A recent article by Sally Evans in the Times Live reports the situation of an African employee who was terminated as a result of undergoing a sex change.

For several years Chris Ehlers worked as a sales representative for Bohler Uddeholm Africa, a male dominated multinational steel retailer based out of Africa.  In early 2008, Ehlers began to undergo a series of sex change procedures.  Ehlers soon became the subject of disrespectful comments by co-workers.  For example, Ehlers received an SMS message which said: “I will never have respect for low-class and a wannabe woman”.

Ehlers complained to Bohler’s management.  Following a formal inquiry, Ehlers was provided with the following ultimatum:  revert to being a man or accept a severance package.  Eventually, Ehlers was terminated after a second inquiry into the complaint found that the employment relationship had been seriously prejudiced by Ehlers.  This decision was premised on the belief that an employer has the right to protect its business image in a predominantly male-oriented market.

Ehlers is now suing Bohler for discrimination.  Despite having been offered the equivalent of $21,000 CAD to settle the case, Ehlers’ desire is to be reinstated in her position at Bohler.

Ehlers advances the position that she ought to have been kept on as a Bohler employee regardless of gender.  Ehlers had and continues to have the necessary occupational qualification, skill and knowledge to perform the duties required of a Bohler sales representative.  Ehlers’ ability to perform the work did not change in any material way once Ehlers’ identity was changed from Chris to Christine.

In response to Ehlers’ discrimination lawsuit, Bohler claims that Ehlers had failed to disclose to the company that she was undergoing sex change procedures.  Once disclosed, the parties initially agreed that Ehlers would hide the effects of the process and continue to wear men’s attire in order to protect the company’s image.  As soon as it became clear that Ehlers would identify herself as a woman in the workplace and dress in women’s attire, Bohler claims that her “continued presence in the office had become impractical”.

There is no doubt that in Canada the protections provided to employees pursuant to Federal and Provincial human rights legislation trump any interest that an employer may have in regard to its image.  The mere fact that an industry or market is male or female dominated does not make it acceptable to discriminate on the basis of gender.

If an individual is qualified to do the job, as was Christine Ehlers, gender should not come into the equation unless there are exceptions expressly contemplated by the legislation.  For example, in Ontario the following exceptions allow discrimination on the basis of sex in the employment context:

• Employment-related benefits plans;
• Services and contracting with respect to reasonable bona fide insurance differentiations, distinctions, exclusion or preference;
• Employment by religious, philanthropic, educational, fraternal or social institutions where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination; and
• Employment where a person’s sex is a bona fide occupational requirement.

If Bohler was arguing its case in Canada, it would be required to satisfy an adjudicator that Ehlers’ gender is a bona fide occupational requirement for the performance of the duties of a sales representative in the steel industry.  In my view, Bohler would face a lot of resistance in Canada.  After many years of political advocacy, our society has finally started to recognize that a person’s gender does not, in any way, determine one’s ability to perform work-related duties.  To accept Bohler’s position would constitute a regression to the many advancements our society has made with respect to the equality of sexes.

Follow these do’s and don’ts from my workplace law colum in this week’s Metro News to avoid becoming an author in your own workplace misfortunes. These simple guidelines will also help you take advantage of laws that are construed in favor of the employee, and help you challenge decisions you feel are unjust.

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By: Cedric P. Lamarche

A recent decision from the Ontario Human Rights Tribunal serves as a reminder that employers should tread carefully when dealing with employees suffering from disabilities.

Elsa Torrejon, a 51 one year old single mother, was employed with Weston Property Management Corp. of Toronto as a leasing agent.  In late January of 2009, Torrejon was diagnosed with stage II breast cancer and her physician recommended that she undergo treatment as soon as possible.  In light of the diagnosis and the treatment recommended by her physician, Torrejon advised her employer that she would require an indefinite leave from work in order to undergo surgery and treatment.  She advised Weston that she was well enough to remain at work until the day before her first scheduled surgery.  In response, Weston advised that her last day at work would in fact be her last day of employment with the company, merely 8 months after commencing work with Weston.  On her scheduled last day, Weston handed Torrejon her last paycheque, her T4 and her Record of Employment.

Claiming that she had been discriminated against on the basis of her disability, Torrejon brought an application before Ontario’s Human Rights Tribunal.

The Tribunal did not hesitate to find that in terminating her employment, Weston had discriminated against Torrejon on the basis of disability.  Specifically, the Tribunal concluded that Weston had failed to accommodate Torrejon by allowing her to take a leave of absence while she underwent treatment.  Based on the evidence at the hearing, it was clear that Weston did not understand an employer’s obligations under the applicable human rights legislation.  Weston openly admitted that it believed that it could legally terminate Torrejon’s employment as a result of her illness.

In order to compensate Torrejon for Weston’s violation of her human rights, the Tribunal ordered Weston to pay Torrejon $20,000.00 in general damages and for lost wages.  The Tribunal also required Weston to undergo human rights training due its complete lack of appreciation for an individual’s human rights.

