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

 

faith

FAITH-BASED DISCRIMINATION AND HARASSMENT ON THE RISE

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

 HUMAN RIGHTS PROTECTIONS

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

 EDUCATION

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

FAITHISM

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

 ADDRESSING THE CHALLENGES

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

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. 

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

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

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

What you need to know about the 3 new leaves:

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

The existing Family Medical Leave

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

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

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

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

What this means for Employers:

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

What this means for Employees:

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

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

A message from the Accessibility Directorate of Ontario:

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Notice for Large Private and Non-Profit Organizations:

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

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

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

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

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

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

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

 

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

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

MP staffers forced to sign lifelong gag orders to get raises

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Wal-Mart fires Employee – Pet Lovers Beware

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

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

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

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

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

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

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

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

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

You can read the full CBC Ottawa report here.

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

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

Can you get fired for NOT taking your breaks?

Can you get fired for not taking your coffee break?

Can you get fired for not taking your coffee break?

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

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

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

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

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

The full decision can be found here.

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

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

Workplace Policies on Mobile Devices

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

What is a “Bring Your Own Device” Policy?

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

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

Allowing your employees to BYOD

There are both pros and cons to this trend:

Pros

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

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

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

Cons

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

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

What Are The Options?

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


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

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

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

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

Job Protection when Family Members are Sick or Terminally Ill

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

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

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

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

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

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

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

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

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

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

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

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

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

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.