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.

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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.

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.

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.

 

 

 

 

 

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. 

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.

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

“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.

 

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.

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.

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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

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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.

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.