OEMC Municipal Conference September 14th, 2012Social Media in Today’s Business – The Good, The Bad and the UglyPerformance Management – Developing your Future Leaders and High Performers By Templeman Consulting Group Inc. &
OEMC - September, 2012Agenda• Social Media• Performance Management• Updates in Labour and Employment Law• Q&A
Social Media in Today’s Business – The Good, The Bad and The Ugly How to use social media to your advantage while understanding and minimizing the risks to your organization By Terrence A. F. Whyte, B.A., LL.B., LL.M., CHRP Partner (TM) & Managing Partner (TCGI)
OEMC - September, 2012Social MediaDefinition:Forms of electronic communication (as web sitesfor social networking and micro blogging) throughwhich users create online communities to shareinformation, ideas, personal messages, and othercontent (eg. videos).-Merrian-Webster Dictionary
OEMC - September, 2012Social Media – Interesting Facts• Nearly 4 in 5 active internet users visit social networks and blogs• And spend more time on Facebook than other sites
OEMC - September, 2012Social Media – Interesting Facts• 54% of US companies have banned employees using social networking sites• 19% only allow access to these sites for business purposes
OEMC - September, 2012 Social Media – Interesting Facts• Social mobile apps are up 30% from 2010• Employee and Employer conduct is subject to Canada’s privacy, human rights and employment laws, regardless of whether that conduct takes place on or offline.
OEMC - September, 2012 Social Media– The GoodThe University of Melbourne released a report thatfound social media use by employees leads to a 9%productivity boost: “Surfing the net at work for pleasure actually increases our concentration levels and helps make a more productive workforce”
OEMC - September, 2012Social Media– The GoodAnd can potentially be a great tool for resolvingproblems or questions – large network at yourfingertipsA great research tool re: litigation/arbitration
OEMC - September, 2012Social Media – The GoodFree advertising – social media provides a opportunityto reach an unlimited number of people at no cost toyour organizationIncrease recruitment efforts – reach a larger audienceof potential candidates
OEMC - September, 2012Social Media – The BadLack of security features – inadvertently downloadingviruses and spyware from social networking sites thatcan disable the computer’s security systems andfirewall settings
OEMC - September, 2012Social Media – The BadWasted time – a 2009 media study showed companieslost an average of 1.5% total office productivity whenemployees can access social media
OEMC - September, 2012Social Media – The BadRecruitment risks - Inadvertently discriminatingagainst some individualsLinks on blogs and social media – are youinadvertently endorsing others’ content that couldpotentially put your organization at risk? Liability?
OEMC - September, 2012Social Media – The UglyPrivacy concerns: • sharing confidential company information • ANYTHING written or shared on a social networking site is public, and can be very difficult, if not impossible, to remove all traces of the information posted
OEMC - September, 2012Social Media – The Ugly• 9% of organizations report to dismissing an employee for misconduct with respect to social media• Adds a new avenue for potential workplace harassment or threats of violence
OEMC - September, 2012Social Media and RecruitmentWhile there is no legal barrier to an employeraccessing information on a public domain (e.g.Facebook, LinkedIn, Twitter) there are some legalconcerns to keep in mind:By conducing searches on social media sites, there isthe possibility of learning potentially discriminatoryinformation about a candidate
OEMC - September, 2012Social Media and RecruitmentCandidates may disclose information about maritalstatus, children, religion, disabilities that, by law, mustbe ignored in a hiring decision (s. 5 Human RightsCode prohibited grounds)If a candidate does not get the job and he/she becomesaware that the Employer has conducted a social mediasearch, there is the potential for a human rightscomplaint.
OEMC - September, 2012 Social Media and RecruitmentBest approach:If you are going to review a candidate’s informationon social media, have 2 different streams operatingparallel to each other:
OEMC - September, 2012 Social Media and RecruitmentBest approach:1) one person looking online gathering data and2) reporting to the recruiter/individual responsible for hiring decisions ONLY the information that is RELEVANT to the job being applied for.
