Having Faith

 

faith

FAITH-BASED DISCRIMINATION AND HARASSMENT ON THE RISE

A 2016 study by the Environics Institute found that one-third of Muslims in Canada have experienced discrimination or unfair treatment in the past five years due to their religion, ethnicity / culture, language or sex.  The survey elaborates that this treatment is most commonly experienced in the workplace, public spaces, retail establishments and schools or universities.

 HUMAN RIGHTS PROTECTIONS

Ontario’s Human Rights Tribunal and Canada’s Human Rights Tribunal provide protections against discrimination and harassment on the basis of creed or religion in most of the common forums listed in the Environics survey.  Indeed, these cases have been making their way through the system, including the recent decision of Kannaiti v. Allen 2015 HRTO 502 (CanLII), where an employer stated to her employee, amongst other things, “Go cry about it you Muslim terrorist.”  The employee, who lost his job in the process, was awarded $7,500 in general damages for injury to dignity, in addition to loss of income.

 EDUCATION

On a positive note, there are some incredible steps being taken to combat faith-based discrimination through education, empowerment, and awareness, through organizations such as the National Council of Canadian Muslims (www.nccm.ca) and the Ontario Human Rights Commission (www.ohrc.on.ca). The Human Rights Tribunal of Ontario and the Canadian Human Rights Tribunal have taken the approach of awarding strong public interest remedies in connection with cases of harassment and discrimination based on creed.  We consider these important resources in preventing and remedying incidents of harassment and discrimination.

FAITHISM

A new term that has emerged from the Ontario Human Rights Commission’s new Policy on Preventing Discrimination Based on Creed is that of faithism, which it defines as:  “any ideology that ascribes to people values, beliefs and behaviours, and constructs people as fundamentally different and unequal – deserving or undeserving of respect and dignity – based on their religion or belief.”  One such example that it provides of this is labelling all people of the Islamic faith as terrorists or potential terrorists.

 ADDRESSING THE CHALLENGES

If you believe you have faced discrimination or harassment based on creed or wish to approach your employer about the accommodation of a religious practice, we encourage use of the resources described above.  Similarly, employers facing accommodation requests can be well served by this information.  We also offer assistance to employers and employees in this important area of human rights and welcome inquiries from practitioners of all faiths.

Recent decision on a casual worker’s rights surrounding her pregnancy.

The Supreme Court indicated that women are entitled to preventive withdrawal during pregnancy, even if it is as a substitute teacher for the Commission scolaire des Patriotes.

The Supreme Court indicated that women are entitled to preventive withdrawal during pregnancy, even if it is as a substitute teacher for the Commission scolaire des Patriotes.

On January 23, 2014, the Supreme Court of Canada heard the case of Dionne c. Commission Scolaire des Patriotes.  It is a case coming out of Quebec that touches on the issue of pregnancy-based discrimination and the extension of benefits to vulnerable workers. On May 1, 2014, the Supreme Court of Canada released their judgment. In a unanimous decision, the Supreme Court indicated that women are entitled to preventive withdrawal during pregnancy, even if it is as a substitute teacher for the Commission scolaire des Patriotes. The court found that substitute teachers are workers within the meaning of the Quebec Occupational Health and Safety Act  when they accept a job offer. They are therefore entitled to the same protections as other workers.

BACKGROUND

The appellant, Marilyne Dionne, is a casual substitute teacher who was on the supply teacher list maintained by the respondent school board.  During the 2005-2006 school year she worked 88 days.

Then in the fall of 2006 she discovered she was pregnant.

In Quebec, under that province’s Occupational Health and Safety Act, a pregnant employee who works in an environment that may present a danger either to the expectant mother or her baby may be eligible to go on paid leave during her pregnancy.  The paid leave is covered almost entirely by the CSST (Commission de la Santé et de la sécurité du travail).  In order to obtain this leave a doctor needs to issue a Certificate regarding the protective reassignment of a pregnant worker (“Certificate”) .

In Marilyne’s case she learned that was not immunized against Rubella or Parvovirus B-19 and her  doctor duly issued the certificate which would have, in the ordinary course, made Marilyne eligible for accommodation and if that were not possible, to go on paid leave.

The School Board, however, objected.  They said Marilyne was not an employee; there was no on-going employment contract.  Instead, she is one of hundreds of names on the supply list.  A casual substitute teacher’s contract of employment only lasts as long as the substitute teaching assignment.

Marilyne argued that once she was accepted a supply teaching position, a contract was formed.  She further argued that the School Board’s refusal to conclude the contract with her (because she was pregnant) amounted to pregnancy-based discrimination. The fact that Marilyne exercised her right to protection under the provincial Occupational Health and Safety Act after she accepted the offer of employment should not have allowed the employer to then refuse to conclude a contract with her.

THE DEBATE

The case raises interesting questions about whether provincially-funded programs meant to provide protection to all workers adequately protects more vulnerable workers, such people who are on supply lists or working in other temporary or contract positions.

On the other hand, if casual or temporary workers are considered employees for the purpose of pregnancy-related benefits, it may open the door to claims for other benefits and employment-related protections which may be costly to employers.

THE DECISION AT THE COURT OF APPEAL

To date, all of the lower court decisions concluded that Marilyne was not an employee and was therefore not entitled to receive benefits through the CSST, nor was it possible for the employer to have engaged in employment-related discrimination against a person who was not an employee.

However, Justice D’Alphond from the Court of Appeal has been the lone dissenting voice. In his dissent, he concluded that Marilyne should qualify for benefits as the benefits are meant to be extended to all “workers” not just “employees” under the relevant Quebec legislation. He wrote that the lower court’s finding that a contract of employment was needed in order for the Quebec Charter to apply is wrong in law. To find otherwise would mean that a prospective employer could refuse to hire someone for discriminatory reasons and defend their act of discrimination by saying that there was no employment contract.

He further found that the School Board did discriminate against Marilyne because she was pregnant.  What should have happened, he suggests, was that when the School Board called Marilyne and offered her a position and she accepted but then advised that she was under a medical certificate (due to her pregnancy), the employer should have immediately offered her accommodation.  Instead, the moment she was unable teach in a class (because she was pregnant), the School Board did not conclude its contract with her. This, according to the judge, was discrimination based on a prohibited ground.

To see the Court of Appeal decision see Dionne c. Commission scolaires des Patriotes, 2012 QCCA 609 (CanLii)

THE DECISION AT THE SUPREME COURT OF CANADA

Marilyne appealed the decision, and the Supreme Court of Canada determined that the appeal should be allowed and agreed with Justice D’Alphond’s dissent from the appeal. Justice Abella delivered the decision at the Supreme Court of Canada in Dionne v. Commission scolaire des Patriotes, 2014 SCC 33.

The purpose of the Act respecting occupational health and safety is to ensure the health and safety of workers by protecting them from workplace dangers.  Under the statutory scheme, when a worker relies on the right to refuse unsafe work, any new assignments or temporary withdrawal from the workplace are not seen as an absence from work, they are deemed to be a substitute for the work that the employee would ordinarily be expected to perform but for the danger.  A refusal to perform unsafe work is not a refusal to fulfill the employment contract, it is the exercise of a legislated right.  Workers are thereby protected from having to choose between job security and their health or safety.

Like any other worker entitled to refuse to do unsafe work, a pregnant worker is deemed by the Act to still be “at work” while on reassignment or Preventive Withdrawal.  The Act therefore protects pregnant women in two significant ways:  it protects their health by substituting safe tasks for dangerous ones, and it protects their employment by providing financial and job security.  To confront the discriminatory assumptions which had historically attributed incapacity to work to women who were pregnant, the scheme protects not only their right to work, but to work in a safe environment by deeming them to be as available to work as a non‑pregnant worker.

A contract was formed when D accepted the School Board’s offer to supply teach and therefore became a “worker” in accordance with the definition in the Act.  The legislated right of a pregnant worker to withdraw from an unsafe workplace cannot be used to conclude that her Preventive Withdrawal negates the formation of the contract of employment.  D’s pregnancy was not an incapacity that prevented her from performing the work, it was the dangerous workplace that prevented it.  That triggered her statutory right to reassignment or Preventive Withdrawal.  What prevents the performance of work is the employer’s inability to provide a safe working alternative, not the pregnancy.  To conclude otherwise negates the objectives of the Act and penalizes pregnant women for doing precisely what the legislative scheme mandates: avoiding workplace health risks during pregnancy.

Pregnancy- Related Discrimination

BACKGROUNDhuman rights3

Natalya Golovaneva came to me for guidance two weeks before her hearing before the Human Rights Tribunal of Ontario in July 2015.  She was determined to bring to light what she strongly felt was discrimination in the workplace on account of her pregnancy, which ultimately cost her a job.

She had returned to school for a second career in interior design and was thrilled to land a position at Atkinson Schroeter Design Group Inc. (“AS”), which would help her gain practical credit toward an interior design certification.

Within a few months, she began to experience severe headaches, nausea, and sensitivity to smell, which made her daily commute on the bus quite difficult, along with her attendance at the office.  She quickly learned that she was pregnant and immediately advised her boss, requesting the ability to perform some of her work from home for the short term.  In turn, her boss indicated a willingness to explore that option.

In reality the parties didn’t work out a perfect arrangement. When Natalya arrived at work one morning she was asked to attend off-site. Feeling particularly unwell that day and unsure whether the unfinished site would have washrooms, she asked whether they could send someone else to the site and have her perform work at the office.  She was sent home immediately and told that AS would call when they needed her.

Weeks went by and Natalya finally reached out again to AS, explaining that most of her symptoms had subsided and that she was ready to work.  She was told that there wasn’t work available, but that AS would be in touch.  After more time had passed, she reached out again and was told that they would be able to offer her contract work.  In the interim, Natalya’s professor from Algonquin College had advised her that AS was looking for new candidates for the same role that she held.

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22 days after being told to leave, Natalya was back to work, albeit without her regular workstation.  Within two weeks, she was fired for cause, though understood that her performance had been good.

These events were devastating to Natalya, who believed that she was being punished on account of her pregnancy, and who was worried about finding another role while pregnant.

She was dismissed on November 10, 2014 and expected to take pregnancy leave in early April 2015.  Though she looked for another position, she was unsuccessful.  She also had no unemployment insurance or pregnancy or parental leave benefits.

SEX-BASED DISCRIMINATION FOUND

In the decision, Natalya Golovaneva v. Atkinson Schroeter Design Group Inc, 2015 HRTO 1571 (http://canlii.ca/t/glzj7), the Tribunal wrote: “There is sufficient evidence to find, on the balance of probabilities that the applicant was not properly accommodated and that her pregnancy was a factor in her termination” ( para 91).  It further found that, “the reasons given for the applicant’s termination are not clear, cogent, or convincing” (para 101).

 REMEDY

Notably, at the conclusion of the hearing, AS voluntarily paid Natalya for the time that she would have worked, but for being sent home, and issued her a Record of Employment to assist her in obtaining pregnancy and parental leave benefits.

At the time of dismissal, Natalya had been working for AS for little more than three months.  In keeping with the Tribunal’s aim to make applicants whole, she was awarded:

  • Loss of income from the date of termination (November 10, 2014) to the date of her projected pregnancy leave (April 3, 2015) – nearly five months – in the amount of $14,268.10;
  • Loss of income for a three month period following her pregnancy leave in order to allow her to find alternative employment, in the amount of $8,442.99
  • In the event that her application for Employment Insurance is unsuccessful for her year on leave, the Tribunal will hear further submissions about whether the employer should cover those payments.

Natalya was also awarded $3,500 in general damages for breach of her human rights, as that is the amount that she sought in her application and the Tribunal did not agree to her proposed amendment at hearing to request more due to perceived prejudice to the employer.  Vice Chair Rheaume does note that the award that she sought was “below the range of similar cases which generally fall between $10,000 and $20,000” (para 110) and that her “reasons for determining that this award is appropriate are based entirely on the discrete facts of this case” (para 111).

Ultimately, this was a victory for Natalya who felt it was important to demonstrate what an impact that this has had on her life and to raise awareness for other pregnant women facing sex-based discrimination. It highlights that a short service employee who faces discrimination under the Code can be awarded substantial loss of income damages – eight months in this case, plus a year of paid EI leave.   It also highlights the value in seeking counsel early on when drafting an application; in this case, it resulted in a lower general damage award than the conduct actually attracted.

Remarkably, the Tribunal was incredibly efficient on this file – it went from application to decision in less than a year.

If you’ve faced pregnancy or sex-related discrimination or harassment, we are well placed to assist.

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The State Has No Place In The Bedroom Of The Nation… But Does Your Employer?

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In 1968, former Prime Minister Pierre Elliot Trudeau ushered in significant changes to the Criminal Code, which had until then criminalized homosexuality, with the following well-known pronouncement:

There is no place for the state in the bedroom of the nation. What is done in private between two adults does not concern the Criminal Code.

Although the state may be out of the business of regulating the conduct of its citizens in this private sphere, employers appear to be taking a heightened interest in what is going on in the bedrooms and private lives of their employees.

Consider the recent media storm that surrounded the firing of Jian Ghomeshi, the former CBC Radio Host, after allegations of non-consensual and unorthodox sexual practices came to light.  Or the media attention received by Shawn Simoes, the former Hydro One worker who was terminated  after shouting sexual obscenities at a TV reporter at a Toronto FC soccer game.  In the varied reaction to each of these stories, there was an element of surprise that an individual’s conduct in non-work related contexts was not only of immediate concern to their employers, but directly relevant to their continued employment.

These media stories appear to be reflective of wider trends.  Over the past year, individuals whose names have appeared on the Ashley Madison list, employees who have had intimate photos taken of them and people who engage in “non-mainstream” sexual practices have increasingly been seeking legal advice because their off-duty conduct has come to the attention of their employers and they are concerned that their employment could be terminated as a consequence.

In reviewing employment contracts in my own practice, I have noticed an increased focus on employees’ private lives.  On a number of occasions, clients have asked me to review new employment contacts because what could be described as a “morality clause” caught their attention.  These clauses tend to run along the following lines:

The employee recognizes and agrees that at all times his/her conduct and character, both in and out of the workplace, must be in accord with the high standard of moral and ethical character that all employees at Company X abide by.  Consequently, any acts of questionable moral or ethical character could cause the immediate termination of this agreement.

