Dating and Harassment in a 21st Century Workplace

While the advent of texting, sexting, dating sites and other on-line activities have added to the ways in which workplace romances can take a negative turn, workplace romances are not new.  Take, as an example, one of the earlier Dear Abby letters:

DEAR ABBY:  We work in a large office.  Our office manager, I’ll call him Marvin, is a middle-aged family man.  The boss’ secretary, I’ll call her Sissy, is a shapely young divorcee.  Since Sissy came to work here, she and Marvin have been spending a lot of time together in the file room with the door locked.  What they do in there is their own business, but we’re tired of covering up for them when the boss comes looking for Sissy.  What do you suggest?

–       The Office Gang

DEAR GANG: Next time the boss comes looking for Sissy, tell him to look in the file room under “Marvin”.

The fact is workplace romances are not uncommon.  According to CareerBuilder’s 2016 annual Valentine’s Day survey, 37 percent of workers have dated a co-worker.

In love with colleagueRomance in the workplace is not necessarily a bad thing, of those who have dated a co-worker in the CareerBuilder survey, 33 percent reported that the office romance led to marriage.  This is not entirely surprising.  People who work together often share common interests, goals and experiences.

Even when an office romance leads to nuptials, the experience for co-workers is not universally positive.  Relationships can be the source of gossip, resentment and concerns of favoritism and loss of productivity, perhaps due to long coffee breaks, lunches and email exchanges.

While lost time due to an employee’s energies being expended on wooing their colleague is of concern, employers can become more directly impacted and involved in workplace romances (particularly unrequited or failed ones) when those relationships lead to complaints of invasion of privacy, harassment, discrimination, and constructive dismissal.  For example, imagine a scenario where an employee declines the advances of a colleague who is more senior in the company hierarchy.  Going forward, if the employer makes changes or declines to promote the more junior employee there is a risk the decision not to promote will be perceived as a form of punishment for the employee’s unwillingness to continue the relationship.

The dark side of workplace romances can also lead to personnel taking medical leaves or even making the decision to resign.  Workplace violence can also be a concern.  Recall that one of the galvanizing events that lead to Bill 168 – Workplace Violence and Harassment Amendments to the Occupational Health and Safety Act was the murder of Theresa Vince, who was killed by her supervisor after 14 years of workplace harassment.

Out of the Building Does Not Mean Outside the Scope of Employer Responsibility

While the Office Gang was concerned with the romantic activities going on in the office file room, employers also now have a wider range of spaces where they can find themselves implicated and potentially found liable for conduct between their employees. The court in Simpson v. Consumers’ Association of Canada, wrote “It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment”.

How to Address Workplace Romance?

There are a number of ways employers may wish to approach workplace romance.  Some suggest an absolute prohibition, and there are examples of companies that require employees in a relationship to sign a workplace romance contract absolving the employer of any liability.

Creating a prohibition against workplace romance may create its own set of problems of monitoring and enforcement.  A different tact would be start with the assumption that dating may happen.

What can be done, in addition to developing (and implementing) the standard Workplace Harassment and Violence, Social Media, Confidential Information and Privacy policies, is creating a policy that requires disclosure of a workplace romance where there is, or could be, a potential conflict of interest.  This might arise in the context of a relationship between a subordinate and a superior.  Where such a relationship develops it would be worth thinking about how to ensure that the person in the more senior position does not have undue influence over the career path, compensation or other opportunities of the more junior employee.

Conflicts of interest may also be seen to arise when an employee enters into a relationship with a client, business partner, donor or lobby group.  Many professions regulated under the Regulated Health Professions act have very strict prohibitions against dating a current and even former patient. Different workplace events will have their own challenges and vulnerabilities.

Employers may want to consider crafting a conflict of interest policy, which addresses the specific risks that might arise in the context of its own particular organization or business.

In the event of newly promoted employees, consider providing additional training on boundary issues.  The same friendly banter that was accepted by peers may be viewed differently after the person is promoted to a management position.

It is also important to be mindful that holiday parties, working late nights, out of town conferences and happy hours/cocktails can be the catalyst for workplace romances.

When relationships come to an end, the employer will also want to take pains to treat both parties to the relationship equally (and not, for example, to simply terminate the employment of the more junior party).

This blog post is based on a presentation that Colleen Hoey made to the HRPA Legal Conference.  She is a partner at Mann Lawyers LLP and can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

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The Man and the Mini-Horse in the Middle Office – Service Animals in the Workplace

Daniel the duck, Stormy the parakeet and the Cali the Miniature horse have all made the news as Support Animals who provide disability assistance to their owners.

While a Service Animalpexels-photo-97533.jpeg has traditionally been understood to be a dog trained to assist someone who is visually impaired, increasingly people have been relying on a range of animals to provide assistance with a host of disabilities including anxiety, autism, PTSD, diabetes, mobility issues and hearing loss.