OEMC - September, 2012 Social Media Policies45% of businesses do not have social medial andnetworking policies in place;43% have experienced employee misuse of socialnetworks
OEMC - September, 2012Social Media PoliciesAny social media/acceptable use of internet policyshould cover all employees, elected officials,committee/commission personnel, and any others whorepresent the organization
OEMC - September, 2012Social Media PoliciesAll policies should include at a minimum: • to whom the policy applies • definition of what social media is covered • what is considered acceptable use • discipline procedures for misuse
OEMC - September, 2012 Social Media PoliciesDiscipline and discharge:Provided that employees are aware of the policy and itis consistently enforced, employers may disciplineemployees up to and including termination forinappropriately using social media on company time
OEMC - September, 2012 Social Media PoliciesDiscipline and discharge: Misuse away from work: to be disciplinable, the conduct must harm the employer’s reputation and/or significantly impair the employment relationship
OEMC - September, 2012 Social Media PoliciesIt is important to note that the use of social mediameant to harass, bully or discriminate anotheremployee, whether it occurs in the workplace oroutside, can be considered an offence under theOccupational Health and Safety Act’s Bill 168 –violence and harassment in the workplace
OEMC - September, 2012 Employee MonitoringWhen considering whether a particular form ofmonitoring is reasonable, courts and privacyregulators will apply the following four-part test:1. Is the workplace monitoring demonstrably necessary to meet a specific need?2. Is the method chosen likely to be effective in meeting that need?
OEMC - September, 2012 Employee Monitoring3. Is the loss of privacy proportional to the benefit gained?4. Is there a less intrusive way for the employer to achieve the same end?
OEMC - September, 2012Employee MonitoringUnder the four- part test, an “acceptable use” internetpolicy will generally be considered as effective, yet farless invasive, than monitoring internet activitythrough, for instance, a keystroke logger, and willtypically be accepted in the case of an employeetermination stemming from the results of employeemonitoring.
Lougheed Imports v. U.F.C.W. & Alberta v. A.U.P.E. & Chatham- Kent v. C.A.W. Recent Social Media Cases
OEMC - September, 2012Lougheed Imports Background The B. C. Labour Relations Board upheld the termination of two employees who were fired because of derogatory comments made about their employer on Facebook. The employees posted insulting and threatening comments against their workplace and against management personnel. They also alleged dishonest dealings by their employer.
OEMC - September, 2012Lougheed Imports BackgroundThere were 11 postings in a period of a month. Eachemployee was “friends” with co- workers, formeremployees, and managers of the employer onFacebook.The Employer met with the employees and asked themabout the postings. They denied writing them andclaimed that they had left their Facebook accountslogged on and that anyone could have written them.
OEMC - September, 2012Lougheed Imports BackgroundThe employer found the comments were inappropriateand insubordinate and created a hostile workenvironment for co- workers and supervisors. It alsosaid they were likely to damage the reputation andbusiness interests of the Employer, and that theemployees’ wrongdoing was compounded by theirdishonesty about the postings.
OEMC - September, 2012ResultsThe Board found proper cause for dismissal. Thecomplainants could not have a serious expectation ofprivacy when publishing comments on their Facebookwebsites. The comments were damaging to theEmployer’s business.The Board found them to be akin to comments madein the workplace because Facebook friends includedco-workers, former employees and an existingmanager.
OEMC - September, 2012Alberta v A.U.P.E. BackgroundAn employee of Alberta Public Service wasterminated after an investigation into derogatorypostings which she made on her internet blog aboutsome of her colleagues. The employee kept a personalblog with open public access. She ridiculed co-workers online and belittled the administrativeprocesses of the employer. Aliases were used in placeof actual names, but it was possible to infer to whomshe was referring.
OEMC - September, 2012Alberta v A.U.P.E. BackgroundShe used negative terms when referring to hercolleagues, like “Nurse Ratched” and the “lunatic incharge.” The employee was terminated when theemployer discovered the blog.The employee’s main defence was that she did notknow that her blog was accessible to the public andthat she did not realize her postings were hurtful orinsubordinate.
OEMC - September, 2012ResultThe Board found that in expressing contempt for hermanagers, ridiculing her co-workers, and denigratingadministrative processes, the employee engaged inserious misconduct that irreparably severed theemployment relationship, justifying discharge.
