By Howard Levitt
It has been an active year in employment law. And, like the U.S. election, some of its developments will be the mere harbinger of a more expansive 2017. Here’s a look at what we may expect in workplace law.
Social media: The most important potential development in 2016 Canadian employment law actually occurred south of the border only a few weeks ago.
In a dispute with Amazon, its pilots’ union, whose members were ordered back to work, took to social media to warn Amazon’s customers that, due to pilot upset, their orders would likely not be delivered in time for Christmas.
What customer would not go to alternate Christmas gift vendors facing that threat? The damage this could have caused Amazon was dramatically more than anything the union could ever cause under the labour relations act.
In my own practice, I have created websites’ for propaganda purposes. As long as it is not libellous, the sky is the limit with potentially creative Internet/social media strategies as an alternative or adjunct to litigation.
Wrongful dismissal: Lin v Ontario Teachers Pension Plan and Styles v Alberta Investment Management Co.
Although using different rationale, courts in both Ontario and Alberta overrode plan requirements that required dismissed employees to be actively employed to recover bonuses and long term incentive plans that were not payable until after the dismissal, but during the period of notice. This was a particularly significant victory for financial executives whose income is largely based on remuneration other than salary. It rolled back much of the jurisprudence over the past several years permitting employers to dramatically reduce the scope of what could be recovered in wrongful dismissal actions.
Workplace harassment: Toronto Transit Commission and Amalgamated Transit Union
Leave it to an arbitrator to write decisions that ignored public interest, let alone sensible business practices.
In this case, the Toronto Transit Commission was penalized for having an outreach Twitter handle to allow the public to provide feedback on the service they received. Not surprisingly, many tweets were offensive to TTC employees who had served them. The arbitrator upbraided the TTC for merely asking that derogatory or offensive comments should be refrained from while providing information as to how to file a complaint. One would think that such complaint vehicles should be encouraged and that the TTC’s admonition was sufficient.
But no. The arbitrator warned the TTC to ensure that disparaging tweets were deleted, to block the offenders if necessary and, if Twitter would not assist them to delete or block these customers, to consider deleting this Twitter account entirely. Damages of course would follow if the arbitrator’s dictate is not observed.
To some extent the decision relied upon the TTC’s extensive Workplace Harassment Policy similar to that which too many employers enact without considering that it has contractual force and how it will ultimately be used against them in complaints such as this one.
Workplace harassment 2: Strudwick v Applied Consumer
The Ontario Court of Appeal awarded hundreds of thousands of dollars to a very junior employee who was horrifically treated.
Employers cannot treat employees cavalierly, comforted by their having only limited damage claims for wrongful dismissal. The quantum of claims beyond lost income has rapidly expanded this year.
Confidential information: Doe464533.
The Ontario Superior Court awarded $50,000 to a university student whose former romantic partner released sexual pictures of her online as ‘College student pleasuring herself for ex boyfriend’ and circulated it to others from their former high school. The student was devastated and, although the website deleted it, considerable damage was done.
The court recognized the claim of ‘public disclosure of embarrassing private facts’. This will be a precedent affecting the release of information intended to be confidential by employers regarding employees or against coworkers.
Termination clauses: Oudin v Le Centre Francophone
This decision of the Ontario Court of Appeal (under appeal) enforced an employment contract on the basis that the employee understood what he was agreeing to in circumstances in which former jurisprudence would have set the contract aside on various grounds. This creates significant ambiguity as to whether sloppily drafted termination clauses will now be enforced.
Legal cause: Wilson v Atomic Energy of Canada Ltd.
The Supreme Court of Canada found that federally regulated employees could not terminate their employees without legal cause simply by providing notice and that such employees, because of the wording of the Canada Labour Code, had the right to reinstatement when they were not dismissed as result of a lack of work.
Although federal employees only represent five per cent of the workforce, the Ontario Government discussed this year passing the same legislation. This prevents employers from dismissing employees and paying the costs of doing so in order to upgrade its workforce.
Awarding damages: Keenan v Canac Kitchen and other decisions
In Keenan, the Ontario Court of Appeal eliminated the cap of 24 months for wrongful dismissal damages, awarding 26 months to employees who did not have the positions, age or length of service to even qualify for the maximum. It also eliminated any distinction between dependent contractors, that is owner operators who employ others but were largely dependent upon one customer, and employees when it came to awarding damages for wrongful dismissal.