One of the employees who recently consulted me about such a clause pointed out that it was not so long ago that her same-sex relationship could have been captured by such a clause.  Seen in this light, there is a real possibility that including such a morality clause could have the effect not only of alienating prospective employees, but potentially also of leading to claims of discrimination.

Although this flurry of “off-duty conduct” cases may be prompting some employers to think it is necessary to include a morality clause in their standard employment contracts, the case law has, in fact, long-recognized that employers are entitled to terminate an employee for off duty conduct provided they can demonstrate that at least one of the following circumstances applies:  that the employee’s conduct harmed the employer’s reputation or product; that the impugned conduct rendered the employee unable to perform his/her duties satisfactorily; that the employee’s conduct interfered with the employer’s ability to properly carry out its function or efficiently manage its operations and/or workforce; that the employee’s behaviour lead to the refusal, reluctance or inability of other employees to work with him/her; or that the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees.  These circumstances are set out in the 1967 Ontario decision of Re Millhaven Fibres and Oil, Chemical and Atomic Workers I.U. Loc 9-670, which has been followed in a number of recent “off-duty” conduct cases, including the recent decision in Canadian Union of Public Employees, Local 4400 v Toronto District School Board, 2015 CanLII 24478 (ON LA, http://canlii.ca/t/ghh50).In order to determine whether any of these circumstances apply, it will always be necessary to examine the particular facts and context at issue.

Whether you are an employee or employer, the Employment, Labour and Human Rights lawyers at Mann Lawyers would be pleased to speak to you about any off-duty conduct issue that you might have.

 

 

 

 

 

HOW AND WHEN TO TALK TO HR

Hand holding a Human Resources Word Sphere on white background.

Employees who have the benefit of a Human Resources (“HR”) department or administrator are not always given an explanation of what role that it plays in their work lives.  It is generally understood that HR may be in charge of the hiring and recruitment process and perhaps in managing benefits and leaves. They can also play an inter-personal problem solving role to a certain extent, but there are important limitations to this.

As an employee, it’s typically advisable to approach HR if you wish to raise an allegation of workplace violence, harassment, or discrimination.  From a legal standpoint, this counts as advising the employer of your concerns, which in turn places on them a positive obligation to take steps to address your concerns, provided that they are brought in good faith.  There are some safeguards in place in the legislation to protect an employee against reprisal for raising these types of legitimate concerns.

That said, it is important to understand that HR does not play the role of your lawyer or advocate, but rather guards your employer’s interests.  It is within this context that HR serves you.  While your interests may be aligned to the extent that an employer does not wish to be in breach of legislation and wishes to retain good employees, it happens often that employer and employee see things very differently.

Aside from the categories above, if your concerns are with management itself, especially with respect to your performance or a personality clash, you may wish to temper your expectations about HR’s ability to “fix” the issue to your liking. Similarly, if you are experiencing interpersonal conflict with another employee, HR may be able to step in to smooth things over, but will attempt to resolve it in the way that best serves the organization.

A good rule is not to share anything with HR that you would not be comfortable with your boss knowing.  While HR will try to respect confidentiality to the extent possible, understand that your communications in no way are protected from being disclosed in later court proceedings or from being shared with your boss in the same way that solicitor-client communications are.

If, having approached HR, you feel that your concerns have not been appropriately addressed, or if you do not feel comfortable approaching HR, it may be advisable to seek a legal opinion of your situation to determine whether to have counsel intervene on your behalf. If something is seriously bothering you at work and you cannot solve it alone, we in no way suggest ignoring the problem.

Recognize that an employer may be hesitant to outright admit liability arising from a workplace investigation, even if wrongdoing is found. Further, it is rare that an employer would offer up monetary compensation such as human rights general damages, even if a breach has occurred according to its investigation. Counsel may be able to assist in determining and recovering appropriate remedies.

Finally, there are many excellent human resources departments out there; naturally as counsel we hear more often about the poor ones.  Use your own educated judgment to determine what role they can play in resolving your workplace challenges.  If in doubt, we are happy to assist.

Finding the Right “Fit” on Fair Terms

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In the interview process, it’s easy to fall into discussion about a favourite sports team, restaurant, or common acquaintances. While many companies place a strong emphasis on “fit” in their hiring, there is a distinction to be made between finding someone who shares the same values of a company and exhibits desired qualities like ambition, initiative, or technical skills, and someone who likes the things you like, looks like you, and runs in the same social circles. It’s common to exhibit a preference toward the familiar and it becomes an easy way to whittle down a large pile of candidates. In the process, it might be creating discriminatory outcomes.

People of different religion, creed, race, marital status, gender identity, simply don’t usually seem as familiar as those who share our same beliefs and backgrounds.

To avoid what may not be intentional, but discriminatory nonetheless, make sure that you’re getting word out about a position to a widespread audience by posting in a variety of forums. Don’t screen for unnecessary and discriminatory qualifications such as “Canadian experience.”

Try to base your interview on substantive knowledge and ask the same questions of everyone. If this is difficult, focus on qualities and skills. Refrain from asking questions that require a candidate to speak of religion, family status, country of origin, age, or any ground protected by human rights legislation.

It’s a good idea to have multiple people meet a candidate to assess potential.

An employer who overlooks a suitable candidate because of “fit” should examine carefully how it defines that term. Discriminatory practices in hiring, while difficult to prove, constitute a breach of Ontario’s Human Rights Code and the federal Human Rights Act.

Updated Workplace Legal Obligations

There have been developments in the laws regulating the workplace since we originally posted this article. With many of the changes coming into effect, including new Employment Standards Act, 2000 posting requirements, we thought it a good time to update and re-post this article.

In addition to reaching sales goals, managing expenses, marketing, and a myriad of other obligations, business owners have a number of legal obligations that they must meet in respect of the workplace.  Recognizing that time and resources are at a premium, we have put together a list of some of the key statutory obligations, along with free tools designed to assist Ontario employers meet those obligations. Depending on the type of work your company does, and the number of employees you employ you may have additional or different obligations but the following are good building block resources for Ontario employers.

1: The updated Employment Standards Act, 2000 poster must be posted and distributed

The Employment Standards Act (“ESA”) poster has been updated. All employers covered by the Employment Standards Act (“ESA”) in the province (excluding the Crown) must display this poster in the employer’s workplace where it is likely to be seen by employees. To find more information about this free poster, titled ”What You Should Know About the Ontario Employment Standards Act“, you can visit the Ministry of Labour website here for a free copy.  Key dates include the following:

  • May 20, 2015 employers must post the new ESA poster;
  • Beginning May 20, 2015 employers are required to provide any new employees with a copy of the new poster within thirty days of being hired;
  • June19, 2015 employers must provide all existing employees a copy of the new ESA poster.

2:  Occupational Health and Safety:

a) Employers need to post a copy of the Occupational Health and Safety Act

The Occupational Health and Safety Act is Ontario’s law that governs health and safety in the workplace and establishes legal duties and minimum responsibilities for employers, supervisors and workers. Employers are required to post a copy of the Occupational Health and Safety Act in a prominent placeA useful tool for employers is “A Guide to the Occupational Health and Safety Act

b) Employers must develop Health and Safety Policy

Employers with six or more employees must prepare and review at least annual a written Occupational Health and Safety Policy and must develop and maintain a program to implement that policy. An example of a Health and Safety Policy is available at www.labour.gov.on.ca

c) Employers must provide Health and Safety Training

As of July 1, 2014 the Occupational Health and Safety Act also requires employers to provide health and safety awareness training for every workers and supervisor and to document that training. Training program resources are available on line at www.labour.gov.on.ca. New Supervisors must receive the health and safety awareness training within seven (7) days of being hired. Employees must receive the training as soon possible after their hire date.

3:  Employers must have a Harassment and Violence in the Workplace Policy

The Occupational Health and Safety Act also requires all employers in Ontario to have a Harassment and Violence in the Workplace Policy. A useful resource called “Developing Workplace Violence and Harassment Policies and Programs: A Toolbox“ has been developed to help Ontario employers meet the Act’s requirements and is a great starting point for employers.

4: Employers must provide employees with proper training and protective equipment

The Workplace Safety and Insurance Act requires employers to provide specific first aid equipment and training for your workers. The following is a link to the First Aid Requirements brochure.

5: Employers must put up the WSIB Poster   

Employers are also required to post the WSIB Poster in a prominent place. The poster is available online or can be ordered in by calling 1-800-387-0750.

6: Employers must comply with the Accessibility for Ontarians with Disabilities Act 

As of 2012 all businesses in Ontario have new obligations under the Accessibility for Ontarians with Disabilities Act. In an effort to assist employers meet their obligations under this Act, the Ontario Ministry of Economic Development, Trade and Employment has put together a reporting tool as well as a the AODA Compliance Wizard which is designed to help employers know what they need to do to help them comply Ontario’s accessibility law.

7: Employers must have a Privacy Plan

The Personal Information Protection and Electronic Documents Act (“PIPEDA”) requires organizations to take reasonable steps to safeguard the personal information in their custody or control from such risks as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction. The Office of the Privacy Commissioner has prepared an online tool to assist small and medium sized business develop a Privacy Plan as well as a self-assessment tool for organizations to evaluate how securely they protect individuals personal information.

8 (Voluntary): Employers should promote good mental health in the workplace

Described as a world first and entirely voluntary, the Mental Health Commission of Canada launched the National Standard, designed to help employers of all sizes, and in all sectors, promote good mental health and prevent psychological harm for every employee. It does this by providing the guidelines, resources and tools needed to build a mentally healthy workplace. You can download the one-page FAQ here.

9:  Other requirements include the obligation to develop an Emergency Procedures Policy and Fire Safety Policy for the workplace. 

A Team Approach to Services

When employee clients approach us for assistance, they bring a variety of questions and concerns. It can be comforting for them to know that there are resources and options available in addition to legal proceedings.

Especially in the employment and human rights field, we find that our employee clients can often benefit from a team of specialized professionals to assist through challenging circumstances and transition. We see individuals who have experienced bullying, harassment, or discrimination in the workplace, which results in significant emotional distress and health challenges. It’s also common to interact with individuals who are on the lookout for a new job, sometimes after having no need to update a resume or write a cover letter for years and years. Sometimes areas of law intersect, such as insurance matters and employment matters.

Our clients may work with their family doctors, counselors, psychologists, and psychiatrists to overcome distress caused in the workplace or to help formulate a return to work plan. It may be important for a damages claim to have medical documentation to substantiate it. In this way, medical professionals become important to our practice and to our clients’ cases and general well-being.

Increasingly, we are also encouraging our employee clients to request career transition services or coaching from their employers. In the event of conflict or a termination of employment, it is often in both parties’ best interests to restore a healthy work environment or to transition an employee to alternative employment. Far from a government job bank manned by summer students, these services are increasingly valuable and sophisticated. They assist employees to assess strengths, network, navigate the job application and interview process, amongst other things. It’s also common for them to provide leadership or job coaching. We recommend companies such as Career Joy (www.careerjoy.com) , Optimum Talent (www.optimumtalent.com) , or Clariti (www.claritigroup.ca), to provide these services. Each has its own brand and style.

Likewise, within our firm and professional networks, we have developed connections with other counsel to refer our clients to in the event that specialized legal knowledge is required in another area. An advantage to working in a full service firm is the ability to refer internally.

It’s important to us that an employee who reaches out for our services is fully taken care of. When the scope of need goes beyond what we can deliver, we are happy to direct you to other professionals who can complement our work to help get you through a challenging time.

Workplace Investigations – Best Used in Moderation?

In creating workplace policies, employers may specify that complaints brought forth by an employee will trigger an investigation. The intention is likely to ensure fairness and due process.

Investigations can play a valuable role, especially in the human rights context , where allegations are serious, or where an employer is considering a dismissal for cause. In these contexts, it is important to show that an employer acted promptly and responsibly and not in a discriminatory or bad faith manner.

On the other hand, investigations aren’t always the most helpful tools from a practical perspective. They can be expensive, time consuming, and damaging to relationships. Additionally, if a matter progresses to an arbitration, hearing, or trial, the decision maker is likely to effectively repeat the process to determine liability. Having an investigation report can help demonstrate that you acted diligently as an employer, but a court won’t necessarily agree with the analysis.

Therefore, it may be most beneficial to have a policy that contemplates alternatives or preliminary steps before a full-fledged investigation is undertaken:

  1. Perform an assessment coincident with the intake of a complaint – Consider having a discussion with the individuals materially involved to canvas the possibility of an informal dispute resolution process – perhaps a facilitated discussion. Think about how a formal investigation will impact relationships within the workplace if it is likely that the individuals involved will be asked to continue to work together.
  2. Consider whether the complaint appears to be brought in good or bad faith – Note that any complaints found to be brought in bad faith may result in discipline. Also look at the seriousness of the allegations and consider what steps may be appropriate if they are proven true.
  3. If you have determined that an investigation is necessary, decide who will conduct it— Determine whether your company is appropriately placed to handle it or if an outside investigator is necessary. In making this determination, consider how complex the allegations are and whether there’s likely to be a perception of a conflict of interest, which may arise, for example, if an allegation is made against a member of senior management.
  4. Be clear with the parties involved respecting process and anticipated timeline —Outline at the beginning of the process what the scope of the allegations are and what your mandate is. Decide whether any employee should properly be placed on administrative leave with pay or otherwise separated from the complainant – again, a disruptive event in workplace. Also let the main parties know whether or not they will receive a copy of the investigation report. As much as possible, try to maintain confidentiality by interviewing only those individuals with material knowledge of the allegations and making clear that they should not speak of the interview.

Rigid adherence to one process may not be the best approach to handle workplace disputes. Adding room for flexibility in policies allows an employer and employee to craft a proportionate and appropriate response to concerns raised.

Suspending an employee indefinitely without pay may amount to constructive dismissal

The Supreme Court of Canada released its decision today in Potter v. New Brunswick Legal Aid Services Commission overturning both the Trial Court and Court of Appeal decisions that David Potter had voluntarily resigned from his position.

The fact that two lower courts concluded that Mr. Potter had resigned while the Supreme Court of Canada disagreed and decided that he had been constructively dismissed is emblematic of how difficult it can be to anticipate whether a constructive dismissal claim will be successful.

