Month: June 2018

Frustration Does not Apply When Employer Refuses To Let Employee Perform Other Jobs:

In Complex Services v Milloy ( 2018 ONSC 3590) Justice Conway, on appeal, had the following situation:

  Ms. Milloy worked for Complex at its Niagara casino for 10 years, initially as a hostess and later as a table games dealer. In February 2007, at the request of her doctor, Ms. Milloy was placed on modified duties due to a work-related repetitive injury to her right shoulder. She had surgery in July 2007 and returned to work. By April 2008 her doctor told her that her injury was permanent and she could no longer work as a table games dealer.
3      Ms. Milloy was given modified duties in various departments at the casino for another two years. During this time, Complex told her to seek alternate employment within the casino that was not a table games dealer position. Ms. Milloy applied for 16 to 22 jobs at the casino, including positions that she had previously held and for which she had received excellent reviews. However, her applications resulted in three interviews and no job offers.
4  On June 3, 2010, Complex terminated Ms. Milloy on the basis of frustration of contract. Ms. Milloy sued for wrongful dismissal.
The Employer took the position that the plaintiff’s employment was frustrated because she could not perform any job at the casino. However as noted above, the reason she did not obtain an accomodated position is because the employer chose someone else for a position which the plaintiff presumably was both qualified for and capable of doing. The Court assumed that the reason the Employer did this was because the other person may have been more qualified than the plaintiff.
The trial judge called this ” self induced frustration”, presumably because it was the Employers’ actions which prevented the plaintiff  from finding an alternative position within her medical restrictions.
The trial judgement was upheld and it was found that the plaintiff  had been wrongfully dismissed.
Lets us assume that the Employer truly believed that the person they hired to do the job was superior to the plaintiff but that the plaintiff did still meet the qualifications of the job.
Under normal circumstances, in a non- union environment the Employer is free to hire the best candidate .
However, as this was a situation involving the placement of a disabled employee through the process of accommodation, does not the Ontario  Human Rights Code require accommodation to the point of undue hardship?
Surely it is not an undue hardship for an employer to place a qualified disabled employee into a vacant  position ahead of a superior non-disabled candidate.
It does not appear that this was argued at the trial. If this had been framed as a human rights violation   as well as a wrongful dismissal action then the possible award could have been much higher. In fact it could have involved an order to reinstate the employee as well as monetary damages.

Attending Your Own Trial Can be Bad for Your Case:

In Holm v Agat Laboratories ( 2018 ABQB 415 ) Justice Horner had a situation where he found that the plaintiff had been constructively dismissed due to a demotion. He awarded 4 months notice to a 1 year middle manager making $100k

In discussing the credibility of the defence witness, a Mr Dasanti, the judge found that he was not credible.

However the Judge on went to say as follows:

61      Desanti gave evidence that the revenue from the Air Services Division represented approximately 1% of Agat’s overall gross revenue. Even so, Desanti attended court every day of the five-day trial. I view this level of attention to this matter as disproportionate to its seriousness and further evidence of Agat’s hard ball and intimidating tactics.

The judge went on and awarded $20,000 for aggravated damages.

As I understood the concept of an open courtroom in Canada, the public is free to attend any trial they want ( unless an exclusion order is made) to see our justice system in action. In this case it was a participant in the trial who exercised his contitutional right to attend a public trial.

In return this judge held that fact against the defendant.

Does that seem right?