A staff representative who makes sexual comments about hostesses employed by an outside company to carry out business operations, who seeks favors in exchange for promises of job or who threatens dismissal, is guilty of misconduct serious enough to justify his dismissal. The Administrative Court of Appeal of Bordeaux thus confirmed the legality of the authorization to dismiss this protected employee. According to the judges, it was clear from the precise and detailed testimonies of the hostesses that the behavior and the remarks of the employee, by which he solicited in particular their private phone number, flattered them on their physical appearance and, sometimes, offered them to accompany them with his vehicle. or to invite them to lunch had the effect of creating an intimidating and offensive situation against them.
The employees were working as cashiers in a supermarket branch. When the company detected irregularities, proceeded to install CCTV (video surveillance cameras). A first group of those cameras were visible and a second group was hidden and located in the cash registers. The company warn employees on the visible cameras’ installation, but not about the hidden ones. The works council was not informed neither.
Those hidden cameras captured several employees arrogating many products without paying them, and helping, as well, other colleagues and customers obtaining products without paying. The company met the employees involved and proceeded to a disciplinary dismissal. At the meeting, the company offered them the following agreement: in exchange for their resignation to initiate criminal proceedings, employees would be committed not to challenge the dismissal. All those employees judicially claimed the dismissal, which was confirmed both at first instance and by the Supreme Court. The video recorded by the CCTV was admitted as a proof, understanding it was obtained legally.
The dismissed employees appealed to the European Court of Human Rights (ECHR), as they had considered that the use of these recordings violates the right to privacy stated at clause number 8 of the ECHR law.
Regarding the infringement of the right of privacy, the ECHR stated that, although the measure adopted by the company was reasonable, since it was launched after detecting losses in the company, and it was supported by a suspicion, the installation of hidden CCTV cameras was not proportional and it did not respect the provisions of Spanish legislation (LOPD, clause 5), which obliges companies with facilities provided with video surveillance systems, to inform in advance all employees at the work place, explicitly and precisely on the hidden cameras.
This is the reason because the ECHR concludes that the Spanish courts did not judge adequately balancing between the right of the complainants to their private life, and the employer’s interest to protect its assets. It means the measure was not proportional, as the recording by hidden cameras is not legitimate without informing employees in advance.
An employer’s organisation did not enter into consultations regarding a central collective bargaining agreement with a trade union within the statutory time limit of three weeks set out in the Co-determination Act. The organisation deemed that the obligation to consult under the Act mainly concerned local agreements and insisted that the application of the same rules on central agreements would be too burdensome. The Labour Court determined that the rules on consultations under the Act should be interpreted in the light of their function and the right to freedom of association. The Labour Court found that the purpose of the rules were to limit the need for a trade union to take industrial actions and that a trade union had a right to consult on behalf of its members in order to ensure their freedom of association. Thus, the Labour Court found that the Act grants trade unions a right to consult regarding both local and central agreements. Therefore, the employer’s organisation had an obligation under the Act to enter into consultations and should pay damages amounting to SEK 20,000 to the trade union for their failure to do so.
The Union Federation has notified the local Labour Inspectorate on the declaration of the collective conflict and the Labour Inspectorate assigned a representative for the mandatory conciliation meeting. The registration of the collective conflict was challenged in both administrative and judicial procedures. The Social Dialogue Law doesn’t include specific rules or procedures to be followed when challenging the registration of the collective conflict as it does for the strike. The administrative claim was handled faster than the court case and the Labour Inspectorate changed the initial resolution on the registration of the collective conflict. The Labour Inspectorate has notified both the Company and the Union Federation that a collective conflict cannot be registered in situations where there is an existing Collective Agreement even if the negotiations for an addendum to the existing Collective Agreement fail to result in consensus. It was the first time the Labour Inspectorate has overcome an initial resolution on the registration of a collective conflict, preventing the strike before it was declared.
The aviation company Norwegian has been organized as a corporate group since 2013. The holding company, Norwegian Air Shuttle ASA, owns several subsidiary companies in which the pilots and the cabin crew are employed.
