October 19, 2016

1. HOT TOPICS IN
EMPLOYMENT LAW
October 19, 2016
Neena Gupta, Partner

2. 2
TABLE OF CONTENTS
1. AODA Update re Compliance for organizations with 1 to 49 employees
2. Employment Standards Act – Temporary Help Agencies
3. Recent Amendments to Ontario’s Occupational Health & Safety Act (Bill
132)
4. The Pay Equity Act and the Pay Equity Commission’s Ongoing
Requirements regarding Pay Equity Maintenance
5. Issue on the Radar for 2017
6. Case Law Update

3. Accessibility for Ontarians
with Disabilities Act
(“AODA”)

4. • Small organizations (1 to 50) now have to implement the
Employment Standards of the AODA
• Deadline: January 1, 2017
• Compliance Report due January 1, 2017
• Check website to see if you are ready?
AODA COMPLIANCE
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5. 1. Notify employees and the public about the availability of
accommodation for applicants with disabilities in the recruitment
processes
2. Notify job applicants that accommodations for disabilities will be
provided on request
3. Notify job applicants who have been invited to participate in a
recruitment, assessment or selection process that, where needed,
accommodations for disabilities are available, on request
4. Notify successful applicants of their policies for accommodating
employees with disabilities when offering employment
1. Include notification in written offer letter
12 STEPS TO COMPLIANCE
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6. 5. Inform new and existing employees of their policies for supporting
employees with disabilities
6. Consult with employees who have disabilities in order to provide
them with the accessible formats and communications supports they
require to do their jobs effectively
7. Prepare for the specific needs that employees with disabilities may
have in emergency situations
8. Develop written individual accommodation plans for employees with
disabilities the company has been made aware of
9. Have in place a documented process for supporting employees who
return to work after being away for reasons related to their disabilities
12 STEPS TO COMPLIANCE CONT’D
6

7. 10.Use performance management processes that take into account the
accessibility needs of employees with disabilities If the company
provides career development and advancement opportunities, take
into account the accessibility needs of employees who have
disabilities
10. If the company provides career development and advancement
opportunities, take into account the accessibility needs of employees
who have disabilities
12 STEPS TO COMPLIANCE CONT’D
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8. 12. If the company uses redeployment processes, consider the
accessibility needs of employees with disabilities when moving them
to other positions
• “redeployment” means the reassignment of employees to other
departments or jobs within the organization as an alternative to layoff,
when a particular job or department has been eliminated by the
organization
12 STEPS TO COMPLIANCE CONT’D
8

9. Employment
Standards Act
(“ESA”) –
Temporary Help
Agencies

10. • As of November 20, 2015, a business that hires temporary workers
from an agency can be held liable for unpaid wages if the agency
does not pay the worker
• Unpaid wages includes:
• Regular wages
• Overtime
• Public holiday pay
• Keep this in mind when negotiating contracts with temporary labour
suppliers
TEMPORARY HELP AGENCIES
10

11. Recent Amendments to
Ontario’s Occupational
Health & Safety Act
(Bill 132)

12. • Bill 132 introduced new workplace harassment provisions to the
Occupational Health & Safety Act (“OHSA”)
• Focused on sexual harassment
• Came into force September 8, 2016
• The Ministry of Labour (“MOL”) has a “Code of Practice” to address
workplace harassment under Ontario’s Occupational Health & Safety
Act (“OHSA”) (the “Code of Practice”).
• The Code of Practice provides employers with guidance on how to
implement the new OHSA provisions on workplace harassment set
out under Bill 132.
• https://www.labour.gov.on.ca/english/hs/pubs/harassment/
BILL 132
12

13. • Definition of Workplace Harassment must now include “Workplace
Sexual Harassment”
• “Workplace sexual harassment” means:
a) engaging in a course of vexatious comment or conduct against a worker
in a workplace because of sex, sexual orientation, gender identity or
gender expression, where the course of comment or conduct is known or
ought reasonably to be known to be unwelcome, or
b) making a sexual solicitation or advance where the person making the
solicitation or advance is in a position to confer, grant or deny a benefit
or advancement to the worker and the person knows or ought
reasonably to know that the solicitation or advance is unwelcome
BILL 132
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14. • Part I outlines the requirements for a written Workplace Harassment
(including sexual harassment) Policy.
• Among other things, it must include the updated definition of
workplace harassment
• Remember, the policy must be:
• Dated and signed by the highest level of management
• Posted in a conspicuous place in the workplace where it would be likely
to come to workers’ attention
• Reviewed at least annually
MOL CODE OF PRACTICE – PART I
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15. • Part II sets out the requirements for a written Workplace Harassment
Program.
• The written program is intended to implement of the Workplace
Harassment Policy
• Program should include:
• protocols for the reporting of harassment
• the investigation and handling of complaints
• the preservation of all records (including the complaint itself, the
investigation record and witness statements, as well as the results of the
investigation and any corrective action).
MOL CODE OF PRACTICE – PART II
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16. • Part III deals with the employer’s statutory obligation to conduct
“appropriate” investigations into all incidents or complaints of
workplace harassment (including sexual harassment).
• Suggests investigations are to be completed within 90 days of the
incident or complaint, absent extenuating circumstances
• The supervisor, manager or person conducting the investigation must
not be the alleged harasser and must not be under the direct control
of the alleged harasser
MOL CODE OF PRACTICE – PART III
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17. • Investigator must be able to complete an objective investigation
• Under the changes to OHSA, the Ministry of Labour can order an
employer to cause a workplace harassment investigation to be
conducted by an impartial person, at the employer’s expense
• No case law at Ontario level about what is required to be a
“competent” investigator, but there is a case at the federal level
• Public Service Alliance of Canada v. Canada (Attorney General),
2014 FC 1066
• Court said that there needs to be agreement by both parties that the
investigator is impartial
• In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers
to his review of the evidence before him. He was not competent to do so,
given there was no agreement that he was an impartial party by the
employee and therefore had no authority to conduct any investigation...”
MOL CODE OF PRACTICE – PART III CONT’D
17

