Dentons' Spring Employment and Labour law update - May 1, 2014
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Dentons' Spring Employment and Labour law update - May 1, 2014

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Dentons' Spring Employment and Labour Law Update featuring presentations from our firm members, Mark Evans, Blair McCreadie, Saba Zia and Adrian Miedema. ...

Dentons' Spring Employment and Labour Law Update featuring presentations from our firm members, Mark Evans, Blair McCreadie, Saba Zia and Adrian Miedema.

Presentations include:

Internal Fraud — Managing Termination and Asset Recovery Options
presented by Mark Evans and Blair McCreadie

An Update on Ontario’s Workplace Violence and Workplace Harassment Law
presented by Saba Zia

July 1st Deadline Looming: How to Comply with Ontario's New Safety Awareness Training Regulation
presented by Adrian Miedema

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Dentons' Spring Employment and Labour law update - May 1, 2014 Dentons' Spring Employment and Labour law update - May 1, 2014 Presentation Transcript

  • Dentons’ Spring Employment and Labour law update 1 May 2014 Dentons Canada LLP
  • Responding to employee fraud: managing the employment investigation and asset recovery options 1 May 2014 Dentons Canada LLP Blair McCreadie Mark Evans Partner Partner
  • Fact scenario 1 May 2014 3 1. YYZ Co. is a commercial property manager. Lisa Smith has been employed by YYZ Co. for 15 years – the last five years in the role of Regional Property Manager earning $100,000/yr. Smith resides in Toronto 2. Among her many roles and responsibilities, Smith is responsible for overseeing capital improvement projects, tenant build outs and renovations and contracting out work to be done on YYZ Co.’s various premises. The expenditures for such work (by both YYZ Co. and tenants) are approximately $3 million annually 3. Unbeknownst to YYZ Co., over the last five years and through a kickback scheme entered into with various contractors (including her husband), Smith has misappropriated approximately $2.0 million for her own use and benefit 4. Smith and her husband live a lavish lifestyle. The family home, a Muskoka cottage, expensive cars and several Canadian bank accounts are held in their names. There is the suggestion of accounts, property and other assets in different jurisdictions. This has led YYZ Co. to become suspicious Dentons Canada LLP View slide
  • Planning and coordination 1 May 2014 4 Addressing the Employment Issues --- How to Complete a Fair and Effective Workplace Investigation Asset Recovery --- Speed, Stealth, Layering and Canadian Investigative and Freezing Orders Dentons Canada LLP View slide
  • Responding to employee fraud: 51 May 2014 The HR perspective Dentons Canada LLP
  • The workplace investigation: first principles 1 May 2014 6 • Employers have an obligation to conduct a fair and effective workplace investigation, particularly where the alleged misconduct may result in termination of employment • Courts, arbitrators and tribunals will also impose a duty of procedural fairness on the employer in the conduct of the investigation, including the right of the employee to hear and respond to allegations against them before making any decision • Recognize that an objective investigation will take some time, so in the interim, do not reach any conclusions before getting the facts Dentons Canada LLP
  • Initial steps in the workplace investigation 1 May 2014 7 • With allegations of fraud, a formal workplace investigation is required • Carefully consider who will lead your investigation – i.e. internal resource, external counsel, external consultant • Choose an investigation lead who will be seen as impartial and objective, with the right expertise • Before commencing the investigation, review any applicable workplace policies or codes of conduct and, if unionized, the collective agreement • Determine whether they impose any additional requirements or set any timelines for the investigation and, if so, comply with them Dentons Canada LLP
  • Starting the workplace investigation 1 May 2014 8 • When responding to allegation of employee fraud, key decision is timing of notice to the suspected employee • Co-ordinate timing around asset recovery proceedings • Take pro-active steps to preserve what evidence may be available to you • Issue written notice to suspected employee to put them on immediate paid leave pending outcome of investigation • Confirm any temporary changes to employment (i.e. do not report for work, no remote access, return office keys/passes) • Caution against any interference with investigation by contacting potential witnesses and warn against reprisal • Remind employee of any available EAP services • Identify the individuals who will need to be interviewed as part of the investigation and set the order of the interviews Dentons Canada LLP