OEMC - September, 2012ResultNote that in subsequent judicial review of thearbitrator’s decision, the termination was reversed;however, the court confirmed that termination basedon the employee’s online actions could have beenjustifiable. Reinstatement was ordered becausemanagement failed to comply with the due process fordiscipline provided in the collective agreement.
OEMC - September, 2012Chatham-Kent v. C.A.W. BackgroundA personal care giver in a nursing home created awebsite where she published text and pictures aboutvarious residents without their consent. The employerterminated the employee for cause due to breach ofconfidentiality and insubordination.
OEMC - September, 2012ResultThe employee’s claim for unjust dismissal was denied.The arbitrator found that the employer had just causefor termination, as the employee made insubordinateremarks about management on a public blog. Also,the employee breached her confidentiality agreement.
OEMC - September, 2012ResultThe employee training manual expressly stated thatinformation available to the employee during thecourse of his or her duty must be kept from socialconversation and remain confidential.
OEMC - September, 2012ResultThe arbitrator rejected the defence that the blog hadbeen intended to be private, as instructions on the blogsite made it clear that the blog would be publiclyaccessible unless certain privacy settings wereexpressly selected.
Performance ManagementDeveloping your Future Leaders and High Performers
OEMC - September, 2012Performance Management System Success and failure factors What do you feel are the critical elements needed for a performance system to be successful? What contributes to the failure of performance systems?
OEMC - September, 2012Recognition -what it is Not• It is not the 5 year pin• It is not the gold watch on your 25th anniversary• It is not a dinner in your honour on your retirement these are acknowledgements of an individual’s length of service to the organization
OEMC - September, 2012Recognition Is performance driven Is consistent with the individual’s goals It supports the organization’s goals It furthers the success of the individual & the organization
OEMC - September, 2012 Recognition -PurposeTo recognize exceptional performance against agreed upon Specific standards that are Measurable that are Achievable that are Realistic that are Time specific S.M.A.R.T.
OEMC - September, 2012Recognition -Rewards In terms of rewards, most everything we can think of, in one way or another, has a price tag attached
OEMC - September, 2012 How to RewardExceptional Performance & Manage it for Future Growth
OEMC - September, 2012Manage the Employee’s performance in such a way that the achievement of exceptional performance is communicated to the employee
OEMC - September, 2012 Manage the Employee’s performance in such a way that formal & informal rewardsrecognizing exceptional performance are in place & communicated to the employee
OEMC - September, 2012 This process is defined asPerformance Management
OEMC - September, 2012Performance Management The informal and formal process of regularly planning, monitoring, reviewing, documenting, discussing and improving employee performance and results to further the success of the organization. The object of performance management is to help people to do a better job and reward them properly for doing so.
OEMC - September, 2012Performance Management Problems Attainable Goal Good in Theory & Practice Continuing Collaborative Process Value Added Managers & Employee Embrace
OEMC - September, 2012Employee PerceptionsI understand the measures used to evaluate myperformance….. 60% yesMy performance is rated fairly….. 57% yesMy manager clearly communicates goals &assignments…… 47% yes
OEMC - September, 2012Employee Perceptions My performance reviews are conducted regularly and on a timely basis….. 42% yes My reviews are helpful in improving performance….. 39% yes My manager gives regular feedback….. 37% yes
OEMC - September, 2012Managers’ Most Common Complaints Employees become defensive when I give them feedback I don’t like sitting in judgement of my employees This takes too much time
OEMC - September, 2012Managers’ Most Common Complaints It’s just a paper exercise that is not directly related to the work of my group It’s just another form that HR insists we complete The evaluation forms do not relate to the work my people do
OEMC - September, 2012Managers’ Most Common Complaints This is just a “once- year” activity a- The only thing employees are interested in is the size of their raise Employees don’t want to participate in performance management
OEMC - September, 2012“Performance Evaluation” or “Performance Appraisal” implies a periodic event not an on-going process is a scorecard approach
OEMC - September, 2012Performance Appraisal Research Three critical questions were asked: 1. How satisfied are employees with their organization’s performance appraisal system? 2. How do they see performance practises changing the future? 3. What factors cause performance management systems to succeed or fail?
