Gowlings' Employment and Labour Law Seminar 2013

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  • Those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219 at para 40Also protects non-biological relationships
  • Consider organizational structure, inclusiveness of its policies, procedures and decision making practicesFlexible hour programsCompressed work weeksJob sharing Leaves of absenceChildcare/eldercare services (information and referral service, on-site care)Work from home
  • Claimant is a member of the group possessing a characteristicDid the claimant suffer some adverse treatment?Is it reasonable to infer that the protected characteristic played some role in the adverse treatment
  • British Columbia (Public Service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R. 3 (“Meiorin”)
  • Other factors (not generally accepted):Interchangeability of workforce and facilitiesEmployee moraleEffect on rights of other employeesInconvenienceDisruption of the workplace, to the collective agreementImpossible?The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.  16 The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.17….However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, [page571] the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.18     Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the testReasonable accommodation24 (2)  No tribunal or court shall find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 24 (2); 1994, c. 27, s. 65 (4); 2002, c. 18, Sched. C, s. 4 (1); 2006, c. 30, s. 3 (1).Determining if undue hardship(3)  In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations. 
  • Ex: B.C. nanny case: Mazuelos v. Clark, [2000] B.C.H.R.T.D No.1 Procedurally – employer has an obligation to take necessary steps to determine what kind of modifications or accommodations might be required in order to allow the employee to participate fully in the workplaceSubstantively – employer must then take steps and make necessary modifications to allow that employee to participate in the workplace up to the point of undue hardshipJustice Abella in McGillLane v. ADGA Group Consultants Inc. 2007 HRTO 34, aff’d [2008] O.J. No. 3076 (OSCJDC)
  • Ex: B.C. Court of Appeal (Campbell River): Reorganization of workplace resulted in schedule change for mother of school-age child with special needsEx: Federal Court of Appeal and Canadian Human Rights TribunalB.C. approach in Campbell River too restrictive
  • Claimant is a member of the group possessing a characteristicDid the claimant suffer some adverse treatment?Is it reasonable to infer that the protected characteristic played some role in the adverse treatment
  • Review of CHRT decision
  • Although the complainant’s employer was aware that he was taking care of his mother, it grew more and more dissatisfied with his absences from the office.  There was a belief that the complainant’s absences were negatively impacting the morale of his team.  The complainant was warned about his attendance numerous times and, eventually, his employer demanded that he be present at the office during core working hours or else it would consider him to not be working.  The complainant was eventually warned that his employment would be terminated if he did not comply.  The employer’s hope was that these warnings would get the complainant to focus on participating fully in the business of the office.  Despite the warnings, from the employer’s point of view the complainant’s attendance at the workplace continued to be abysmal and so in early January 2009 they chose to terminate his employment.  The employer’s opinion was that the complainant had made the choice to take time off to care for his mother rather than attend work, something they could no longer tolerate.  The complainant was shocked over his dismissal, believing that he had given many years to the firm and sacrificed much to meet the demands of the workplace over that course of time.  He also found himself in a difficult position given that his mother’s situation at the time was “desperate” and he needed an income in order to pay for her care.  He asked the firm for another chance.  A few days later, the employer offered the complainant employment on a contract basis that would see him stripped of the his principal/team manager designation and his salary, replacing it with compensation for each full day he attended the office.  He would not be paid if he did any work outside of the office.  The complainant refused to accept the contract offer and, instead, accepted an offer of employment made by the developer of the project he had been working on for the firm.
  • Was the employee discriminated against on the basis of family status?The first thing the Tribunal had to contend with was whether the complainant was able to demonstrate a prima facie  case of discrimination on the basis of family status and so it waded into an examination of the two main “streams” of case law on this issue   The Tribunal rejected the line of cases that suggested a higher test or threshold was to be applied when family status discrimination was alleged.  Instead, the Tribunal concluded that the applicant needed only to show that his employer’s attendance requirements had an adverse impact on him because his absences from the office were required due to his responsibilities as his mother’s primary caregiver.  The Tribunal did, however, note that if the complainant was merely choosing to care for his mother rather than it being a “family responsibility” he would not be able to claim family status discrimination.The Tribunal went on to examine the complainant’s personal circumstances, including an analysis of the documentation relating to his absences from work and concluded that a high proportion, but not all, of his absences could be proven to be connected to providing care to his mother.  Consideration was given by the Tribunal to the employer’s argument that the complainant chose to be with his mother rather than it being a requirement for him.  In particular, the employer took the position that the complainant could have hired someone to care for his mother or he could have admitted her to a long-term care facility much sooner than he did.  The Tribunal rejected the latter argument, noting that it was not reasonable for the complainant to have admitted his mother to a care facility against her wishes.  Regarding the former argument, the Tribunal concluded that the complainant could have obtained at least some outside assistance relating to the routine aspects of his mother’s care but chose not to do so as he believed he could jointly maintain his commitment to care for his mother and perform the duties of his job mostly external to the office with available technology.  In the final analysis, the Tribunal concluded that the respondent’s strict attendance requirements had an adverse impact on the complainant due to his family responsibilities and he was ultimately fired based on absences which, although not solely, were significantly due to his family circumstances.  As a result, the complainant was found to have established a prima facie case of discrimination on the basis of family status.Could the employer establish that its attendance requirements for the complainant were a bona fide occupational requirement because it could not have accommodated his family obligations without incurring undue hardship?The Tribunal concluded that the employer failed to demonstrate that its strict attendance requirements for the complainant were reasonably necessary.  Specifically, it was of the view that the employer failed in its procedural and substantive obligations under the duty to accommodate as follows:once the employer became aware that the complainant had elder care responsibilities affecting his attendance, it had a procedural duty to engage in a dialogue with him to determine whether his needs could be accommodated.  Although the Tribunal did point out that the complainant did not initiate a meaningful dialogue with his employer regarding his need for accommodation, it concluded that informing his employer of his elder care responsibilities was enough.  It then became the employer’s obligation to ask about the responsibilities and explore what could be done to accommodate them.  On both points, the Tribunal concluded that the employer was remiss.   Here, the Tribunal pointed to the evidence of one of the firm’s senior partners charged with human resource-related responsibilities who testified that if an employee needs accommodation, his typical practice is to wait for them to come to him as he would not want to pry into their personal circumstances.  Moreover, regarding the complainant, the senior partner simply assumed that the complainant would “find arrangements” to deal with his responsibilities to his mother;the employer’s claims that the complainant’s absences from the office were causing problems for his team, especially from a morale standpoint, were not found to be supported by any evidence; rather, they appeared to be made on the basis of bald assertion.  In addition, the Tribunal honed in on the absence of any evidence that the complainant was failing to perform his project management responsibilities.  Instead, the evidence appeared to demonstrate that the client on the project the complainant was managing was happy with the complainant’s work (hiring him, in fact, after he was fired);prior to his termination, the complainant disclosed to his employer that his mother had been accepted into a nursing home which did, in fact, occur in early January 2009 around the time he was fired.   It was the Tribunal’s view that the mother’s placement in the care facility ought to have signaled to the employer that the flexible working hours the complainant required from late 2008 was coming to an end.  This factor was found to watered down the employer’s argument that it needed to fire the complainant when it did as it was incurring undue hardship.