The Court assessed whether a holding company in a corporation group could be regarded as an employer to employees in the subsidiary companies. The employer concept in Norway is functional, meaning that the decisive condition in assessing which company is the employer, is which company has acted as an employer and exercised the functions of an employer.
Normally this company is the contracting party in the employment contract with the employee. Exceptions from this general rule can be made if particular conditions are met. Firstly, if there is an agreement between the parties about an extended employer concept. Secondly, if another company in reality has acted as the employer. Thirdly, if the employment contract is unclear concerning which company is the employer. The Court found that these conditions were not met in this particular case. The worker’s claim that the corporate group was the employer, was not upheld by the Court.
This means that employers, especially in corporations groups, should note which company is listed as the employer in the employment contract, as well as which company exercises the functions of an employer in reality. Companies should also avoid unclear employment contracts.
The Supreme Court allowed the appeal and upheld the dismissal order. The key positions in the judgments are as follows:
The Labour Court should have restricted itself to merely examining the correctness of the punishment of dismissal imposed when the departmental enquiry was held. The Supreme Court clarified that a departmental enquiry is held independently of the criminal case and the enquiry can continue regardless of the decision of acquittal or conviction in the criminal case.
- The Employer had dismissed the employees based on the findings of the departmental enquiry, which is an employer’s right, and not based on the findings of the Criminal Court.
- Even if a person stood acquitted by the criminal Court, domestic enquiry can still be held because the standard of proof required in a domestic enquiry and that in criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry; it is the preponderance of probabilities.
The employee was employed with the employer since 2010. The employer terminated the employment having effect on 30 November 2015. The employee’s lawsuit for unfair dismissal was settled before the Labor Court. Amongst others, the settlement provided for a claim to a reference letter with the grade “good”.
The employer issued the reference letter, but the employee did not agree with its content nor with its form. The employee argued before the Labor Court that he was entitled to an unfolded and non-stapled reference letter because otherwise the reference letter would express that the employer had not been satisfied with his job performance and would be of no use for any future application.
The State Labor Court of Rhineland-Palatinate ruled that the claim was unjustified. Though an employee is entitled to a reference letter pursuant to statutory law, the employer satisfies that claim if form and content of the reference letter comply with the statutory requirements. This was the case here. In particular, a stapled reference letter is no secret sign that the employer was not satisfied with the employee’s job performance.
The employee is not entitled to a reference letter which is not folded and not stapled. On the contrary the employer may fold the reference letter in order to put it in a standard-sized envelope. At any rate this shall apply if the original reference letter may be copied and the fold is not visible in the copy of the reference letter. In addition, the State Labor Court was of the opinion that the employee’s claim verged on the brink of abuse of rights as the employer offered the employee to pick up the reference letter at his registered office.
The employment contract of the plaintiff contained a post-contractual non-compete clause for a period of three months after the termination of the employment. The employee was entitled to compensation in the amount of 50 % of his last monthly gross salary. The employee terminated the employment having effect as of 31 January 2016. On 1 March 2016 he unsuccessfully demanded payment of the compensation for February 2016 setting a deadline until 4 March 2016. On 8 March 2016 he informed the employer that he no longer considered himself bound to the non-compete obligation.
He brought an action before the Labor Court claiming compensation for the whole contractually agreed post-contractual period of three months. He won in first instance, but the State Labor Court ruled that the employee’s claim to compensation exists only for the period from 1 February 2016 until 8 March 2016. The Federal Labor Court confirmed that ruling.
The Federal Labor Court ruled that a post-contractual prohibition of competition is a mutual contract to which the general civil law rules regarding the withdrawal from a contract apply. The payment of the compensation is the employer’s counter obligation in return for the employee refraining from competition. If one party does not perform its contractual duties, the other party may withdraw from the contract, provided that the statutory requirements are met. As of the declaration of withdrawal the reciprocal obligations cease to exist.
As the employer did not pay the compensation, the employee was entitled to withdraw from the post-contractual non-compete which he validly declared towards the employer. Therefore, as of 9 March 2016 he was no longer entitled to compensation.
