• Employees must provide "reasonable notice of resignation" or risk liability for breach of contract damages.
• Most employers don't pursue employees lacking proper written resignation notices unless it involves executive positions or if they experienced significant financial losses from that employee's resignation.
• Other implied terms include:
  • Duty of confidentiality (not copying customer lists or disclosing to other parties)
    • Duty of loyalty
    • duty not to compete following their employment ends.
    • This is generally limited to those in executive-level employment.
• A fiduciary employee is a senior employee in a senior position who significantly impacts an employer's interests post-employment and has additional obligations.

Key Terms of the Employment Contract

Job descriptions should specify an employee's essential duties and responsibilities

• Changes to responsibilities without employee consent may cause a constructive dismissal. Modifications to the employee/employers agreement can be made if the employee agrees.
• In the employment contract, compensation and benefits cannot be less than those in the ESA or those terms are considered null and void. How compensation is determined should be set out in remuneration clause.
• The employment contract term can be fixed length or indefinite. In non-unionized workplaces, the contract is presumed for an infinite term, unless stated otherwise.
  • Indefinite employees have a right to reasonable notice of their termination. -Employees on fixed term appointments do not.
  • Fixed-term employees can sue when their individual contract gets cut short unlawfully.

Limitations on Fixed Term Employment Contracts

• Under statute law, term cannot exceed nine years to bind employee The statute requires that fixed term employment contracts that span one year require a signed document to enforce.
• Employers avoids indefinite-term employment relationships by extending or renewing fixed-term contracts on specific end dates; otherwise, the contract defaults to an infinite contract of employment.
• Employees on fixed-term employment must stay employed for entire duration; otherwise, they risk damages based on remaining term.
• There is no obligation to mitigate applicable employment damages.
• Early termination reduces liability and says either party can terminate contract early and provide other party with adequate notice.
• Termination provisions be clear and unequivocal, termination terms must be clear to be enforcable It is ideal deal with termination entitlements at the beginning of the working relationship to avoid legal issue.
• Terms must meet or exceed minimum statutory requirements upon termination of employment

Invalidating Termination Provisions

• Ambiguous termination clauses favor the employee.

• Terminating professional staff requires "one month's notice and/or as established in legislation" which presents four interpreations: ceiling for termination of on month violated the ESA.

• Providing pay for one month or more notice and permits to sue for wrongful dismissal.

• If employees jobs change significantly over time, its possible to claim the employment contract is obsolete and unenforceable, or lacked adequate consideration or did not follow ESA standards.

Duty to Mitigate

The duty applies to common law notice pay(not an employee's entitlements outlined in the Employment Standards Act)

• Example- a 2 year employee is dismissed without cause and assumes average character employment; ESA entitled is 3 weeks.
• Common law notice is 2 months pay(entitlement is subject to duty).
• A stipulated severance entitelment is silence and is not to be interpreted under the law to mitigate Any failure of the employee does not reduce how much they are owed.

Other Terms of Employment Contract

A probationary term is not implied and must be detailed in contract ,usually between from 3-6 months

• If longer than three months they must given statutory notice unless the can show cause under the ESA. Advanced notice of resignation clause- above the common law requirement in employment contract It is useful if employees have key skill positions and more 4 + weeks resignation is required.

termination is the method termination amounts can be paid ( continue salary/lump sum)

Inducement can be an issue so parties can negotiate and how will affect employee benefits

Relocation need to expressed and show no employer right Remote employment terms need to:

• Province territory or location If right to work remotely is temp/perm. hybrid

Employment contract should detail employee benefits When they begain and include medical plans/computer/benefits

Termination Clauses

• Non-diclosure and solicitication are restricted by: Employees disclosure /using confidential information for former employers clients

Solistication agreement:

• No contact with clients during /year is example of an enforceable non soliciitation agreement
• It can be if the business / interest to protect clear/ reasonable (duration time and geogrpahic and scope) Consistent with the existing business standards.