  • Obtain relevant medical informationRequest expert opinion if necessaryAssess employee’s limitations
  • Don't dismiss requests out of hand. Upon learning of an employee's request to satisfy his/her family responsibilities, employers should engage in an immediate dialogue to determine the scope of the employee's needs and to design an accommodation strategy if necessary.Document the accommodation process. Employers should make carefully documented inquiries to determine whether the accommodations (e.g., working from home, modified hours, absences for family medical appointments) are in fact reasonably related to caregiving obligations and whether such obligations rise to the level of necessity or are a mere preference or matter of convenience. For example, if an employee advises that he/she wants to modify his/her hours of work to leave at 4 p.m. because daycare pick-up requires the employee to do so, it is reasonable for the employer to make a request in writing for the employee to confirm what other daycare options are nearby, what inquiries the employee has made regarding those options and whether there is another person who could pick-up the child at daycare.Policies must be reasonable. Employers should consider the flexibility of their attendance policies to determine whether employees with caregiving or other family responsibilities are able to work effectively from home or during non-traditional hours where technology and circumstances permit.Gather evidence of undue hardship. Bald assertions about flexible work arrangements negatively affecting workplace morale were rejected in Devaney. It is important to gather objective evidence related to productivity (e.g., sales results, 360 performance reviews) before taking the blanket position that employees cannot work from home.
  • Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was UnreasonableThe Alberta Court of Appeal recently released its decision in R v XI Technologies Inc., 2013 ABCA 282 and held that the employer had not met its obligations under Alberta’s occupational health and safety laws when it failed to identify and eliminate the safety risk to its employees in the operation of a faulty calf-roping machine at a client appreciation event.  FactsA fatal accident took place during a western-themed client appreciation event hosted by the employer when one of its employees (N.S.) was struck in the head by a lever attached to a calf-roping machine.  The calf-roping machine was rented by the company as part of the day’s entertainment.  However, the supplier had delivered the machine late and without an operator or appropriate instructions.  The employees were left with the task of figuring out how the ride was to be operated and they soon realized that the machine was not functioning properly.  The hinge hook which released the “calf” for party-goers to “lasso” failed to automatically detach.  As a result, the employees determined that the hinge hook would have to be released manually.  N.S. went to unlatch the hinge hook to release the calf when the calf prematurely launched and caused a steel level to strike the employee in the head.  This injury ultimately led to N.S.’s death. Prior RulingsThe employer was charged with two counts under the Occupational Health and Safety Act, RSA 2000, c. 0-2, for failing to ensure (1) the health and safety of its employees and (2) that all equipment used at the worksite would safely perform the function for which it was intended or designed.Following trial, the employer was acquitted on both counts.  Of note, the supplier of the calf-roping machine was also charged with violating the OHS Act, however, the charge was quashed and a new prosecution could not be commenced due to the expiry of the statutory limitation period.  The Crown appealed the trial judge’s not guilty verdict to a summary conviction appeal judge, who allowed the appeal and entered convictions on both counts.In response, the employer successfully applied to the Alberta Court of Appeal for leave to appeal the summary conviction judge’s reversal of the verdicts. The issues before the Albert Court of Appeal were whether the summary conviction appeal judged erred in finding that the trial judge’s verdict was unreasonable based on a proper view of the facts and whether he misapplied the foreseeability test. The Alberta Court of Appeal’s DecisionAs to the question of unreasonable verdict, the Alberta Court of Appeal concluded the employer had not been duly diligent. It upheld the summary conviction appeal judge’s ruling that the risk of harm was evident in that the calf-roping machine had been malfunctioning throughout the day, there were visible marks on the machine to indicate that the lever would be propelled with considerable force and that the malfunctioning of the ride created additional hazards, such as requiring the employee to manually reach into the machine which put the employee’s head in close proximity to the lever. With respect to foreseeability, the panel held that it was apparent to a reasonable person that there was danger in having to manually reach into the machine to remove the hinge hook.  The employer failed, however, to identify the hazard and failed to take the necessary corrective action to eliminate it.   As such, the employer had not made out a due diligence defence.  The verdict to acquit was therefore unreasonable.Under Alberta OHS laws, employers are required to assess the workplace to identify hazards and then, once identified, either take steps to eliminate the hazard or if not possible due to legitimate business needs, take steps to minimize and reduce those hazards.  The Alberta Court of Appeal held that the employer failed to both identify the hazard and take the necessary corrective action to eliminate it.  As the calf-roping machine was not in any way necessary to the employer’s business, this meant the hazard was to be eliminated by not using the calf-roping machine at the party at all.  In fact, the Alberta Court of Appeal admonished the employer for even considering to use a machine that no one knew how to operate, without its own operator or a set of instructions and commented that this spoke “volumes as to the lack of its due diligence in this matter”. R v XI Technologies Inc., 2013 ABCA 282
  • An Ontario judge has imposed a $1,050,000 fine against Vale Canada Limited, the highest fine ever imposed under the Ontario Occupational Health and Safety Act.  It appears that the previous record fine, handed down in 2010, had been $850,000.Vale is also required to pay a Victim Fine Surcharge of 25%, bringing the total to $1,312,500.The fine resulted from a double-fatality after an uncontrolled release of broken rock and ore buried one worker and hit the other in a Sudbury mine.Vale pleaded guilty to three counts under the Occupational Health and Safety Act including failing to prevent the movement of material through an ore pass while hazardous conditions (a hang-up of broken rock and ore).Mr. Justice Randall Lalande of the Ontario Court of Justice sentenced Vale to a fine of $350,000 on each count.  The Ministry of Labour, in its press release, notes that “This is the highest ever total fine levied by a Court in Ontario for contraventions of the Occupational Health and Safety Act.”According to the Sudbury Star, Vale and the Ministry of Labour presented a joint-submission to the court, that the fine be $350,000 per count. The court accepted the joint submission.The maximum fine under the Occupational Health and Safety Act for a corporation is $500,000 per count.What were the factors that led the court to impose this historic fine?  It appears that Vale’s size, the fact that two workers died, and the OHSA record of Vale were signficant factors.In particular, Inco, the operations of which Vale purchased, was convicted in 2001 of two charges under the OHSA and fined $650,000 ($325,000.00 per count) after a worker died.  It was noted at the time that Inco had 11 prior convictions.Earlier this month, the Ontario Court of Appeal imposed a fine of $750,000 for criminal negligence causing death, on Metron Construction – up from the $200,000 fine imposed by the trial judge.  In that case, the Court of Appeal stated that the cases under the OHSA “revealed a range of fines between $115,000 and $425,000 for cases involving fatalities.”The Vale (OHSA) and Metron Construction (Criminal Code) fines seem to suggest that fines, particularly in fatality cases, are rising in Ontario.  Employers should take note.The Ministry of Labour’s press release may be found here.