There is no universal definition of what is considered a Service Animal.  For example, under the US’s Americans with Disabilities Act, (ADA) Service Animals are limited to (trained) dogs however entities covered by the ADA must modify their policies to permit (trained) miniature horses where reasonable.   https://www.ada.gov/service_animals_2010.htm

In Manitoba, the Service Animals Protection Act defines “service animal” as an animal “trained to be used by a person with a disability for reasons relating to his or her disability.” Presumably then any animal can be used as a Service Animal, provided that it has been trained to be used by a person with a disability.

In Alberta, the Service Dogs Act prohibits discrimination against people using a Service Dog which is defined as a dog trained as a guide for a disabled person and having the qualifications prescribed by the regulations.

In Ontario, there is neither a clear list of what may or may not be considered a Service Animal nor is there yet a universally accepted standard for certification or training for Service Animals.    In his decision in Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 (CanLII) Adjudicator Brian Cook wrote at paragraph 58 of his decision:

“….I agree that confusion about the status of service animals is an issue.  While it is clear that people other than blind people may benefit medically from animals, this may not be widely understood. It similarly may not be widely understood that this has been codified in legislation and that in certain circumstances people are legally entitled to be accompanied by a service animal or, in the case of restaurants, a service dog.”  

How then should Ontario employers respond to an employee who discloses that they have, for example, an anxiety disorder and asks to bring his emotional support animal to work?

In Ontario, there are a number of pieces of legislation that refer to Service Animals.

  1. The Ontario Human Rights Code prohibits discrimination, harassment, and reprisal in all of the areas covered by the Code, including employment.  The definition of disability under the Code includes inter alia physical reliance on a guide dog or other animal but the code does not provide any guidance on which animals are included, whether training or certification is required in order to be qualified as a service animal or if in fact only physical reliance on the support animal will qualify as a service animal (and not for example reliance of reasons of mental health). The Ontario Human Rights Tribunal has considered a number of cases involving Service Animals and it is clear that each case will depend on its own particular facts.  (Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 (CanLII).
  1. The Accessibility Standards for Customer Service, Ontario Regulation 429/07 (the “Standards”) provides that “an animal is a service animal for a person with a disability if,

(a) the animal can be readily identified as one that is being used by the person for reasons relating to the person’s disability, as a result of visual indicators such as the vest or harness worn by the animal; or

(b) the person provides documentation from one of the prescribed list of regulated health professionals confirming that the person requires the animal for reasons relating to the disability.” O. Reg. 191/11: INTEGRATED ACCESSIBILITY STANDARDS Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.

In response to these regulations, institutions such as the University of Waterloo have explicitly listed monkeys, ferrets, or miniature horses as examples of animals that are used to support in their AODA customer service standard.

  1. The Blind Persons’ Rights Act; R.S.O. 1990, CHAPTER B.7 defines a guide dog as a dog trained as a guide for a blind person and having the qualifications prescribed by the regulations. The law prohibits discrimination in services, accommodation, facilities or occupancy against blind persons using guide dogs.
  1. The Retail Sales Act refers to animals “specifically trained to assist and for the sole benefit of persons who are chronic invalids or who have a physical disability, and harnesses for such animals. 1996, c. 29, s. 26 (2).”  And
  1. The Health Protection and Promotion Act, R.O. Reg. 562 requires that every operator of a food premise shall ensure that every room where food is manufactured, prepared, processed, handled, served… is kept free from live bird and animals. However, this Regulation creates an exception to the general rule that animals are not permitted and allows a Service Dog serving as a guide for a blind person or for a person with another medical disability who requires the use of a Service Dog.

While some of the references to Service Animals in Ontario’s legislation are more and less specific (i.e. some are limited to dogs while others are not, some requiring specific training and harnesses and others do not) when it comes to a request to bring a Service Animal to work, as a starting point, employers ought to approach the request as it would any other request for accommodations covered under the Ontario Human Rights Code.  Some questions the Employer may want to consider include the following:

  • Are there any reasons that the workplace must have a no-animal policy?
  • Has the employee provided medical evidence to demonstrate the need for accommodation and that the use of a Service Animal is required for this particular accommodation?
  • Has the employee stated whether the animal is trained to be in a work environment and whether the animal will be under the employee’s control at all times. (There is not, however, any universal recognized standard for Support Animal training nor is there any requirement in either the Ontario Human Rights Code or the AODA that requires any training.)
  • Both the employee and employer will want to consider what will be required in order to allow the animal in the workplace (i.e. regular breaks to allow the animal to move around, relieve itself, clean up responsibilities)
  • Employers may want to consider allowing the animal in on a trial basis
  • Whether it is possible to develop an agreed communication that will go out to staff about the fact that there will be an animal in the workplace

Employers will also want to be mindful of the fact that while they are accommodating one employee, the introduction of animal into the workplace may trigger competing concerns for other employees (who, for example, may be allergic or have phobias of certain animals).

This is an area of the law that is likely to continue to evolve over the next few years.

Some additional Resources on Service Animals Include:

Canadian Foundation for Animal Assisted Support Services

Service Dogs Canada

Canadian Transport Agency – travelling with Service Animals

Colleen Hoey is a partner at Mann Lawyers LLP and can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

Higher wages, more vacation, more protected leave – what’s not to like?

On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017.

