A teacher suffered a migraine headache on her last day of vacation (in Rome, Italy) and as a result missed her flight home, which in turn caused her to miss her first scheduled day of work following her vacation.

After investigation the Employer decided not to treat the absence as a disciplinary matter. However it denied the teacher a paid sick day. A grievance ensued, which went to arbitration.

The collective agreement provided that leave taken “because of personal illness” was to be charged against a teacher’s sick leave credits.

Arbitrator Dana Randall dismissed the grievance for a number of reasons, first and foremost among which was that he was not satisfied that there was direct causality between the missed flight and the grievor’s migraine.

With the scanty facts I have, I am satisfied to find that the Grievor left her return from vacation too late. As a migraine sufferer, I would have thought that the last thing she would do would be to set out on her own, in a rented car in Rome, to make the last available flight. There are too many migraine inducing features to such a strategy. As a result, while the migraine contributed to her failure to make it to work on September 1, 2011, it was only one factor of many.

Among the other reasons invoked by the arbitrator was recognition of the difficulties facing school boards in adjudicating such sick claims, when a teacher’s extension of a vacation could regularly become credited sick time, entirely on the basis of a teacher’s self-report of illness. In the arbitrator’s words:

Finally, I am convinced that the Union’s broad interpretation of the words “because of personal illness” are mischief-inducing and therefore impractical. The Board is profoundly handicapped in assessing the bona fides of a teacher’s justification for overstaying a vacation and missing a work day. A teacher’s assertion that she had a headache or an upset stomach and therefore missed her flight cannot be rebutted by the Board. While I do not foreclose the Union’s argument in all circumstances – Mr. Wright’s example of a hospital admission that caused an employee to miss a flight is a good example – I am not able, on the particular facts before me, to conclude that the Grievor was absent on September 1, 2011 “because of personal illness” and I so find.

As can be seen, arbitrator Randall did not foreclose sick credit entitlement in other cases. However, he was able to conclude that incidents that were largely based on self-reporting and beyond objective scrutiny were not in the contemplation of the parties as requiring paid sick leave.

The court refused to certify the class action in Kafka primarily because it found that the question of whether an employee has been constructively dismissed is a highly individualized exercise and not appropriate to a class action. Another decision of the Ontario court, Brown v. Canadian Imperial Bank of Commerce (“Brown”), has just been released, and like in Kafka, the court refused to certify it as a class action because the primary issues in the action were individual to each potential class member. In Brown the claim was for overtime pay on behalf of allegedly misclassified Investment Advisors and Analysts working for and previously employed by the Bank.

Brown was decided by Mr. Justice Strathy who several years ago certified an overtime class action by bank clerks against the Bank of Nova Scotia (at around the same time that another Ontario judge refused to certify a similar class action on behalf of non-management employees at the Canadian Imperial Bank of Commerce.

The decision in Brown is well written and well reasoned. The primary reason given by the court in refusing to certify the class action is similar to that given by the court in Kafka, commonality. Mr. Justice Strathy held that the question of whether an individual is a “manager” is an individualized question and a class action would not advance the litigation process.

Over the coming weeks and months there will be many articles and postings written about this case describing in detail the legal reasoning behind this decision. But for me, this decision is significant because it underlines an important but unspoken message in Canadian employment litigation and, in particular, employment class actions – that being that perceived fairness and equity are the most important factors for ultimately determining whether a matter will be certified as a class action.

I believe that the underlying reason behind the court’s refusal to certify this class action, at least for the Investment Advisors, is that the representative plaintiff was suing for statutory overtime pay on behalf of a group of employees who, on average, earn hundreds of thousands of dollars ---and in some cases, millions of dollars a year.

The plaintiff argued that these individuals were not “management” employees within the bank and were, therefore, entitled under minimum employment standards legislation to statutory overtime wages in addition to their “executive” compensation packages.

Equally important was the court’s finding that the representative plaintiffs seemed to be the only individuals complaining about the situation and the Bank was able to produce multiple affidavits from active Investment Advisors speaking to how much influence and independence they exercised within the Bank and how much money they earned annually. Further to this point, the Court noted with some emphasis that the representative plaintiffs themselves seemly largely unengaged in the process, had not met each other, and one of them had not even bothered to attend at the certification motion.

