AIR TRANSPORT ASSOCIATION OF CANADA

1. 76th Annual General Meeting and Tradeshow Employment Law Forum Steven Williams Emond Harnden LLP swilliams@emondharnden.com November 7-9, 2010 AIR TRANSPORT ASSOCIATIONOF CANADA www.emondharnden.com

2. AGENDA • S. 240 Decision • Recent Human Rights Decisions • Accommodation • Mandatory Retirement • Recent Legislative Announcements • Employment Insurance Update • Violence Prevention Obligations • Q & A

3. 1. Recent s.240 Decision

4. S. 240 Unjust Dismissal 240. (1) Subject to subsections (2) and 242(3.1), any person (a) who has completed twelve consecutive months of continuous employment by an employer, and (b) who is not a member of a group of employees subject to a collective agreement, may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

5. Miller v. Westwind Aviation Ltd., (2010) • Miller worked as ATR First Officer, terminated for lying about the completion of a Transport exam in 2005 • This decision was not challenged by Miller • Rehired in non-flying job, eventually moved to flying position • Miller allowed his medical certificate to expire in 2008 • Company terminated him

6. Miller v. Westwind Aviation Ltd., (2010) Decision • Miller never actually flew with an expired medical • The Company did not notify Miller that his certification was coming due (as they had done in the past) • Miller did not try to hide the fact his medical had expired • Miller did nothing deliberate with intent to mislead Westwind – no discipline justified • Miller reinstated as ATR First Officer • Entitled to full compenstion for lost time (almost 2 years)

7. TerminationManager’s Checklist

8. 2. Recent Human Rights Decisions

9. Terminating an Employee with a Disability? Konecny v. Ontario Power Generation, (2009) • 15 year employee diagnosed with Multiple Sclerosis • Accommodated with a 4 day week • Performance concerns raised • Investigation revealed abuse of company time and resources • Employee terminated

10. Konecny v. Ontario Power Generation • Employee grieved • Grievance was dismissed • Employee filed a complaint with the CHRC • CHRC decided not to conduct an investigation because complaint was out of time, made in bad faith and frivolous • Employee sought judicial review of CHRC decision • The complaint was not out of time, nor made in bad faith • Insufficient evidence to support that the OPG exercised improper motivation in terminating the employee • Application for judicial review dismissed

11. Practical Implications • Terminating a disabled employee can be done • Conduct thorough investigation • Follow company policy on discipline • Ensure termination is NOT motivated in any way by disability

12. Accommodating Disabled WorkersManager’s Checklist

13. Mandatory Retirement Vilven v. Air Canada • Collective agreement stated that it was mandatory for pilots to retire at age 60 • Two former pilots, Vilven and Kelly, filed complaints with the Canadian Human Rights Tribunal claiming that the provision was discriminatory

14. Vilven v. Air Canada CHRT 2007 Decision: • No breach of the Canadian Human Rights Act • The Act did not violate the Charter Federal Court 2009 Decision: • The Tribunal erred in it’s conclusion that 60 was the ‘normal age of retirement’ • The Act does violate the Charter • Remitted the matter back to the Tribunal to determine if violation was justified

15. Vilven v. Air Canada (2009) • The goal of allowing mandatory retirement to be negotiated is not sufficiently pressing and substantial to warrant the infringement of equality rights • Less intrusive options available • Mandatory retirement not a BFOR • Both parties filed for judicial review • Hearing scheduled in Ottawa for November 22, 2010

16. 3. Recent Legislative Amendments

17. Employment Insurance • Effective Jan 1, 2010: self employed entitled to receive EI special benefits: • Maternity • Parental • Sickness • Compassionate Care • Voluntarily pay EI premiums to qualify and must opt-in at least one year prior to claiming benefits

18. Violence Prevention in the WorkplaceCLC Part II Regulation • In this Part, “work place violence” constitutes any action, conduct, threat or gesture of a person towards and employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee

19. Violence Prevention in the WorkplaceCLC Part II Regulation (cont’d) The employer must: • develop a work place violence prevention policy; • identify all factors that contribute to work place violence; • assess the potential for work place violence in his or her work place; • develop and implement systematic controls to eliminate or minimize work place violence or a risk of work place violence; • review the effectiveness of the work place violence prevention measures in the work place; • develop and implement written emergency notification procedures in response to situations of work place violence and measures to assist employees who have experienced work place violence;

20. Violence Prevention in the Workplace CLC Part II Regulation(cont’d) The employer must: • attempt to resolve cases of work place violence, and failing this, appoint a competent person to investigate the matter; • provide information, instruction and training on the factors that contribute to work place violence to each employee exposed to work place violence or at risk of work place violence; and • maintain signed records on the information, instruction and training provided to each employee.

21. Violence Prevention in the WorkplaceCLC Part II Regulation(cont’d) Policy Content: • a statement to the effect that the employer commits to providing a violence free work place; • a statement to the effect that work place violence, including, but not limited to, bullying, teasing, and abuse and other aggressive behaviour will not be tolerated in the work place; • a commitment to share with the employees, any information which the employer possesses concerning the factors which contribute to work place violence;

22. Violence Prevention in the WorkplaceCLC Part II Regulation(cont’d) • Policy Content: • a commitment to assist employees who have been exposed to work place violence; • procedures to be followed should an employee be subject to work place violence; • a telephone number where employees can get assistance.

23. 4. Questions?