Amendmentesa effected OCt 2021 non competion are allowed

• If the sale or buisness contet where employ becomes a purchaser Departing suite Agreements enetered before are valid subject to reaosnableness

Standard frome employers to determine if intellectual prop created for the employeee during courser of employ belong to the employer Under statue law employees must follow the jursidction in which employees work in.

Clause can speify jurisidctio for itnerptrion.

Corporate polciies

Binding in employment agreement with: Emploees must resview before sign Sign acknowledgement agreeing Contain agree between p[arties .prior convesriosn/promsies will not bind on either side If employee has ILA prior to contract means employee cannot claim under aware terms of meaning Saverabilitt a if court rules a section of contract invalid the contract sytill survies and parts remain invlud.

Golden parachutes provide compensation when executive terms end. and act in corp best inteterst. Temp lyoff must stay to ESA

Employment Law - Chapter 5

Human Rights

Requires code/mainteance without:

• discrimiation Layoffs etc must be made w.o the above

B. Direect exam Reulctant hire Employee has to rellcoate.

Adverse discrimination exists too with:

Requirements discriminate on employees that cant work because reaosn. Exceptions to laws that exis tBfor Special Int organiz(relgiloiys alloiance) Durt of Acc integral under ground.

A. No summary - need reason for dsiabtitiy by medical exam

Gathering of medical assess need to be done Objective asses needed if not Emoloyer will not meeet for due undue heardsjio

Meaningful exoloreall opt for all employeee.

Actons /fears are. NO ALLOWED in making accomodation A. Test Rule for discriminatr. :

• Rational conn If needed.

Good faith and reasonbl;y needed

Must b tailored for emploees in needs and promote self/dignitity A. Acc. For alwlo peoplees A. Point

Point of emplooyee alert to disability Hve duites Rele factors Undue hard. Substantial cost to abolisih buisness From org not invial buissn Cannot spercule need est A. Resousces is relevant.

LImits: No accom that allows oerson not function/no need for it at ALL

No participe from employee If already exists its not there.

No create an job thst id usefull Lowranke job allow

Build ramps Modifywork Aid techns Jobs open to vacant Timeoff

Employees w drug or alchol needs it and asssitence prgram. Reail for for the emolyye Recretiona; no a diasbitl MAuian is needed If used to treat medical.

No smoke Public eye No while iparied. B. Religion law

• Provide reson to loose
• A.A. case win if empocyer fail.
• A. CANAR dont provide exacr accomm.

Harress

• Emloyeed ahve free.
• No quesitoj n Subt. REqiures tell Poison- deratorty H. SEXUAl - Patter of grant, dney benefit

Damges from indignity. HR To now files to triubnal 1 y filing Recosnder

Chapter 6: Equity, Diversity, and Inclusion

Effect and adresses with HRTO Different to addess.

• B arrier
• Gov resposne created laws to inclusive

Individual complaints remedy 1 HR complaints system discimant

Assicoatioj of Ont Midiwves

• Rule favou. code Num Data Culter organ 24 code help disc ESA requires pay for male/eml thatsame
• Pay EQUity is women Emolyemytn Federa/fed ally refula/action. Prov stat:ADA make access fully.

Geneal all standards HR training on disability Sperfiuc areads in area. Create emer proes Mody acc Acc

FED CON increases with Prov However many or have EE

Practive to workplaces Bill148 amendemnt to "job Stat" Ee address social prob of ceratin poor. EA must estaong and goals EFOTs done. ESA three part teast for pay Reouirement sam same.

Examp: no same men req to do and eomyees . Reqirement provide smilar job. No inten is applie. Eception Under 42 no need show inten to discrim. A

There is seniority. A. No gende A. No gendeut A. Systemy: female can cpmoain under A. Office receives and settlememnt. A. Review offficers. A. A.Hearing A.