The Supreme Court did try to provide some clarity by articulating the following two part test for constructive dismissal:

  1. The court must first identify an express or implied contract term that has been breached
  2. Then the court must determine whether that breach was sufficiently serious to constitute constructive dismissal.

The Supreme Court added however that an employer’s conduct will also constitute constructive dismissal if it more generally shows that the employer did not intend to be bound by the contract. The decision also confirms that courts ought to continue using a ‘flexible approach’ in answering that question. While this flexibility allows courts to assess each case on its facts, I anticipate that this same flexibility will mean employees and their counsel will continue to approach alleging constructive dismissal with some caution.
The decision does however highlight some factors which will weigh in favour of a finding of constructive dismissal, among the ones the Supreme Court of Canada relied on in order to conclude that Potter had been constructively dismissed include:

  1. The employee’s contract did not contain the right (express or implied) to suspend the employee;
  2. Potter was not given any reason for his suspension;
  3. Potter’s suspension was indefinite and he was replaced during the period of suspension; and
  4. Potter did not agree to the change.

To read the full decision please go here.

How to Make Work a Return to Work from Medical Leave (and avoid human rights liability)

Once an employee on leave has signaled that a return to work is pending, it is important that an employer handle the return appropriately in order to comply with human rights legislation, which requires accommodation of disability to the point of undue hardship. While this is a well-founded obligation, putting it into practice is a more nuanced endeavor.

Here are some processes that we recommend an employer follow when facilitating a return to work:

  1. Ask for advance notice, if possible, that an employee will be returning. This will allow time to put accommodations in place and to ensure that the workplace is prepared to support the return.
  1. Before the return, ask for confirmation that an employee is cleared to return to work, and prepare a list of questions for the employee’s doctor to ascertain the employee’s limitations and needs. Alternatively, provide a functional abilities form that contemplates both physical and mental disability. Do not ask for an employee’s diagnosis. An employer should bear the cost of any medical documentation requested.
  1. Act in a timely manner. An employer who unduly delays a return may be found to be discriminating against an employee on the basis of disability. A delay in return may represent loss of income for the employee that the employer could be liable for.
  1. Consider underlying issues. A common scenario sees an employee go off on stress leave in relation to a workplace dynamic – perhaps an issue of workload, personality conflict, or in response to performance management. Consider asking the employee if he or she foresees any barriers to a successful return. If it’s something that can be addressed, do so, or else you may be repeating this process again.
  1. Come up with a return to work plan that integrates necessary accommodations and provides the employee with some structure and expectations. Recognize that this work plan is subject to change and schedule regular follow up meetings in the initial return to work period to adjust as necessary.

If, despite your collective best efforts and full accommodation, the employee does not succeed in the return in the short term, consider whether you need to obtain further medical information, adjust the plan, or if there’s a different role that the employee can perform temporarily. If not, it may be that the employee needs to resume a leave.

A best practice is to keep the employee involved in the process and never to give him or her the impression of being a nuisance or drain on the workplace. A supported employee often equates to a more productive employee with a greater chance of a successful return.

The $10,000 wage recovery cap has been lifted

One of the key changes brought about by The Stronger Workplaces for a Stronger Economy Act, 2014 comes into effect today. Specifically, if an employer does not pay their employee for their work, the Ontario Ministry of Labour can now award employees for the full amount of their unpaid wages. Previously the Ministry was limited by a $10,000 cap on the amount of wages it could award to an employee for unpaid wages. The period of recovery for those unpaid wages has also been increased to two years.

While one may wonder why an employee would keep working if they were not getting paid, the situation can often be less straightforward. Alternative employment options are not always plentiful. An employer might promise an employee that they will be paid as soon as some funding comes through or payment on a big project is received. An employer may also make partial payments so that the employee is not without any income but, over time, the amounts can add up to well over $10,000 in unpaid wages.

One of the reasons behind these changes are to allow employees to bring a claim for the full amount of any unpaid pages without having to pursue their employers in the Courts.

The Act has brought into other changes with more to come including:

  • On May 20, 2015 employers will be required to provide their employees with copies of the most recent Employment Standards Act poster within 30 days of the day the employee becomes an employee.
  • On October 1 of every year starting in 2015 the minimum wage will be adjusted in accordance with the Consumer Price Index.

We will provide more information about these new changes and what they mean for employees and employers alike in the days and weeks to come.

You can also access the Act by going here

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3010&detailPage=bills_detail_the_bill

Employer criminally charged over workplace safety obligation

On January 13, 2014, the Ontario Ministry of Labour released a decision regarding a death due to workplace safety violations. After two directors of the company pleaded guilty to safety violations in the workplace, the Ministry sentenced them to jail and fined the company. This serves as a sobering reminder to employers that they need to be on top of their obligations and responsibilities set out in the Occupational Health and Safety Act. If you would like to have a complete review of your workplace policies to ensure that your company is complying with all its obligations, please don’t hesitate to contact me here.

Here is the entire article published by the Ministry of Labour:

BRAMPTON, ON – New Mex Canada Inc., an importer and retailer of furniture and accessories, has been fined $250,000 and two of its directors, Baldev Purba and Rajinder Saini, have been jailed for 25 days each after pleading guilty to safety violations that led to the death of a warehouse worker. 

On January 18, 2013, a worker was moving merchandise in the workplace at 286 Rutherford Road South in Brampton, using a combination forklift/operator-up platform called an order picker. The order picker had been modified and had an additional platform supported by the forks that was tack-welded to the manufacturer-equipped operator platform. The added platform did not have a guardrail around it and the worker using it was not wearing fall protection or safety shoes.

The worker was found on the floor and was pronounced dead; the cause of death was later determined to be blunt force trauma to the head.

A Ministry of Labour investigation found multiple violations of Ontario’s Occupational Health and Safety Act and of Ontario Regulation 851, which covers industrial workplaces. There had been no health and safety training of the workers in the warehouse and workers indicated that they were not provided with fall protection equipment. Ministry of Labour inspectors saw more health and safety hazards in the workplace after the fatality occurred.

Section 85(a) of Regulation 851 (known as the Industrial Establishments Regulation) requires that workers who may fall more than three metres must wear a safety belt or harness (also known as fall protection equipment). The Occupational Health and Safety Act requires employers to ensure that the safety measures prescribed by Regulation 851 are carried out in the workplace.

Purba and Saini were both charged with failing as  directors of New Mex Canada to take reasonable care that the corporation complied with the Occupational Health and safety Act and with Regulation 851. Both pleaded guilty and each was ordered to serve 25 days in jail by Justice of the Peace C. Jill Fletcher, to be served on weekends. Both were ordered to take a health and safety course within the next 60 days. 

New Mex Canada Inc. pleaded guilty to failing to provide information, instruction and supervision to a worker regarding fall protection and/or working from a height. The company also pleaded guilty to failing as an employer to ensure the safety measures required by law were carried out, and was fined $250,000.

In addition to the fine, the court imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

-Source: Ministry of Labor website

Letters of Reference – bad idea?

Hand writingEarlier this fall there was a program on the CBC’s “The Story From Here” which ran a segment about a woman named Jo who, during a job interview, learned that her former employer had refused to provide her with a reference.  Her former employer had adopted a “no references policy”.

Jo explained that she felt quite embarrassed by the experience.  The refusal seemed to suggest that she was not a good employee.  The prospective employer seemed to share that perception – she did not get the job.

The issue of whether to offer letters of reference to departing employees is one that employers sometimes struggle with.  According to the interview, there is a growing trend among employers towards the “no-reference policy” which is reportedly more common in the United States.

Reasons that employers do not want to provide letters of reference appear to be varied and include:

  • Not having anything good to say about the employee;
  • Concern that by providing a positive letter the employer will misrepresent the skills of the employee to others within their industry to the detriment of their own reputation; and
  • Fear of law-suits.

The law-suit fears seem to be based on two potential scenarios.  In the first, the employee sues their former employer for giving a false or malicious reference.   Employees could potentially also sue their former employer if the employer divulged confidential information that they were not authorized to disclose.

The other situation is one where the new employer sues the former employer for negligent misrepresentation.  For example, one could imagine a new employer being rather put out if the former employer had told them that the jeweller they were thinking of hiring was very trust worthy when in fact they were fired for theft.

A cursory examination of the case law did not turn up any recent cases in Ontario where one employer was suing another for a false reference. If other people know of any cases I would be interested in seeing them.

While some letters may be easier write than others, as a general rule I think a well-crafted letter of reference that is mutually agreed upon at the time of an employee’s departure is more likely to help than hurt both the employer and departing employee.

For an employee, receiving a positive letter of reference can help take some of the sting out of a termination and assist in transitioning to a new job.    From an employer’s perspective, an employee who is working elsewhere has less incentive to bring or maintain a claim for wrongful dismissal, particularly if the salary is the same (or better).  An employee who finds another job is said to have mitigated their losses.  Furthermore if it is a letter both parties sign off on and provided directly to the employee the risk that the employee will claim it was false or negligent would presumably be reduced.

A reference letter need not be long and it must be truthful but in most cases an employer can at least confirm the dates of employment, relate some of the specific job related tasks that the person performed in the course of their job and if possible, comment on a positive accomplishment or contribution the employee made to the company.

Treating a departing employee in a courteous and professional manner that enables them to transition more smoothly is in everyone’s interest.

This blog was adapted from an earlier article published in Faces Magazine’s November 2013 issue. Read the original here.

Three new job-protected Leaves of Absence take effect October 29, 2014

Today, three new job protected leaves of absence come into effect under the Employment Standards Act: (1) Family Caregiver Leave, (2) Critically Ill Child Care Leave, and (3) Crime-Related Child Death and Disappearance Leave.

We have been actively following the progress of Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013, since March 2013 when I wrote about what job protections are available when a family member gets sick and you need to take leave from work, and again when I wrote in September 2013 about how the Bill passed second reading.

What you need to know about the 3 new leaves:

The new leaves of absence allows caregivers to focus their attention on what matters most: providing care and support to their loved ones without the fear of losing their job.

The existing Family Medical Leave

The act builds on the existing Family Medical Leave under the ESA: if a family member is terminally ill, an employee is entitled to 8 weeks of job-protected unpaid leave. An employee who takes Family Medical Leave is also eligible to apply for up to 6 weeks of Compassionate Care Benefits under the Federal Employment Insurance Act.

What has been added to the existing Family Medical Leave policy?

The new leaves of absence add additional unpaid job-protected leave for caregivers by offering:

  • Family Caregiver Leave: up to 8 weeks of unpaid, job-protected leave for employees to provide care and support to a family member with a serious medical condition.
  • Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  • Crime-Related Child Death and Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child that has died as a result of a crime.

What this means for Employers:

Employers need to ensure that contracts with employees and workplace policies are updated to reflect the new changes.

What this means for Employees:

If you provide care and support to a family member with a serious medical condition or a critically ill child, or are the parents of a missing child or a child that has died as a result of a crime, the new leaves of absence apply to you. If your employer has not helped you understand the new policies and how they effect you, you should seek legal advice to make sure that your employer is complying with the new policy.

“Waiving” Goodbye: Can an employer waive the employee’s notice of resignation without paying any indemnity?

The Supreme Court of Canada is hearing a case today that could represent significant change for employers.

The Supreme Court of Canada is hearing a case today that could represent significant change for employers.

The Supreme Court of Canada is scheduled to hear the case of Asphaltes Desjardins c. Commission des norms du travail, 2013 QCCA 484 today, March 28, 2014. This case could represent significant change for employers in terms of employee resignations and notice period payments.

THE FACTS

This Quebec matter involved a gentleman by the name of Mr. Guay who worked for Ashphalte Desjardins Inc. (“Ashphaltes”) between the years of 1994 and 2008.  Mr. Guay initially worked as a surveyor and then became project manager. His duties included supervising and managing tenders; he had access to information Ashphaltes considered confidential.

On Friday February 15, 2008, Mr. Guay provided his employer with a letter of resignation which stated that he intended that his last day of work would be March 7 of that year.  The three weeks’ notice was, according to Mr. Guay, to help transition his responsibilities to his successor.  Mr. Guay disclosed that he intended to work for one of the respondent’s competitors.

When Asphaltes was unable to convince Mr. Guay to stay, it decided to terminate his employment immediately without providing any pay in lieu of notice.  Proceedings were started against Asphaltes.

THE LEGAL ISSUE

The central question before the court was whether an employer can waive the employee’s notice of resignation without paying any indemnity.

Until this decision, the case law in Ontario and Quebec suggests that when an employer receives a resignation, if they induce the employee to leave before their proposed resignation date, the employee will be considered “dismissed,” and the employer would have to pay severance.

In the present case, two out of the three Quebec Court of Appeal judges concluded that since the termination was initiated by Mr. Guay, the employer did not have a duty to pay severance or any other form of compensation.  In other words, the employer could waive the notice period without paying any indemnity. 

IMPACT ON EMPLOYERS

If the Quebec Court of Appeal decision is confirmed, this will represent a significant change for employers.  It would mean that employers could accept their employee’s resignation and send them home immediately without having to pay the employee during the notice period. For employers in a competitive market and who do not want the soon to be competing employee having continued access to their confidential information during the notice period, this decision may be particularly welcome.

IMPACT ON EMPLOYEES

For employees, this decision could represent a difficult change.  There is a duty on employees to provide reasonable notice of resignation.   An employee who, in good faith, finds a new job and negotiates a later start date may find themselves without work and without income if the employer waives the notice.

UP FOR DISCUSSION

If employees began to feel they may be “penalized” for giving notice, will they cease giving advance notice of their departure?

We will follow up when the Supreme Court renders its decision.

Notice for Employers: Accessibility Requirements must by completed by January 1, 2014

A message from the Accessibility Directorate of Ontario:

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Notice for Large Private and Non-Profit Organizations:

If you are a business or non-profit with 50+ employees, you have  requirements coming up in 2014. By January 1, 2014, you must:

  • Create a multi-year plan to meet your accessibility requirements.
  • Establish policies to help you achieve your accessibility goals, and tell your employees and customers about them.
  • Consider accessibility when purchasing or designing electronic kiosks.
  • Make your new websites more accessible.
  • File an accessibility report.