  • Brampton, ON - Brewers Retail Inc., a Mississauga company that owns and operates beer stores in Ontario, was fined $175,000 for a violation of the Occupational Health and Safety Act after a worker was killed.On April 8, 2012, two workers were washing the exteriors of trucks and trailers at The Beer Store Distribution Centre located at 69 First Gulf Boulevard in Brampton. That afternoon, one of the workers found a liquor bottle filled with blue liquid. The bottle contained methanol windshield washer fluid used in the trucks, however it still had the liquor label on it. The two workers both drank from the bottle, and one took the bottle home and finished it. That worker later died from methanol poisoning.Brewers Retail Inc. pleaded guilty to failing to acquaint a worker with a hazard in the handling, storage or use of a liquid chemical agentThe fine was imposed by Justice of the Peace Lisa Ritchie. In addition to the fine, the court imposed a 25-per-cent victim fine surcharge, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.
  • Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII), released February 7, 2013, has clarified the critical injury/death reporting requirements under section 51(1) of the Occupational Health and Safety Act (OSHA).Pursuant to section 51(1) “where a person is killed or critically injured from any cause at a workplace”, an employer must notify a Ministry of Labour (“MOL”) inspector of the occurrence and submit to the Director of the MOL a written report of the occurrence within 48 hours.The decision confirms that section 51(1) will only be triggered where there is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the workplace.BackgroundAt issue in this case was whether section 51(1) of OSHA required Blue Mountain to report the death of a guest to the MOL. The guest had died while swimming in an unsupervised pool at the resort. Blue Mountain did not report the incident as it did not involve a worker and no workers were present at the time.The following year, an MOL inspector visited Blue Mountain, learned of the fatality and ordered Blue Mountain to report the incident. Blue Mountain appealed the order to the Labour Relations Board, where it was upheld. Blue Mountain then applied to the Divisional Court for judicial review, where it was again unsuccessful.Court of Appeal Decision:The Court of Appeal overturned the Board and Divisional of Court decisions, holding that they interpreted the requirements under s. 51(1) of the Act in an unreasonable manner. The decision states:The interpretations [the Board and Divisional Court] gave to s. 51(1) of the Act would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a “workplace” because a worker may, at some time, be at that place. This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the Act and the reviewing role of the Ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. . . .In light of the foregoing, the Court of Appeal held that section 51(1) will only be engaged where:a) a worker or non-worker (“any person”) is killed or critically injured;b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); andc) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).This decision provides greater certainty to employers by limiting the circumstances under which the critical injury or death of a “non-worker” must be reported to the MOL. This sense of clarity is particularly useful for employers in industries such as transportation, hospitality/tourism, sporting and recreation where there is a greater public presence and, as a result, greater likelihood of a “non-worker” injury taking place onsite.
  • Occupational Health and Safety Act charges could proceed against an insolvent company even though it had obtained protection from its creditors under the Companies’ Creditors Arrangement Act (“CCAA”), an Ontario judge has decided.Terrace Bay Pulp Inc. was charged with offences under the Ontario Occupational Health and Safety Act in relation to two separate incidents, one in which a worker was injured in the company’s wood-handling department, and one in which a worker died after an explosion blew part of the roof off of a mill.Relying on certain sections of the CCAA, the court decided that the Ministry of Labour prosecution under the Occupational Health and Safety Act was “regulatory or prosecutorial in nature”, and the Ministry was not “acting as a creditor” with respect to the prosecution, even though the company could be fined if it were ultimately found guilty of the charges.  As such, the prosecution could proceed.In response to the company’s argument that it would be costly to defend the charges, the judge noted that it was Terrace Bay’s decision as to whether it would incur the cost of defending the charges or not
  • Gowlings' Employment and Labour Law Seminar 2013

    1. 1. Employment and Labour Law Seminar 2013 Wednesday, November 6, 2013 Toronto
    2. 2. Social Media and Employee Obligations of Confidentiality and Loyalty Edward Majewski
    3. 3. Introduction • DO think twice about whether you should encourage employees to use social media for work-related purposes • social networking vs. social notworking • DON‟T be mesmerized by the technology (duties of loyalty and confidentiality are well-established) • But DO worry about the technology (data permanence, ease of dissemination, unfettered access by third parties) • DO educate employees about their workplace and offduty obligations to their employer (loyalty, confidentiality) and about the perils of social media (defamation, violating securities laws, etc.) 3
    4. 4. Social Notworking • Lost productivity in the $ billions • Time theft • More than 1 hour each day (1.8 hours for “Gen Y”) • Only 6.8% of employees say they use social media for purely work-related purposes 4
    5. 5. Social Media as a Tool…Recruiting/Screening • 77% of employers search online to do background checks • Asking candidates for their Facebook password is a bad idea • Human rights issues • Knowing things you shouldn‟t know about the candidate, e.g. age, race, religion, disability, etc. • Safest approach: don‟t search online (or don‟t review online search results) before making a conditional offer • Decision-maker shouldn‟t conduct the online search 5
    6. 6. Social Media as a Tool…Recruiting/Screening cont. • Privacy law issues • Collecting, using and retaining personal information about candidates (even if it‟s irrelevant and doesn‟t offend human rights legislation) • Warn candidates that thorough background searches, including online information, are conducted (in order to at least obtain their implied consent) • Fairness issues • Internet is unreliable • May be limiting hiring to only those with digital presence 6
    7. 7. Legal Risks • Vicarious liability for employees‟ wrongs committed in the course of their duties, even if employer didn‟t expressly authorize employees‟ conduct • Defamation • Example: trash-talking competitors in industry discussion forums • Securities law violations (insider trading, “tipping”) • Employee tweeting that s/he is working on a “big deal!” 7
    8. 8. Legal Risks cont. • Admissions against employer‟s interests • Social media data, tweets, posts, blogs, etc. may be producible in litigation against employer (e.g. products liability, accident, etc.) • Disclosure of employer‟s (or employer‟s customers‟) confidential information • Example: boasting about working on customer‟s top secret project 8