In Ontario, employees are protected from discrimination and harassment in the workplace on the basis of disability.  This includes, past, present and perceived disabilities.  Pursuant to the Ontario Human Rights Code, employers have an obligation to accommodate disabled employees short of undue hardship.  This duty includes accommodating a disabled-related absence of work, such as the one Torrejon had requested from Weston. 

The law recognizes that accommodation is a shared responsibility.  Everyone involved, including the person seeking accommodation, should cooperate, share information and attempt to find mutually agreeable solutions.  Many accommodations can be made easily and at little cost.

In an interesting case coming out of the New Zealand courts, a senior Pilot for Air Nelson, a subsidiary of Air New Zealand is pitted against a former flight attendant.  As reported, the two had sex during a stop-over and following a drinking binge at a hotel room.

The attendant claimed that she woke up in the Pilot’s bedroom and could not remember what happened but believed she had sex with him.  She filed a criminal complaint but police did not lay charges so she then complained to her employer.

Air Nelson decided to fire the Pilot citing serious misconduct, sexual harassment, failing to act responsibility, bullying and drinking alcohol with two crew members.  None of those allegations have been proven thus far.

For his part, the Pilot claims the sex was consensual.  An interesting segment of the cross examination of the attendant states that she ordered two breakfasts the following morning (implying that had she been harassed, why didn’t she just leave):

“I don’t remember that.”

“Just like that your memory stops?”

“Yes,” she said.

“Was this a case of you consenting to intercourse but regretting it afterwards and using the loss of memory as an excuse?”

“No, it wasn’t,” she said.

The hearing is likely to continue for the rest of the week.  In his claim, the Pilot seeks reinstatement.

In Canadian employment law, only unionized employees have a legal right to reinstatement.  This is typically negotiated into collective agreements, which are prevalent in the airline industry.  However, only about 30% of the Canadian workforce is unionized.  For the rest of the workforce, reinstatement is not an option.  Although it can be ordered in human rights cases, it is usually viewed as an exceptional remedy, reserved for few cases, if at all.  Therefore, in situations where an employee has been fired, with no notice or insufficient notice, or in cases where serious misconduct is alleged, the recourse would be through the courts in a wrongful dismissal claim.

What happens when an employee is assaulted by a supervisor? As an Ontario court just ruled, when push comes to shove, the employer may also be responsible.  Bell Mobility’s failure to investigate the case below compounded its own liability.

Richard Ayotte was a pushy boss – literally. Ayotte was seen as critical, intimidating and aggressive, thinking it would achieve results.

In 2005, Ayotte took his assertive approach too far. When one of his staff, Marta Piresferreira, allegedly failed to book a meeting, Ayotte yelled and swore at her, refused to listen to her explanation, and pushed her backwards hard enough that she hit a filing cabinet. When Piresferreira followed him to his office to protest his behaviour, Ayotte threatened her with probation.

Piresferreira later returned to work expecting an apology. Instead, she was given a Performance Improvement Plan requiring her to report to Ayotte daily or face discipline, including termination. She refused to sign, went home, and complained to the company, Bell Mobility.
The same day, Piresferreira received a letter from Bell stating it had spoken to Ayotte and that he would apologize – and then the case would be closed. No one spoke with Piresferreira to get her side of the story or to express concern for what had happened.

During the months that followed, Bell made several attempts to get Piresferreira to return to her job. Eventually, Bell just claimed she had resigned. Piresferreira was diagnosed with post-traumatic stress disorder and never returned to work.

To read more on this case, visit my Workplace Law column from this week’s Metro News.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

Janet Williamson, a health care worker at a retirement home in Mitchell, Ontario, was summoned to a meeting and told that if she took her vacation as planned, she would lose her job.

Williamson had agreed to join an 87-year-old resident on a Mediterranean cruise when the resident’s partner cancelled the last minute before their trip. Williamson received approval for the time off and agreed to step in.

However, a few days before the cruise, Williamson was called to a meeting with a newly-appointed CEO and told that her plans were a violation of her employer’s policy on accepting gifts from residents and given an ultimatum: If she went on the trip, she would be fired.

In my Metro news article from this week, I discuss the case in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

Reading last week’s headlines about the case of Debrahlee Lorenzana, the New York banker claiming she was fired because her good looks distracted her male colleagues, raised an alarm as to the public’s various misconceptions of critical issues in workplace law. Here are just a few of them.

In one article, the author claimed that Lorenzana’s wrongful dismissal case against her employer sparked a debate over “workplace sexual harassment.” Turning this case into an issue of sexual harassment could indeed be an interesting development in workplace law – except that it is wrong.

Is it discriminatory to rely on looks when firing an employee? In another article, the author suggested that if Lorenzana was treated differently because of her appearance, it could constitute discrimination under human rights laws. This would also be a major development in human rights law, except that it is also wrong.

In my  Metro news article from this week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues. You can reach Daniel at dan@toronto-employmentlawyer.com. For even more on workplace law, follow him on Twitter at www.twitter.com/danlublin.

By: Ellen A. S. Low

If you’ve got a legal problem- you’re not alone. A recently released study titled “Listening to Ontarians: Report of the Ontario Civil Legal Needs Project” looks at how well low, and middle-income earners are being served by the existing Ontario civil justice system.  The study found that one out of every three respondents had had some sort of civil legal problem in the last three years.

