has taken steps to clearly circumscribe
those rights in the workplace,” said Appiah.
One ongoing tension, in particu-lar,
relates to privacy and disability
accommodation.
“The debate is over the extent of the
employer’s right to access confidential
medical information when faced with a re-quest
for accommodation,” said Appiah.
“Should a medical note be enough or is the
employer entitled to a greater amount of
info?” In Canada, the courts are constant-ly
challenged to find a balance between the
two rights.
MITIGATION
In this country, the idea of mitigating
with a former employer crystalized with
the 2008 Supreme Court of Canada case
Evans vs. Teamsters, says Hendrik Nieuwland
of Shields O’Donnell MacKillop LLP.
“Essentially that case says an employ-ee
who is dismissed and is offered another
job by the dismissing employer needs to
accept it in order to mitigate their damag-es,
so long as this new job doesn’t lead to
an atmosphere of hostility, embarrassment
or humiliation.
“That’s the overarching test,” he said.
“Whether or not that test is satisfied is
solely fact driven, so it will depend entirely
on the circumstances of each case.”
For HR professionals who may find
themselves in a position of offering a new
job to an employee to mitigate damages,
Nieuwland offers several words of advice.
First of all, the job offer is most likely to be
acceptable to the court if a reorganization
lead to the employee’s original job being
eliminated or changed enough to lead to
constructive dismissal. Next, the employ-er
needs to clearly outline the new job, the
new responsibilities and why the employer
thinks the employee is a good fit. As much
as possible, keep the compensations terms
the same and keep the negotiations profes-sional
and amicable. And finally, give the
employee as much notice as possible and
ample time to consider the offer.
TERMINATIONS DURING THE
COURSE OF INVESTIGATIONS
To keep investigations from causing legal
troubles down the road – especially when
they lead to terminations – the key is for
employers to be honest and straightfor-ward
during the process.
“The employer has an obligation of
good faith and if they fail to exercise
that obligation of good faith in either the
cover feature
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Gunnar Pippel/Shutterstock
investigation process or the termination
process, then they run the risk of more
severe consequences than has previous-ly
been the case,” said Hugh Scher, Scher
Law Professional Corporation.
Changes to how courts are handling
these cases are important, says Scher, be-cause
it’s reframing the way terminations
are being done. “Potentially, more scru-tiny
is required of employers in terms of
how they go about their investigations,
the processes they follow in those inves-tigations
and the consequences of those
investigations.”
Scher says another potential com-plication
with flawed investigations is
becoming more prevalent.
“There’s a question of whether a court
is going to permit employees or employ-ers
simply to bring motions for the fixing
of notice periods in employment termi-nation
cases where there is a legitimate
argument to be made about a breach of
obligation of good faith and fair dealing,”
he said. “In other words, are the two linked
or are they separate legal obligations that
the courts are going to look at separately?”
If the investigation is handled transpar-ently
and according to a sound policy, it
HRPATODAY.CA ❚ OCTOBER 2014 ❚ 23