OEMC - September, 2012Research Findings Regardless of position, both managers and staff see a lot of room for improvement in performance management practises Respondents give the lowest grades to feedback and coaching Respondents do not see a clear link between their performance and their pay
OEMC - September, 2012Research Findings Respondents describe performance management as a fragmented system that lacks continuity Little opportunity for employee involvement in the appraisal process Performance is not rewarded sufficiently
OEMC - September, 2012Research Findings Appraisals are late and focus on the petty and the negative Managers do not follow up with employees after appraising them It takes too much time
OEMC - September, 2012Performance appraisal is widely considered byboth academics and practising managers as one ofthe most valuable human resources tools.It is a vital component in recruiting and hiringemployees where it is used to validate selectionprocedures.
OEMC - September, 2012In the staffing arena, transfer, layoff, termination,and promotion decisions are based on appraisalresults.In compensation administration, performanceappraisal forms the basis for the administration ofmerit pay systems.
OEMC - September, 2012Can serve as a motivational device tocommunicate performance expectations toemployees and to provide them feedback.Indispensable in training and developmentactivities to assess potential and to identifytraining needs.
OEMC - September, 2012Despite the assumption that performanceappraisal is valuable, not a lot of time is devotedto it: an average of 8 hours per employee per year for appraising executives and managers 6 hours on professionals fewer than 4 hours on non- managerial, nonprofessional staff
OEMC - September, 2012 These figures include all of the appraisers’ activities in observing and documentingperformance, completing the evaluation form, and conducting the appraisal discussion
OEMC - September, 2012Why No Time is Spent Managers are not commonly held accountable for how well they conduct performance appraisals on their employees
OEMC - September, 2012Improving Appraisal Effectiveness Get employees more involved in the design, development, and administration of the performance appraisal system Participation creates ego involvement and a sense of commitment to the process
OEMC - September, 2012Improving Appraisal Effectiveness Invest more heavily in training raters to use the system Train managers to observe and document performance and to communicate information effectively and deliver performance feedback
OEMC - September, 2012Improving Appraisal Effectiveness Create an environment in which performance information is viewed as a resource that managers can use to develop their employees Top managers must create a climate in which accurate and timely performance appraisal is expected of all managers, is taken seriously, and is rewarded
OEMC - September, 2012Improving Appraisal Effectiveness Make a performance appraisal a shared responsibility of the ratee, not just the rater This fundamental philosophical shift takes the burden to “be nice” from the managers and frees them to be honest
OEMC - September, 2012Improving Appraisal Effectiveness As part of this philosophy, employees must be trained to use feedback from the appraisal process to manage their own careers
OEMC - September, 2012Improving Appraisal Effectiveness Use multiple perspectives (multiple raters), including peer evaluation, to reduce the reliance on a single source This reduces sampling error by increasing the number of observations and makes raters more comfortable, since they are no longer solely responsible for what happens to the person as a result of the rating
OEMC - September, 2012Conclusion ... performance appraisal is here to stayoverwhelming majority of organizations use the approach little discussion of abolishing it
OEMC - September, 2012Conclusion ... there is widespread dissatisfaction with almost everything concerned with performance appraisals
OEMC - September, 2012Conclusion ... neither appraisers nor those being appraised feel entirely comfortable with the process
OEMC - September, 2012David W. Ewing on Performance Appraisals: “Performance appraisal has come a long way (over the previous 25 years) since its origin as a simple, principally one-way communication between a boss and his subordinate….
OEMC - September, 2012David W. Ewing on Performance Appraisals: “Judging from the articles in this series, the technique still has a way to go before most managers will be satisfied with it….”
OEMC - September, 2012David W. Ewing on Performance Appraisals: “…It seems safe to conclude, however, that performance appraisal is not a passing fad. Any technique that can stimulate the kinds of experiment and inquiry described in this series should be around for many years to come.”
OEMC - September, 2012 James L. Hayes on Performance Appraisals:“There are some ideas in management whose timecomes and goes and comes again, depending oncircumstances of economy or fashion….