18. • The required steps of the investigation are as follows:
maintenance of confidentiality and non-disclosure
thorough interview of the complaining employee and alleged harasser
procedural fairness and opportunity to respond
collection and review of relevant documents
thorough interview of witnesses
adequate record keeping
preparation of a report for the employer’s use
MOL CODE OF PRACTICE – PART III CONT’D
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19. • “Results” of the investigation must be provided in writing to the
person alleging harassment as well as the alleged harasser
• Different than the actual report prepared by the investigator for the
company
• The results (a summary of the findings of the investigation) must be
delivered within 10 days of the investigation being concluded.
• Corrective action, if any, must also be communicated to the alleged
harasser within 10 days of the conclusion of the investigation.
MOL CODE OF PRACTICE – PART III CONT’D
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20. • Part IV of the Code sets out requirements for the training and
instruction of employees on the content of Workplace Harassment
Policies and Programs, including:
• identification of harassment
• reporting of incidents or complaints
• procedures in place for investigation of harassment and the reporting of
results
MOL CODE OF PRACTICE - PART IV
20

21. The Pay Equity Act and the
Pay Equity Commission’s
Ongoing Requirements
regarding Pay Equity
Maintenance

22. • The Pay Equity Act came into effect January 1, 1988 in an effort to
purportedly correct the part of the wage gap between men’s and women’s
wages that is due to undervaluing, and lower pay, of work mainly done by
women.
• Pay equity is equal pay for work of equal or comparable value
• Not the same as equal pay for equal work. It involves comparing a male job class
that performs work of a certain value to a female job class that performs work of
equal value to the organization to ensure fair compensation
• The Act applies to all employers in Ontario who have 10 or more employees
WHAT IS PAY EQUITY?
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23. • Employers have an ongoing responsibility not only to achieve but to
maintain compensation practices which provide for pay equity.
• The Pay Equity Commission has taken the position that employers
should have a maintenance committee in place for each pay equity
plan and that this committee should be reviewing the gender-neutral
job comparison system on an annual basis.
AN EMPLOYER’S RESPONSIBILITY TO
MAINTAIN PAY EQUITY
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24. 1. Monitor regularly:
temporary skills shortage
other permissible differences
2. Monitor when specific events occur:
adjustments to salaries
settlement of a collective agreement
change in value of female or male job class
vanishing job classes
changes to the representative group of male job classes
changes in the gender predominance of jobs
newly created jobs.
3. Monitor every two to three years:
has the job comparison or evaluation system been reviewed to ensure that it
is consistent with what is currently known about gender-neutrality?
MAINTENANCE CHECKLIST
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25. • The review audit process has in the past and will continue in the
future to target Ontario businesses on a sector as well as regional
basis to ensure employers are achieving and maintaining
compensation practices that comply with pay equity legislation.
THE “RANDOM” SELECTION OF EMPLOYERS
FOR COMPLIANCE AUDIT REVIEW
25

