In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court considers when a non-unionized employee on administrative suspension with pay may claim constructive dismissal. The court overruled the lower courts to find that the New Brunswick Legal Aid Services Commission had constructively dismissed its executive director when it suspended him indefinitely with pay while he was on sick leave. The parties had been negotiating a buy-out of the employee’s contract when he went on sick leave, and the employer had secretly recommended that he be dismissed for cause. There are two kinds of constructive dismissal according to the court: a unilateral act by the employer that both breaches and substantially alters a term of the employment contract; and a series of acts by the employer that cumulatively evince an intention to no longer be bound by the contract. In this case, the court applied the first test to find that the administrative suspension amounted to a constructive dismissal, since it was unauthorized, not justified (no reasons were given), and for an indefinite period of time. The court acknowledges at para. 40 that “determining whether an employee has been constructively dismissed is a ‘highly fact-driven exercise,’” for while the test itself doesn’t vary, “how it is applied will nevertheless reflect the distinct factual circumstances of each claim.” As these commentators note, employers would do well to review their written contracts in light of the decision (to make sure they permit fundamental changes to employment) and to provide reasons and be forthright when suspending employees. Administrative Leave or Constructive Dismissal? – Stikeman Elliott SCC Revisits Constructive Dismissal In Potter V. New Brunswick Legal Aid Services Commission - Blakes Supreme Court Of Canada Finds Paid Suspension Amounts To Constructive Dismissal - BLG The Most Important Question Is Why: The SCC Revisits Constructive Dismissal - McMillan LLP

Several recent Supreme Court decisions have considered how constitutional law (in particular s. 2 of the Charter) applies to the collective bargaining process. In the following two decisions the court examines what s.2 protects (the right to form associations; and to join with others: to pursue constitutional rights and to meet on more equal terms the power and strength of other groups or entities) and whether it has been violated (by substantial interference with the right of employees to a “meaningful process of collective bargaining”). In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the court found Saskatchewan legislation limiting the ability of public sector workers to strike unconstitutional, but suspended invalidity for 12 months to allow the government to enact compliant legislation. The court confirmed early in the decision that the right to strike is “not merely derivative of collective bargaining, it is an indispensable component of that right,” and stressed that this applies to public service employees even though the essential services they perform might argue for a less disruptive mechanism (paras. 3 and 4). Of particular concern to the court was the lack of an alternative mechanism for solving bargaining impasses, and the fact that the employer had the unilateral right to determine whether and how essential services are maintained. In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the court struck down the management controlled Staff Relations Representative Program under which RCMP officers, who had historically been denied collective bargaining rights, could raise some labour relations issues through an appointed representative. The court found at para. 106 that this process ”fails to achieve the balance between employees and employer that is essential to meaningful collective bargaining, and leaves members in a disadvantaged, vulnerable position.” These articles review the cases in more detail and discuss their import: Finding More "Meaning" in the Future of Labour Law – CanLII Connects Supreme Court Confirms Right to Strike Constitutionally Protected – Slaw The Supreme Court’s recent right-to-strike ruling marks a more fundamental and long-lasting change in labour relations than we might think – CBA National Everything You Thought You Knew About Labour Law - Slaw

Hutlet v. 4093887 Canada Ltd. et al., 2015 MBCA 25 - the court dismissed a motion by the Canadian Association of Counsel to Employers for intervenor status in this appeal concerning the ability to enforce an overtime wage claim through civil action. The association argued that it could bring a nation-wide perspective to counter the motion judge’s far-reaching decision that the plaintiff was not limited to The Employment Standards Code’s complaints process to enforce her claim. Although the court acknowledged the CACE’s expertise and agreed that the decision could affect employers in general, it was not persuaded that the organization would make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. Moffatt v. Canadian National Railway et al., 2015 MBQB 26 – the court dismissed the plaintiff’s action seeking enhanced benefits under her deceased husband’s employee pension plan (she argued that additional benefits should be paid since his suicide was directly related to the work accident he suffered two years earlier). The court found she was not entitled to the enhanced benefits because the death was not accidental, it did not occur within one year of the accident as required, and the plan specifically excluded suicide (while sane or insane). Winnipeg Airports Authority Inc., 2015 MBQB 6 - the judge quashed and set aside an arbitrator’s decision, finding that his interpretation of the collective agreement was one that the wording did not bear. The arbitrator was appointed to determine a grievance over whether employees can receive two premiums for the same hours worked: the shift premium (paid to employees for all hours worked between 4:00 p.m. and 8:00 a.m.); and the weekend premium, (paid to employees for all regularly scheduled straight time hours worked on a Saturday or Sunday). The arbitrator found they were entitled to both premiums but the court disagreed, finding that the arbitrator erred in construing the collective agreement in a way that created an unnecessary conflict between its provisions; in failing to interpret Article 22.13 in the context of the entire collective agreement; and in applying a “rebuttable presumption” analysis when the facts did not give rise to the presumption. (para. 20) Halischuk v. Color Ad Packaging Ltd., 2015 MBQB 4 - an employee terminated one month after starting work with a company that was “in a period of transition” was entitled to rely on the 90 days’ pay in lieu of notice period inserted in a second employment contract she signed at the urging of her then boss, whose own position was terminated shortly after the contract was executed. The court rejected the employer’s argument that the employee had colluded to procure the more advantageous contract and that she ought to have known this was improper, unauthorized, and therefore unenforceable under s.18(2) of the CBCA. The court also found that the specific pay in lieu of notice term took precedence over a general term in the contract setting out a probationary period and then providing for termination during that period without notice or compensation. The court also rejected the employer’s argument that its offer of 90 days’ working notice was equivalent to 90 days’ pay in lieu.