  • Confronting the suspected employee 1 May 2014 9 • Before meeting with employee, you should first gather facts and key documents from the other witnesses • Advance preparation is key – make sure that you ask about each material allegation that you may rely upon, with particulars • Review all interview scripts to confirm that questions are neutrally framed, and do not use “loaded” language that suggests that a conclusion is already made • Remember that the purpose of the meeting is to gather information and to confirm the employee’s version of events, so control your emotions • Two company representatives present; one should take “verbatim” notes • Right to representation – unionized vs. non-unionized • What if employee refuses to participate? Dentons Canada LLP
  • Completing the investigation 1 May 2014 10 • After confronting the employee, consider whether additional interviews are required to assess credibility of explanation or to deal with other allegations that came to light • Prepare written report at the conclusion of investigation, even if only a short summary memorandum • Set out complete, accurate and objective summary of allegations and evidence • Set out conclusions of fact reached, and any findings of credibility • Discussion of recommended course of action should be kept separately • Then prepare letter to advise the employee of outcome of investigation and decided course of action (e.g. termination of employment) Dentons Canada LLP
  • Some related points 1 May 2014 11 • Any decision to seek civil or criminal remedies should be kept independent of decision to terminate employment • Employer has no positive legal obligation to report to police, but consider possible public relations issues or requirements of insurers • If you decide to go to police before you have completed your internal investigation, then seek direction from police so as to avoid interfering in any way with criminal investigation • Review insurance policies for “employee fraud” coverage – be aware of any limitations on the policy and any reporting deadlines to preserve insurance coverage Dentons Canada LLP
  • Responding to employee fraud: 121 May 2014 Recovery of assets Dentons Canada LLP
  • Asset recovery - victim 1 May 2014 13 • Knows the money is gone • Circumstances are suspicious • Has very little evidence about how it disappeared or where it went • Typically that information is in the hands of the fraudster or third parties • Cannot move as quickly as the money can • Believes it will be prohibitively expensive to recover the money • Believes the fraudster will have their money to fight a defence Dentons Canada LLP
  • Planning and coordination 1 May 2014 14 • Move quickly • Find the basic information • Follow the money • Identify the players and the assets • Separate the fraudsters from the money/assets • Repatriate the assets to the victims Dentons Canada LLP
  • Co-ordinating your team of advisors 1 May 2014 15 • Legal counsel (internal and/or external) • Private investigators • Forensic accountants • Electronic/computer forensics • Law enforcement in some jurisdictions • Privilege issues Dentons Canada LLP
  • Build the case 1 May 2014 16 • Open source intelligence • Private investigators • Profile targets • Build the case to show judicial assistance required Dentons Canada LLP
  • Follow the money 1 May 2014 17 • Stolen property belongs to the victim – a proprietary interest • Norwich Pharmacal/Banker’s Trust Orders • Often called Disclosure Orders: • Direct third parties to provide information • Without disclosing existence of or compliance with order • All done covertly • Leads to bank accounts, assets, potential targets • Story starts to emerge • Demonstrates origin of assets and beneficial ownership Dentons Canada LLP
  • Layering orders 1 May 2014 18 • Disclosure orders can be obtained and enforced in series, as assets and accounts are discovered • May lead to discovery of assets in other jurisdictions • Requests for Judicial Assistance/Letters Rogatory • Common law/civil law jurisdictions have different approaches and need to be employed differently Dentons Canada LLP
  • Separate the fraudster from the money 1 May 2014 19 • Freezing and Preservation Orders (vs. Mareva injunctions) • Co-ordinated in all jurisdictions • “Freeze” the assets and prevent fraudsters from access or use • Again co-ordinated through Requests for Judicial Assistance/Letters Rogatory – and ancillary proceedings if required • Related relief: Anton Pillar orders (civil search warrants) • Stand and deliver orders • Review of electronic and hard records • Preservation of evidence Dentons Canada LLP
