McInnes Cooper

Employment Group Seminar

November 19, 2010

• What is the current state of the law on:

– Pre-employment Testing;

– Site Access Testing;

– Reasonable Grounds Testing;

– Post-Incident Testing;

– Random Testing;

– Return to Work Testing.

• Differences between Drug vs. Alcohol Testing:

– Dennis v. Eskasoni Band Council, [2008] C.H.R.D. No. 38

– Imperial Oil v. CEP, Local 900, [2009] O.J. No. 2037 (CA)

– Petro-Canada Lubricants Centre (Mississauga) v. CEP, Local 593, (Unreported,

August 27, 2009)

– Sterling Crane v. OE’s, Local 793, 2009 CarswellOnt. 8416

– Irving Pulp and Paper, Ltd. v. CEP, Local 30, 2010 NBQB 294

– Leonard v. Noble Drilling (Canada) Ltd., [2010] N.L.H.R.B.I.D. No. 1

Development in Workplace Substance Abuse

Prevention

• Duty to preserve (Rule 16.02)

– Readily identifiable electronic information

• Duty to Disclose

– By agreement

– Or, if not by agreement, in accordance with the default provisions of the Rules

• Default Disclosure Obligations

– Can be very onerous on Employer in a wrongful dismissal matter

Electronic Disclosure Obligations

The Duty to Accommodate

• Obligation to modify workplace to avoid discrimination based on any enumerated ground

• Where conflict arises between abilities and workplace standards, employer to adapt standards

• Exception if employer can show BFOR

• Only required to accommodate to the point of Undue Hardship

When Accommodations do not Work

1. Frustration of Contract

• How long has the employee been off work (at the time of dismissal) due to the disability?

• Is it unlikely the employee will be able to return to work in the foreseeable future?

2. Employee Fails to meet Obligations

• Obligation to facilitate employer’s access to relevant and necessary medical information

• Obligation to accept reasonable offers of accommodation

When Accommodations Don’t Work

What is the scope of the duty to accommodate

family caregiver responsibilities?

• The threshold test debate

– Campbell River

– Johnstone and new CNR cases

• Special consideration for split custody parents

• Tips for employers

Family Status Update

Pension Law Update: Bill C-501

• This enactment amends the Bankruptcy and Insolvency Act and the

Companies’ Creditors Arrangement Act to ensure that unfunded

pension plan liabilities are accorded the status of secure debts in

the event of bankruptcy proceedings.

• The enactment also amends the Canada Business Corporations

Act to provide an efficacious procedure by which former employees

of a bankrupt corporation who are owed amounts by the

corporation can proceed with claims against its directors.

• May 26, 2010 - 2nd reading of Bill C-501:

– Yeas: 144 - Nays: 111 - Total Votes: 255 - Paired: 0

• Referred to the Standing Committee on Industry, Science and

Technology — May 26, 2010.

Why Employers should be concerned

• loss of productivity

• damage to employer’s business interests

• insubordination

• harm to employer’s product

• liability for harm to others (vicarious liability)

• harassment (on duty/off duty)

Responsible use of social media in Employer investigations

• 100% permissible if employee allows you to be their ―friend‖

• Social networking sites can be used to:

– screen job candidates

– monitor an employer’s reputation

– discipline employees

– gather evidence/impeach witnesses

• Have a comprehensive social media policy

Social Media Issues in the Workplace

• Effective Date – January 15, 2010

• Graduated Penalties

– Employee/supervisor/employer

– Injury/no injury

• Range - $100 to $4,000

• Appeal Provisions

Occupational Health & Safety Administrative

Penalties

• Bill expected to be introduced in the House today!

• Labour Relations and Employment Board Act expected to consolidate: LabourStandards Tribunal, Labour Relations Board, Construction Industry Panel, Civil Service Employee Relations Board, Highway Workers’ Employee Relations Board, Correctional Facilities Employee Relations Board, OH&S Appeal Panel, some Teachers Collective Bargaining Act issues

• New Full-Time Chair – selection process underway. Likely not be current Chair of Labour Board Peter Darby or Vice-Chair Bruce Archibald. 5 year term.

• NDP Government has said it is considering discretion re no panel

• Advantages: may be more efficient, Disadvantages of new board: depends on Chair chosen. Also, will likely be less expertise in some matters, i.e. OH&S

• Alert – more substantive changes may be coming from NDP re Trade Union Act.

Employers need to be alert to implications. We will keep you informed.

New Labour and Employment Board

• Always consider tax implications early

• 2 key questions

taxable vs. non-taxable to employee

deductible vs. non-deductible to employer

• Personal damages generally not taxable

• Withholding rate vs. ultimate rate on filing tax return

• Deductibility of payments by employer

must be for purpose of earning income (s. 9)

must be reasonable in circumstances (s. 67)

Tax Treatment in Employment Law Settlements

Cross-Canada Labour & Employment Law Update