Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Supreme Court decisions tilt heavily in favour of employers

Most people believe that court decisions are too pro-employee.  This is untrue.  Despite employee-friendly workplace laws, Canadian employers sometimes get to call all the legal shots.  Both employees, and their lawyers, should pause given some of the recent decisions of our courts:

1. Fired employees may have to return to their old jobs.  Refusing to return to his work months after he was dismissed, Teamsters business agent Douglas Evans was accused of failing to avoid further losses, as dismissed employees have an obligation to take all reasonable steps to find another job after having been fired.  Until 2008, this obligation stopped short of requiring an employee to return to his or her former job.  But in light of the Supreme Court’s decision in Evans, this may now be exactly what is required.
2. The point of “undue hardship” in accommodating an employee’s disability at work has been rewritten.  In Hydro Quebec, the Supreme Court ruled that a large organization, such as Hydro Quebec, was not required to create a new position in order to accommodate an absence-prone employee’s particular illness.  Accommodation does not require the employer to alter the essence of the contract, which is that the employee must perform his or her job, the Court wrote.  Instead, if the proper operation of its business would be especially restricted, employers can fire disabled employees without infringing the human rights laws.
3. Damages for the manner of dismissal are no longer “routine”.   After the Honda decision, employees have been subtracting zeros from the value of their lawsuits as the Supreme Court limited mental distress and punitive damages in wrongful dismissal claim.  In Honda, the Court also reminded employers that they are entitled to manage absenteeism in the workplace by closely monitoring specious claims for disability or chronic absenteeism.
4. Drug and alcohol use may no longer constitute a “disability” under human rights legislation, meaning that employers might not be required to accommodate employees with an alcohol or drug dependency.  In an Alberta appellate decision, the court upheld an employer’s right to perform mandatory pre-employment alcohol and drug screening tests, arguing that the recreational use of drugs and alcohol is not protected under legislation.
5. Resign with enough notice and don’t take customer lists with you.  In the RBC case, the Supreme Court found that a group of employees who organized a mass departure that essentially crippled their employer’s office had no duty to compete fairly with their former employer.  But not so fast.  Even without the benefit of a non-solicit or non-compete agreement, employees must perform in good faith while still employed.  Because they left without notice and took most of their clients with them, the group was ordered to pay damages.
6. Be careful if you are going to criticize your boss.  In a B.C. decision, the court confirmed that employees are generally entitled to criticize their superiors without fear of immediate dismissal.   However, when such criticism goes over the edge, the employer is not required to tolerate it.