  • Thank you! Blair McCreadie Partner, Dentons Canada LLP D +1 416 863 4532 blair.mccreadie@dentons.com © 2014 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices Mark Evans Partner, Dentons Canada LLP D +1 416 863 4453 mark.evans@dentons.com
  • Update on Bill 168: Workplace harassment and violence prevention 1 May 2014 Dentons Canada LLP Saba Zia Associate
  • Agenda 22 • Bill 168 – Background • Role of Ontario Labour Relations Board • Developments in OLRB’s jurisdiction • Recent cases on workplace violence and harassment • Key takeaways 1 May 2014 Dentons Canada LLP
  • Background 23 • Law introduced June 15, 2010 • Imposes variety of harassment and violence-related obligations on employers • Ontario Labour Relations Board is responsible for adjudicating complaints made under Occupational Health and Safety Act 1 May 2014 Dentons Canada LLP
  • Role of Ontario Labour Relations Board 24 • The OLRB’s jurisdiction is limited to enforcing the express provisions of the OHSA. For example: • Establish policies and programs (including complaint procedure) • Provide “Information and instruction” • Reasonable steps to prevent workplace violence • No reprisal against workers who complain about or attempt to enforce the above requirements 1 May 2014 Dentons Canada LLP
  • Role of Ontario Labour Relations Board 1 May 2014 25 • OHSA does not • prohibit harassment • provide a complaint process to the OLRB Dentons Canada LLP
  • Role of Ontario Labour Relations Board 26 • Conforti v. Investia Financial Services Inc., 2011 CanLII 60897 • Employee filed harassment complaint with employer which was subsequently dismissed • Employee filed application with OLRB for reprisal • “In the case of an employee who complains that he has been harassed, there is no provision in the OHSA that says an employer has an obligation to keep the workplace harassment free. The only obligation set out in the Act is that an employer have a policy for dealing with harassment complaints. The legislature could very easily have said an employer has an obligation to provide a harassment free workplace but it did not.” 1 May 2014 Dentons Canada LLP
  • Developments in OLRB’s role 27 • Board expanded jurisdiction to hear allegations of reprisal against employees who filed internal harassment complaints with employer: • Ljuboja v. The Aim Group Inc., 2013 CanLII 54942 (ON LRB) • Murphy v The Carpenters’ District Council of Ontario, 2014 CanLII 2304 (ON LRB) • Both cases involve dismissal of employees who previously filed harassment complaints against their superiors • May see a significant influx of reprisal complaints being filed with the OLRB 1 May 2014 Dentons Canada LLP
  • What is workplace violence? 28 • The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, • An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker • A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. 1 May 2014 Dentons Canada LLP
  • Recommendations: avoiding a harassment-reprisal case 00 Month 2013 Dentons Canada LLP Document reference # 29 • Ensure all Bill 168 requirements have been met (policy, program, training) • Investigate all harassment complaints • Ensure any discipline imposed shortly after harassment complaint is backed-up by strong evidence and is proportionate • Ensure consistency of discipline • Document
  • What is workplace harassment? 30 • Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 31 1. CEPU, Local 64 v. Corner Brook Pulp and Paper Limited, 2013 CanLII 87573 (NL) • Employee posted violent threats against company management on Facebook • Postings referenced two managers by name • “Lets see how insignificant you feel when you Got a rope around ur neck…”; and “when I see you now, you know u better run” • Employee was dismissed for just cause 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 32 • Discharge upheld • Arbitrator found that postings caused managers to be reasonably concerned about their health and safety and contained “severe threats of physical harm about named individuals” 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 33 2. City of Windsor v. CUPE, Local 543, 2013 CanLII 40522 • Employee previously suspended for swearing at another employee and making demeaning comments • Employee engaged in threatening conduct, including: • Co-worker asked about his weekend. Employee responded, “Cleaned my gun and polished it up. There are a few flunkies in the lunchroom that I would like to take hunting.” • Drove City vehicle in an unsafe manner and purposely towards another vehicle with co-worker in passenger seat 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 34 • Discharge upheld • Arbitrator considered: • Seriousness of incidents • Employee’s disciplinary record • Employee “utterly remorseless and unapologetic” 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 35 3. Vale Canada Ltd. v. United Steelworkers of America, Local 6500, 2012 CanLII 81310 • Picketing employee commented to fellow picketers, “I should have brought a gun to shoot” a company security officer • Security officer was nearby and overhead • Company called police • Employee dismissed for just cause 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 36 • Not just cause for dismissal; employee reinstated • Arbitrator found that: • Employee did not use threatening tone and was “trying to be funny” • Did not use security guard’s name • Comment was addressed to fellow picketers and not security guard • No intention to threaten security guard • Security guard’s actions showed that she was not threatened 1 May 2014 Dentons Canada LLP
  • Recent cases on workplace violence and harassment 37 4. OPSEU v. Ministry of Community Safety and Correctional Services, 2014 CanLII 13355 • Management held meeting with nurses to discuss sleeping and watching movies during the night shift and improper break routines • Management mentioned nurses’ professional obligations and the College of Nurses of Ontario; nurses felt threatened, intimidated and harassed as a result • Grievance dismissed • Arbitrator found that employer was simply attempting to manage improper workplace behaviour 1 May 2014 Dentons Canada LLP
  • Key takeaway from recent cases 38 • Harassment does not include reasonable action or conduct by an employer, manager or supervisor that is part of his or her normal work function • Threats of violence (including on social media) will attract serious consequences • Upon learning of the utterance of a threat, employers must act immediately • A single act of workplace violence will not always support dismissal for just cause 1 May 2014 Dentons Canada LLP
  • Key takeaway from recent cases 39 • Consider, before disciplining for harassment or violence: • Who was threatened or attacked? • Were they named? • Was this a momentary flare-up or a premeditated act? • How serious was the threat or attack? • Was there a weapon involved? • Was there provocation? • What is the employee’s length of service? • Is there genuine remorse? • Has a sincere apology been made? • Has the employee accepted responsibility for his or her actions? 1 May 2014 Dentons Canada LLP
  • Thank you Saba Zia Associate, Dentons Canada LLP D +1 416 367 6832 saba.zia@dentons.com © 2014 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices
  • July 1st deadline looming: How to comply with Ontario's new safety awareness training regulation 1 May 2014 Adrian Miedema Partner
  • New Ontario Regulation • If you do nothing, you will be in violation 1 May 2014 Dentons Canada LLP
  • New Ontario regulation • Employer must provide: “basic occupational health and safety awareness training” • July 1st deadline 1 May 2014 Dentons Canada LLP
  • New Ontario regulation • “But our employees work in an office” • It doesn’t matter: all Ontario workers are covered • “But we have already given safety training” • It probably doesn’t meet the requirements 1 May 2014 Dentons Canada LLP
  • Workers and supervisors • Two types: • worker safety awareness training • supervisor safety awareness training 1 May 2014 Dentons Canada LLP
  • Two ways to provide training • “E-learning module” on MOL website • Face-to-face training 1 May 2014 Dentons Canada LLP
  • Worker - definition • “worker” means a person who performs work or supplies services for monetary compensation 1 May 2014 Dentons Canada LLP
  • Supervisor - definition • “supervisor” means a person who has charge of a workplace or authority over a worker 1 May 2014 Dentons Canada LLP
  • Worker training: required contents • Worker duties and rights • Employer duties • Supervisor duties • Common hazards • Safety representative’s / joint health and safety committee’s role • Roles of the Ministry of Labour, WSIB, and Health and Safety Associations • WHMIS information and training • Occupational illness, including latency 1 May 2014 Dentons Canada LLP
  • Supervisor training: required contents • Worker duties and rights • Employer duties • Supervisor duties • How to identify, assess and manage hazards • Safety representative’s / joint health and safety committee’s role • Roles of the Ministry of Labour, WSIB, and Health and Safety Associations • Sources of information on OHS 1 May 2014 Dentons Canada LLP
  • How can training be provided? • MOL e-learning module (includes videos and quiz questions), or • Face-to-face with one or more workers / supervisors 1 May 2014 Dentons Canada LLP