    9. 9. The Perils of Social Media: Duty of Confidentiality • Employees have a duty to preserve the confidentiality of their employer‟s non-public and proprietary business-related information that would harm their employer if disclosed or misused • Lasts indefinitely • DO identify in advance the types of information you consider to be “confidential” 9
    10. 10. The Perils of Social Media: Off-Duty Conduct vs. Duty of Loyalty • Every employee owes to their employer a duty of loyalty • …all pervasive, residual obligation to further the interests of the employer which is not capable of exhaustive categorization but which can be relied upon by the courts to compel „faithful‟ service in a myriad of work situations…. (G. England et al., Employment Law in Canada) 10
    11. 11. The Perils of Social Media: Off-Duty Conduct vs. Duty of Loyalty • Employees cannot disparage their employers or engage in conduct that damages their employers‟ business, even when that is done on their personal computers and outside of working hours • Example: Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union • Example: Wasaya Airways LP v. Air Line Pilots Assn., International (Wyndels Grievance) • Critical consideration: real versus potential harm to employer? • Amanda Todd suicide • Exception: legitimate whistle-blowing • Solution: make sure employees have proper channels to raise concerns discreetly 11
    12. 12. Social Media Policies are Necessary • Written policies are needed when employees may need help in exercising their judgment • Establish “bright lines” to prevent problems and to support discipline when employees cross those lines • Employers could do a better job of proactively explaining perils of social media to their employees 12
    13. 13. Social Media Policies …Contents 1. Explain what social media is and what types of activities the policy intends to cover (useful to mention specific sites, but not limit it to them) 2. Remind employees about the perils of social media (durability of electronic information, easy access by persons outside the workplace, etc.) 3. Explain to employees the extent to which the policy covers off-duty social networking activity • They may not disparage their employer or co-workers using social media, at or outside the workplace • They should be discouraged from discussing the workplace and their coworkers on social media sites, even if they think they are doing so anonymously • They should be discouraged from identifying themselves with their employer 13
    14. 14. Social Media Policies …Contents 4. Remind employees that they may not publish any comments that may negatively affect their employer or their employer‟s customers or business partners 5. Remind employees about their confidentiality obligations, including identifying the types of information that, if disclosed or misused by them, will result in their termination for just cause 6. Prohibit the violation of laws (e.g. securities laws, defamation) 7. Prohibit the violation of employer policies (e.g. harassment) 8. Prohibit the use of their employer‟s logos, trademarks, slogans, etc. 14
    15. 15. Social Media Policies …Contents 9. Prohibit speaking on behalf of their employer, especially about anything in relation to their employer that is currently in the news 10. If not prohibited entirely, then explain extent to which social networking is permitted on employer‟s computers and during working hours 11. Explain any specific rules regarding the use of social media in work-related capacities (e.g. “Friending” customers) 12. Advise employees that their use of social media while at work will be monitored (i.e. no expectation of privacy) 15
    16. 16. Social Media Policies …Contents 13. Advise employees of the proper channels available to them to express workplace concerns (instead of blogging about them!) 14. Caution employees that not every violation of this policy may be detected, so they should never assume that any questionable behaviour has been condoned by their employer 15. Advise employees of the consequences of violating the policy (e.g. employer will report unlawful activity to the authorities, termination for just cause) 16
    17. 17. Social Media … What to Look Forward To? • Social networking and restrictive covenants (e.g. non-solicitation obligations)? • Updating employment contracts to address social media issues • “Un-friending” customers upon termination • Who owns the “contacts”, social media account? • Cyber-bullying legislation • Unionization via social media 17
    18. 18. Case Law Update • Ornge, [2011] OLAA No 232 • Discharge for disclosing patient information in blog about accident was overturned • Blog was removed immediately, sincere remorse, and apology provided • Ontario (Ministry of Community and Social Services) (Aboutaeib Grievance), [2011] OGSBA No 167 • Employer‟s blog degenerated into forum for attacking management and co-workers thanks to grievors, whose discharges were upheld • Other factors: dishonesty when confronted, no remorse hard core pornography, conflict of interest (personal business) 18
    19. 19. Case Law Update • Groves v. Cargojet Holdings Ltd, [2011] CLAD No 257 • Discharge overturned for grievor who posted on Facebook that she wanted to kick lead-hand in the genitals wearing steeltoed boots and spit in lead-hand‟s face • Factors: Facebook posts were limited to grievor‟s “friends”; nothing damaging to employer‟s reputation • Health Sciences Assn. of British Columbia (Cheema Grievance), [2011] BCCAAA No 125 • Discharge for time theft overturned where grievor‟s unauthorized use of social media during working hours didn‟t compromise workplace performance 19
    20. 20. Case Law Update • Alberta Health Services, 2012 CanLII 12067 • Discharge for harassment via Facebook overturned where grievor didn‟t appreciate that insulting co-worker through social media could be work-related (unpaid suspension substituted) • Canadian Union of Postal Workers (Discharge for Facebook postings Grievance), [2012] CLAD No 85 • Discharge for abusive comments on Facebook about manager upheld where some of grievor‟s “friends” were co-workers • Credit Valley Hospital v. C.U.P.E., Local 3252, 2012 CarswellOnt 451 • Dismissal upheld of employee who briefly posted photos from scene of patient suicide and comments • Factors: breach of patient confidentiality; lack of colour 20
    21. 21. Case Law Update • International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., 2011 CanLII 46585 (OLRB) • Dismissal upheld of employee shown in video, shot during lunch break, with genitals stapled to wooden plank posted • Factors: employee and employer easily identified in video; employer was engaged in safety-sensitive industry so it could not tolerate risk to its reputation and had to deter other employees from engaging in stunts, horseplay, pranks, etc. 21
