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Posted On: June, 01 2015

We previously wrote about the Small Claims Court decision Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLii 3452 here. In addition to the lesson for plaintiffs in choosing the right forum, the Bray decision is also a cautionary tale for employers/respondents. Let us start by reviewing the facts.

After her return from maternity leave in October 2013, the College reduced Ms. Bray’s hours and responsibilities. When she questioned the College about the decision to reduce her hours and responsibilities, Ms. Bray was told by the College’s Director of Education to “see how this term goes and see if you find it ok with even being in 4 classes and having to be a mother at the same time”.  Ms. Bray then filed a complaint with the Ministry of Labour, shortly after which she was effectively terminated when, in December 2013, she was informed that her hours were being reduced to zero commencing January 2014.

In his decision in Bray, Deputy Justice Winny makes a number of important findings, including:

  • As of December 2013, the College had effectively terminated Ms. Bray as it had decided that starting January 2014, and for an indefinite period of time, Ms. Bray would not be given any courses to teach, and would therefore not be paid.
  • The decision to reduce Ms. Bray’s hours did not constitute a form of progressive discipline, since Ms. Bray’s alleged misconduct had occurred over a year prior to her termination, and most importantly, she was never notified of the incident nor given an opportunity to respond to it.
  • The College failed to perform its obligations under the employment agreement in good faith by not properly investigating the workplace incident; by failing to inform Ms. Bray of the alleged misconduct; and by not giving her the opportunity to respond to it.
  • The College’s Employee Handbook, which was referenced in Ms. Bray’s employment agreement, did not effectively limit her rights on termination (or the College’s liability) to the minimum standards of the Employment Standards Act, 2000. Deputy Justice Winny found that although Ms. Bray’s employment agreement referenced the termination provisions found in the Employee Handbook, the Handbook was not provided to Ms. Bray when she signed the agreement, nor was there any evidence that she was provided with a copy of the Handbook, told to review it, or informed that it restricted her rights otherwise available under the common law. The fact that the Handbook was generally made available to employees was insufficient to displace employees’ rights upon termination under the common law. Further, Deputy Justice Winny notes that even if she had been made aware of the Handbook, its termination provisions were not “sufficiently clear to exclude the common law requirement for reasonable notice” (see paragraph 38). The handbook in question did not contain any language to suggest that employees were limited to the statutory minimums in the Employment Standards Act, 2000.

The Bray decision is a helpful reminder for employers that:

  1. Investigations into alleged employee misconduct can have serious financial implications for employers, particularly where such workplace investigations are mishandled.
  2. Employee handbooks will not automatically protect employers from attracting common law liability where the handbook is not clear in respect of an employee’s rights and obligations.
  3. Even where an employee handbook is clear as to its impact on the employee’s rights and obligations, the handbook does not protect the employer where the employee has not been provided with the handbook or in cases where the employer did not explicitly bring the relevant provisions to the attention of the employee. 

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