OEMC - September, 2012 James L. Hayes on Performance Appraisals:“I have in mind such things as direct costing, the mostprofitable means of inventory valuation, and the eternalshift between centralization and decentralization….
OEMC - September, 2012James L. Hayes on Performance Appraisals:“There are other ideas whose time is ever present andwhose demands for effective practice are immutable.Of these perhaps the most pertinent for all managersanywhere in no matter what type of operation - …
OEMC - September, 2012James L. Hayes on Performance Appraisals:“whether in the public or private sector, whether in amarket or socialist economy -is the need foreffective performance appraisal.”
OEMC - September, 2012Performance Management Defined: The informal and formal process of regularly planning, monitoring, reviewing, documenting, discussing and improving employee performance and results to further the success of the organization.
OEMC - September, 2012Objective of Performance Management To help people to do a better job and reward them properly for doing so. it is not to have beautifully completed forms. objectives lead to content.
OEMC - September, 2012Performance Standards Have an impact on the success of the job Differentiate between successful and unsuccessful job performers Be at least partially within the control of the person being judged
OEMC - September, 2012Performance StandardsBe based on observations which are documented and job related Communicate job performance expectation to employees and provide feedback
OEMC - September, 2012Performance Standards Recognize the realities of the work to be performed (particularly important for managerial/supervisory positions)
OEMC - September, 2012Performance Standards Recognize the importance of the organizationculture -that is, what is regarded as “successful” behaviour within the organization
OEMC - September, 2012Purposes of Performance Appraisal Identify training needs Help determine performance based rewards/punishments Help make employee re- organization decisions, particularly with regard to promotions, transfers, succession and work force planning
OEMC - September, 2012Purposes of Performance Appraisal Set work objectives Help employees with counselling and career planning Help with legal purposes (termination, discipline)
OEMC - September, 2012Purposes of Performance Appraisal Review and update job descriptions Validate HR practices (e.g. selection decisions, promotion decisions and training programs)
OEMC - September, 2012Performance Management The informal and formal process of regularly planning, monitoring, reviewing, documenting, discussing and improving employee performance and results to further the success of the organization. The object of performance management is to help people to do a better job and reward them properly for doing so.
OEMC - September, 2012 Performance ManagementOffers both managers and employees an opportunity to: Identify mutually acceptable goals Develop action plans most likely to achieve those goals, and Review performance on an ongoing basis
OEMC - September, 2012Summary Make sure that all your employees always know how well they are performing Make sure they know that you are aware of their performance There should be no secrets and everyone should know where he or she stands
OEMC - September, 2012Summary For employees to improve poor work, they have to know clearly what the poor work is For employees to continue doing good work, they have to know clearly what that good work is
OEMC - September, 2012Performance ProblemsRepresents the difference between the performance a manager WANTS or EXPECTS from an employee andthe performance they actually GET from the employee
OEMC - September, 2012Performance ProblemsArises any time an employee does something themanager feels they shouldn t do or is not doing something the manager feels they should do Some are extremely serious and others are so small they not be worth solving
OEMC - September, 2012Performance problems will ariseIf an employee does not recognize that a problemexists, then that employee will have no reason tochange his/her behaviourIf an employee lacks the necessary knowledge andskills, he/she will be unable to perform effectively
OEMC - September, 2012Performance problems will arise If an employee does not have the equipment needed to do a job, receives conflicting instructions, or if a bad environment or poor working conditions interferes with doing the job, that employee will be unable to do the job properly
OEMC - September, 2012Performance problems will ariseIf an employee determines that it actuallydoesntmatter if the job is done correctly or not, or iftheconsequences of doing a job properly or quicklyare unpleasant, ultimately, they will stop doing itcorrectly
OEMC - September, 2012Performance problems will arise If an employee does not know exactly how well or how poorly he/she is doing, there is no way his/her performance can be improved
OEMC - September, 2012Performance Management Covers the following basic steps: Setting appropriate job performance standards and ensuring that employees are aware of them Observing and identifying an employees work behaviour, its outcomes and achievements as compared against agreed behaviours, goals and standards