    22. 22. Case Law Update • Bell Technical Solutions v. Communications, Energy and Paperworkers Union of Canada (Facebook Posting Grievance), 2012 OLAA No 481 • Facebook postings that ridiculed employer and supervisor • Two employees dismissed; one dismissal upheld but other employee reinstated with one-year suspension • [I]t is well-established that inappropriate Facebook postings could result in discipline or discharge, depending upon the severity of the postings. The nature and frequency of the comments must be carefully considered to determine how insolent, insulting, insubordinate and/or damaging they were to the individual(s) or the company. In some cases, the issue is whether the comments were so damaging or have so poisoned the workplace that it would no longer be possible for the employee to work harmoniously and productively with other employees or for the company • Dismissal factors: Facebook postings were frequent and prolonged (more than 16 months); derogatory to employer and supervisor • Reinstatement factors: provocation by supervisor 22
    23. 23. Case Law Update • S.G.E.U v. Saskatchewan (Ministry of Corrections, Public Safety & Policing), 2009 CarswellSask 913 • Dismissal of three corrections officers upheld for joining racist Facebook group created by one of them • Derogatory comments re compensation for First Nations victims of residential schools who were inmates: “What could you do with at least $28,000 in healing?” • Factors: employees were peace officers 23
    24. 24. Thank You Edward Majewski Tel: 416-8624422 Email: ed.majewski@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
    25. 25. Bullying in the Workplace What it is, what it isn’t and what to do about it David Law
    26. 26. Workplace Bullying, Harassment and Violence Defined Broadly defined, complex and difficult in reality Workplace bullying and violence includes: • Harassment or poisoned work environment • Physical violence, sexual violence and threats of violence • Sexual harassment & reprisals 26
    27. 27. OHSA Definitions “workplace harassment” means 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 “workplace violence” means (a) The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, (c) 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. 27
    28. 28. Part XXX.0.1 of the Occupational Health and Safety Act • Violence and harassment • • • • Have a policy Re- examine it annually Assess the workplace for risks Have a program for receiving reports and investigating cases of harassment and violence • Employees have to know about it • Domestic violence • A person with a history of violence 28
    29. 29. Workplace Bullying and Harassment • Workplace bullying and harassment often include: • Making remarks, jokes or innuendos that demean, ridicule, intimidate or offend • Displaying or circulating offensive picture or materials in print or electronic form • Repeated offensive or intimidating phone calls or e-mails • Inappropriate sexual touching, advances, suggestions or requests. • Not a normal work conflict or tough management styles • Repeated, persistent, continuous behaviour as opposed to a single negative act • A power imbalance between the victim and the perpetrator 29
    30. 30. Workplace Bullying and Harassment • Examples of workplace bullying: • • • • • • • • • • • • Social isolation (silent treatment) Rumours Personal attack of a person‟s private life and/or personal attributes Excessive or unjustified criticism Over-monitoring of work Verbal aggression Withholding information Withholding job responsibility Trivial fault finding Replacing proper work with demeaning jobs Setting unrealistic goals or deadlines Other verbal comments that could mentally hurt or isolate a person in the workplace • Could also involve physical contact (pushing, throwing things) 30
    31. 31. Workplace Bullying and Harassment • Bullying behaviour may be unwittingly encouraged by: • • • • Pitting workers against each other or emphasizing a competitive work style Having a lax management style Making unreasonable demands Setting impossible deadlines or providing insufficient funding to accomplish a goal • Failing to give supervisors the authority to reprimand problem workers • Failing to instruct supervisors on how to communicate effectively • Not educating people on the types of behaviour which can be interpreted as, and in fact, be harassment and bullying 31
    32. 32. Workplace Bullying and Harassment • Effects on worker: • Lower levels of job satisfaction • Psychosomatic symptoms and physical illness • Short and long term disability • Signs and Symptoms of workplace bullying may include: • • • • • • Grievances by employees against their manager Declining work performance Increased stress and tension in the workplace Poor morale Increased absenteeism High staff turnover 32
    33. 33. Where Can the Issue Arise? • • • • An internal complaint of harassment or bullying In a grievance at a unionized workplace A complaint under the Human Rights Code A reprisal complaint under the Occupational Health and Safety Act – but not a “safety complaint” under that Act • A claim under the Workplace Safety and Insurance Act • A civil action for wrongful dismissal, constructive dismissal and related damages 33
    34. 34. Boucher v. Walmart • A Walmart employee with an excellent ten year employment record successfully argued that she was constructively dismissed. • The employee alleged abuse by the store manager including being forced to count skids in front of other employees to prove she could count; being punched in the arm twice by a fellow assistant manager; and being called an “(expletive) idiot”. • The employee claimed constructive dismissal because of the abusive work environment as well as sexual harassment, intentional infliction of mental suffering and assault. A civil action ensued 34
    35. 35. Boucher v. Walmart • A jury found that the employee was constructively dismissed and awarded the highest award to date for an employment related suit in Canada – $1.46 million . • Walmart was directly liable for: • $1.2 million for punitive damages and intentional infliction of mental suffering; and • $10,000 for not adequately addressing two assaults the employee suffered at the hand of a fellow assistant manager. • The store manager was directly liable for the remainder of the award: • $100,000 for intentional infliction of mental suffering; and • $150,000 for punitive damages. 35
    36. 36. What Isn’t Workplace Harassment or Bullying Examples of behaviour that is not workplace harassment or bullying could include: • • • • • • • Changes in work assignments and scheduling Job assessment and evaluation Workplace inspections Implementation of a dress codes Disciplinary action Differences of opinion or minor disagreements between co-workers Workplace violence 36
    37. 37. What Isn’t Workplace Harassment or Bullying Amodeov. Craiglee Nursing Home Limited OLRB June 2013 • • • • • • • An employee was reminded of her job requirements Told that she needed to work more, harder and better Was told what would happen if she didn‟t The employee reacted by complaining to management The employee was dismissed And filed a reprisal complaint which made its way to the OLRB The Ontario Labour Relations Board decision said: “The workplace harassment provisions do not normally apply to the conduct of a manager that falls within his or her normal work function, even if in the course of carrying out that function a worker suffers unpleasant consequences… The worst that can be said of what happened is that Ms. Heinz made a blunt, unflattering assessment of the applicant’s performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.” 37