We are pursuing enforcement action on organizations that did not submit an accessibility compliance report.

If you are a business or non-profit with 20+ employees, your 2012 accessibility report was due to government on December 31, 2012.

This report covers the first accessibility requirements about accessible customer service to come into effect. Make sure you submit your accessibility
report
 now.

You will need to file a second compliance report in 2014.

File your report early and don’t wait until the end of the year.

 

Colleen Hoey quoted by The Globe and Mail on MP staffers’ confidentiality agreements

Colleen was quoted in The Globe and Mail with her opinion on the confidentiality agreements that MP staffers and caucus researchers are being asked to sign. Read the full article below or see the article on their website by clicking here.

MP staffers forced to sign lifelong gag orders to get raises

JOSH WINGROVE
Ottawa — The Globe and Mail
Published Wednesday, Dec. 11 2013, 3:44 PM EST
Government Whip John Duncan (SEAN KILPATRICK/THE CANADIAN PRESS)

Government Whip John Duncan
(SEAN KILPATRICK/THE CANADIAN PRESS)

Staff in MPs’ officers are being told to sign broadly worded, lifelong confidentiality agreements, a change made earlier this year by an all-party committee.

The new contracts require all MPs’ staff, and caucus researchers for every party, to keep quiet on any “information to which [a staffer] may become privy” because it’s “politically sensitive and confidential.” The confidentiality agreement applies indefinitely even after an employee leaves the job. Only when required by law, such as during court testimony, will they be allowed to breach confidentiality.

If current staff break the pact, they can be fired on the spot without severance. Former staff who disclose any information face an unspecified “legal or administrative recourse,” and could be ordered to repay any severance they received.

Some of the new restrictions are standard, lawyers familiar with such contracts say, but the wide-ranging wording could potentially apply to even the most innocuous facts, and other parts may not withstand a court challenge.

“It’s troubling and it’s enforceability could reasonably be questioned,” David Fraser, a Halifax-based privacy lawyer, said of the confidentiality agreement. “I would suggest to anybody, who is having this put in front of them, that they seek legal advice.”

A union representing staff in NDP MPs’ offices has asked for a legal opinion on whether it can challenge the document, and says some staffers have rejected pay raises rather than sign the form – which only new hires, people getting raises or those switching jobs must sign.

But Conservative MP and caucus whip John Duncan said the NDP and Liberals supported the move when it was made in a committee earlier this year in the all-party Board of Internal Economy committee. The previously ad hoc rules amounted to the “wild west,” Mr. Duncan said, with no restrictions on what staff needed to keep confidential.

“Nobody questioned it and everyone thought it was appropriate,” he said of the changes. “I’m actually kind of baffled by this whole thing. I think the public would expect and anticipate that this kind of agreement would be a requirement for employees in the kinds of jobs that they have.” Mr. Duncan said the restrictions likely apply to “anything under the Privacy Act” and anything marked “confidential.”

The internal economy committee’s meetings are behind closed doors, though the Conservatives have a majority. The NDP and Liberals didn’t answer questions about whether they agreed on the confidentiality clause, thought Liberal Leader Justin Trudeau and NDP MP Peter Julian both said Wednesday they thought the restrictions may go “too far.”

Lawyers contacted by The Globe say it’s not uncommon for confidentiality requirements to stay in place after someone leaves a job, but such clauses often exclude information otherwise publicly available, or things that become publicly available. The provision for MPs’ staff makes no such distinction.

Colleen Hoey, an Ottawa-based employment lawyer, said she has ”concerns” with the document, noting it doesn’t specify what information it applies to or when things can be reasonably disclosed. Another problem is the potential of revoking severance. “In my opinion such a remedy would not withstand judicial scrutiny,” Ms. Hoey said in an e-mail.

The agreement’s wording is so broad – anything a staffer is privy to – it could apply even to commonly known facts and prevent staff from taking jobs in any way connected to the federal government, Mr. Fraser said. “When the House sits or where Parliament Hill is, is potentially included in that. Again, overly broad, in my view,” he said.

NDP staffer Anthony Salloum, who leads the union representing NDP MPs’ staffers, said the concern among some is that the “indefinite nature of it, that it binds us permanently, is a little too extreme.” He worries the restrictions could, for instance, block someone from writing a memoir. Mr. Duncan, however, said the rules are not a gag order and people are still allowed to write books. “It’s just we have rules you have to play within,” he said.

Holiday Party Survival Guide for Employees and Employers

T’is the season of office holiday parties! Office parties can be a great opportunity for employees to get to know one another socially and for employers to thank their employees for their contribution to the business. Or… they can be disastrous.

A review of some recent court decisions highlights that holiday party festivities can sometimes lead to unintended consequences.. Here are a few tips and key cases that can help employers limit their legal liability surrounding holiday party problems, and how employees can keep behavior in check:

TIPS FOR OFFICE HOLIDAY PARTY SURVIVAL

Employers

  • Try to avoid offering an open bar to your employees; they generally result in excessive drinking.
  • Ensure that there is plenty of food and water being served throughout the night.
  • Provide your employees with alternative transportation home from the office party, such as taxi chits.
  • Try to host your event off-site, such as a restaurant or conference space. The staff at the venue will be trained on how to handle drunken patrons and can manage water and food distribution adequately.
  • If possible, also try to provide employees with alternative accommodations if they have to travel far. Hotels typically offer blocks of rooms at discounted prices for events taking place in their facilities.
  • Make sure that whoever is serving alcohol at the party is licensed to serve.

Employees

  • Don’t drink so much that you lose your ability to make smart decisions while in the company of colleagues and employers.
  • Know that you are still expected to adhere to office policies, even at after-hours functions.
  • Try to keep your stories and jokes office-appropriate; avoid using foul language and making dirty or off-colour jokes.
  • Make sure that what you wear is still moderately office-appropriate.
  • Try not to gossip or speak negatively about your job or your colleagues.

RECENT CASE LAW EXAMPLES

Unwanted Closeness on the Dance Floor

In 2013, a complainant in British Columbia alleged that during two consecutive staff Christmas parties, she was assaulted on the dance floor by work colleagues who sought to include her in some rather up-close and personal dancing. This incident was among a few that she raised in support of her claim for harassment in the work place. [Kaferv. Sleep Country (BCHRT 137)]

Physically Threatening and Making Sexually Inappropriate Comments to Colleagues

In 2011, an employee (the plaintiff) got intoxicated at his office holiday party and proceeded to physically threaten his colleagues. The following Monday, he was fired due to his behavior at the party. He claimed that he was wrongfully dismissed from his employment following that fateful holiday party because the employer knew he was an alcoholic, which is a disability recognized under the Human Rights Code.  The Human Rights Tribunal decided that there was insufficient evidence that the employer did know that he was an alcoholic and so denied the claim.

The judgment suggested, however, that if an employee is a known alcoholic and acts inappropriately at an office party, an employer may find themselves being sued for discrimination if they fire the employee over their drunken conduct at the party.  [Huffman v. Mitchell Plastics (a division of Ultra Manufacturing Ltd.), 2011 HRTO 1745]

Drinking and Driving

The risk to employers who have employees drive home after drinking at the holiday party can be significant.  A court in BC ruled that the employer (Nike) was liable for the injuries suffered by their employee after he drove his car into a ditch and suffered significant injuries.  The plaintiff argued that Nike was responsible because they had served the plaintiff and his colleagues alcohol, did not monitor his consumption and then allowed the employee to drive home when he was impaired.  Jacobsen v. Nike Canada Ltd., 1996 CanLII 3429 (BC SC)

Loss of Benefits

In another unusual case, one woman’s dance moves at the staff holiday party led her employer (who was obviously unmoved by the holiday spirit) to claim that she should have her Wage Loss Benefits discontinued after she was seen on the dance floor bending her knees. It was therefore claimed she was able to return to work.  [WCAT-2008-01181 (Re), 2008 25463 (BC WCAT)]

A Quick Guide for Employers on Workplace Legal Obligations

Employers have many items on their To Do Lists - these 8 are important legal obligations.  Photo: iStockphoto.com/SparkleArt

These 8 important legal obligations should be on every employer’s to-do list. Photo: iStockphoto.com/SparkleArt

In addition to reaching sales goals, managing expenses, marketing, and a myriad of other obligations, business owners have a number of legal obligations that they must meet in respect of the workplace.  Recognizing that time and resources are at a premium, we have put together a list of some of the key statutory obligations, along with free tools designed to assist Ontario employers meet those obligations. Depending on the type of work your company does, and the number of employees you employ you may have additional or different obligations but the following are good building block resources for Ontario employers.

1:  Employers need to put up the Employment Standards Act poster

All employers covered by the Employment Standards Act (“ESA”) in the province (excluding the Crown) must display this poster in the employer’s workplace where it is likely to be seen by employees. To find more information about this free poster, titled “What You Should Know About the Ontario Employment Standards Act“, you can visit the Ministry of Labour website here.

2:  Employers need to post a copy of the Occupational Health and Safety Act

The Ontario Health and Safety Act is Ontario’s law that governs health and safety in the workplace and establishes legal duties and minimum responsibilities for employers, supervisors and workers.  Employers are required to post a copy of the Occupational Health and Safety Act in a prominent place. A useful tool for employers is “A Guide to the Occupational Health and Safety Act

3:  Employers must have a Harassment and Violence in the Workplace Policy

The Occupational Health and Safety Act also requires all employers in Ontario to have a Harassment and Violence in the Workplace Policy. A useful resource called “Developing Workplace Violence and Harassment Policies and Programs: A Toolbox” has been developed to help Ontario employers meet the Act’s requirements and is a great starting point for employers.

4: Employers must provide employees with proper training and protective equipment

The Workplace Safety and Insurance Act requires employers to provide specific first aid equipment and training for your workers. The following is a link to the First Aid Requirements brochure.

5: Employers must put up the WSIB Poster   

Employers are also required to post the WSIB Poster in a prominent place.  The poster is available online or can be ordered in by calling 1-800-387-0750.

6: Employers must comply with the Accessibility for Ontarians with Disabilities Act 

As of 2012 all businesses in Ontario have new obligations under the Accessibility for Ontarians with Disabilities Act.  In an effort to assist employers meet their obligations under this Act, the Ontario Ministry of Economic Development, Trade and Employment has put together a reporting tool as well as a the AODA Compliance Wizard which is designed to help employers know what they need to do to help them comply Ontario’s accessibility law.

7: Employers must have a Privacy Plan

The Personal Information Protection and Electronic Documents Act (“PIPEDA”) requires organizations to take reasonable steps to safeguard the personal information in their custody or control from such risks as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction. The Office of the Privacy Commissioner has prepared an online tool to assist small and medium sized business develop a Privacy Plan as well as a self-assessment tool for organizations to evaluate how securely they protect individuals personal information.

8 (Voluntary): Employers should promote good mental health in the workplace

Described as a world first and entirely voluntary, the Mental Health Commission of Canada launched the National Standard, designed to help employers of all sizes, and in all sectors, promote good mental health and prevent psychological harm for every employee. It does this by providing the guidelines, resources and tools needed to build a mentally healthy workplace. You can download the one-page FAQ here.

Colleen Hoey featured in the November edition of Faces Magazine Ottawa!

In case you didn’t see this month’s edition of Faces Magazine, my article “Starting a New Job? What to consider when reviewing your employment contract” was featured on page 33 of the business section in the magazine. Read the full article here!

Faces Magazine Feature

Mayor Rob Ford and Addictions in the Workplace

Mayor Rob Ford admits to smoking crack cocaine. Read more here. (Chris Young/Canadian Press)

Mayor Rob Ford admits to smoking crack cocaine. Read more here. (Chris Young/Canadian Press)

After months of denial, last night the Mayor of Toronto, Rob Ford, admitted to using crack cocaine while holding public office.  According to a CBC article, he explained this lapse of judgment as something that he probably did while he was “in one of his drunken stupors.”  Notwithstanding the admission of  wrongdoing and the implicit admission that he had been deliberately misleading the public these past few months (Mr. Ford claims that no one asked the right question), Mr. Ford insists he is not stepping down from office.  He likewise denies he has an addiction.

As I listened to the news, I tried to imagine how many of the employers in the private sector would react to the news that one of their prominent employees was drinking to the point that they were committing such remarkable lapses of judgment as to smoke crack cocaine. Most, I would expect, would be making plans to terminate the employee.

And yet, Rob Ford’s situation highlights some of the potential pitfalls for employers dealing with employees who have issues with substance abuse.

What to do if your Employee Admits to having an Addiction

Substance abuse has been recognized under the Ontario Human Rights Code as a disability.  Under section 5 of the Code, people have a right to equal treatment with respect to employment without discrimination because of their addiction to alcohol.  Typically, where an employee has acknowledged an addiction, the right to equal treatment would require the employer to take steps to accommodate the employee up to the point of undue hardship. This might involve allowing the employee time off to attend rehab, or to attend addiction counseling meetings during the day.

What to do if your Employee Denies having an Addiction

What, then, do you do with the employee who denies they have a problem?  According to the Ontario Human Rights Commission, because of the nature of the disability, a person with an addiction may be unable to ask for assistance. As such, the expectation is that where an employer thinks that someone has a mental health disability or addiction and needs help, there is still a duty to accommodate that person. You can read more about this here.

Practically speaking, employers  face a challenging situation when they suspect an employee has an addiction.  How do you accommodate a person who refuses to acknowledge they have an addiction?  Some employers have Employee Assistance Programs which can be offered and it may be worth considering encouraging the employee to take a leave of absence in order to seek assistance.  In the end, where an employee refuses to address his or her addiction, a Court may conclude that the employer is entitled to terminate that person’s employment for cause.  This was the case in Cox v. Canadian National Railway Co., 88 C.L.L.C.,  where an employee’s long-term alcohol problem caused substandard work performance which was considered prejudicial to the employer’s business.  Visentin v. Shell Canada Ltd. 1998 involved a similar situation in which an employee, who worked in a gas field where safety procedures had to followed, was fired in part because of his alcoholism and failure to persevere in a course of treatment for his addiction.

____________________________________________________

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

How enforceable are non-competition and non-solicitation agreements in employment contracts?