OEMC - September, 2012 Performance ManagementEvaluating job performance by using some method of assessment Evaluating and developing -that is, channelling theassessment results for the use of both the employee and the organization: this includes discussing the results with the employee (providing feedback) and may lead to training and development activities
OEMC - September, 2012Performance Management It is the process that judges the performance not the person
OEMC - September, 2012Performance Standards should: Have an impact on the success on the job Differentiate between successful and unsuccessful job performers
OEMC - September, 2012Performance Standards should: Be at least partially within the control of the person being judged Be based on observations which are documented and job related
OEMC - September, 2012Performance Standards should: Communicate job performance expectation to employees and provide feedback
OEMC - September, 2012Performance Standards should: Recognize the realities of the work to be performed (particularly important for managerial/supervisory positions)
OEMC - September, 2012Performance Standards should: Recognize the importance of the organization culture - that is, what is regarded as "successful" behaviour within the organization
OEMC - September, 2012Performance Appraisal should: Identify training needs Help determine performance based rewards/punishments
OEMC - September, 2012Performance Appraisal should:Help make employee re-organization decisions, particularly with regard to promotions,transfers, succession, and work force planning Set work objectives
OEMC - September, 2012Performance Appraisal should: Help employees with counselling and career planning Help with legal purposes (terminations, discipline)
OEMC - September, 2012Performance Appraisal should: Review and update job descriptions Validate HR practices (eg. selection decisions, promotion decisions and training programs)
OEMC - September, 2012 “There’s a world of difference between a strong ego which is essential and a large ego -which can bedestructive. The guy with a strong ego knows his own strength. He is confident... But the guy with a large ego is always looking for recognition. He constantly needs to be patted on the back.” Lee Iacocca “It’s a bad plan that can’t be changed.” Publilius Syrus
OEMC - September, 2012 “Choose respect & responsibility”-anonymous “We become just by performing just actions,temperate by performing temperate actions, brave by performing brave actions.” -Aristotle “To rule is easy; to govern, difficult.” -Goethe “Feel the fear do it anyway.” -Tamara Mellon, President Jimmy Choo Shoes
OEMC - September, 2012 “Leaders are people who do the right thing; managers are people who do things right.Both roles are crucial, but they differ profoundly.I often observe people in top positions doing the wrong thing well.”Warren Bennis in Why Leaders Can’t Lead (1989)
OEMC - September, 2012 “Accept the risk of leadership” -anonymous“The measure of success is not whether you have a tough problem to deal with, but whether it is the same problem you had last year” John Foster Dulles (1888-1959)
Current Issues in Labour and Employment Law ByTerrence A. F. Whyte, B.A., LL.B., LL.M., CHRP Partner (TM) & Managing Partner (TCGI)
Accessibility for Ontarians With Disabilities Act, 2005 An Update
OEMC - September, 2012AOD Act, 2005Purpose: To make Ontario fully accessible for persons with disabilities by 2025 Gradual establishment and implementation of accessibility standards for the following areas: customer service, transportation, information and communications, the built environment, and employment
OEMC - September, 2012AOD Act, 2005 These standards are being given force of law by being adopted as binding regulations The goal of this legislation is voluntary compliance The AODA envisions an enforcement process involving compliance reporting, inspectors, director’s orders, and the oversight of a tribunal
OEMC - September, 2012Non-Compliance Employers who do not comply with the standards could be subject to administrative penalties and be found guilty of an offence with fines of up to $100,000 for each day or part of a day that the offence continues to occur
OEMC - September, 2012Non-Compliance A person who is found guilty of an offence could face a fine of up to $50,000 per day. Because of this, employers would do well to begin preparing their policies and procedures earlier, rather than later
OEMC - September, 2012The Employment StandardPart III of the Integrated Accessibility Standardsregulation sets out the Employment Standard underthe AODAThis standard sets out specific requirements for therecruitment, retention and accommodation of peoplewith disabilitiesThe Employment Standard applies to all employerswith at least one employee in Ontario
OEMC - September, 2012Important Milestones – Jan. 1st, 2012 By this date every employer was to have provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary, as soon as practicable after becoming aware of the need for accommodation
OEMC - September, 2012Important Milestones – Jan. 1st, 2012 The information provided to the employee must be reviewed when the employee moves within the organization, when the employee’s overall accommodations are reviewed and when the employer reviews its general emergency response policies
OEMC - September, 2012Other Important Dates The other requirements of the Employment Standard are staged, depending on the size and type of organization For designated public sector organizations with 50 or more employees, the deadline for compliance is Jan. 1, 2014 For designated public sector organizations with more than 1 but fewer than 50 employees, the deadline is Jan. 1, 2015
