77 th Annual General Meeting and Tradeshow Employment/Labour Law Forum Steven Williams Emond Harnden LLP November 13-15, 2011 AIR TRANSPORT ASSOCIATION OF CANADA

2 Introduction  Bill C-45 update  Case Law Update re: Terminations  Accommodation

3 Bill C-45  Criminal Code, Section  Criminal liability for organizations and individuals  Establishes a legal duty to ensure the safety of workers and the public  Enforced and prosecuted separately from Part II of the Canada Labour Code

4 Bill C-45 Charges  8 cases to date  2 convictions – both in Quebec  1 st trial finding  1 guilty plea  Several cases pending – Ontario, Quebec, British Columbia

5 Lessons From C-45  The culture, tone and habits of management and experienced workers will be the model for others in the workplace  A single person’s actions can defeat the most elaborate and technological safety device or system

6 Lessons From C-45  Same basic principles of care and due diligence under federal and provincial safety laws will be applied to the interpretation of Criminal Code provisions  Cases will require some specific set of circumstances, such as wide and egregious systemic safety failures, terrible loss and/or a need for punishment to merit Criminal Code prosecution

7 Discipline for Safety Violations  Applying progressive discipline for safety violations  Front-line supervisors’ role  Consistent application  Integral part of due diligence defence  See Progressive Discipline Checklist

8 Case Law Update (Safety) Ghazali v. Central Mountain Air Ltd. (May 2011 – Keast)  Facts  2 year employee - AME  Two prior verbal warnings + two documented incidents  Terminated for departing from provisions of maintenance manual  Findings  Employee was on probation due to latest incident and was aware future incidents could result in termination  Employee unrepentant – would do the same thing again  Dismissal justified

9 Case Law Update (Safety) Servisair Inc. and P.S.A.C. (March 2011 – Burke)  Facts  2 year employee - Aircraft Fueller  15 prior warnings (ranged from coaching to three day suspensions)  Terminated for a motor vehicle accident at work  Findings  Employee had been warned that further incidents could result in termination  Dismissal justified

10 Case Law Update (Violence) Groves v. Cargojet Holdings (July 29, 2011 – Somers)  Facts:  2.5 year employee with long list of disciplinary issues terminated for posting threats against supervisor and co-workers on Facebook  Employer had zero tolerance policy on workplace violence  Findings:  Facebook with privacy settings not akin to open blog  Employer’s policy defined “workplace” in a manner that excluded off duty conduct, such as posting on Facebook  Posting threat on Facebook not as serious as direct threat made at the workplace  Adjudicator ordered compensation in lieu of reinstatement (one month’s salary)

11  Facts  Pilot for 3.5 years  Dismissed for incompetence. Despite alleging cause, paid 5 days severance and two weeks notice  Findings  Nothing was in writing  Absent any evidence, termination was unjust  No reinstatement because airline now non-existent  Three months reasonable, minus mitigation (eight weeks) Case Law Update (Incompetence) Halsey v. Air Mikisew Ltd (Mar 4, 2011 – Christian)

12 Accommodation  What do you do when you receive a request for accommodation?  Know your responsibilities – duty to accommodate  Know what needs to be accommodated  Meet with employee, determine possible accommodations  Document all steps  Manager’s checklist – Accommodating Disabled Workers

13 Duty to Accommodate satisfied where…  There is no evidence of an employee’s need for accommodation to resume regular attendance  No accommodation is possible because of the nature or severity of the employee’s disability  The accommodation process has failed  There have been a number of failed attempts at accommodation in the past  The employee has failed to act reasonably in the accommodation process

Questions?