Employment law pendulum swinging in favour of employers
As warnings go, this one might be a little late. But you’re going to want to scramble for cover and hide under your desk for a minute. Or, at the very least, duck.
That whooshing sound you just heard over your head was the sound of a pendulum swinging. Alright. So it’s a proverbial pendulum, and probably didn’t pose much physical danger, but it’s swinging nonetheless. And it represents the Supreme Court of Canada taking a decidedly pro-employer stance after what felt like (to employers, anyway) a few centuries of unfettered victories for workers.
This issue of Canadian HR Reporter is chock full of decisions from the Supreme Court of Canada. There’s two on the cover alone (Top court sets limits on duty to accommodate and Court upholds mandatory retirement), and another on page 3 — and that’s in addition to our regular employment law coverage on page 5. We didn’t purposely turn this issue into the Canadian Supreme Court Reporter, but the guys and gals wearing those funny robes in Ottawa didn’t give us much choice. The news flowing from the nation’s top court was just too important to ignore — and it kept coming. There are two decisions, in particular, that have significant ramifications for employers.
Keays v. Honda (see page 3), by any estimation, is a remarkable decision. Stuart Rudner did a great job of breaking the ruling down for employers in plain language. The precedent-setting case has major implications for punitive damages, Wallace damages and the use of doctor’s notes.
The other decision appears on the cover, and deals with an employer’s duty to accommodate a worker. This has been an endless source of frustration for HR departments. The bar in proving undue hardship in accommodating a worker had been set so high that employers pretty much had to prove accommodation was impossible, not just an undue hardship.
The top court cleared up the accommodation picture somewhat by stating employers do not have “a duty to change working conditions in a fundamental way.” It doesn’t provide a perfect blueprint for employers to follow, but it should effectively lower the bar in how far an employer has to go.
I’d also like to say a hearty farewell to Buzz Hargrove (see page 1). Love him or hate him, there’s no denying he had a remarkable impact on Canada’s labour scene.
As a journalist, I’ll miss his penchant for shooting from the hip and telling it like it is. I wish him the best in retirement.
That whooshing sound you just heard over your head was the sound of a pendulum swinging. Alright. So it’s a proverbial pendulum, and probably didn’t pose much physical danger, but it’s swinging nonetheless. And it represents the Supreme Court of Canada taking a decidedly pro-employer stance after what felt like (to employers, anyway) a few centuries of unfettered victories for workers.
This issue of Canadian HR Reporter is chock full of decisions from the Supreme Court of Canada. There’s two on the cover alone (Top court sets limits on duty to accommodate and Court upholds mandatory retirement), and another on page 3 — and that’s in addition to our regular employment law coverage on page 5. We didn’t purposely turn this issue into the Canadian Supreme Court Reporter, but the guys and gals wearing those funny robes in Ottawa didn’t give us much choice. The news flowing from the nation’s top court was just too important to ignore — and it kept coming. There are two decisions, in particular, that have significant ramifications for employers.
Keays v. Honda (see page 3), by any estimation, is a remarkable decision. Stuart Rudner did a great job of breaking the ruling down for employers in plain language. The precedent-setting case has major implications for punitive damages, Wallace damages and the use of doctor’s notes.
The other decision appears on the cover, and deals with an employer’s duty to accommodate a worker. This has been an endless source of frustration for HR departments. The bar in proving undue hardship in accommodating a worker had been set so high that employers pretty much had to prove accommodation was impossible, not just an undue hardship.
The top court cleared up the accommodation picture somewhat by stating employers do not have “a duty to change working conditions in a fundamental way.” It doesn’t provide a perfect blueprint for employers to follow, but it should effectively lower the bar in how far an employer has to go.
I’d also like to say a hearty farewell to Buzz Hargrove (see page 1). Love him or hate him, there’s no denying he had a remarkable impact on Canada’s labour scene.
As a journalist, I’ll miss his penchant for shooting from the hip and telling it like it is. I wish him the best in retirement.