    38. 38. Open, Frank and Respectful Communication • Communications occur in a context: what is appropriate between some people and in some circumstances, will not be appropriate in other situations • People can have honest, serious disagreements about issues and questions • They can debate and differ, all in good faith • Supervisors can critique work and assess performance • None of that is inappropriate, and in fact, it is very necessary • Each individual employee needs to understand there is a legitimate purpose to open, frank and respectful communication • And each individual employee needs to understand that there is a line which should not be crossed 38
    39. 39. Over the Line • • • • • • • • • • Words or deeds which demean, denigrate or insult Which challenge character and integrity, without purpose or proof Which reference personal characteristics Which focus on someone‟s vulnerabilities Non-communication which shuns, isolates and diminishes the value of a person‟s contribution and participation Acts or omissions which intimidate (bully) or coerce Acts or omissions which unfairly describe or evaluate a person‟s work or overall performance, or which threaten to Harassment Threats Violence Bullying is typically not about the work, but about the people involved: the perpetrator’s purposes and the victim’s vulnerabilities Work is just an excuse or a venue 39
    40. 40. Some Tools to Put in Place • Supervisors and workers should be instructed in: • Early recognition of escalating behavior or warning signs or situations that may lead to violence • Ways to prevent or diffuse volatile situations or aggressive behavior and manage anger • Non-violent crisis intervention techniques and conflict management • A standard response action plan for violent situations, including the availability of assistance, response to alarm systems and communication procedures • Ways to deal with hostile people such as coworkers, customers, patients, clients, relatives of clients or patients and visitors • The location and operation of safety devices such as alarm systems, along with the required maintenance schedules and procedures • Ways to protect oneself and coworkers, including use of the "buddy system" • Policies and procedures for reporting, investigating and recordkeeping • Information on multicultural diversity to increase staff sensitivity to racial and ethnic issues and differences 40
    41. 41. Thank You David Law Tel: 613-783-8829 Email: david.law@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
    42. 42. The Evolution of „Family Status‟ Accommodation in Canada: Practical Tips for Employers Anna Abbott
    43. 43. The Ground of Family Status • Employment • 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability • OHRC: Policy and Guidelines on discrimination because of family status 43
    44. 44. The Ground of Family Status • “family status” means the status of being in a parent and child relationship 44
    45. 45. The Ground of Family Status • Raises complex and difficult issues for employers related to the treatment of caregivers in the workplace • Accommodation of “family status” usually relates to the needs of a caregiver • Childcare • Eldercare 45
    46. 46. Accommodation in Employment • The principle of accommodation applies to all grounds under the Ontario Human Rights Code, but accommodation in employment most often relates to the following grounds: • Age • Creed (religion) • Sex (pregnant women) • Family status (care-giving responsibilities) 46
    47. 47. Family Status Accommodation • Employers have a duty to consider whether they can make adjustments to workplace policies and procedures to accommodate needs related to family status • May include flexible scheduling, permitting employees to take leaves of absence to care for family members who are ill or have a disability, or providing access to alternative work arrangements 47
    48. 48. Legal Test for Accommodation • Step 1: Onus is on employee to prove “prima facie” discrimination. • Step 2: Once proved, onus then switches to the employer to prove that the requirement is a bona fide occupational requirement (BFOR) and that they attempted to accommodate to the point of undue hardship 48
    49. 49. Legal Test for Accommodation • Step 2 breakdown: • Purpose rationally connected to job performance • Honest and good faith belief that it was necessary • Standard reasonably necessary and impossible to accommodate without undue hardship 49
    50. 50. What is Undue Hardship? • Undue Hardship? • Consideration under the Human Rights Code • Cost • Outside sources of funding • Health and safety 50
    51. 51. Accommodation Process • Accommodation has a procedural aspect and a substantive aspect • If an employer fails to go through an appropriate accommodation process, it will have breached the Code even where it can show that it would not have been able to accommodate the employee without undue hardship • 51
    52. 52. Family Status: Where We Were Then Differing opinions: 1. Must result in serious interference with family duty – if nothing extraordinary about employee‟s position, no discrimination (BC Court of Appeal, Campbell River) 2. All protected Grounds should be treated the same (Ontario Human Rights Commission, Federal Court of Appeal) 52
    53. 53. Family Status: Where We Are Now • Canada (Attorney General) v. Johnstone, 2013 FC 113 (January 2013) • Canadian National Railway and Denise Seely, 2013 FC 117 (February 2013) • Devaney v. ZRV Holdings Ltd., 2012 HRTO 1590 (August 2012) 53
    54. 54. Canada (Attorney General) v. Johnstone • Facts: • Fiona Johnstone was border services officer working rotating shifts, husband also border services officer • Required fixed shifts to meet childcare needs • Loss of benefits (pension, training, advancement) as fixed shifts only available to part time employees 54
    55. 55. Canada (Attorney General) v. Johnstone • Factors against CBSA: • No individual assessment of Johnstone‟s case • Allowed accommodation for religious reasons, but ignored Johnstone‟s request • Viewed family obligation as a choice • Operational concerns were “impressionistic assumptions” (inundated with requests, too costly, destructive to 24 hour operations) • No accommodation policy or training 55
    56. 56. Canada (Attorney General) v. Johnstone • Justice Madamin: “childcare obligations arising in discrimination claimed based on family status must be one of substance and the complainant must have tried to reconcile family obligations and work obligations” • Factors for Johnstone: • Tried to arrange care with family, and was successful for some shifts • Daycare hard to find outside regular hours • Husband also worked shifts • Provided options to CBSA 56
    57. 57. Canada (Attorney General) v. Johnstone • Held: • Discrimination on the basis of „family status‟ will be made out where an employers rule “interferes with an employee‟s ability to fulfill a substantial parental obligation in a realistic way” • CBSA discriminated against Johnstone by failing to accommodate her childcare responsibilities 57