Employment-LawAccording to its summary, these changes were brought about because of a recognition that the economy is changing and many workers struggle to support their families on part-time, contract or minimum-wage work, and many more don’t have access to time off due to illness.

The changes brought about by the new law are significant and include the following:

·     An increase in minimum wage from $11.40 to $14.00 in 2018 and to $15.00 in 2019;

·     Three weeks’ vacation for employees who have worked five years or more;

·     Ten days of Personal Emergency Leave for all employees (not just those working in a business with 50 or more employees), two of which must be paid and in respect of which a medical note cannot be required by the employer;

·     An increase in Compassionate Care Leave from 8 weeks to 27 weeks; and

·     A new method of calculation of public holiday pay.

Many of the changes are effective January 1, 2018.  Other changes, including rules regarding scheduling of shifts, and payment for being on call, will come into play in January 2019.

It is difficult to argue with the idea of higher wages, more paid vacation, higher paid public holidays, and more job-protected leave time. These changes are consistent with the idea of building a caring society where people are paid fairly for their work and can enjoy some leisure time.  Looking at the changes strictly from the employee’s perspective, there is little not to like.

From the employer’s point of view, these new rules likely appear less rosy. While many people associate “employer” with large corporations, public institutions and successful companies with ample resources, the fact is that in 2015,  87.3 % of Ontario’s population was  employed by small and medium sized businesses. 1 While some of these small and medium sized companies may have little trouble adapting to the new changes, a study by the Canadian Center for Economic Analysis on the potential impact of this new legislation cautions that those small businesses with 20 or less employees may be particularly negatively impacted by the sudden significant increase in costs.2 There will also be the demands associated with compliance with the new rules which the Ministry of Labour has promised to vigilantly enforce through the hiring of more enforcement officers who will conduct more inspections, impose higher fines and publish the names of non-compliant businesses. 3

Some have suggested that rather than protect workers, the new legislation will encourage employers to adopt new technologies that will allow them to reduce their workforce.  It is also possible that some businesses will be forced to close because the costs are too much.  Each year thousands of businesses enter and exit the market place.  Over the coming years it will be interesting to track whether, in the wake of these legislative changes, there were a greater number of businesses exiting the Ontario market or an overall decline in jobs.

Developing ways to respond to the changing economy and fostering a caring and equitable workforce are positive initiatives.  It remains an open question whether this new law will be able to accomplish its goals.

Colleen Hoey is a partner at Mann Lawyers LLP and can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

1 https://www.ic.gc.ca/eic/site/061.nsf/eng/h_03018.html#point2-1.

2 http://www.occ.ca/wp-content/uploads/2013/05/CANCEA-Analysis.pdf

3 https://www.ontario.ca/page/plan-fair-workplaces-and-better-jobs-bill-148

Terminations during the Probationary Period: Three Common Assumptions

Many employers like to take the first few months of a new employee’s employment to decide whether their new hire is the right addition to the team.   Some like to call it a probation, others, a trial or evaluation period. Irrespective of what it is called I have noticed three recurring assumptions about this initial period that are worthy of attention by both employees and employers.   Employers relying on these assumptions may believe themselves better protected against claims for payment of reasonable notice than may in fact be the case. Employees for their part may assume that they have no recourse following a termination during their probation period which again, may not always hold true.

Assumption #1 – An employer can automatically terminate an employee during the first three (3) months of employment without providing the employee notice or pay in lieu.

The right to terminate without notice during the probation period is not automatic. Although the Employment Standards Act, 2000 (“ESA”) stipulates that an employee who is terminated within the first three (3) months of their employment is not entitled to notice or pay in lieu, a court will not simply infer that the employee has agreed to these terms.   Justice Lederman in Easton v. Wilmslow Properties Corp [2001] O.J. No 447 reasoned:

The existence of a probation period is a question of fact in each case. Since it takes away an employee’s usual rights, a probationary period must be expressly agreed to by the employee. It cannot be implied into the relationship…

Assumption #2 – In the absence of a clear probationary period clause, the amount of notice that a short service employee is entitled to receive is necessarily very minimal.  

Some employees who have had their employment terminated within the probation period (and who did not have enforceable probation clauses in their contracts) have been awarded some relatively lengthy notice periods. To give three examples: In the case of Easton, the plaintiff who was terminated after two weeks was awarded three (3) months’ notice because she had left a reasonably secure job to work for the defendant employer.   Likewise, in the case of Rejdak v.The Flight Network, the employee was awarded four (4) months of notice after eleven (11) weeks of work.   Similarly in Deacon v Moxey, 2013 CanLII 54099 (ON SCSM) the employee was awarded three (3) months of notice after working two (2) weeks.

Assumption #3Extending a probation period provides the employer a longer period within which they can terminate the employee without notice.

While an employer can stipulate a longer probation period (i.e. 6 months) in an employment contract, this does not automatically extend the window that an employer can terminate the employee without notice or pay in lieu. Employers will want to ensure that the probation clause is drafted to ensure that there are no violations of the ESA.

Whether you are an employee or an employer, if you have questions about drafting or the enforcement of a probation clause our employment lawyers would be pleased to assist.

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

termination

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.