The Employer did not make work-related injury insurance contributions for the Employee, but instead bought the personal accident insurance at the insurance company for the Employee. The Employer and the Employee agreed in the employment contract that terms of the personal accident insurance policy shall apply if the Employee suffers from work-related injuries or decease during the employment period. The Employee deceased in an accident and was later determined as work-related decease. After being compensated by the insurance company, families of the Employee filed a lawsuit against the Employer and claimed for payment of work-related injury insurance benefits. Through the litigation proceedings, the court eventually ruled that the Employer shall pay work-related injury insurance benefits to families of the Employee based on: (a) Employer’s buying of commercial insurance for Employees was only beneficial in nature; (b) Employer’s statutory obligation to pay work-related injury insurance premiums would not be exempted by buying commercial insurance for the Employee; and (c) in addition to compensation paid by the insurance company, Employee’s families’ were entitled to work related injury insurance benefits from the Employer which did not constitute as overcompensation nor violate the general principle of fairness.
In R v Kazenelson, 2018 ONCA 77, the Ontario Court of Appeal upheld the conviction and the sentence imposed on a project manager who had been found guilty under the Criminal Code for criminal negligence causing death and criminal negligence causing bodily harm. Mr. Vadim Kazenelson’s conviction arose from a tragic accident that occurred on December 24, 2009 and that resulted in the death of four construction workers.
On June 26, 2015, Mr. Kazenelson was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. He was subsequently sentenced to 3.5 years in prison. Mr. Kazenelson was the first individual to ever be convicted of a criminal negligence offence under section 217.1 of the Criminal Code. Section 217.1 creates a legal duty for persons directing the performance of work to take reasonable steps to prevent bodily harm to the person performing the work or any other person arising from that work.
The accident that led to Mr. Kazenelson’s conviction occurred when a swing stage (also referred to as suspended scaffolding) being used on a construction project collapsed. When the swing stage collapsed, four workers who were not tied to lifelines fell 13 stories to their deaths. A fifth worker sustained serious injuries in the accident.
The evidence at trial established that Mr. Kazenelson had been aware that fall protection was not in place, which was required under the relevant Construction Project Regulation to Ontario’s Occupational Health and Safety Act. At the time of the collapse, the swing stage, which was equipped with only two lifelines, had seven people on it, only one of whom was properly tied to a lifeline.
The trial judge found that Mr. Kazenelson had allowed the workers to continue to work in dangerous conditions because the employer was behind schedule in completing repairs to the concrete balconies of an apartment building, and was attempting to complete the project by the end of the year. The trial judge also found that Mr. Kazenelson’s failure to take reasonable steps to protect the workers under his supervision after becoming aware that insufficient lifelines were available on the swing stage showed wanton and reckless disregard for the lives and safety of the workers. The trial judge noted that a seriously aggravating circumstance in relation to the moral blameworthiness of Mr. Kazenelson’s conduct was that he had been aware of the risk to the workers’ safety, and had apparently weighed that risk against the employer’s interest in continuing work before deciding to “take a chance”. The trial judge ultimately determined that a significant term of imprisonment was necessary in order to adequately denounce Mr. Kazenelson’s conduct and deter persons in positions of authority from engaging in similar conduct.
On appeal, Mr. Kazenelson argued that the trial judge’s decision was unreasonable because: his conduct did not rise to the high level of criminal negligence; neither Mr. Kazenelson nor the workers could have objectively foreseen the collapse of the swing stage; the workers were contributorily negligent; and the trial judge placed too much emphasis on general deterrence in sentencing. The Ontario Court of Appeal found that the trial judge’s decisions on conviction and sentencing were well-reasoned and principled, and dismissed the appeal.
This case serves as a stark example of the serious consequences that can occur when health and safety policies are not followed, both in respect of the tragic loss of life and criminal charges. As section 217.1 of the Criminal Code applies throughout Canada, employers who operate in Canada should ensure that all workers and supervisors are aware that health and safety considerations must always take precedence over production targets or deadlines.