    58. 58. Canada (Attorney General) v. Johnstone • Held: • CBSA failed to justify that variable shift policy was a BFOR • Awarded lost wages, pension contributions, $15,000 general damages, $20,000 for wilful reckless conduct of CBSA 58
    59. 59. CNR and Denise Seely • Facts: • Long time employee with CN as freight train conductor residing in AB, on laid off status • Recalled for temporary work in BC • Employment terminated when she failed to report because of childcare responsibilities 59
    60. 60. CNR and Denise Seely • Factors against employer: • Never responded to request for accommodation • Did not provide details of job including duration, accommodation, working conditions • Did not follow its own extensive accommodation policy • Put employee in situation of choosing between employment obligations and childcare duties 60
    61. 61. CNR and Denise Seely • Factors for employee: • • • • No immediate family nearby Daycare during standard hours only Husband away 14 to 24 hours at a time Requested accommodation 61
    62. 62. CNR and Denise Seely • Held: • CN discriminated against Seely on the ground of family status and failed to provide reasonable accommodation • Compensation for loss of wages and benefits, $15,000 for pain and suffering and $20,000 for reckless conduct by CN 62
    63. 63. Eldercare: Devaney v. ZRV Holdings Ltd. • Facts: • Architect employed with company from 1982 to termination of employment in 2009 • Substantial care responsibilities for ailing mother • Employer would not allow flexible work schedule 63
    64. 64. Eldercare: Devaney v. ZRV Holdings Ltd. • Factors against employer: • Attendance policy unreasonable/too strict • No performance issues • Failure to engage in dialogue with employee 64
    65. 65. Eldercare: Devaney v. ZRV Holdings Ltd. • Factors for employee: • Mother on waiting list for care home, care not available on 24 hour basis • Required income for her care • Available by phone and email • Hired by client on project because of good job 65
    66. 66. Eldercare: Devaney v. ZRV Holdings Ltd. • Held: • Company's strict attendance policy requiring Devaney to work out of the company's office had an adverse impact on him as a result of his family responsibilities. By failing to engage in a dialogue with Devaney about his needs, the employer contravened the Code. • Adversely impacted on the basis of a requirement imposed by his or her status as a caregiver. (If an adverse impact is deemed to relate merely to an employee's preference or choice, no prima facie case will be established) • Awarded $15,000 in general damages 66
    67. 67. Accommodation Process • Employee obligations in accommodation process 1. Make reasonable effort to find outside resources 2. Advise employer of need for accommodation 3. Provide employer with sufficient information 4. Provide suggestions for accommodation 5. Allow employer reasonable time 67
    68. 68. Accommodation Process • Employee obligations in accommodation process 6. Co-operate with employer 7. Facilitate implementation of accommodation 8. Advise employer if needs change 9. Accept reasonable accommodation 68
    69. 69. Accommodation Process • Employer obligations in accommodation process: 1. Determine if employee requires accommodation 2. Consider all possible accommodations 3. Discuss options with employee 4. Respond within reasonable time 5. Keep written record 6. Maintain confidentiality
    70. 70. Accommodation Process • Employer obligations in accommodation process: 7. Request information 8. Consider employee‟s accommodation suggestions 9. Follow-up with employee 10. Modify accommodation if required 11. Explain to employee why accommodation impossible 70
    71. 71. Accommodation Policy • Contents of Policy: • • • • • • Statement of Commitment by management Objectives Request for Accommodation (who, how, contents) Provision of Information (medical information) Privacy and Confidentiality Accommodation Planning (contents of accommodation plan, timelines, goals, accountability) • Undue Hardship (basis of assessment, recourse, implementation) 71
    72. 72. Recommendations • Be proactive with general planning and preparation • Accommodation policy • Training for managers and supervisors • Employee education • Acknowledge and accept that you have a positive duty to accommodate an employee to the point of undue hardship • Be proactive and sensitive when dealing with specific problems 72
    73. 73. Recommendations • Engage in dialogue with employee re needs • Assess on an individual basis • Be wary of inflexible work hours and rigid attendance management policies • Document the process • Apply policies and procedures consistently • Gather evidence of undue hardship • Policies must be reasonable 73
    74. 74. Thank You Anna Abbott Tel: 416-369-7284 Email: anna.abbott@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
    75. 75. OHS Case Law Update David Law, Anna Abbott
    76. 76. Queen of the North Queen of the North ferry Captain convicted of criminal negligence causing death • Section 217.1 of the Criminal Code imposes a duty on individuals (workers, supervisors, directors) and organizations to take “reasonable steps” to prevent “death” or “bodily harm” to a worker. This duty dovetails with ss. 219/220/221 of the Criminal Code (general criminal negligence provisions) to create the offence of OHS criminal negligence. • The law elevated OHS liability and stigma by imposing criminal penalties and a criminal record on the offender. This law supplements, rather than replaces, existing provincial and federal legislation (i.e. can be charged with both) • s.217.1 of the Criminal Code: “Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take all reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” Penalties: up to life imprisonment; fines (no maximum amount stipulated) Queen of the North Captain sentenced to 4 years 76
    77. 77. R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 • Auction Reconditioning Centre (“ARC”) cleans vehicles for rental and fleet operators. Its employees are assigned specific tasks; those who are not trained and authorized to drive a vehicle on the property are expressly not permitted to drive vehicles. However, a cleaner, without a driver‟s license, moved a car into a wash bay and caused a chain of collisions which resulted in injury to another worker. • The Ontario Ministry of Labour charged the employer with failure to instruct and to take reasonable measures. At trial the company was convicted but it appealed and the Court of Justice acquitted, saying: • “[…] it is difficult to understand on what basis [the trial justice] could have found that an individual whose job it was not to drive should have received information, instruction and/or supervision about the safe operation of a vehicle or that a worker, who was not hired to drive a vehicle at the workplace, should have a valid driver‟s licence and/or be sufficiently trained in the safe operation of a vehicle. [….] • “As it was not [the cleaner‟s] job to drive nor was there any reason for his employers to suspect he would drive, there is no requirement for the defendant in these circumstances to provide him with information, instruction or supervision in safe operation or parking of [vehicles].”
