Archive for October, 2009

Hindsight is 20/20: Employers walk a fine line when it comes to vicarious liability

By Jeffrey R. Smith (

Everyone knows hindsight is 20/20. And foresight is sometimes a matter of common sense. But there can be a fine line between common sense foresight and being psychic, so how does one determine whether the outcome of an event could have been prevented and how responsible are those who might have foreseen it?

This issue is particularly important for employers when considering their liability for the actions of employees, especially those who work independently off-site. How much control can the employer be expected to have?

On Dec. 7, 2007, Daniel Tschetter of Cochrane, Alta., drove his cement truck into the back of a car waiting at a red light. The accident killed five people in the car, including three children. Witnesses said he had been driving recklessly for several kilometers before the crash and after it happened, he took a drink from a vodka bottle and tried to destroy it in the hopper of the truck.

It turned out Tschetter had 20 previous convictions for traffic offences, was a recovering alcoholic and had been fired from a previous job after being involved in another accident while driving a cement truck. His employer, C & J Construction, was aware of his history but continued to employ him as a driver.

After Tschetter was convicted of manslaughter, families of the accused launched a lawsuit against him and C & J for a total of $3.6 million. In their statement of claim, the families accused the employer of being negligent in allowing Tschetter to drive the truck and transport alcohol in it though it should have known he posed a risk to other drivers on the road given his history of bad driving and drinking.

It’s pretty clear the construction company showed poor judgment if it did allow him to have alcohol in the truck, and perhaps for hiring him in the first place. But should it have predicted the accident would happen? What if Tschetter had convinced the company he deserved another chance before it hired him?

The accident brings to mind a 2007 case where an employee of Victoria-based road-building company Island Slipform fired an employee after he got into an accident in a company truck while driving impaired. Island Slipform was concerned not only that he downplayed the incident, but also that it had “a direct and material interest in if its equipment were involved, or if its employees were engaged in conduct which was detrimental to its reputation.”

The company was also likely concerned of the role its equipment might have played in any potential liability for any injuries suffered by the other driver.

Given the trend in legislation dealing with workplace violence, occupational health and safety and using electronic devices while driving, liability for employee misconduct is on a lot of employers’ minds. But we should remember employees are autonomous individuals, even while on the job. Employers can definitely be responsible if something bad happens from an employee’s actions that come directly out of directions from the employer. But what if the conduct wasn’t condoned by the employer? How much should the employer be expected to take responsibility for something caused by an employee’s independent actions, even if they’re on the job?

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Going green makes employer see red

By Jeffrey R. Smith (

Many of us are trying to be more conscious of the environment and going “green” is becoming more popular. Recycling, energy conservation, carbon footprint — these are on everyone’s minds as we try to reduce the effect we have on the environment. Some make token gestures to save the environment and others are more hardcore to the point where they radically change the way they live their life. But can being an environmentalist get you fired?

Tim Nicholson, 42, made news in the United Kingdom recently for launching an unfair dismissal lawsuit against his former employer, property company Grainger. Nicholson was Grainger’s head of sustainability for two years before he was let go in 2008. He held strong beliefs about climate change and adopted an eco-friendly lifestyle that included making his house carbon efficient, buying local produce and avoiding air travel.

However, when Nicholson tried to apply his “green” philosophy to his job, he met with resistance from Grainger executives. He tried to set up a carbon management system but was denied access to the data he needed and Grainger’s CEO ridiculed Nicholson’s environmental concerns. At one point, the CEO even flew a Grainger employee from London to Ireland just to drop off his BlackBerry.

After Nicholson was made redundant, he claimed he was fired because of his environmental beliefs. In a pre-hearing review, a judge granted him permission to continue with his claim under six-year-old U.K. legislation that protects philosophical beliefs from discrimination. Grainger disputed the decision, arguing Nicholson’s beliefs on climate change were scientific, not philosophical, and didn’t warrant protection under the legislation.