Non-competition and non-solicitation agreements can put employees in a real bind. But are they enforceable?

Non-competition and non-solicitation agreements can put employees in a real bind. 

It is common for clients to seek advice about the legality of non-competition and non-solicitation clauses (sometimes referred to as “restrictive covenants”) in their employment contracts.   For someone who has recently lost their job, the idea of having to sit on the bench for months or face risking a law suit can present a serious dilemma.

On the other hand, employers often share key confidential information with their employees and trust them with their clients, product and know-how, so if the employment relationship is terminated, they understandably want to put conditions in the employment contract in an attempt to bring a reasonable level of protection to their commercial interests.

So what is the difference between a non-competition agreement and a non-solicitation agreement? Are these agreements actually enforceable? What if the agreement has to do with the sale of a business?

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The Difference Between Non-Competition and Non-Solicitation:
Non-Competition:

A clause in an agreement stating that the employee agrees not to work for or start a business that is similar to their employers.

Example Situation: if a hairstylist worked for a salon for a number of years and learned all the tricks of the trade, then left the salon to open up her own salon down the street.

Non-Solicitation:

A clause in an agreement stating that the employee agrees not to approach employees of the company and encourage them to leave the employer for new job opportunities, or approach clients of the company for their business.

Example Situation: if that same hairstylist opens her new salon, tries to persuade her old co-workers to start working for her, and contacts clients of her old salon to convince them to bring their business to her new salon.

Are Non-Competition and Non-Solicitation Clauses Enforceable?
  • Generally, non-competition clauses in regular employment relationships are difficult to enforce in Ontario.  Employers and employees alike may be better served by giving serious consideration to whether such a clause should even be included in an employment contract at all.
  • However, non-solicitation clauses may be enforceable, but need to be clear, unambiguous, and reasonable in light of the employee’s position, knowledge and responsibilities.
  • From the commercial perspective, non-competition clauses that are included in employment contracts made in the context of the sale of a business will be presumably enforceable (more on this later).

As a general rule, the courts in Canada have considered clauses which restrict a former employee from working in their chosen field as contrary to public policy. The reason is that stopping someone from competing interferes with individual liberty and restricts open competition. Consequently, non-competition clauses included in regular employment contracts are difficult to enforce.

What a court is more likely to do in regular employment situations is to enforce a non-solicitation agreement, which is designed to prevent a former employee from contacting the company’s clients and employees for a defined period of time after the employment.

What makes a Non-Competition or Non-Solicitation Agreement Enforceable?

Whether it is a non-competition clause or a non-solicitation clause, one of the key questions a court will try to answer before determining if it is enforceable is “how reasonable is the restriction?”  Three main questions that factor into determining how reasonable the agreement is include[1]:

1.      What is the geographic scope?   

Anywhere in the world” is too broad, and is less likely to be considered a reasonable geographic scope than one with a limited radius.

Interestingly, while a non-competition agreement must be geographically limited, a non-solicitation agreement may not need to be geographically limited to be valid. Due to new technological developments and social media, customers are no longer limited geographically, and the Supreme Court of Canada has recently concluded that geographical limitations in non-solicitation agreements have generally become obsolete.[2]

2.      How long is the restriction meant to last? 

It would not be reasonable to prevent a former employee from competing indefinitely. There needs to be an end date for when the agreement expires. Each situation will be different, but generally the shorter the restriction period, the more likely it will be to resist scrutiny. Six months will seem more reasonable than five years.

3.      What is the scope of the prohibited activity?   

Is the person restricted from working for a specific list of competitors, or does the clause try to stop the employee from working for “any businesses competitive with the employer or that of any of its subsidiaries and affiliates”? This might be too broad to be considered reasonable. The purpose of allowing restrictive covenants is to protect legitimate business interests only.

What about Non-Competition and Non-Solicitation Agreements involving the Sale of a Business?
Commercial Context vs. Employment Context

The law differentiates between how enforceable these agreements are within a general employment context (the relationship between an employer and employee), and the commercial context (one that arises in connection with the sale of a business).  This distinction was emphasized in the Supreme Court of Canada case: Payette v. Guay. Payette was concerned about the how enforceable the a non-compete clause was in the sale of a business.  Justice Wagner wrote that:

The criteria for analyzing restrictive covenants to be reasonable will be much broader in the commercial context than in the context of employment.  I am therefore of the opinion that, in the commercial context, a restrictive covenant is lawful unless it can be established on a balance of probabilities that its scope is unreasonable.   (emphasis added)

In other words, restrictive covenants born in the commercial context will be presumed to be enforceable.  This stands in direct contrast to the standard employment context we have been talking about, which places the onus of demonstrating that the restriction is reasonable on the party who is trying to have the agreement enforced (usually the employer).


[1] Elsley v. J.G. Collins Ins. Agencies Ltd., [1978] 2 S.C.R. 916

[2] Payette v. Guay inc., 2013 SCC 45

____________________________________________________

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Working in Retail? Ontario is trying to protect your employment rights.

Ontario helping protect retail workers' rights

Ontario helping protect retail workers’ rights

The Ontario Ministry of Labour posted a bulletin on October 16, 2013 about how Ontario is trying to protect the rights of retail workers by promoting safety and fairness at the workplace. You can read about it here:

NEWS

Ontario is taking action to protect retail workers’ rights and promote fairness in the workplace by launching a province-wide employment standards retail inspection blitz this fall.

Ministry of Labour inspectors are visiting retailers — such as grocery stores, gas stations and shopping malls — between October and December to make sure workplace rights are being protected in areas including public holiday pay, overtime pay, hours of work, and vacation pay.

The Ontario government has also invested an additional $3 million this year to double the number of inspectors and double the number of businesses inspected to make sure workers safe and are treated fairly.

Protecting workers on the job and ensuring all workers are treated fairly through the Employment Standards Program and Safe At Work Ontario strategy is part of the government’s economic plan to invest in people. The province’s economic plan also includes investing in infrastructure and supporting a dynamic and innovative business climate.

QUOTES

“The retail sector is a vital engine of Ontario’s economy that creates jobs, and promotes investment and economic growth. To ensure that growth, we are standing up for workers to make sure their rights are protected – no matter where they work, no matter their line of work.”
Yasir Naqvi, Minister of Labour

QUICK FACTS

  • The inspections are part of a risk-based strategy that focus on sectors that employ vulnerable workers, have a prior history of employment standards violations and represent a significant part of the workforce in Ontario.
  • Since 2004, Ontario’s Employment Standards Program has recovered more than $100 million in wages and other monies owed to employees through inspections, claims and collections.
  • Since 2008, Ministry of Labour inspectors have conducted more than 345,000 field visits, and 58 health and safety and employment standards inspection blitzes.

LEARN MORE

Learn more about the ministry’s proactive inspections.

Watch a video on what to expect during an employment standards inspection.

Find out more about the resources available to employers and employees to help them understand the ESA.

Ontario Providing More Support for Families

Back in March, 2013, I wrote about what job protections are available when a family member gets sick and you need to take leave from work.

Currently, if a family member is terminally ill, an employee is entitled to 8 weeks of job-protected unpaid leave.  This is called “Family Medical Leave”.  An employee who takes Family Medical Leave is also eligible to apply for up to 6 weeks of Compassionate Care Benefits under the Federal Employment Insurance Act.

As I had written, the Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers, attempting to create “Family Caregiver Leave” and allow an employee up to 8 weeks of unpaid leave to care for a family member who has a serious medical condition.

Below is a news release from the Ministry of Labour from September 25, 2013 saying that the Bill has passed a second reading:

Family Caregivers Bill Passes Second Reading

Today, Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013, passed second reading after debate in the Ontario legislature.  If passed, the bill would allow caregivers to focus their attention on what matters most — providing care and support to their loved ones — without the fear of losing their job.

The act would build on the existing Family Medical Leave by creating three new job-protected leaves:

  • Family Caregiver Leave: up to eight weeks of unpaid, job-protected leave for employees to provide care and support to a family member with a serious medical condition.
  • Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  • Crime-Related Child Death and Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child that has died as a result of a crime.

Bill 21 has now been referred to the Standing Committee on General Government and public hearings are expected the week of December 4, 2013.

Allowing caregivers to focus on what matters most is part of the Ontario government’s plan to protect workers and strengthen their rights while helping people in their everyday lives.

Quick Facts

  • The proposed legislation would create leaves separate from the current Family Medical Leave.
  • A doctor’s note would be required to qualify for Family Caregiver Leave and Critically Ill Child Care Leave.
  • The Critically Ill Child Care Leave and Crime-Related Child Death and Disappearance Leave are necessary to give families access to new Federal benefits.

Quotes

Yasir Naqvi

Our government is committed to passing these leaves because what Ontarians need most when caring for seriously ill or injured family members is the time to be with their loved ones. These Leaves to Help Families would strengthen job security and is the right thing to do for Ontario families.”

Yasir Naqvi

Minister of Labour

Companies will be fined under Criminal Code if found liable for worker injury or death

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Workers safety is paramount – see the below article written by  Lisa Stam on her blog “Employment and Human Rights Law in Canada” for a breakdown of a recent decision by the Ontario Court of Appeal regarding the safety of workers:

Criminal Code Convictions for Worker Safety

Yesterday, the Ontario Court of Appeal tripled the fine awarded against a construction company that failed to ensure the safety of its workers:  R v Metron Construction.

Facts

In the late afternoon of December 24, 2009, five workers who were restoring the concrete balconies of a high rise in Toronto fell from a fourteenth floor swing stage platform. Four of the five workers died, the fifth worker who survived suffered serious permanent injuries. The sixth worker – the only one who was properly attached to a safety line – did not fall and survived uninjured.

Details of the original judgment are set out in the July 2012 trial judgment of R v Metron Construction Corporation.

Criminal Conviction – Trial Judge

The company was the first in Ontario to be charged and convicted under the new Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to that worker. See sections 217.1, 219 and 22.1(b) of the Criminal Code for the specific provisions upon which the crown relied.

The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which was over 3 times the net earnings of the business in its last profitable year. The trial judge concluded that the penalty was “the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”

Court of Appeal Triples the Fine

Yesterday, the Court of Appeal tripled the penalty, fining the company $750,000. The Crown had sought a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act. The Court agreed with the merits of that argument:

[87] Section 718.1 of the Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death. The OHSA cases that attracted fines of between $115,000 and $450,000 and that were relied upon by the sentencing judge are of limited assistance.

The Court also concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence:

[115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent. Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit.

The Court of Appeal has sent a very clear message to employers: worker safety is paramount, and companies will pay dearly under the Criminal Code if found liable for worker injury or death.

-Article written by Lisa Stam.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

The Price of Breaking Promises in Settlement Agreements

Breaking a promise to keep the terms of settlement confidential can mean having to give settlement money back.

For some employees, the legal documents that they are asked to sign after the parties have agreed to a dollar value to settle a claim for wrongful dismissal can seem like “mere details”. Employees who sign such settlement agreements (typically Full and Final Releases, and Minutes of Settlement) are well advised to take their promise to protect the confidentiality of any settlement they reach very seriously.

Arbitrator Louisa Davie recently ruled in a matter involving the Globe & Mail (the employer) and a former employee and writer, Jan Wong (represented by her Union). The Arbitrator ruled that Jan Wong had to repay the amount of money she received in a settlement with the Globe & Mail after her employment was terminated.

Jan Wong had been employed as a reporter at the Globe & Mail for a number of years.  Her employment was terminated in June 2008 following a lengthy period when she had been absent from work because of depression.  Ms. Wong filed grievances because of Globe’s failure to pay sick leave and the termination of her employment. Ultimately, Ms. Wong’s grievances were settled in a Memorandum of Agreement dated September 24, 2008. According to a judicial review application, the Agreement provided for certain payments to Wong by the Globe & Mail, provided the terms of the settlement were kept confidential.  Key paragraphs to the application  were paragraphs 6 and 8 of the Agreement, which stated:

5.  The Employer acknowledges that the Grievor was ill and unable to attend at work from June 11, 2007 to November 13, 2007 for that reason.

6. With the exception of paragraph 5, the parties agree not to disclose the terms of this settlement, including Appendix A to anyone other than their legal or financial advisors, Manulife and the Grievor’s immediate family.

7. The Grievor agrees that until August 1, 2009 she will not disparage The Globe and Mail or any of its current or former employees relating to any issues surrounding her employment and termination from The Globe and

Mail. The Globe and Mail agrees that until August 1, 2009, to not disparage the Grievor.

8. Should the Grievor breach the obligations set out in paragraph 5 and 6 above, Arbitrator Davie shall remain seized to determine if there is a breach and, if she so finds, the Grievor will have an obligation to pay back to the Employer all payments paid to the Grievor under paragraph 3.

…And then Ms. Wong published a book.

The 2012 memoir Out of The Blue dealt with Ms. Wong’s experience with workplace depression.  She also gave some interviews to the media. In response, the Globe & Mail initiated a hearing before the Arbitrator on the grounds that the applicant had breached her non-disclosure obligations.

The Arbitrator’s decision does not suggest that Ms. Wong disclosed actual details of the terms of this settlement. What Ms. Wong did say was that “she had received a big pile of money to go away”, and that “a big fat check landed in my bank account.” According to Arbitrator Davie, these disclosures were sufficient to qualify as breach because a person reading Wong’s book would be left with the impression Ms. Wong had “fought back and won”,  successfully resisted a “gag order” and that the Globe had caved and admitted liability. In fact, the Agreement expressly provided that neither party was admitting any liability.

This “big pile of money” now had to be returned.

The importance of protecting the confidentiality of settlement negotiations and agreements is long standing.  Employers may be motivated to settle a case for wrongful dismissal for a number of reasons including avoiding a drawn out and costly legal dispute, the potential negative publicity and impact on company moral as well as the risk that a court may confirm that the company did wrongfully dismiss their employee. It is not universally the case that an employer settles because they believe they have a weak case.

Without the promise of confidentiality, companies may worry that if the story gets out that they paid money to a former employee, the public will assume the employer did something wrong; they may also worry that it will create a slippery slope of ever increasing demands for settlement funds when they are required to terminate other employees’ employment.

That said, if it is the case that Ms. Wong was wrongfully dismissed and improperly denied sick then the result in the end seems fairly harsh.