  • Training materials • Employer may use: • MOL materials • Employer’s own materials (but must cover equivalent material) • Practically, most employers will use MOL materials – safest approach 1 May 2014 Dentons Canada LLP
  • MOL materials (hyperlinks below) • Worker Health and Safety Awareness in 4 Steps (Booklet) • An Employer Guide to Worker Health and Safety Awareness in 4 Steps (Booklet) • Supervisor Health and Safety Awareness in 5 Steps (Booklet) • An Employer Guide to Supervisor Health and Safety Awareness in 5 Steps (Booklet) • E-learning module for Workers • E-learning module for Supervisors • A Guide to OHSA Requirements for Basic Awareness Training 1 May 2014 Dentons Canada LLP
  • How long does training take? • Worker: 45-60 minutes • Supervisor: 45-60 minutes • E-learning must be completed all at once: • “The module is unable to keep track of your progress, so it must be completed in one sitting.” • Must pay wages for training time 1 May 2014 Dentons Canada LLP
  • New workers / supervisors: deadline • New workers: • “as soon as practicable” after they start working • New supervisors: • one week after starting to perform work as a supervisor 1 May 2014 Dentons Canada LLP
  • Keeping proof of training • Employer must maintain record that worker / supervisor received training • MOL’s e-learning module produces a certificate • Must keep record six months post-termination 1 May 2014 Dentons Canada LLP
  • Refresher required? • MOL certificate “is valid for the remainder of his or her career” • Refresher training still recommended as appropriate 1 May 2014 Dentons Canada LLP
  • Exemptions: worker training • Workers and supervisors who: • previously completed a worker training program • with required content • either with their current or a former employer do not have to complete worker training program again 1 May 2014 Dentons Canada LLP
  • Exemptions: worker training • Supervisors who complete supervisor training prior to July 1, 2014 do not need to complete worker training 1 May 2014 Dentons Canada LLP
  • Exemptions: supervisor training • Supervisor who: • previously completed a supervisor training program • with required content • either with current or a former employer does not have to complete supervisor training program again 1 May 2014 Dentons Canada LLP
  • Consequences of not complying • MOL compliance orders • Charges and fines (less likely) 1 May 2014 Dentons Canada LLP
  • MOL inspectors will look for • Records of safety awareness training • Posted OHS policy • Posted harassment policy • Posted workplace violence policy • Posted copy of OHSA • Posted names and work locations of joint health and safety committee members (for workplaces requiring a JHSC) • Posted WSIB poster, “In Case of Injury–1234″ 1 May 2014 Dentons Canada LLP
  • Practical considerations • New employees • Offer letter • Require certificate 1 May 2014 Dentons Canada LLP
  • Practical considerations • Contractors and temporary employee agencies: • Agreement • Require certificate 1 May 2014 Dentons Canada LLP
  • Practical considerations • Supervisors outside Ontario who supervise Ontario workers 1 May 2014 Dentons Canada LLP
  • Practical considerations • Combining worker and supervisor training into one session? 1 May 2014 Dentons Canada LLP
  • Practical considerations • Running MOL e-learning module on your own system? 1 May 2014 Dentons Canada LLP
  • Employer’s action list 1. Make list of workers (not just “employees”) 2. Make list of supervisors 3. Determine whether worker or supervisor already received equivalent worker or supervisor safety awareness training (likely not) 4. Plan how training will be done: • E-learning • Face-to-face 5. Print paper copies of MOL worker / supervisor booklets for face-to-face sessions 6. Gather suggested materials for face-to-face 1 May 2014 Dentons Canada LLP
  • Employer’s action list 7. Plan when training will be done: regular work day or on employee’s own time? 8. Schedule training 9. Set deadline for completing: May 31? 10.Develop tracking / reminder system 11.Decide who will keep training records and where 12.Revise your standard-form employment agreement 13.Revise your standard-form contractor agreement 1 May 2014 Dentons Canada LLP
  • This seems complicated: what is the easiest way to comply by July 1st? • For many employers: • Send all employees a link to the MOL e-learning modules • and ask them to: • complete the training • print out certificate • and give certificate to you before July 1st 1 May 2014 Dentons Canada LLP
  • Thank you! Adrian Miedema Partner, Dentons Canada LLP D +1 416 863 4678 adrian.miedema@dentons.com © 2014 Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices