From cases in 2017 come five employment law predictions for 2018.
Sexual harassment & third party harassment
The Harvey Weinstein scandal, daily revelations of misconduct in Hollywood and among members of public office, it is safe to predict that employers across the country will be focusing on ensuring that they have adequate sexual harassment policies in place in order to properly investigate and prevent workplace sexual harassment.
Recently, in British Columbia, a former WestJet stewardess commenced a class action law suit alleging that WestJet failed to provide a safe working environment and fostered a culture of sexual harassment. The B.C. Supreme Court recently rejected WestJet’s attempt to have the class action dismissed. The significance of the claim is the fact that numerous stewardesses are making the same allegations and sexual harassment claims are now entering into class action law suits. Could more suits follow from other industries?
Similarly the Supreme Court of Canada ruled earlier this month in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, that an employee of Company A could file a harassment complaint against the employee of Company B if the employee from A was discriminated against by the employee from B. This case eliminated the argument that employees of one company can’t file complaints against employees of another if the employees work together. This case clearly expands the scope and protections of human rights legislation and will likely expand anti-harassment protections for employees. This also calls into question the need for employers to ensure that the employees/contractors of other companies that do work within it comply with their human rights and harassment policies.
Equal pay for equal work between full time, part time, temporary and casual employees
The Ontario Liberals brought in sweeping reforms to the Employment Standards Act, 2000. One of the most significant is the new requirement mandating equal pay for part-time, temporary, casual and seasonal employees doing the same job as full-time employees; and equal pay for temporary help agency employees doing the same job as permanent employees at the agencies’ client companies.
Countless employers across Ontario rely on temporary employees to keep costs low and compete. This is a significant change that will play out in 2018 as the rules and obligations become clearer.
What’s also going to be interesting is if there is a change in Ontario’s provincial government after the June 2018 election, will these amendments be repealed.
Judicial scrutiny over termination clauses that purport to rebut the presumption of common law notice continued in full force over the course of 2017 and it can be expected that it will continue. While the Ontario Court of Appeal’s significant decision in Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 has brought much needed clarity to the interpretation of these contracts, there are still numerous lower court decisions with inconsistent interpretations. Perhaps another Court of Appeal decision will bring clarity to this area of the law and from my understanding there are a few working the way through the system.
Legalized recreational marijuana will come into law on July 1, 2018. This will bring changes to workplace drug and alcohol policies and bring increased attention to drug and alcohol testing at work including when it can be done, who can be tested (i.e. safety sensitive positions) and under what circumstances (pre-emptive testing or post-incident or both). One interesting issue that will need to be addressed from a scientific perspective will be the development of a reliable marijuana test that can be administered to employees that will provide discernable results on the level of impairment in the event of lawful drug testing.
In addition, the Supreme Court of Canada’s significant July 2016 decision in Stewart v. Elk Valley Coal Corp 2017 SCC 30, will continue to shape the law on drug testing. In this case, Stewart was terminated for failing a drug test for off-duty use of cocaine. Steward alleged that he was discriminated against because of an “addition”. However, the Supreme Court held that Stewart was terminated for failing to comply with Elk Valley Coals drug and alcohol policy and not because of his addiction.
Moral, aggravated and punitive damages
Damages for wrongful dismissal always appear to be rising. One recent Ontario Superior Court decision illustrates this point. In the recent decision in Galea v. Wal-Mart Canada Corp., 2017 ONSC 245, the Judge ordered $250,000.00 moral damages for pre and post termination conduct plus aggravated damages that did not need medical evidence and $500,000.00 in punitive damages to a wrongfully dismissed employees that the judge held were not out of line with the precedents. Given the significant sums of money involved, the law on moral, aggravated and punitive damages will continue to evolve in wrongful dismissal litigation.
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