You can read the full story here.

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Wal-Mart fires Employee – Pet Lovers Beware

Carla Cheney was fired after reporting the owner of a dog left in a hot car to the police. Photograph by: Chris Mikula , The Ottawa Citizen

Carla Cheney was fired after reporting the owner of a dog left in a hot car to the police. Photograph by: Chris Mikula , The Ottawa Citizen

On July 11, 2013, Carla Cheney, a Wal-Mart employee in Kemptville, Ontario, was fired from her job after she confronted a customer who had left a dog in his truck before she commenced her shift. Later that day, she was fired. Wal-Mart stated that the “associate was absolutely not let go for trying to help a dog in a locked car.” Wal-Mart also stated that the decision to terminate her employment was taken very seriously. The law requires an employer to engage in a comprehensive process. In fact, before firing an employee for just cause, an employer must engage in a careful assessment of employee misconduct to carefully determine whether the conduct is incompatible with the continuing employment relationship.

Under the Ontario Society for the Protection of Cruelty to Animals, criminal charges may be made against individuals that cause animals distress, which is defined as “being in need of proper care, water, food or shelter; or being injured, sick or in pain, or suffering; or being abused or subject to undue or unnecessary hardship, privation or neglect.”

I have a four year old yellow lab named Hank, so I am biased. I think Ms. Cheney acted appropriately, raised concerns about illegal conduct, and should not have been fired as a result of her good intentions to protect an animal in distress. For more information on animal protection, click here.

Wal-Mart should have responded differently. An employer does have the legal right to determine how its business will be conducted, and I respect that Wal-Mart employees should be required to follow certain policies or rules when confronted with similar situations such as this. From a safety perspective, it is probably not wise for employees to engage customers directly in these sorts of cases, and it should probably be left to the police, but to fire Ms. Cheney in these circumstances appears to be a very disproportionate response by management.

Employers will often rely on a breach of a policies and procedures in support of decision to terminate employees. However, before an employer can do so, courts have said that the employer must ensure that:

  1. The policy has been communicated to employees;
  2. The employee impacted by the decision was aware of the policy;
  3. The policy is clear;
  4. The policy is consistently enforced by the company;
  5. The employee has been specifically warned that they will be dismissed if they breach the policy;
  6. The policy must be reasonable; and
  7. The breach of the policy must be sufficiently serious to warrant the termination of employment.

Even if Wal-Mart had a policy or rule in place, I question whether any policy or rule which discourages employees from raising legitimate concerns about illegal conduct is reasonable or justifiable in any case. Wal-Mart did not have to fire Ms. Cheney and, from my perspective, ought to have responded very differently to an employee who was simply concerned about the safety of an animal left in a hot car.

You can read the full CBC Ottawa report here.

* Please note *  if you see a pet in a hot car, the Ontario SPCA advises us to immediately call your local Humane Society (Ottawa: 613-725-3166), or call police services. Invite your friends and family to pledge and join the Twitter campaign by using the hashtag #NoHotPets to help spread the important message of not leaving pets in hot vehicles all summer long! Visit nohotpets.com for more information.

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Double-check your emails before pushing “Send”! You might have an employment issue on your hands…

Send

Whether we like it or not, most of us find ourselves spending a significant part of our work week receiving and responding to e-mails.  It might be to set up an appointment with a client, ordering stock from a supplier, or even sharing a joke with a colleague.   However, sometimes in an attempt to be efficient in the midst of this digital mayhem, we make the mistake of hitting the ‘reply-all’ or ‘send’ button too quickly and this can have real consequences.  In Maria Fernandes’ case, it lead to an action against her employer for wrongful dismissal.

In March 2011, the Director of Operations of Marketforce Communications Inc. inadvertently copied Ms. Fernandes on an email that was intended to be read only by the company’s lawyers.   The contents of that email contained references to the termination of Maria’s employment.  Realizing what had transpired, the Director tried to quickly recall the email by sending out three recall notices.   She then sent an email directly to Maria demanding her to delete the message without reading it as the email was privileged and confidential.  However, Ms. Fernandes did read the email and provided a copy to her lawyer.  Upon returning from vacation, Ms. Fernandes told Marketforce that she interpreted the email as constructive dismissal and commenced a wrongful dismissal action.

Although the outcome of this case has yet to be determined, Marketforce brought a motion for a declaration that the email is protected by solicitor-client privilege so that Ms. Fernandes should not be able rely on it.  The court agreed that the email was part of privileged solicitor-client communication and that the disclosure itself does not waive privilege.  Even so, the judge ruled that excluding the email would be unfair to both Ms. Fernandes and the trial judge who would hear this case at trial.   Without this evidence, the trial judge would not have a complete picture as to what really transpired and it would be difficult for Ms. Fernandes to show how the email affected her state of mind and to show that she had acted reasonably in the situation.

While we will have to wait to find out whether Ms. Ferndandes was right in her interpretation of this email as a constructive dismissal, there are a couple overarching lessons that we can learn.  First, situations like Ms. Fernandes’ are very easy to avoid by simply paying attention to whom the email is being sent to.  Second, in some situations, in the interest of justice the courts are inclined to allow parties to rely on privileged information, even where the sending party has taken all reasonable steps to preserve the integrity of the privileged communication.  The ultimate message here?  Watch who you’re sending your emails to, otherwise they could be used against you!

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Thanks to Mehran Wancho (summer student at Mann & Partners, LLP) for contributing this article.

Racist Facebook comment about co-worker: Employees can be liable for actions outside the office

Facebook logo Español: Logotipo de Facebook Fr...

Can what you say on Facebook hurt your job?  (Photo credit: Wikipedia)

There was recently a case about an employee who posted racists comments about her co-worker on her Facebook profile that we thought was interesting because it raises the question: can one employee hold a co-worker accountable for the things they say or do on social media?

On August 1, 2012, Oscar Perez-Moreno, a manager at a golf resort, intervened between an argument that his co-worker, Danielle Kulczycki, was having with another colleague.  Two days later, Danielle posted on Facebook that she had been written up at work for calling Oscar “a dirty Mexican”.  Danielle had also told other employees: “now that Mexican is not going to give me anything”.

Oscar found Danielle’s Facebook post and found her derogatory comments humiliating and damaging to his character, work and personal life. He said that they created a negative emotional, social, mental and possibly financial effect on him.  The news had even reached his son’s classmate, who asked his son if Danielle’s post referred to his father.  Oscar felt that he should not have to feel ashamed of his roots. He started an action against Danielle through the Ontario Human Rights Tribunal.

The Ontario Human Rights Code prohibits harassment in the workplace on the basis of race, origin, ancestry and citizenship. Section 10(1) defines harassment as, “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

The Tribunal agreed with Oscar that he had been subject to discrimination with respect to employment because of race, ancestry, place of origin, citizenship and ethnic origin, and said that Danielle’s Facebook post and additional comments directly went against the Ontario Human Rights Code.

Ultimately, the Tribunal ordered that Danielle complete the Ontario Human Rights Commission’s on-line training: “Human Rights 101” within 30 days of the decision being released.

Two important employment law issues stand out in this case:

First, Oscar did not bring the complaint against their employer, the golf resort, but rather named his co-worker Danielle, an employee of the golf resort, personally.  Employees should take note that they may be held accountable for their conduct outside of the workplace, such as on Facebook and other social media sites.

Second, Oscar did not ask for monetary compensation – what he really wanted was that Danielle be fired. While the Tribunal said that it did not have the power to order that Danielle be fired (particularly because it might affect the golf resort, which was not named in the action), the Tribunal did indicate that it was not averse to the idea of awarding damages against an employee for conduct like that of Danielle’s.

To read the full decision, click here.

Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Can you get fired for NOT taking your breaks?

Can you get fired for not taking your coffee break?

Can you get fired for not taking your coffee break?

Ah…the age old question, how do you impress your boss?  To achieve this end, many people are inclined to work through their breaks and even lunch hours to show how effective and hard working they are.   However, it seems that going that extra mile may be a thing of the past.  Employers growing concerns surrounding overtime pay may be enough to get you fired for not taking your breaks in some workplaces.  Don’t believe it? Just ask Andrea Shettleworth.

Shettleworth was an employee with Banana Republic for nine years and by all accounts, she was an exceptionally talented sales associate.  She even won a trip to San Francisco for having sold more than $900,000 of merchandise in 2009.  However, in June 2010, she was disciplined by Banana Republic for taking sales away from others and working off the clock (i.e. working through her breaks).  Shettleworth was given a final written warning which stated “you will go on break when instructed to do so.  You will stay off the sales floor when not working on the clock or shopping for yourself”.

Shettleworth refused to sign the final written warning and contacted the Senior Vice President of Banana Republic.  She complained that she was being discriminated against on the basis of her race due to the excessive monitoring of her behavior.  Shettlworth filed an Application with the Human Rights Tribunal of Ontario in July 2010.  In September 2010, Banana Republic placed Shettleworth on a paid suspension in the course of an investigation into her conduct at work including working off the clock.   Store videotapes revealed that, on one occasion, Shettleworth worked off the clock for 10 minutes without permission while her manager was on break.  She was terminated on September 21, 2010 for having violated the terms of her final written warning.

Ultimately, the Tribunal sided with the employer and held that Shettleworth was terminated for failure to comply with the terms of her final warning.  The Tribunal also felt that Banana Republic had valid reasons to strictly enforce the ‘no working off the clock’ rule as employees not following the policy could make the company responsible for overtime pay or put them in breach of the Employment Standards Act.  Notably, the employer’s concerns were justified given that the Ministry of Labour’s decisions regularly find employers liable for overtime even after employees have been directed not to work those hours.  From our perspective, given the history, performance and strong record, this employer took an unnecessarily heavy handed approach and Shettleworth’s termination was unduly harsh.  Given her solid sales record, there were better ways for Banana Republic to have addressed their concern – perhaps pay her overtime!

The take-away here is that in a world where employers are becoming increasingly concerned with the cost of doing business, not all employers will admire their employees for going that extra mile.  As evidenced by Andrea Shettleworth’s case, working off the clock may even provide a ground to terminate the employee in certain workplaces.

The full decision can be found here.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Thanks to Mehran Wancho (summer student at Mann & Partners, LLP) for contributing this article.

Proud Sponsors of 2nd Annual Casino Royale – Charity Casino Night

Casino Royale

Mann & Partners, LLP is one of the proud sponsors of the 2nd Annual Casino Royale – Charity Casino night on Friday, June 14, 2013. Colleen Hoey will be there, and she invites you to please join us for some entertainment, dancing and “gambling”, all in support of some amazing causes.

More about The 2nd Annual Casino Royale (from their website):

The 2nd Annual Casino Royale is an upscale and exciting event that will once again leave the City of Ottawa both shaken… and stirred. This unique event will be returning to the 5-star luxury hotel, Brookstreet in Kanata, and is in support of the Candlelighters, Ottawa Humane Society and the Julianne Courneya Trust Fund. The 2nd Annual Casino Royale provides an experience unlike any other in the city.

This event blends the thrills and excitement of the Las Vegas strip, with the suave elegance made famous in the James Bond films. Guests will have the opportunity to play their favorite casino games like Roulette, Poker, Blackjack, Crown and Anchor and many more. Guests will be given “casino money” with their ticket on arrival, which can be used at the live auction to win exciting prizes like flat screen tv’s, home theatres, spa packages, sports vacations, luxury items, iPads, iPhones and so much more!

This year’s event will features two grand prizes: a trip for 2 to the United Kingdom to stay at a luxurious resort on a famous golf course where the Ryder Cup was held, and a trip for 2 to the 2014 Grammy Awards in Hollywood, California!

More about the Charities:

about_candlelighter

Since 1988, Candlelighters has been a not-for-profit volunteer organization providing programs and services for young cancer patients being treated in Eastern Ontario. These programs and services are aimed at needs of the entire family, and deal mainly with alleviating both the emotional and financial stress that families of children with cancer deal with on a daily basis. Money raised through this event will support Candlelighters Refuse2Lose Team Bryce Initiative. www.refuse2lose.ca

OttawaHumaneSociety

The Ottawa Humane Society is a non-profit community-based organization and a registered charity. Since 1888, they have been the leading organization providing a safe haven for sick, injured and homeless animals in Ottawa. Each year, the Ottawa humane society rescues and cares for more than 11,000 animals in our community. The humane society depends entirely on donations to support its programs to help animals and the environment. www.ottawahumanesociety.ca 

Julianne Courneya

JULIANNE COURNEYA TRUST FUND

On July 11, 2005, Julianne Courneya of Kanata was brutally attacked while working in Banff. The attack resulted in severe brain injuries. Julianne is now cared for at home and her recovery is dependent upon specialized therapies. Funding from third parties is very limited. The Courneya family has created a trust fund in order to pay for the specialized treatment Julianne received in the United States, and continues to receive in Canada.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Starting a new job? What to consider when reviewing your employment contract.

Contracts

Contracts (Photo credit: NobMouse)

1.      Start Date

Take the time to read the employment contract before you sign and before you start working.

2.      Termination Clause

This is the part of the contract that sets out how much notice the employer will give you if the decision is made that it is time to part ways.  Often the clause will say that the employer will only pay the minimum set out in provincial employment regulations.  The provincial minimum is often less than what an employee without an employment contract would receive.

As an example, a three year employee would receive 3 weeks pay in lieu of notice under the Ontario Employment Standards Act, 2000 (“ESA”). If that same employee’s contract did not limit the amount of notice they would get under the ESA, that employee would be entitled to claim common law notice which tends to be more generous than the statutory minimums.  In deciding how much notice an employee is entitled to at common law, a Court will consider the employee’s age, availability of other comparable jobs, and any other factors they think are relevant to determining an appropriate amount of notice.  The result is often a longer notice period for the employee.

If your contract says that you will only be provided with the provincial minimum of notice, you may want to try to negotiate for a notice period that is more in line with the common law.

3.      Non-Competition Clause

These clauses are typically difficult to enforce in Canada and are generally viewed as attempts to limit an employee’s ability to earn a living.  In order to manage expectations of both the employee and the employer, it would be worth asking that the non-competition clause be removed.  It is likely the case that some language in the contract about confidentiality of employer information and a non-solicitation agreement may provide some of the protection an employer is looking for while still respecting the employee’s ability to work in the same industry.

4.      Reference to Other Documents

If your employment contract states that you have read and agree to be bound my certain corporate policies or procedures, make sure that you are provided with a copy of those policies and that you review them before you sign.

Consider consulting a lawyer before signing your employment contract. Some people are concerned that consulting a lawyer before starting work shows a lack of trust.  It is often much easier to work out potential misunderstandings and clarify terms ahead of the employment agreement than after an employee has been terminated.   A consultation for a standard employment agreement should require no more than two hours for a review of the contract and give advice.  Senior executive contracts involving shareholder agreements and stock options will require additional time.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Lawyers “Feed the Hungry” Program- Why We Support The Ottawa Mission

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Today, myself and most of the staff here at Mann & Partners, LLP are volunteering our time to serve dinner at the Ottawa Mission as participants in the Ottawa Lawyers Feed the Hungry Program.  Various law firms in the Ottawa area rotate to provide meal service once a month, providing over 5,000 meals a year. We are so fortunate to have such an incredible program in Ottawa.

Working in Employment Litigation, I see the devastating effects that unemployment can have on a family. I am proud to support the Ottawa Mission, which assists those who are homeless by offering a variety of services, from providing food and shelter to addictions counseling and medical care, to education support and job training for those looking for help finding employment. There are a number of other incredible, free programs in the city who suffer from lack of employment, such as the Causway Work Centre, Young Parent Employment Program, Ottawa Works ServicesOttawa Employment Services Centre, Ottawa Community Coalition for Literacy and more.

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The Mission Blog explains the support services that they provide for those looking to get back into the workforce:

Most of the people who come to The Ottawa Mission have no desire to spend time at a homeless shelter.  They are just like you and me – they have families, and have had homes and jobs in the past.  The difference is that circumstances in their lives have left many of them sick and hurting − without a home, without work, without hope.   Their priority is to get their life back on track – and that means getting the help they need and, when they are able, finding a job.

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The Ottawa Mission has a number of programs to support people who are homeless or at risk of homelessness who want to rejoin the workforce.  Our Client Services Centre offers phone and computer access and workshops on resume writing.  The Stepping Stones Learning Centre has a full-time teacher who helps people upgrade their education – working on-line to achieve a high school diploma, or accessing college and university courses.  Our 5-month Food Services Training Program gives people the opportunity to gain valuable skills working with professional staff in our kitchen. Many graduates have gone on to pursue careers in the food services industry.

The latest program to be introduced at The Mission is the Custodial Skills Training Program.  Developed in 2012 in partnership with the City of Ottawa and the Ottawa Catholic School Board, this 8-week program includes classroom and on-the-job training. The first class wrapped up in March, and we are pleased to announce that 13 of the 15 students are now employed.

The success of the first Custodial Training Program session speaks for itself.  It has given thirteen people renewed hope – and a chance at a better life.

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To learn more about the Ottawa Mission’s Education, Job Training and Client Services, visit: http://ottawamission.com/how-we-help/education-job-training-client-services/

To make a donation now, visit: https://ottawamission.com/make-donation/

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Laughter at the Workplace: Good Fun or Harassment?

Paul HuschiltOver the past year, I have been an Executive on the Board for the Human Resources Professionals Association (HRPA) –  Brockville Chapter. It has been a great experience, and the folks on this Board are truly passionate and committed human resources professionals. On May 8, 2013, I attended the Annual Business Meeting for the Chapter. We had a great speaker for the event: Paul Huschilt, a professional speaker and storyteller. He spoke (and sang and danced) about the “Seven Humor Habits for Workplace Wellness”. I greatly enjoyed his presentation and message: laughter in the workplace is a good thing and that it is a great stress reducer.

Laughter is a perfect medicine to reduce stress. At the same time, sometime jokes are offensive. The line between a funny joke and an offensive one is not always apparent. In 2010, the Occupational Health and Safety Act was amended to impose greater obligations on employers to take positive steps to prevent harassment and violence in the workplace. For example, employers are legally obligated to maintain and implement a workplace harassment policy that includes: (a) measure and procedures for workers to report incidents of workplace harassment to a supervisor; and (b) details as to how the employer will investigate and deal with a complaint of harassment. Employees should be encouraged, without any fear of reprisal, to raise concerns when humor in the workplace crosses a line and becomes offensive and employers have to take those concerns seriously. More information is available on the Ontario Ministry of Labour website.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Jason Collins “comes out”: What are employers’ obligations re sexual orientation of employees?

Jason Collins played with the Celtics and Wizards this season, his 12th in the NBA. Andrew D. Bernstein/NBAE via Getty Images

Jason Collins played with the Celtics and Wizards this season, his 12th in the NBA.
Andrew D. Bernstein/NBAE via Getty Images

Jason Collins became the first professional athlete from a major professional sports league in North America to reveal that he is gay. This provides us with a good opportunity to consider an employer’s obligations in the workplace when an employee “comes out.” Employees in Ontario are protected by the Ontario Human Rights Code and a basic protection under the Code is that no employee can be discriminated against because of his or her sexuality. An employer’s obligation also extends to preventing harassment in the workplace and ensuring a safe workplace that is free of harassment. For further information, we encourage you to review the Ontario Human Rights Tribunal’s Sexual Orientation and Human Rights Brochure.

Here’s the article from Sports Illustrated regarding the story of Jason Collins:

I’m a 34-year-old NBA center. I’m black. And I’m gay.

I didn’t set out to be the first openly gay athlete playing in a major American team sport. But since I am, I’m happy to start the conversation. I wish I wasn’t the kid in the classroom raising his hand and saying, “I’m different.” If I had my way, someone else would have already done this. Nobody has, which is why I’m raising my hand.

My journey of self-discovery and self-acknowledgement began in my hometown of Los Angeles and has taken me through two state high school championships, the NCAA Final Four and the Elite Eight, and nine playoffs in 12 NBA seasons

I’ve played for six pro teams and have appeared in two NBA Finals. Ever heard of a parlor game called Three Degrees of Jason Collins? If you’re in the league, and I haven’t been your teammate, I surely have been one of your teammates’ teammates. Or one of your teammates’ teammates’ teammates.

Now I’m a free agent, literally and figuratively. I’ve reached that enviable state in life in which I can do pretty much what I want. And what I want is to continue to play basketball. I still love the game, and I still have something to offer. My coaches and teammates recognize that. At the same time, I want to be genuine and authentic and truthful.

Why am I coming out now? Well, I started thinking about this in 2011 during the NBA player lockout. I’m a creature of routine. When the regular season ends I immediately dedicate myself to getting game ready for the opener of the next campaign in the fall. But the lockout wreaked havoc on my habits and forced me to confront who I really am and what I really want. With the season delayed, I trained and worked out. But I lacked the distraction that basketball had always provided.

The first relative I came out to was my aunt Teri, a superior court judge in San Francisco. Her reaction surprised me. “I’ve known you were gay for years,” she said. From that moment on I was comfortable in my own skin. In her presence I ignored my censor button for the first time. She gave me support. The relief I felt was a sweet release. Imagine you’re in the oven, baking. Some of us know and accept our sexuality right away and some need more time to cook. I should know — I baked for 33 years.

When I was younger I dated women. I even got engaged. I thought I had to live a certain way. I thought I needed to marry a woman and raise kids with her. I kept telling myself the sky was red, but I always knew it was blue.

I realized I needed to go public when Joe Kennedy, my old roommate at Stanford and now a Massachusetts congressman, told me he had just marched in Boston’s 2012 Gay Pride Parade. I’m seldom jealous of others, but hearing what Joe had done filled me with envy. I was proud of him for participating but angry that as a closeted gay man I couldn’t even cheer my straight friend on as a spectator. If I’d been questioned, I would have concocted half truths. What a shame to have to lie at a celebration of pride. I want to do the right thing and not hide anymore. I want to march for tolerance, acceptance and understanding. I want to take a stand and say, “Me, too.”

[read more]

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Workplace Policies on Mobile Devices

The number of workplace policies that employers need to develop is constantly multiplying.  Recently, the need for a Bring Your Own Device Policy is appearing in articles dealing with workplace issues.[1]

What is a “Bring Your Own Device” Policy?

Bring Your Own Device (BYOD) means the policy of permitting employees to bring personally owned mobile devices (laptops, tablets, smart phones) to their workplace and use those devices to access privileged company information and applications.  While not required by statute like those required under the Occupational Health and Safety Act, the need for a BYOD policy is still important for both employees and employers to consider.

A November 2012 report by OVUM for Logicalis on the use of BYOD in the workplace suggest that more than half of employees are already using their own technology in some capacity at work.[2]  The numbers for employees in high-growth emerging economies are even higher with around 75% of employees reporting that they are happy to use their own devices for work.  Likewise most employees in the high-growth market prefer to use a single device for both work and personal use.  People do not like to carry around two phones.

Allowing your employees to BYOD

There are both pros and cons to this trend:

Pros

The benefits include potentially helping employees be more productive by being able to access work materials remotely and after hours.  As highlighted in another article in this newsletter, employers also have a duty to accommodate their employee’s family status obligations. The flexibility offered through BYOD (or other types of remote access) may assist employers in meeting those obligations.

The efficiencies presented by working on one single device which seamlessly integrates multiple functions may also be attractive for many people.

While it would seem that there should be cost savings to the employer once they no longer have to purchase the equipment, there is a question about whether in fact having to integrate and manage multiple types of devices would be more costly.

Cons

The most significant issue with the BYOD trend is that it would appear that much of this activity is going unmanaged.   In the absence of a policy there is a risk that employers may lose or compromise important information through their employee’s personal devices.  A comprehensive BYOD policy may involve both directives to employees as well as the adoption of certain technology which may allow the employer to control security settings, ensure that business information is stored on the company network and to delete data remotely if the device is lost and stolen.  One can expect that some employees may find such technology overly intrusive and there is likely to be debates about where the line between ensuring the employer’s information is protected and the employee’s right to privacy is drawn.

Without a policy and the appropriate technology in place, a terminated employee, or one who simply quits may walk out the door with considerable confidential information on their personal device without any means for the employer to be able to retrieve or wipe that data from the device.  Likewise, a lost or stolen device that had information which was not properly backed up onto the company’s network may prove to be an expensive problem.

What Are The Options?

There are two main options.  First, employers can maintain an outright ban on employees using their personal devices for work purposes and retain control by owning employee devices.   Such an approach while inconsistent with the trend, will allow employers to maintain control and militate against the risk presented by integrating employee’s personal devices.  Alternatively, employers can develop a BYOD policy, in partnership with their IT department or providers.  Such a policy will need to be clearly communicated to the employees particularly if the employer wishes to maintain the power to delete data in certain circumstances.


[1]  Julius Melnitzer, “Plethora of phones signal need for brig-your-own-device polices” The Law Times, February 11, 2013 www.lawtimesnews.com; See also Lisa Stam’s three part Bring Your Own Device series on her Employment and Human Rights Law in Canada Blog online: http://www.canadaemploymenthumanrightslaw.com

[2] Logicalis BYOD – Research findings released, posted November 28, 2012 online: http://www.au.logicalis.com/knowledge-share-logicalis/ovum-logicalis-byod.aspx

http://www.au.logicalis.com/knowledge-share-logicalis/ovum-logicalis-byod.aspx

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Employee’s Duty to Mitigate Damages

It is a general principle of employment law that an employee who is terminated from employment is required to make reasonable efforts to find other sources of income or “mitigate their damages”. Generally, income that is earned by an employee after he or she is terminated from employment during a reasonable notice period is deducted from any award of damages in a wrongful dismissal case.

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In a decision released in June this year, Bowes v. Goss Power Products Ltd. (2012 ONCA 424), the Ontario Court of Appeal considered the application of this principle of mitigation where an employment contract provided a fixed amount of severance upon termination. Peter Bowes entered into an employment agreement with Goss Power Products. The contract provided that if he were terminated without cause, he was entitled to six months of notice or pay in lieu of notice. Following his termination without cause, however, the employer learned that he secured other employment and refused to pay the full six months of severance on the grounds that Mr. Bowes had successfully mitigated his losses by finding other work.

Mr. Bowes sued for the full six month payment without any deductions for amount earned from other employment during the six month period.  The application judge accepted the employer’s argument and held the general duty to mitigate damages applied. In doing so, he equated the fixed notice period (or pay in lieu) stipulated in the contract to damages at common law for reasonable notice which is subject to the duty to mitigate. Since the contract was silent on the issue of mitigation, the application judge held that the duty to mitigate applied and if the parties had intended to remove the employee’s obligation to mitigate that should have been set out in the contract. Therefore, the application judge concluded that Mr. Bowes had mitigated his losses by finding other employment and was not entitled to the full 6-month payment as set out by the contract. Bowes appealed the decision.

The Ontario Court of Appeal disagreed with the application judge and concluded that Bowes was entitled to the full six month payment. The Court held that where an employment agreement stipulates a fixed term of notice or payment in lieu there is no obligation on the employee to mitigate his or her damages, unless the contract clearly and specifically indicates otherwise.  In making this conclusion, the Court of Appeal made three key findings:

(1)          A fixed term of notice or payment in lieu is not equivalent to common law damages for reasonable notice (the parties negotiated something different);

(2)          Payment in lieu of a fixed term of notice, being liquidated damages or a contractual amount, is not subject to the duty to mitigate; and

(3)          The employers concerns regarding an employee’s “golden parachute” or any potential unfairness to the employer was without merit. The Court stated: “A contract is a contract, and it is expected that it will be honoured.”

In summary, the Court of Appeal held that where an employment agreement contains a stipulated entitlement on termination without cause, the amount in question is either liquidated damages or a contractual sum. Either way, mitigation is irrelevant and an employee in this situation is not required to mitigate his or her damages. Where an employer seeks to have mitigation apply in a contract specifying a fixed amount upon termination without cause, clear and specific language contractual language is necessary.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Job Protection when Family Members are Sick or Terminally Ill

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Have you ever wondered what would happen to your job if a family member got sick and needed you to care for them?

What Protections Are Available Now if a Family Member Gets Sick: Family Medical Leave?