A Manitoba company was ordered to pay more than $36,000 damages to an employee who suffered sexual harassment at the hands of the owner of the company in Emslie v Doholoco Holdings Ltd, 2014 CanLII 71723 (MB HRC). The Commission’s last minute motion to add the owner as a party in his personal capacity was denied due to delay. The complainant, a then single mother, was often alone in the workplace with the owner, who repeatedly abused his power to degrade and humiliate her. The complainant objected to the advances, but did not protest more forcefully because she was afraid she would lose her job. Suffering from anxiety and depression she eventually left work on medical leave. The adjudicator found she was entitled to compensation for lost income ($16,000+), damages for injury to dignity and self-respect ($15,000), and exemplary damages of $5,000. The company was also ordered to provide employees with the MHRC policy on sexual harassment and to implement its own harassment policy. This Slaw article discusses the decision.

The Employees’ Voting Rights Act received royal assent on December 16, 2014 and will come into force June 16, 2015. It amends the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act to provide that the certification and decertification of a bargaining agent under these Acts must be achieved by a secret ballot vote-based majority. This will eliminate the current card check certification process in the federal labour sector. See this CBA publication for further details.

Damages and Mitigation - the authors of this Practice Points paper identify the problems that arise when proving damages in employment law cases and offer advice on mitigation, expert evidence, wage loss calculations, and more from both union and employer perspectives. 2014 was a busy year for employment law legislation and case law and many commentators have compiled lists of their favourites, their takeaways, and their predictions for 2015. Here are a few: Norton Rose Fulbright’s Year in Review; Rubin Thomlinson’s Employers’ Alert; McMillan’s Year in Review; Professor Lynk’s Top 5 Work Law Cases; Stringer LLP Update; and the Top 10 Canadian labour & employment law developments of 2014. Can a Negative Employment Reference be Defamation? – this Law of Work blog post discusses two BC decisions which illustrate the issues that arise when applying the tort of defamation to the employment relationship. In particular, it considers negative reference letters and the defence of qualified privilege. Employer Harassed, Stalked and Threatened Employee Because of Sexual Orientation – this Slaw post reviews a Nova Scotia Human Rights Commission decision awarding an employee damages for discrimination on the basis of sex and sexual orientation and the takeaways from the case.

Leading communications consultant Steve Hughes is presenting two practical programs at the Law Society this spring: Influence: The Art & Science of Changing Minds – learn how you how to influence clients, colleagues, and opposing counsel to see things your way without resorting to manipulation at this half-day program on April 16, 2015. Dynamic Presentation Skills for Lawyers - communicating effectively to a wide array of audiences is a skill you will use throughout your legal career. Learn how to craft your presentations for maximum impact and what delivery techniques work at this morning session on April 17, 2015 Lawyers and Governing Boards: Avoiding Common Pitfalls – Presenters Bruce King, Doug Finkbeiner, QC, and Tana Christianson will discuss the risks and responsibilities that come with board directorships and suggest strategies to minimize potential liabilities at this lunch program on June 10, 2015. Register now to attend in person or by tele-presentation.

The CBA’s 16th annual Administrative Law, Labour and Employment Law Conference will be held November 27-28, 2015 in Ottawa, Ontario. Watch their website for further details.