Establishment and Termination of Bargaining Rights in Ontario

employment_labourEmployers and employees are significantly impacted when a union is introduced into or removed from a workplace. In this blog, we explain ways in which bargaining rights in Ontario are established and how they come to an end.  All parties are typically involved in the process in some fashion and may wish to have legal guidance.

 Vote or Card Based Certification

In the most straightforward of cases, a union may canvas employees at a non-unionized workplace to seek their support for certification. Those employees who are willing may indicate their support in writing, typically by signing a union card.  If more than 55% of employees agree to join the trade union, the union can apply to the Ontario Labour Relations Board (“OLRB”) for automatic certification.  If at least 40% of employees indicate their intention to join the trade union, the union can apply to the OLRB for a representation vote amongst all employees who perform work within the proposed bargaining unit.  Who may vote and who counts toward the percentage tally differs in the construction industry where only employees performing work within the scope of a proposed bargaining unit who were at work on the day of the application are eligible to participate.  

Unfair Labour Practices

Challenges may arise in determining whether certification or decertification reflects the true wishes of employees and has been achieved in accordance with the Labour Relations Act, which prohibits unfair labour practices such as interference and intimidation and coercion by both employers and unions.  This does not prohibit the union from trying to convince employees that certification is beneficial or employers from discussing the potential impact of certification upon employees provided the employees do not fear reprisal from either party.  Should the OLRB find that an unfair labour practice has occurred, they may order certification or decertification, even if a vote did not reflect that outcome.

Decertification / Raids 

Once certified, the opportunity for decertification or a raid by another union presents itself in what is called an “open period,” effectively the three months before a collective agreement (typically three years) is set to expire or, in the case of a longer term collective agreement, in the last three months of the third year, and the last three months of each subsequent year as well as the final three months of the collective agreement. If there is no collective agreement within a year of certification, opportunity arises sooner for decertification or a raid by a competing union.

In the construction industry, the open period is for two months preceding the expiration of a collective agreement, many of which are province-wide.

In any decertification action, it is critical that employees act independently of their employer in filing an application. In a raid, where another union seeks to assume bargaining rights, the raiding union would file the application.  In each case, an employer would be a party to the proceedings.

Related /Single Employer and Sale of Business

 Bargaining rights may also attach through a related employer (single employer in construction) or sale of business declaration sought by a union. In the former, the Labour Relations Act seeks to prevent the loss of bargaining rights where an employer tries to shut down a certified business only to open up a new business doing the same thing, but without adhering to the collective agreement.   It will also capture situations where an employer attempts to divert its work to a non-unionized business that it has an interest in.

The sale of business provisions ensure that bargaining rights are preserved when a business is sold and continues to carry on in a similar capacity. It typically does not create new bargaining rights unless a new employer mixes employees of its new unionized business with employees of a similar non-unionized business, or transfers work between the two.

Need Guidance?

The information above is to provide a general outline only. There are many nuances involved in the above processes, and many more scenarios that the Labour Relations Act contemplates. It’s important to know that the OLRB maintains strict and tight timelines to respond, so it’s critical to move quickly if you receive notice of a proceeding.  The OLRB itself offers helpful information bulletins http://www.olrb.gov.on.ca/english/iblist.htm surrounding different processes. Please also note that the Canadian Industrial Relations Board governs labour relations in federally regulated industries in Canada and has its own rules and processes.

If you are an employer or employee facing OLRB proceedings or seeking to commence them, we would be pleased to provide more specific guidance and assist you in navigating the process.

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Having Faith

 

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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.

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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HOW AND WHEN TO TALK TO HR

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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.

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.

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.