26. • Under the auspices of determining how effective the pay equity
legislation has been in moving organizations to more equitable
compensation practices, the Pay Equity Commission has initiated a
number of programs to determine the extent of gender wage gaps in
private sector Ontario workplaces.
• For example:
− “Gender Wage Gap Program 2011” initially targeted employers within
the Province of Ontario who employ 200 or more employees.
− Gender Wage Gap Program follow-up 2014 - targeted employers that
the Pay Equity Commission “believed” required further scrutiny from a
compliance with the Pay Equity Act perspective.
...cont’d
THE PAY EQUITY COMMISSION’S REVIEW &
MONITORING OF EMPLOYERS
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27. − 2014 Blitz – 14,000 notices/enquiries sent to employers in business for
less than 3 years.
− 2016 Blitz – The Commission has actively been targeting smaller
employers with arguably less than 100 staff members.
− 2016 – On-Site Meetings – unilaterally set to review “compensation
matters of your organization”.
• The above Commission initiatives are in addition to ongoing random
geographical/industry targeted reviews as well as employee
complaints.
THE PAY EQUITY COMMISSION’S REVIEW &
MONITORING OF EMPLOYERS (...CONT’D)
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28. • Respond!
• The consequences of failure to do so are severe and include the
issuing of an Order, retroactivity and interest where applicable
• Be mindful of how you respond
− Simply answer the questions and provide only the information as
requested of you
− Do not embellish or broaden the nature of your business or undertaking
EMPLOYER CONSIDERATIONS & CAUTIONS TO
BE TAKEN INTO ACCOUNT IN RESPONDING TO
A PAY EQUITY ENQUIRY
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29. Issues on the
Radar

30. • Federal government announced plans to introduce legislation in
Spring 2017 to legalize marijuana
• In light of this, there have been concerns from employers about how
to deal with marijuana use
• Should be treated just like any other drug that could impair
performance (i.e. narcotic for pain management)
• Addiction is considered a disability under the Ontario Human Rights
Code and the duty to accommodate applies
LEGALIZATION OF MARIJUANA
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31. • Random drug and alcohol testing only appropriate in VERY LIMITED
circumstances
• In order for a random testing policy to be acceptable, an employer
must show:
• It is a safety sensitive workplace;
• There is evidence of a pervasive substance abuse problem which can be
tied to the safety of the workplace;
• Other measures to deter substance abuse have failed; and
• Testing must assess current impairment
• May want to consider having a policy that requires drug and/or
alcohol testing following a significant incident, accident, or near miss,
where it is important to identify the root cause of what occurred
LEGALIZATION OF MARIJUANA
31

32. • In July 2016, the Ontario Securities Commission (“OSC”) launched a
whistleblower program aimed at encouraging individuals to report
securities related misconduct that occurs
• Financial incentives for whistleblowers
• The OSC may take enforcement action against employers who take
reprisals against whistleblowers
• Employers need to be careful that their employment contracts are not
seen to attempt to restrict reporting to the OSC
• Could be void pursuant to section 121.5(3) of the Ontario Securities Act
WHISTLEBLOWER LEGISLATION
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33. • Ontario Retirement Pension Plan cancelled
• Enhanced CPP
• To fund these enhanced benefits, annual CPP contributions will
increase over 7 years, starting in 2019
• employers will see increased payroll costs associated with the CPP
reform and should consider how they will account for such increased
costs
• employers that currently have their own pension or retirement plans,
may consider amendment to these plans to offset the additional
investment they will be making to CPP
ENHANCED CPP
33

34. • Damage awards coming out of the Human Rights Tribunal of Ontario
(“HRTO”) are going up
• O.P.T. v. Presteve Foods Ltd. 2015 HRTO 675 - $150,000 as
compensation for injury to her dignity, feelings and self-respect
• New high water mark for HRTO
• Demonstrates willingness of the HRTO award significant damages
• Vulnerability of the person seems to be a factor driving higher
damage awards
HUMAN RIGHTS DAMAGE AWARDS RISING
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35. Case Law Update

36. • Fernandes v. Peel Educational & Tutorial Services Limited
(Mississauga Private School), 2016 ONCA 468
• Excellent teacher and coach
• School is sold; new management comes in
• Friction/different expectations
• Different coaching assignments which disappointed teacher
• Falsified marks
• Gave marks for assignments not handed in
• Appeared not to have actually reviewed assignments before marking
• Failed to return/mark assignments
• Failed to correct marks when given opportunity
• Lied regarding his conduct during investigation
• Only admitted when clear administration had talked to students
CAUSE? NO CAUSE?
36

37. • Trial judge: no cause
• Emphasized long service
• Only a few students were given marks for presentations not actually
done
• School sent out the marks, even after knowing incorrect
• If so serious, school would not have sent out marks
• Did not discuss lack of candour during investigation
CAUSE/NO CAUSE
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38. • Court of Appeal reverses on appeal
• Teachers are inextricably linked to the integrity of the school system.
• important professional obligations is to fairly and properly evaluate
and assess student progress and achievement
• Failing to properly assign marks and evaluate student progress;
• repeatedly lying to his employer
• Over period of two months
• Constitutes just cause for termination
CAUSE/NO CAUSE
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39. • Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016
ONCA 520
• Brief facts:
• 15 year employee became deaf
• General Manager and Supervisor “commenced a campaign of abuse
against Ms. Strudwick designed to force her resignation”
• Denied Ms. Strudwick accommodation
• Eventually terminated her
• Ontario Court of Appeal awarded additional money as aggravated
and punitive damages
WRONGFUL DISMISSAL DAMAGES
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