I believe that judges – especially in the class action context -- want to be seen as doing something important, righting wrongs on behalf of individuals who do not have the financial resources to right those wrongs themselves.

Cases that make technical legal arguments on behalf of a group of highly paid executives will likely in the future meet with little judicial sympathy. This is important because the Ontario Employment Standards Act, 2000 (“Act”) does not reflect today’s global economy and contains a number of technical flaws of the type that the representative plaintiffs in Brown tried to exploit.

For example, while doctors and lawyers are exempt from the overtime provisions of the Act, actuaries, investment bankers, business consultants and other types of business executives are not -- not for public policy reasons but because the Act has not been amended by the government to bring the statute into line with the current Canadian and global economy.

Plaintiffs who attempt in the future to take advantages of these flaws in employment standards legislation to bring class actions on behalf of high earning employees in allegedly non-exempt categories are very likely to meet the same fate as the plaintiffs in Brown – and for a simple reason: they don’t really need the courts’ help.

Fairness, I submit, is ultimately the most important motive and objective in Canadian employment law and employment class actions.

During the speech Minister Toews discussed the current free trade negotiations between Canada and the European Union.  The two economic partners have been involved in a prolonged negotiation process over the past few years known as the Canada-European Comprehensive Economic and Trade Agreement ("CETA").  The CETA talks have however accelerated over the past year and the Federal Government has indicated that they hope to have a final framework agreement in place by the end of 2012.  

There has been little information available to the public to date with respect to the details of any final agreement. Although the agreement covers several areas of trade, I have long been interested in what if any provisions will exist addressing labour market mobility. After all, the European Union has a population of over 500 million people and produces approximately 17 trillion dollars of economic activity a year, significantly more than the United States in both respects.

I decided to ask the question. In response Minister Toews indicated that the Federal Government envisioned that CETA would be more comprehensive than the labour mobility provisions under NAFTA so that this agreement will represent a new milestone with respect to freedom of labour between Canada and foreign jurisdictions.

If CETA does in fact do what Minister Toews and the Federal Government has been suggesting, this could have a major impact on Canada’s labour market. The number of Europeans working in Canada would almost certainly jump. In fact, this is something that has received surprisingly little attention, particularly when compared to the national discussion and controversy surrounding NAFTA.

While we still do not have the benefit of details of any such agreement, there is little doubt that this agreement, assuming that it is passed, will be another major step in the globalization of our labour force.

Closer to home, the “unfunded liability” of the Workplace Safety and Insurance Board (WSIB) has been (to my recollection) a topic of discussion among WSIB practitioners for decades, especially among those who represent employers.

Some time ago, well-known Professor Harry Arthurs was tasked with carrying out a comprehensive review of the WSIB system and making recommendations with a view to making it financially sound and stable.

Professor Arthurs’ 188 page Report has now been released and is available online.

We will soon be providing a more detailed review of the Report and its recommendations.

Recently, in Kafka v. Allstate Insurance Company of Canada (“Kafka”), the Ontario Divisional Court confirmed that the common issue requirement will not be met in claims of constructive dismissal.  These types of claims are not appropriate for class action certification as they require an individualized inquiry to determine whether the employer has made a unilateral and fundamental change to the terms of each employment relationship.  What is a fundamental to one employee may be minor to another; consequently, individual circumstances and individual reactions must be considered before a determination of constructive dismissal can be made.

In Kafka, Allstate provided its employees with two years’ advance notice of a significant change to its business model which altered its agents’ compensation structures as well as their responsibilities. Approximately 100 Allstate employees were impacted by these changes, but the employees’ reaction to the changes varied.

Some employees accepted the changes, others negotiated further changes, and others resigned.  These varying reactions highlight the need for an individualized assessment.  If Allstate’s employees had unanimously responded to the changes by walking off the job and claiming constructive dismissal, the court may have reached a different conclusion regarding commonality.