The report, authored in part by former Ontario Chief Justice Roy McMurtry, and funded by the Law Society of Upper Canada, looks at the types of legal problems facing low and middle income Ontarians, how people find legal services, and makes recommendations to address some outstanding civil legal needs in Ontario.

In determining where respondents found legal services, almost 70% of respondents sought legal assistance from a lawyer whom they paid. Those surveyed were generally very satisfied with the assistance they received from lawyers and other professionals in the civil legal system, in fact, 80% of those surveyed stated that they found the assistance helpful.

With respect to the types of legal problems respondents were encountering, employment problems ranked third along with housing, land, and real-estate issues.

With respect to employment problems approximately 28% had taken less than a year to resolve. However, those who sought legal advice for employment matters stated the resolution process should be ranked low in terms of fairness.  In fact, 23% of respondents ranked the process for resolving an employment problem as “very unfair.”

Negotiating and resolving employment problems on your own can be extremely difficult.  Considering some previous horror stories, dependable legal advice for employment problems is invaluable.  If you have an employment law issue which warrants legal advice, please contact our office to arrange an initial consultation with counsel.

Ellen A. S. Low is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

By Cédric P. Lamarche

The recent events involving Canadian Armed Forces Brigadier-General, Daniel Ménard, have raised many questions regarding the propriety of relationships at work.

Ménard, who falls under the purview of the Canadian military law regime, was recently accused of engaging in an intimate relationship with a member of his staff.  The accusations have resulted in Ménard’s removal from his command post in Afghanistan.  Under the rules established by the Canadian Armed Forces, soldiers are strictly forbidden from engaging in acts of intimacy while away on deployments.  These rules were put in place in order to prevent the deterioration of discipline and structure within the ranks.

Military rules aside, is an employer permitted to terminate an employee for having a romantic relationship with a colleague?

Employers do have the right to implement reasonable policies and require that their employees adhere to them.  As long at the policies are exercised reasonably, fairly and in good faith by the employer, employees must comply with the rules established by management.  In order to be fair and reasonable, employers must ensure that company policies are clearly communicated to their employees, that employees are provided with the clear message that failure to follow company policies could result in disciplinary action, including discharge, and that the policies are applied equally across the board.

Pursuant to federal and provincial human rights legislation, employers have a duty to provide employees with a work environment free from harassment, including sexual harassment.  Accordingly, employers must take the necessary steps to prevent and eliminate certain types of unwanted negative sexual behaviour and attitudes from the workplace.  As a result of the Royal Assent of Bill 168, the “steps” that Ontario employers must take include the implementation of written policies which specifically address workplace harassment.

The problem with consensual romantic relationships in the workplace is that they may lead to conflicts of interests.  The obvious example is that of a manager involved in an intimate relationship with a subordinate.  In that example, the employee who is in a position of power may have the ability to influence managerial decisions involving his or her partner.  As can be gleaned from this simple example, employers may be faced with problems that arise where a consensual intimate relationship between employees leads to power abuses; problems that can be particularly difficult to manage.

The implementation of workplace policies containing anti-conflict of interest guidelines may be the answer to these problems.  Such policies should discourage employees in positions of power from engaging in relationships or situations that would either create or lead to the perception of a conflict of interest.  At the very least, the policies should impose an obligation upon managers or employees who exercise managerial decisions affecting employees with whom romantic interests are shared to disclose the potential conflicts such that decisions affecting particular employees can be impartially reviewed or require the decision makers to be removed from the decision making process.

Policies or rules forbidding romantic relationships between employees in the workplace will have limited efficacy as their enforceability is highly questionable.  Employees who are subjected to such policies or rules could certainly challenge them on the basis of unconscionability.  Whether such challenges will be successful will likely depend on the nature of an employer’s business and the reasonableness of the policies.

Cedric Lamarche is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

Have you ever wanted to tell your boss to F-off?  Were you worried it would cost you your job?

In a recent Saskatchewan case, the court was asked to consider this very question.

Having worked for the same ownership at Regina-based Image 1 Hair Team for 22 years, hair stylist Lenna Bohay was upset that the Salon was sold to a coworker, Kelly Brown.

Brown confronted Bohay after work and Bohay admitted to a profanity laced conversation.  Brown said she was told to “F-off”.

Bohay was fired, allegedly for cause, and not given any severance, so naturally, she sued.  In the recent court decision, the judge found that although Bohay swore at her boss, he dismissal without pay or a warning was not justified.

The court rules that, given the employee’s long service,  the employer “was required to provide a warning to the plaintiff that her behaviour must improve before she could be dismissed.”

In this week’s Metro News column, I discuss the case in more detail and provide the following takeaways for both employers and employees:

• It is only the rarest misconduct, such as theft or dishonesty, that warrants dismissal without appropriate warnings.
• Profanity and rudeness must be addressed by corrective discipline, which is a gradual series of warnings.
• Consider mitigating circumstances.  Courts are more forgiving when misconduct is out of character.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP.  Dan@toronto-employmentlawyer.com