OEMC - September, 2012Other Employment StandardsRequirements Under the AODAOther Employment Standards relate to:1. Providing information regarding accommodation policies during the recruitment process2. Informing employees of policies used to support employees with disabilities
OEMC - September, 2012Other Employment StandardsRequirements Under the AODAOther Employment Standards relate to:3. Providing information to employees in accessible formats or using communication supports4. Developing a written process for the development of documented individual accommodation plans for employees with disabilities
OEMC - September, 2012Other Employment StandardsRequirements Under the AODAOther Employment Standards relate to:5. Developing a return to work process for employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work6. Taking into account the accessibility needs of employees with disabilities when using performance management process in respect of employees with disabilities
OEMC - September, 2012Other Employment StandardsRequirements Under the AODAOther Employment Standards relate to:7. Taking into account the accessibility needs of employees with disabilities as well as any individual accommodation plans, when providing career development and advancement to employees with disabilities8. Taking into account the accessibility needs of employees with disabilities when redeploying employees with disabilities
Bill 168 – Amendments to the OccupationalHealth and Safety Act – Workplace Violence and Harassment Are You In Compliance?
OEMC - September, 2012Bill 168 – Are You In Compliance?• On June 15th, 2010, Bill 168 came into effect, amending the Occupational Health and Safety Act to deal with workplace violence and harassment.
OEMC - September, 2012Bill 168 – Are You In Compliance?Employer Requirements• Develop written policies with respect to workplace violence and harassment and to post these policies in a conspicuous area
OEMC - September, 2012Bill 168 – Are You In Compliance?Employer Requirements• Develop programs to implement these policies, including: -measures and procedures to control risks -measures and procedures for immediate assistance in the event of workplace violence/harassment -measures and procedures to report incidents -employer investigation procedure
OEMC - September, 2012Bill 168 – Are You In Compliance?Employer Requirements• Assess the risks of workplace violence and harassment and report the results of these assessments to the joint health and safety committee
OEMC - September, 2012Bill 168 – Are You In Compliance?Employer Requirements• Conduct training with all staff with respect to these policies and procedures
OEMC - September, 2012Bill 168 – Are You In Compliance?Employer Requirements• Review Workplace Violence and Harassment policies annually
OEMC - September, 2012Bill 168 – Are You In Compliance?Employer Requirements• Designate a person in the workplace to act as the workplace co- ordinator with respect to workplace violence and harassment.
Bill 160 – Amendments to the Occupational Health and Safety Act
OEMC - September, 2012Bill 160 Bill 160 was enacted in response to the final report of an Expert Panel on Occupational Health and Safety, which was released in December 2010 after a comprehensive review of Ontario’s workplace health and safety system Bill 160 received Royal Assent on June 1, 2011, and many of its provisions came into force on that day
OEMC - September, 2012The Chief Prevention Officer Bill 160 enacted on of the priorities identified in the report by establishing the position of Chief Prevention Officer As of August 2011 Ontario has appointed its first Chief Prevention Officer
OEMC - September, 2012The Chief Prevention Officer The Chief Prevention Officer is responsible for:1. Establishing standards relating to workplace health and safety training programs2. Establishing effective delivery of injury prevention programs and services3. Monitoring compliance with standards set by the Minister of Labour
OEMC - September, 2012Other Changes in Bill 160 Bill 160 also implemented other changes to Ontario’s workplace health and safety system:1. It establishes the Ministry of Labour as the lead for injury and illness prevention
OEMC - September, 2012Other Changes in Bill 1602. It creates a Prevention Council, withrepresentatives from unions, employers, non-unionized employees, the Workplace Safety andInsurance Board, and safety experts, to advise theChief Prevention Officer on the prevention ofworkplace injuries and occupational diseases
OEMC - September, 2012Other Changes in Bill 1604. It regulates changes proposed by the Minister of Labour to the funding and delivery of services for the prevention of workplace injuries and occupational disease5. It sets out the consequences of non-compliance with the Act or non- cooperation with the Chief Prevention Officer’s inquiries
GasTOPS v. Forsyth & Bowes v. Goss Power Products Recent Court of Appeal Cases DealingWith Reasonable Notice for Employers and Employees and Mitigation
OEMC - September, 2012GasTOPS Background Four senior employees in the aviation industry gave two weeks’ notice of resignation before starting a competing firm. They recruited GasTOPS employees to join this new firm.