Currently, if a family member is terminally ill an employee, whether full time, part time or under a term contract is entitled, under section 49.1 of the Employment Standards Act, 2000  (“ESA”) to eight weeks of job-protected unpaid leave.  This is called Family Medical Leave.   In order to qualify an employee needs to provide a doctor’s letter which provides that there is a significant risk of death to a family member occurring within a period of 26 weeks.  An employee who takes Family Medical Leave is also eligible to apply for up to six weeks of Compassionate Care Benefits under the Federal Employment Insurance (EI) Act.

Ten days of unpaid job protected personal emergency leave is also available under section 50 of the ESA to employees because of personal illness, injury or medical illness of the employee or their family (broadly defined) but this is only available to employees who work in an organization with 50 employees or more.  While some employers have paid benefit plans for sickness, bereavement and other leaves of absence, this is not required by the ESA.

The New Protections are being proposed:  Leaves to Help Families – Bill 21

The Ontario Government is once again proposing to add additional unpaid job-protected leave for caregivers.  (An earlier version of this Bill was previously introduced as Bill 30 but did not pass third reading before the former government was prorogued).

The amendment to s. 49.3 of the ESA would create family caregiver leave and allow an employee up to eight weeks of unpaid leave to care for a family member who has a serious medical condition. To qualify a medical certificate would still be required but it would only need to confirm that the medical condition was serious.

Other amendments include those to sections 49.4 and 49.5 which create critically ill child care leave and crime-related child death or disappearance leave respectively.

It is not yet clear whether people who take advantage of these new forms of leave would be entitled to Employment Insurance benefits.  In the event that EI is not available it raises the question: how many people would be able to afford to take advantage of 8 weeks unpaid leave?

As it stands, Bill 21 will require that people who take this leave would have to take the leave a week at a time.  This has been the source of some debate in the legislative assembly.

From an employer’s perspective this kind of leave may present its own set of challenges, particularly for smaller and medium sized businesses who may find the impact of an employee’s eight week absence significant, both economically and practically. Family Caregiver Leave may prove to be particularly challenging for employers because employees will be able to take up to 8 weeks leave for each person who qualifies as a family member under the ESA.  The definition of family member includes spouses, parents, children, siblings, grandparents and grandchildren, dependent relatives and other prescribed people.

Bill 21 which amends the Employment Standards Act is currently in its second reading.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Restrictive Covenants in Employment Contracts

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A recent court decision reaffirmed that employers need to be careful when drafting restrictive covenants, commonly known as non-compete clauses.

In a recent decision of the Ontario Court of Appeal, Mason v. Chem Trend Ltd. Partnership, 2011 ONCA 344, the court considered the enforceability of a restrictive covenant in an employment agreement and the need to balance an employer’s protection of confidential information and trade connections and a public policy against the restraint of trade.

Tom Mason was terminated by Chem-Trend after 17 years of employment as a technical sales representative.  Before his termination, Mason’s territory of responsibility included all of Canada and a number of mid-Atlantic U.S. states.  When Mason began working for Chem-Trend he had signed an employment agreement which contained the following restrictive covenant:

“I agree that if my employment is terminated for any reason by me or by the Company, I will not, for a period of one year following the termination, directly or indirectly, for my own account or as an employee or agent of any business entity, engage in any business or activity in competition with the Company by providing services or products to, or soliciting business from, any business entity which was a customer of the company during the period in which I was an employee of the Company.”

Mason brought an application asking the court to declare the restrictive covenant unenforceable.

The Court of Appeal looked at the Supreme Court decision of Shafron v. KRG Insurance Brokers, [2009] 1 S.C.R. 157, which held that covenants that restrain trade will only be upheld where they are found to be reasonable in the circumstances.  The court first analyzed whether there was any ambiguity on the face of the covenant, and found that the plain words were clear.  The court then applied a three prong test to determine if the restrictive covenant was reasonable.  The three factors the court considered were:

  1. Did the employer have a proprietary interest it was entitled to protect?
  2. Are the temporal or spatial limits of the covenant too broad?
  3. Is the covenant overly broad in the activity it proscribes because it prohibits competition generally and not just solicitation of the employer’s customers?

In its analysis, the court looked at the employment agreement as a whole, finding that there were other covenants in the agreement which protected trade secrets and confidential information.  The court also found that a restriction on all former customers of the company, whose customer information could be very stale in the case of a 17-year employee, was not consistent with the one year restriction.  It would also not be clear, in practice, for Mason to know which potential customers he was prohibited from doing business with as there was no way for him to know if a potential contact was a customer of the company in the last 17 years.  The court found that the complete prohibition on competition was overly broad and therefore unreasonable and unenforceable.  The court did indicate that there may be more justification for a broader prohibition on competition in highly placed employees such as the president or chief financial officer.

It is clear that the Ontario courts will not enforce restrictive covenants which are ambiguous or overly broad in scope or activity.  In addition, Canadian Courts will not “read down” an unenforceable covenant, rather the covenant will be found unenforceable in its entirety.  This decision highlights the need for employers to carefully draft restrictive covenants that are not overly broad in either scope or duration.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Privacy Protection in Workplace

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Privacy in the workplace requires a balance between employer and employee rights. A recent decision of the Ontario Court of Appeal has expanded privacy protections in the workplace by creating a new privacy tort. The decision has far reaching implications for privacy in the workplace. At paragraphs 67-68 of the decision, Justice Sharpe commented:

For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially….It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form.

The case involved two employees, Sandra Jones and Winnie Tsige, who both worked for the Bank of Montreal at separate branches. Jones also did her primary banking at the Bank of Montreal (BMO). Tsige became involved in a relationship with Jones’ former husband. Over a four year period, Tsige accessed Jones’ personal banking information approximately 174 times, which included banking details, her date of birth, marital status and address. Tsige did not publish, distribute or record any of the information. Jones became suspicious and complained to BMO. Jones claimed damages of $70,000 against Tsige arising from an invasion of privacy and breach of fiduciary duty. The case was dismissed by a motion judge because the law in Ontario had not explicitly recognized a free standing cause of action for “breach of privacy”.

In reversing the motion judge’s decision, the Ontario Court of Appeal acknowledged that the law had to evolve and expand because Jones was without a proper remedy against a co-worker who had invaded her privacy. At paragraph 69, Justice Sharpe said:

While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

The Court considered legislation such as the Protection of Electronic Documents Act, 2000, (“PIPEDA”) which applies to federal organizations. This legislation offered no remedy to Jones because a complaint would need to be made against BMO, not Tsige. The legislation provided no recourse to recover damages for the harm caused by the invasion of privacy.

The Court considered legislation in other provinces, such as British Columbia and Manitoba, who have specifically created a tort of invasion of privacy through privacy statutes. Other jurisdictions, including most American states, have already recognized a right of action for invasion of privacy.

The law in Ontario failed to provide any real remedy for Jones. The Court of Appeal was convinced that the time had come for Ontario’s common law to evolve and established a new right of action called “Intrusion upon Seclusion” for deliberate and significant invasions of personal privacy. The Court defined the cause of action as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the invasion would be highly offensive to a reasonable person.

In determining the amount of damages, the Court of Appeal set a maximum amount of $20,000.000 in damages for cases where no actual financial loss was suffered, as was the case here. The Court considered factors such as the nature of the wrongful acts, the effect of the wrong on the Plaintiff, including embarrassment or distress, and conduct of the Defendant, including any apology that was offered. In this case, given the deliberate and repeated actions of Tsige, along with the fact that Tsige apologized and made genuine attempts to make amends, the Court awarded Jones $10,000.00.

This case will have far reaching implications on the workplace. Employers will need to carefully control access to personal information that is collected about employees and should impose strict controls on the use and access of that personal information. Employees now have the legal right to pursue damages against each other in cases where there has been a deliberate and improper use of another’s personal information.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Human Rights Complaints in the Workplace

Seventy-seven percent (77%) of all applications received by the Ontario Human Rights Tribunal in 2010-2011 arose in the workplace.[i]

Out of those workplace related applications, disability was the most cited prohibited ground of discrimination accounting for fifty-five percent (55%) of the applications.  Disability is broadly defined by the Ontario Human Rights Commission to include physical, mental and learning disabilities, mental disorders, hearing or vision disabilities, epilepsy, drug or alcohol addiction, environmental sensitivities and other conditions.

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While disability was listed on more than half of the applications to the Human Rights Tribunal last year, that was by no means the only form of discrimination applicants experienced.  Other grounds included sex (24% of applicants) race (22%) age (15%) and family status (10%).

The number of applicants citing family status as a ground of discrimination appears to be growing.  The Ontario Human Rights Code extends some protection to specific family relationships, for example, parents may not be discriminated against because they have children.  Likewise, adults caring for parents or relatives with disabilities and families headed by lesbian, gay bisexual or transgendered persons are also protected.   What this means in the context of the workplace is that in some circumstances employers may need to accommodate individuals such as a single parent with child care responsibilities.

Seven Key Things to Know about the Ontario Human Rights Tribunal

Whether you are an applicant or respondent, the following are seven key things to know about the Ontario Human Rights Tribunal:

  1. Applicants may be eligible for assistance through the Human Rights Legal Support Centre which is an independent agency funded through the Government of Ontario whose mandate is to provide assistance to individuals who have experienced discrimination.   Web site:  www.hrlsc.ca
  2. Applications must be made within one year of the incidence of alleged discrimination or the last in a series of alleged incidents.
  3. Generally speaking, respondents have thirty five (35) days to respond.
  4. Applications and Response forms are available on the internet www.hrto.ca.  These applications are detailed and the Tribunal requires information to be complete.  A guide is available on line although both applicants and respondents may want to consider getting the assistance of legal counsel as the information in these forms are key to how the HRTO proceeds with the application.
  5. Mediation is strongly encouraged by the Tribunal and according to the Associate Chair of the Human Rights Tribunal of Ontario David Wright, last year sixty percent (60%) of cases settled at or after mediation.  Even if the matter is not settled at mediation, it can be a very useful process at it gives the parties the opportunity to hear the mediators’ feedback about possible results and can lead to a narrowing of the issues in dispute.
  6. Remedies that can be awarded by the Tribunal range from damages for injury to dignity, feelings and self respect to damages for financial losses to orders concerning future compliance (for example a workplace can be ordered to implement certain human rights policies).
  7. Legal costs will not be awarded to the successful party.  Following the Supreme Court of Canada decision in Canada (Human Rights Commission) v. Canada [2011] 3. S.C.R. 471  the Tribunal may not make cost awards.  While it is possible that the Tribunal will seek legislative amendments that will allow them to award such fees in the future, for now it is important for parties to be mindful of the fact that they will have to bear the full cost of their own legal fees, even if they are successful.

[i] Presentation by David Wright, Associate Chair of the Human Rights Tribunal of Ontario to the Human Resources Professional Association, January 2012.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Employers Must Accommodate Childcare Obligations

Human rights legislation prohibits an employer from discriminating against an employee on the basis of “family status”. Does this protection require an employer to modify a work schedule or refuse a work assignment due to child care obligations? In Canadian National Railway v. Seeley, 2013 FC 117, the Federal Court of Canada confirms that family status protection offered by human rights legislation includes childcare obligations, and that employers must meaningfully consider parents requests for accommodation based on childcare obligations, or they run the risk of violating human rights legislation.

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Ms. Seeley was employed by CN as a freight train conductor and her home terminal was in Jasper, Alberta. After a lengthy layoff, CN recalled her to a position in Vancouver. Ms. Seeley was required to report to the Vancouver terminal within 15 days. Ms. Seeley advised CN that since her layoff, she had two children, one six years old in kindergarten and the other 21 months old in daycare. She also noted that her husband was a CN employee away for long hours, so she was primarily responsible for childcare responsibilities outside of business hours. She requested a 30-day extension to consider childcare options. She also asked for relief from the obligation to report to Vancouver on compassionate grounds. CN never responded, nor did it provide her with any information about the term of the recall assignment in Vancouver, or any information about housing or possible childcare options in Vancouver. CN maintained its view that under the collective agreement, Ms. Seeley was required to report to Vancouver. Although extensions of time were given to Ms. Seeley, when Ms. Seeley continued to refuse to report for duty in Vancouver, her employment was terminated.

Ms. Seeley filed a complaint with the Canadian Human Rights Commission alleging discrimination on the basis of family status. The Canadian Human Rights Tribunal (the Tribunal) allowed her complaint. The Tribunal decided that “family status” included parental childcare obligations, that there was a prima facie case of discrimination and that CN failed to properly accommodate Ms. Seeley’s request for accommodation. The Tribunal ordered CN to review its accommodation policy, reinstate Ms. Seeley to her position, pay compensation to Ms. Seeley for lost earnings and awarded Ms. Seeley additional compensation for pain and suffering and for reckless conduct by CN.

CN applied for a judicial review of the Tribunal’s findings. CN argued that the Tribunal’s broad interpretation of “family status” which equated family status with personal parenting choices was wrong. CN suggested that a broad interpretation of “family status” which included personal parenting choices would cause “disruptions and great mischief” in the workplace. The Court rejected CN’s argument for a narrow interpretation of family status, and held that childcare obligations were properly within the scope of the term family status. The Court did note that not every instance of tension or conflict between a workplace requirement and childcare would garner the protections of human rights legislation. It is only when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that he case for prima facie discrimination based on family status is met.

The Court confirms that employees an employee must have tried to reconcile family obligations with work obligations. However, in Ms. Seeley’s case, she asked CN for accommodation related to childcare on several occasions. CN did not respond to her requests seriously and failed to engage Ms. Seeley in any meaningful discussion about possible accommodations that may have been available. As a result, CN discriminated against Ms. Seeley based on family status and violated human rights legislation. Employers should always take requests for accommodation seriously, and must be flexible in developing solutions which permit employees to meet their childcare responsibilities.

Russell MacCrimmon and Colleen Hoey are Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.

Welcome to Ottawa’s new employment law resource!

Employment, Human Rights and Civil Litigation lawyer, Colleen Hoey of Mann & Partners, LLP has created a website where Ottawa citizens can learn about employment law issues, read the latest opinions about recent employment litigation decisions from court, and learn what questions to ask to find the right lawyer for your employment needs.

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Colleen Hoey is an Ottawa-based lawyers practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.