Most people agree climate change is a problem the planet faces, but some don’t take it as seriously as others. For someone who takes it seriously enough to change their lifestyle, does that qualify it as a belief that should be protected from discrimination? If that person is mocked at work or fired because of that belief, is it grounds for a human rights violation or wrongful dismissal under our own human rights and employment laws? If not, how do we determine what is a philosophical belief that deserves protection from discrimination?

Meet the parents: Accommodating family demands in the workplace

By Jeffrey R. Smith (

Family demands on employees are much more of a factor for employers than they used to be. There’s a lot of attention being paid to work-life balance and supportive workplaces, both for recruitment and retention purposes as well as legal concerns such as accommodation and just cause.

There have been a couple of recent cases focusing on the rights of employees who are parents — one that may make employers wonder how much employees with family demands have to be accommodated and another that some might see as mercifully placing a limit on that accommodation.

The case that might make employers a little nervous involves an Ottawa couple who applied for the 35-week maternity leave. Yes, the couple applied — not just one parent. And they didn’t want to split up the 35 weeks between them like many do, but they each wanted 35 weeks. The request stemmed from the fact the mother, Paula Critchley, gave birth to twin girls. Critchley and father Christian Martin each applied for parental leave for one of the babies.

Critchley was awarded the usual 15 weeks maternity leave plus 35 weeks parental leave for one of the babies. Martin was turned down because EI law says 35 weeks can only be provided for a single pregnancy or adoption, not each birth.

Martin claimed caring for two babies was too difficult and “overwhelming” without both parents present. He also said it was unfair and discriminatory to only allow one set of benefits for two babies just because they were born together, since if they had been born separately, they would be entitled to 35 weeks of parental leave for each baby.

The Employment Insurance Board of Referees ended up awarding Martin parental benefits for one of his daughters. It said both parents suffered from “onerous household obligations” related to the birth and agreed each parent could make a separate claim for one of the babies.

Though the board decision is not binding to future cases, one could assume a door has been opened that could lead to similar findings in the future. If an employee or employee’s spouse has multiple births, parental leave might get a little more complicated. Will employers be able to challenge employees who want similar rights? Will it cause even more trepidation to having employees in a relationship if both could be lost to parental leave at the same time?

However, employers may be able to breathe a little easier after the British Columbia Human Rights Tribunal put a limit on accommodating employees with parental obligations. Family status has become an increasingly prominent area requiring accommodation under human rights legislation, including parents’ rights to caring for their child. However, the tribunal made it clear there is a difference between special family obligations and normal, everyday responsibilities.

Steven Falardeau of North Vancouver was a single father working at Ferguson Moving. His hours were irregular and depended on what moving jobs had to be done that day. He usually worked until 2 p.m or 4 p.m. but sometimes he would have to work as late as 8 p.m. When this was the case, Falardeau had his parents or girlfriend to pick up his 10-year-old son from daycare at 6 p.m.

One day in November 2007, Ferguson asked Falardeau to start a new job late in the day that would require some overtime work. Falardeau refused, saying he needed to be home for his son and had the right to refuse the overtime. Ferguson said occasional overtime was part of the job and fired him for refusing to work the extra hours.

The tribunal found Falardeau had indicated to Ferguson he could find someone to look after his son and did so on many occasions when he worked overtime. It also found overtime was expected as part of his position and his son didn’t have any special needs that made Falardeau “uniquely qualified” to look after him. As a result, Falardeau only had to balance the “ordinary obligations” of a parent with his job and Ferguson was not required to accommodate him by allowing him to refuse overtime that was a regular part of his position.

The line can be fuzzy over what constitutes a substantial parental obligation that often has to be accommodated and an ordinary one that doesn’t. Parents will be the first to tell you even ordinary parenting duties, especially for single parents, can be demanding. Balancing them with work can sometimes be difficult. But how far do employers have to go to accommodate them?

Looking at the previous case, is looking after twin babies a substantial obligation that should be accommodated or a normal parental duty? Since the difficulty of caring for twins was one of the factors in giving Martin parental leave, would he have to be accommodated in certain ways once he returned to work for the same reasons?

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