OEMC - September, 2012GasTOPS Background Upon giving their notice, two employees were told to leave the workplace immediately. GasTOPS claimed the employees failed to give reasonable notice of their intention to resign.
OEMC - September, 2012DecisionThe trial judge found in favor of GasTOPS andstated that the employees knew they had giveninadequate notice and did so with the intent ofdestroying the company. The court held that theemployees ought to have provided the company 10to 12 months’ notice and awarded GasTOPS closeto $20 million in damangesIn its 2012 decision, the Court of Appeal upheld thetrial judge’s decision.
OEMC - September, 2012Result Because the parties did not appeal the length of notice awarded, the judgment does not address the appropriateness of the length of notice required; however, it serves as confirmation of the common law requirement to give reasonable notice of resignation.
OEMC - September, 2012Result Failure to do so is a breach of contract. Length of notice required depends on the employee’s duties, the expected length of time required to train a replacement employee, custom in the industry, and the timing of the resignation in relation to the employer’s peak period(s).
OEMC - September, 2012Result Note that there is still a duty to mitigate on the employer, in that a reasonable effort must be made to replace the employee in a timely fashion.
OEMC - September, 2012Goss Power Products Background• Bowes started his employment with Goss in 2007 and signed an employment agreement• The agreement provided for various levels of salary in lieu of notice in the case of a termination without cause• Bowes was terminated in April, 2011 and in accordance with the agreement was entitled to 6 months salary
OEMC - September, 2012Goss Power Products Background• On April 25th, 2011 ( 2 weeks after his termination) Bowes started a new job• Goss, on learning of this, said he was only entitled to the ESA minimum of 3 weeks because he had a duty to mitigate his damages and that he had mitigate his losses successfully
OEMC - September, 2012Result• In overturning the trial judge’s decision and deciding in favour of Bowes that he did not have a duty to mitigate, in its 2012 decision the Ontario Court of Appeal held that by contracting for a fixed sum the parties have contracted out of the Bardal “reasonable notice” or damages in lieu approach• By specifying an amount the stipulated quantum is either liquidated damages or a contractual sum
OEMC - September, 2012Result• And mitigation is a live issue in law only where damages are at large, i.e. damages in lieu of reasonable notice• The Court held that unless mitigation is specifically accounted for in the contract, mitigation is not applicable if the damages are either liquidated or a contractual sum
OEMC - September, 2012Result• The Court concluded by saying that if parties who enter into an employment agreement specifying a fixed amount of damages intend for mitigation to apply upon termination without cause, they must express such an intention in clear and specific language in the contract
Bill C- Amendments to the Ontario 279 Human Rights Code Gender Expression and Gender Identity
OEMC - September, 2012Bill C-279At the Federal level, Bill C- passed second reading 279in Parliament on June 6th, 2012.The Bill amends the Canadian Human Rights Act toadd “gender identity” to the list of prohibited groundsof discrimination.
OEMC - September, 2012Bill C-279It also alters the Criminal Code, adding genderexpression and identity as distinguishingcharacteristics protected under hate propaganda laws,and making discrimination against transsexuals anaggravating factor in sentencing.
OEMC Municipal Conference September 14th, 2012 ByTerrence A. F. Whyte, B.A., LL.B., LL.M., CHRP Partner (TM) & Managing Partner (TCGI)