Discharge and Discipline: The top ten recent cases

In this session, experts will review the most important recent decisions relating to discharge and discipline, and how the legal principles enunciated in those decisions may guide the actions and policies of workplace parties in the coming year. Major developments taking place between the posting of this program and the air date of the audio will also be addressed. Significant time will be devoted to participants’ questions, and participants are encouraged to e-mail questions in advance. Specific cases to be discussed include:

• Drug and Alcohol Testing/Management Rights

  Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Limited (S.C.C.)
  Decision: The Supreme Court of Canada has ruled that an employer cannot unilaterally subject employees to a policy of random alcohol testing, even in dangerous workplaces, unless there is evidence of a general problem in the workplace with alcohol abuse.
  Issues: What would constitute sufficient evidence of a “demonstrated” workplace problem that would justify the unilateral imposition by an employer of random testing? Given the Supreme Court’s view that all management rules must be shown to be reasonable, what impact will Irving have on the theory that management has all rights that are not expressly limited by the collective agreement?

• Remedies

  IBM Canada Ltd. v. Waterman (S.C.C.)
  Decision: The employee was dismissed without cause. The Supreme Court of Canada ruled that the employer could not deduct the employee’s pension benefits earned during the notice period from the wrongful dismissal damages.
  Issues: On what basis were the pension benefits deemed to be non-deductible? Was this a case of double-recovery? Does this case signal that other benefits paid during the notice period will not be deductible from wrongful dismissal damages?

  Wilson v. Solis Mexican Foods Inc. (Ont. Sup. Ct.)
  Decision: For the first time, the Ontario Superior Court awarded damages under the Human Rights Code. The damages, in the amount of $20,000, were awarded where a company was found to have terminated an employee as a result of the employee’s disability.
  Issue: Will this groundbreaking case encourage more wrongful dismissal claims seeking relief for human rights violations?

  SF v. Hamilton-Wentworth District School Board (Ont. H.R.T.)
  Decision: In this precedent-setting case, a former employee was granted reinstatement almost a decade after commencing disability leave, and was awarded $450,000 for the employer’s failure to accommodate her disability.
  Issues: What impact will this case have on remedies for wrongful dismissal where there is a failure to accommodate? After this decision, will it become more common for human rights tribunals to order reinstatement and financial compensation for lost wages, even where the time period under consideration is lengthy?

  Pate Estate v. Galway-Cavendish and Harvey (Township) (Ont. C.A.)
  Decision: The Ontario Court of Appeal held that a wrongfully dismissed employee, who was arrested and brought to trial because the employer made false allegations to police and withheld exculpatory evidence, should receive $550,000 in punitive damages.
  Issue: What implications will this case have on the determination of punitive damages in wrongful dismissal cases involving egregious employer conduct?

• Violence and harassment in the workplace

  Kingston General Hospital v. Ontario Public Service Employees’ Union, Local 444 (Ont. Div. Ct.)
  Decision: The Ontario Divisional Court overturned an arbitrator’s decision to reinstate a grievor who sexually assaulted a co-worker, although the grievor’s co-workers, including the victim, were willing to work with him again.
  Issues: In what circumstances will a reviewing court take the unusual step of overturning an arbitrator’s assessment of penalty? When will reinstatement be appropriate in cases of sexual assault or other types of violence in the workplace?

• Honesty at Arbitration

  Canadian Office and Professional Employees’ Union v. Yellow Pages Group Co. (Ont. C.A.)
  Decision: The Ontario Court of Appeal determined that a lack of candour in testifying at arbitration was irrelevant when assessing the gravity of the misconduct forming the basis of discipline.
  Issues: Does a grievor’s honesty vis-à-vis the employer, as opposed to the arbitrator, have any bearing on whether he or she should be reinstated? Will the effect of the court’s ruling be confined to Ontario or is it likely to be followed in other jurisdictions?

• Procedural defects during the imposition of discipline

  Alberta Health Services v. Alberta Union of Provincial Employees (Alta. C.A.)
  Decision: The Alberta Court of Appeal restored the decision of an arbitration board which ruled that a time limit on discipline in the collective agreement was mandatory rather than directory, and that a worker’s dismissal was nullified as a result.
  Issue: Has this case conclusively settled the issue of whether a procedural defect in the imposition of discipline will render a termination void?

• Toxic Work Environment

  General Motors of Canada Ltd. v. Johnson (Ont. C.A.)
  Decision: The Ontario Court of Appeal overturned a ruling that an employee was constructively dismissed because of racism and a poisoned work environment.
  Issue: What is the standard of proof that an employee must meet in order to show that he or she was constructively dismissed as a result of a poisoned work environment?

• Canada Labour Code

  Atomic Energy Canada Limited v. Wilson (Fed. Ct.); Klein v. Royal Canadian Mint (Canada Labour Code Adjudication)
  Decision: These cases held that the Canada Labour Code does not prohibit an employer from dismissing an employee without cause provided that the employer complies with the relevant notice and severance requirements.
  Issues: Do these cases signal that employees governed by the Code who are provided with pay in lieu of notice will no longer be protected by just cause requirements similar to those granted to organized workers under collective agreements?