A. App andscope emplot hire ten A. Emploees wh 0 have have peropd and pay

Chapter 7: Employment Standards Act (ESA)

• Sets minimum terms of employment for all Ontario employees
• Not able to "contract out" of ESA provisions in employment documents; employers can, however, exceed the minimum
• Standards exist to help every employee regardless if lack barging

Statudory standard of entry level workers is important Displacement of lw say p[artes ree negotiate its displace by ESA

• Union follows agreemnts
• Many years to 25 plus: elctronc moniot Bill149 take effedec june 2024 further requires the salary adver Which standard apply Prov work

Record and keep over 5 yearss for vacation records Wage statment

Wage satements. ESA reuires employees ovretime Standard is can

• Cannot work at 48.

Standar/comply wit term if not.

• Inteerest for. Sums unpaid
• A. Fine pays . Civalenforce - breach of term.

APPILES TO provincial no matter size

• Enorcmentrights based copmapain
• Both partial and FulleExemption. Full for .telocms

Parlat is that least not aplies

Overtime Pay Exempts

• Managaer must haer author and restons
• LAWYERS.
• Taxa ESA minimum pay for emplyies in prov
• Minim payed to them and all hour

Exclusion commm outside. Interns. ABOLUTY-

• Dede
• Courts . By employeee

MINMU SPECIAL WAGES- student is under 18 w 28

• hunt pay based timE
• . homw entitled 10 RULE- if no sent home after .work over . three Wage is for emainsd

Ordianer wages for the . remAinder fo . Greater hourly. Consider

Eighthour .work. Aveg . to get ESA in time week ONLY REUQIRED - agreemtn is neeed for past.

Hous free off Day mins A. Work shifts n arrpw A. Conseuive worrkk/ Exceotion- dealing w dsiaster E. . exlcude

Periiod breqk : Employer provde ater fivr

No required pay

• Free f work

Overtime

: W rate over 1.5 Exepet manager reully duitiies I f not not cat qualify Unurthoritzed - pay for work

Exmp . both tax but disp DISP NOT exempt During over . is over hour - spend at leat over - cat over

In pay that for time . vaca Week after . emloyi is . of worker earning With time pays Moths a vaca Under paid and for Changes subce ESA- . ceilling removerd A labour MIn Period 2 -4 . 3 to -h Agencies To no sick B No Abesen

One jan ESA has leaves . A 1/014 Stuturuty hold No leave- joist

Under ESA Pereson emerg place perosn. Fam

Chapter 8: Occuptioal Health and Safety

Work Health priorit for employer

• Hum saff.
• Penali. Failure. Safety .
• EX- B ran disegards safe 50even no
• Fincre sincl in absecnec for c RElev . legal Tw - statute safe and hel. WORKPLACE . enhanc safety. Covers workers w disc comp

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MAIN-identif situats

• obtain info from emp harrads

Make writ recom to . for impi -they must

Inv worker ref. Info from wsib for comp claim Part creat - train pro selcomi for co chairs Part the dev for wp progr

Who is cov by - introd. . points. B road-most all ker /work . COVER. . on terrimw Teremp loy. .T- wo caetrgioes

An pay to perp - contatry to agencey

• Unpaid - stupaid . work - sec .

Def of workplace for OSHA nderis like de . Of worker ". deofworkp" is and Most operate

Momobile. - Cover:. creasingly work workplace . necessar .can "vehicle" a

Exermp to def"workplace.a." Feder - that fall uris ,such airpr, are not oh and subje

Ohres exempt - where is done oh res for a

Main features - focus on the o/h .not com for wurkers .

OHS

HAS sets righr /resp of work parties

• Worker three rights :.right to par in a /safe connern
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• Requirements concerning min af workers in various types of occupations. 6. Requirements concerning lighting, fire prevention and qualitiindustrial A hygie Employer Duties under OSHA OSHA general Ob: Tovery reasuti precaution to protec the healtu.

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