The Kafka decision also comments on an employer’s ability to avoid a constructive dismissal claim by providing sufficient advance notice of a fundamental change to the terms of employment.  The plaintiffs in Kafka argued that an employer could never effect a unilateral and/or fundamental change with any amount of advance notice, but, instead, an employer is obligated to terminate the employees and then offer to rehire them on the amended terms of employment.  As support for this position, the plaintiffs cited the Ontario Court of Appeal’s decision in Wronko v. Western Inventory Service (“Wronko”). 

The circumstances of Wronko, however, were very different from those in Kafka.  In Wronko, the employee specifically objected to the employer’s unilateral change, but there was ambiguity regarding the employer’s response to this objection.  On the basis of this ambiguity, the court found that the period of time between the announcement of the change and the employee’s resignation could not be characterized as a working notice period.

The court confirmed in Kafka that the circumstances of Wronko were unique and the decision very fact specific.  While notification of termination is required in circumstances where an employee objects to a fundamental change, no such requirement exists where an employee either specifically accepts the change or is silent following notification of the change.   When announcing a fundamental change to the terms of employment, a clear and unambiguous announcement that provides ample notice of the change will serve an employer well.  But employers should also take note that an equally clear and unambiguous response must be made when faced with an employee’s objection to the change.

Employers are also increasingly influencing the immigration system through their role in determining who is entitled to reside in Canada.  This change is primarily driven by recent changes to immigration laws that have resulted in employers having a significant amount of responsibility with respect to both the initial immigration stage and regarding ongoing compliance.  

All signs are that changes made to date will only become more deeply entrenched. While these changes are likely to have many side effects, they are most likely to have the greatest impact in two ways: 1. Employers will play an increasingly central role in the administration of the immigration system and 2. Employers will have much greater responsibilities with respect to compliance than they have had in the past.

What this means is that employment law principles are increasingly playing a central role in almost all matters relating to immigration. Employers specifically need to ensure that they incorporate employment law matters, including employment standards, into their overall immigration strategy. Matters such as how you hire a foreigner, when you hire a foreigner, how much you pay such an individual, touch on both immigration and employment legislation and regulations.

The evolution of both immigration laws and regulations accordingly means that the traditional line between immigration and employment law is not just becoming blurred; it is being erased all together. To approach one area without a comprehensive understanding of the other is becoming increasingly akin to attempting to fly a plane with one wing.

The good news is that these new challenges can be met and that doing so is worth the effort. Specifically, companies that integrate immigration matters into both Human Resources planning and policies will be at an advantage to their competitors.

But how exactly you may ask,

In a world where employers’ success is increasingly dependent on both capturing and retaining talented employees, employers that integrate immigration and employment law in a seamless manner will be better able to get the employees they want to Canada as quickly as possible while significantly reducing the risk that they will not be approved for a permit or turned away upon arrival at the border.  This is primarily because employers will be better positioned to satisfy Citizenship and Immigration Canada requirements on individual cases and to avoid being subject to penalties relating to non-compliance.

Such employers will also be better positioned to secure work permit extensions or to assist employees with alternatives, such as permanent residency applications. Such employers will also be better able to proactively respond to any changes to the law and to take advantage of the plethora of ever changing exemptions under the law.

Simply put, you will more often than not get and hold onto the employees you want and, what is often more important, keep talent away from key competitors.

No doubt, the economy is undergoing wrenching structural change, and institutions that grew and prospered under the old economic rules are having a difficult time adapting.  The CAW – and private sector unions in general – are one of those institutions. 

Outside the public sector, and especially in manufacturing, union membership has fallen, and is not being replaced with new blood.  New union applications for certification in the Ontario manufacturing sector have fallen by about 85% since 2000-1.

It is normal and rational that unions should try to do something to stem the bleeding. Merging with other unions is one step being considered -- another is trying to change the regulatory environment in ways that favour them. But is this "about the community" as the proposal somewhat self-righteously asserts, or is it about the business interests of unions and unionized employers?

Unions are filled with smart, hardworking people and one should not underestimate them. Their advocacy in  this proposal displays rhetorical mastery and clever logical sleight of hand. 

