courseworkhero.co.uk

as discussed 

Al Hassan, Hussain M

hussainmj2000@hotmail.com

Employment Law

Assignment 2

July 19, 2013

Federal Court. (june 27, 2013). Canadian Employment Law Today. In No discrimination if undue hardship for employer: Federal Court . Retrieved july 19, 2013, from http://www.employmentlawtoday.com/articleview/18319-no-discrimination-if-undue-hardship-for-employer-federal-court.

A Canadian Human Rights Tribunal ruling that a Canadian aid worker with diabetes was discriminated against when she was prevented from going to Afghanistan to work has been overturned by the Federal Court. Bronwyn Cruden, 41, was a project manager with the Canadian International Development Agency (CIDA). In 2007, she successfully completed a one-month assignment in the field in Afghanistan without experiencing any difficulties from her diabetes. On Jan. 20, 2008, Cruden began another assignment in Afghanistan, this one expected to last six weeks. However, three weeks later, she suffered a hypoglycemic incident which required treatment by Canadian Forces medical personnel and doctors recommended Cruden be sent back to Canada. Cruden disagreed with the recommendation but CIDA ended her assignment and sent her home. Cruden was interested in future assignments in Afghanistan, so she obtained a letter from her doctor that proclaimed her “mentally and physically capable of continuing her work in Afghanistan.” CIDA asked her to undergo an assessment by Health Canada doctors, who determined Cruden wasn’t fit for duty in Afghanistan. Health Canada also had a policy prohibiting federal employees with type 1 diabetes from working in hostile environments. Cruden learned the decision to deploy her was ultimately CIDA’s, not Health Canada’s, and asked the agency to use its discretion and send her overseas. CIDA refused, and Cruden underwent an independent evaluation that assessed her risk in Afghanistan as “slightly higher” than non-diabetics, but stated she was fit for deployment with the proper equipment to manage her condition. CIDA felt it was still too risky and denied Cruden’s request for a posting in Afghanistan. Cruden filed a human rights complaint, claiming CIDA denied her an employment opportunity based on her disability. The Canadian Human Rights Tribunal found CIDA discriminated against Cruden by failing to meet its “procedural duty” to accommodate. CIDA didn’t properly investigate accommodation options or seek another medical opinion, said the tribunal. Both CIDA and Health Canada were ordered to pay Cruden $10,000 each for pain and suffering and “reckless and willful discrimination.” However, the tribunal noted that accommodating Cruden in an Afghanistan posting would have constituted undue hardship for CIDA if it had followed through on its duty to accommodate. “The evidence indicates significant health and safety risks for (Cruden) in working in Afghanistan, as well as safety risks for those fighting the war in Afghanistan should they have to assist the complainant,” said the tribunal. The Federal Court found it unreasonable for the tribunal to interpret the Canadian Human Rights Act (CHRA) as meaning “there is a procedural duty of accommodation that can be breached notwithstanding that accommodation is impossible without undue hardship.” “If a person cannot be accommodated without undue hardship then the alleged discriminatory practice is based on a bona fide occupational requirement (BFOR); if it is based on a BFOR then it is not a discriminatory practice; and if it is not a discriminatory practice the tribunal ‘shall’ dismiss the complaint,” said the court. “In my view, there is no reasonable interpretation of the CHRA that permits the tribunal to continue to examine a complaint and the actions of the parties once it has found, as it did in this case, that accommodation is not possible without undue hardship.” The tribunal’s decision was overturned and Cruden was ordered to pay the government’s legal costs. “There is but one duty: the duty to accommodate an employee to the point of undue hardship,” said the court. “The finding that it would have caused CIDA undue hardship to accommodate Ms. Cruden in Afghanistan should have ended the tribunal’s inquiry as the effect of that finding was that there was no discriminatory practice.”

· Comments : Ms. Cruden has the right to sue CIDA by preventing her from working with her disability and not provides her with proper treatment when she was serving in Afghanistan. Its part of workplace health and safety policy to ensure that employees will have the proper workplace environment.

Ronald Minken. (june 27, 2013). Canadian Employment Law Today. In Non-competition clauses – No evidence of breach, then no breach. Retrieved july 19, 2013, from http://www.employmentlawtoday.com/articleview/18329-non-competition-clauses-no-evidence-of-breach-then-no-breach.

An Ontario employer’s claim that employees who left to work for a competitor breached a non-competition clause prohibiting solicitation of its clients and using confidential information has been dismissed for lack of proof by the Ontario Superior Court of Justice. In Eagle Professional Resources Inc. v. MacMullin, on a motion for summary judgment, the court dismissed an action brought by Eagle Professional Resources, an IT staffing agency based in Toronto, claiming that three former employees who left to work for a competitor breached their respective employment agreements, specifically a non-competition clause, by soliciting Eagle’s clients, employees and contractors, and by using the company’s confidential information. Eagle also alleged that the competitor the employees now work for induced the employees to breach their employment agreements. The employees denied the company’s allegations, stating they did not have access to any of Eagle’s confidential information, they did not make use of any specific information they learned as Eagle employees, and they did not take any physical or electronic documents when they left their employment with Eagle. The court found there was no “specific, detailed, and first-hand allegations” provided by Eagle to support its claims against the employees. Given the lack of supporting evidence, the court determined there was no evidence of the alleged breach or any corresponding inducement by the competitor. As a result, the court dismissed the company’s matter after finding there was no genuine issue for trial, and awarded costs against Eagle in the sum of $10,000. Impact of decision on employers Eagle Professional Resources demonstrates that while an employer may establish a non-competition or non-solicitation clause restricting an employee’s conduct for a period of time after the end of the employment relationship, an employer’s ability to enforce such clauses and obtain a remedy will depend on the evidence the employer has demonstrating the employee’s breach. Therefore, while an employee’s actions may be in breach of a non-competition or non-solicitation clause, the employer must provide evidence demonstrating the alleged breach to succeed before the courts. Impact of decision on employees Employees should take note of this decision for the same reason as that indicated above for employers. Specifically, an allegation that an employee has beached a non-competition or non-solicitation clause will not succeed unless there is evidence to support such an allegation.

·

Comments: any employee has the right to leave his/her firm to other competitor to improve and develop their careers. The Employer should have a certain policies to deny an previous employees to access any information within the company after they left unless they apply to obtain this official information to ensure that the privacy of organizational.

Good points but need to develop discussion/comments further.

12/20