However, I'm sure that I am not the only one who thinks that this represents a desperate attempt to return to a situation where unions (and unionized oligopolies) exercised market power -- but now within an industry that has become globalized, and thus now largely outside union influence and control.

Perhaps more attention should be paid to reforming the labour relations system in Canada. This system, like the unions it was built to serve, is showing cracks and strains as the years pass, and has become increasingly self-referential and irrelevant -- more of an obstacle to change than a force for progress.

It still seems, however, that too many people still have an interest in its preservation in its current form for any real debate to take place.

In light of this, it’s worth considering the benefits of a proactive labour relations strategy, what such a strategy looks like, and when it can be helpful.

One example is the strategy taken by the City of Toronto in its most recent round of collective bargaining.  As The Globe and Mail described earlier this week, these negotiations had high stakes, and a prolonged and widespread work stoppage was considered to be almost a certainty.  Ultimately, however, a major work stoppage did not occur.  Moreover, many believe that bargaining concluded in the City’s favour.  So, what happened?

The fact that the City adopted a proactive strategy that drove the bargaining process was central to the outcome in this situation.  The specific factors underlying the City’s approach are described in some detail in the article.  It is worth reading.  Here are some key lessons that can be drawn from it for employers heading into bargaining:

• Start the planning process early.  Develop a bargaining mandate, define your goals, and determine your priorities.  This last point is critical.  It’s always helpful to stay focused on the few issues that are truly important, and to understand what you can walk away from.
• Assemble an experienced and diverse bargaining team.  The team should include (or have easy access to) principal decision makers, representatives from the operational and human resources side of the organization, and legal advisors.
• Plan for contingencies.  Always consider how you will deal with a strike, lockout, or other disruption.  Try to put a plan and concrete measures in place in advance to cope with possible problems that may arise.
• Develop a communications strategy.  Bargaining is increasingly being conducted in the public eye, and it’s critical to decide in advance how you will frame negotiations to the media, the public, and your employees.
• Ensure that everyone on your team is on the same page, and work to maintain unity during the entire bargaining process.  Divisions amongst the management team can be fatal to a negotiation.

These points may seem self-evident, but the daily grind of labour relations often pushes them to the back burner.  Things to consider before your next round of collective bargaining.

Employees will likely be allowed to sue their employer in Ontario even though they are employed abroad and have very few ties with the province. The Court of Appeal in Dundee Precious Metals Inc et al v Marsland et al, 2011 ONCA 594 determined that coming to Ontario for meetings a few times a year was enough to expose an employee to lawsuits in the province.

Dundee wanted to sue its former Chief Operating Officer, Laurence Marsland, for breach of fiduciary duties in an Ontario Court. The law of Ontario governed the employment contract. But Marsland, an Australian national, never lived in Ontario, was posted in Bulgaria, and was assigned to run a mining project in Serbia.

Dundee was allowed to sue Marsland in Ontario because the Court of Appeal felt there was a significant (if mostly virtual) connection between Marsland and Ontario:

• He participated in Dundee’s business for several years
• He attended board meetings in Toronto four or five times a year
• He attended senior management meetings there at least once a year.
• He participated in video conference calls once a week originating in Toronto
• He had daily telephone conversations with Dundee’s president who lived in Toronto.

Originally, Dundee was not allowed to sue Marsland in Ontario because a motions judge found that the connection between Dundee and Ontario was weak and that there was essentially no relationship between Dundee’s lawsuit and Ontario.

The Ontario Court of Appeal disagreed. There was a strong connection between the lawsuit and Ontario because Dundee was a public company in Ontario, the damages occurred in Ontario, and the laws of Ontario determined Marsland’s responsibilities as COO.

So, the Court of Appeal has paved the way for employees to sue their employer in Ontario even though they may have very few connections with the province. Employees may be motivated to sue in Ontario for various reasons. For instance, an American citizen working for a Canadian company in the United States might try to benefit from more a more employee-friendly Canadian labour and employment climate by suing in Ontario.

To escape such liability from distant employees, employers should be diligent in drafting employment contracts. In Marsland’s case, one of the determinative factors was that the contract of employment was governed by the laws of Ontario. Thus, employers should include two important clauses in their employment contracts: one that clearly sets out the law governing the contract, and another that determines which Courts will have jurisdiction to hear and decide any disputes that could arise.

However, there still exists much confusion as to what an employer must do when faced with a request for accommodation. Unfortunately for employers, much of this confusion exists among employees, who not infrequently seek accommodations to which they are not entitled at law.

Worse, when an employer does not bend to such a demand, it is not uncommon for the employee to file a discrimination complaint alleging not only failure to provide the requested accommodation but also that the refusal to provide it was motivated by such things as racial or religious prejudice.

Indeed, it is also not uncommon for these sorts of allegations (of racial or religious prejudice) to be raised for the first time at a hearing before the Human Rights Tribunal of Ontario.

Akash v. Toronto Transit Commission is one of those cases.

However, that case also stands as a good example of the Tribunal’s reaffirming the settled principles of accommodation, of which beleaguered employers should not lose sight. It also exemplifies a growing body of Tribunal case law which demonstrates the Tribunal’s willingness to dispose of such cases summarily without a full and formal hearing.

(As an aside, since direct access to the Tribunal came into effect in 2008, just over 100 cases have considered dismissing a discrimination complaint on a summary basis under Rule 19A of the Tribunal’s Rules of Procedure. The vast majority of these (nearly 100) have resulted in dismissal of the discrimination complaint in whole or in part.)

As the Tribunal noted, Mr. Akash’s core complaint was that although he had been “provided with accommodated work that met his disability-related limitations, the work was not in keeping with the applicant’s preferences in terms of days off, type of work, hours of work, and location”. He also raised several other complaints against the TTC and his own union, which included bald allegations of mistreatment on the basis of being a non-white Muslim. The allegations of racial discrimination, as is not uncommon in human rights matters, were raised for the first time at the summary hearing before the Tribunal.

Based largely on the written materials that were before it, and oral submissions given by way of a conference call, the Tribunal was able to determine summarily that the application had no reasonable prospect of success if it went to a full hearing on the accommodation issue. As the Tribunal found:

The respondents met their Code-related obligations when they offered or assisted in obtaining accommodated work within the applicant’s disability-related limitations. While the applicant insists that the respondents were also required to accommodate his preferred days off, type of work, hours of work, and location, there is no Code-related obligation for the TTC or the Union to ensure that the applicant’s preferences (unrelated to his Code needs) are respected.

The Tribunal further observed that the source of the dispute was largely attributable to the applicant himself:

In the circumstances of this case, based only on the applicant’s own submissions and the documentary evidence filed by the parties, it is clear to me that the applicant was exceptionally uncooperative in the accommodation process. He refused work that accommodated his disability because it did not align with his workplace preferences. His workplace preferences shifted over time and he repeatedly and assertively insisted on particular terms of accommodated work that had no connection to his Code-related needs. Indeed, the dispute between the parties appears to stem, in large part, from the applicant’s misapprehension of his rights under the Code.

Further, the Tribunal found that in the circumstances it did not need to hold a full hearing on the allegations of racial discrimination. In this regard, the Tribunal appears to have seen through those allegations, finding them to be speculative, with the alleged failure to accommodate being best explained by the applicant’s own poor attitude toward the accommodation process:

In the circumstances of this case, given the applicant’s behavior and his fundamental lack of cooperation with the accommodation process, the allegations that race was a factor in the TTC’s accommodation of workers’ preferences is speculative and a mere accusation. In my view, there is no reasonable prospect that this allegation could succeed or that the additional disclosure requested by the applicant would assist him in establishing this allegation.

In the interest of completeness, it should be noted that the Tribunal did not summarily dismiss all of Mr. Akash’s litany of allegations. It sought further written submissions from the parties as to whether his disability was a factor in his not being paid a “spread allowance” when he worked a certain split shift.

However, the real story is that employers are well served to stand fast in these sorts of cases, being ever mindful that the duty to accommodate often does not go as far as some employees think it does and there is a mechanism to dispose of these types of cases without a full hearing.