    78. 78. R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 On supervision the Court said: • “there is no such legal requirement in workplaces under the OHSA that a worker must be given such information, instruction and warnings every time a task is assigned.” • The company was not required “to ensure that [the cleaner] was supervised for every minute he was working.” • This logic conforms with what every employer, supervisor and OHS professional knows – and what every worker and every Ministry of Labour Inspector – should remember.
    79. 79. R v XI Technologies Inc., 2013 ABCA 282 • Employer failed to identify and eliminate the safety risk to employees in the operation of a faulty calf-roping machine at a client appreciation event • Employee died - hit in head with steel bar • No operator present, no employees knew how to work the machine • Employer acquitted at trial, conviction stood on appeal
    80. 80. R. v. Metron Construction Corporation, 2013 ONCA 541 • Metron fine appealed - raised from $200k to $750k • Original fine "manifestly unfit " • "A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety,… Indeed, some might treat such a fine as simply a cost of doing business."
    81. 81. Vale Mining • $1,050,000 fine against Vale Canada Limited ($350,000 per count) • Guilty Plea • Fines rising in fatality cases • Court considered Vale‟s size, the fact that two workers died, and previous OHSA record in awarding fine
    82. 82. R. v. Brewer‟s Retail Inc. • Beer Store owner fined $175,000 • Worker died after drinking windshield washer fluid out of unmarked vodka bottle • Pleaded guilty to failing to acquaint a worker with a hazard in the handling, storage or use of a liquid chemical agent
    83. 83. Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 • Section 51(1) will only be triggered where there is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the workplace • Overturned the Board and Divisional of Court decisions, holding that they interpreted the requirements under s. 51(1) of the Act in an unreasonable manner
    84. 84. Terrace Bay Pulp Inc. (Re), 2013 ONSC 5111 • OHSA charges can proceed against insolvent company that had obtained protection from creditors under the CCAA • Judge noted that MOL was not acting as a creditor • Judge noted that company could decide whether to incur costs of defence or not
    85. 85. Thank You Anna Abbott Tel: 416-369-7284 Email: anna.abbott@gowlings.com David Law Tel: 613-783-8829 Email: david.law@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
    86. 86. Pay Equity Ongoing Maintenance Responsibility Challenges and Employer Unknowns Associated with the Absence of Liability Limitations Allen Craig
    87. 87. Pay Equity 2013 - The Pay Equity Act‟s Mandate • 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. It involves comparing jobs usually done by women with different jobs usually done by men in the same establishment of an employer. If a female job class is of equal or comparable value to a male job class in the organization, the female job class must be paid at least as much as the male job class. • Pay Equity is not the same as equal pay for equal work, which means that if a woman and a man are doing substantially the same jobs for the same organization or company, they must receive the same wage unless the difference in pay is due to differences such as seniority or merit. 87
    88. 88. The Pay Equity Act‟s Mandate • The Act applies to all employers in Ontario who have 10 or more employees. Employers starting up new businesses with 10 or more employees, or who grow to 10 or more employees, must immediately include pay equity in their compensation (wage and benefit) practices. • There are different pay equity plan posting and pay adjustment obligations depending on the number of employees in an organization in Ontario. Employer Size in 1987 Posting Date of Pay Equity Plans First Pay Equity Adjustment 500+ employees/ public sector January 1, 1990 January 1, 1991 100 to 499 employees January 1, 1991 January 1, 1992 50 to 99 employees January 1, 1992 January 1, 1993 10 to 49 employees January 1, 1993 January 1, 1994 88
    89. 89. The Pay Equity Act‟s Mandate • Employers with 10 to 99 employees chose whether or not to post a plan. Posting a plan allowed these employers to phase in pay equity adjustments at one per cent of the previous year‟s payroll per year. Those who chose not to post a pay equity plan had to make all adjustments on the first pay equity adjustment date and should have posted a Notice of Requirement to Achieve and Maintain Pay Equity in the workplace. 89
    90. 90. An Employer‟s Responsibility to Maintain Pay Equity • 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 genderneutral job comparison system on an annual basis. 90
    91. 91. Maintenance Checklist 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 genderneutrality? 91
    92. 92. The “Random” Selection of Employers for Compliance Audit Review • 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. 92
    93. 93. Template Letter to Employer re 2012 Monitoring Program 93
    94. 94. Notice of Requirement 94
    95. 95. Certificate of Posting 95
    96. 96. 2012 Monitoring Program Questionnaire 96
    97. 97. 2012 Monitoring Program Questionnaire 97
    98. 98. Closing-No Further Investigation 98
    99. 99. Conclusion • An Ontario employer‟s responsibility to ensure compliance and ongoing maintenance with the Act continues to be somewhat detailed and onerous, let alone of significant cost to a corporation, should the Commission/Tribunal determine that pay equity was not originally complied with or maintained to date. • Moreover, there is no period of limitation which would otherwise limit an employer‟s past financial liabilities for not having complied with the Act. Accordingly, depending on an employers number of Ontario employees, financial liability as well as interest may well be required to be calculated back some 20+ years. 99
    100. 100. Thank You Allen Craig Tel: 416-369-4422 Email: allen.craig@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
    101. 101. Top 10 Employment and Labour Law Developments Hugh Christie, John Illingworth and Michael Comartin
    102. 102. Employee Has to Mitigate • Employee worked for 33 years with Employer and its predecessor • Employer laid him off under mistaken belief regarding rights under ESA, 2000 • Recalled Employee upon being advised of error • Employee declined to come back to work 102
    103. 103. Employee Has to Mitigate • New management had implemented a new program -- Steps to Success with “missionary-like zeal” • Employee clearly uncomfortable and disagreed with certain aspects of marketing program • Court found that Employee ought to have taken the opportunity to mitigate, despite change in location • Employee‟s erroneous layoff did not justify failure to mitigate with Employer 103
    104. 104. Chevalier v. Active Tire 2012 ONSC 4309 • Employee has obligation to mitigate with Employer, even after layoff • Employers do not have right to layoff just because ESA provides for layoff • Layoff has to be in contractual document or common industry practice • Nonetheless, even after error, employer entitled to invite employee to come back if genuine error and not in bad faith 104
    105. 105. But… 105
    106. 106. Expanded Right to Layoff? • Employee had worked for company since 2005 in a middle management role. • Company was in desperate financial situation and laid off 59 employees on a rotating basis in 2008. Claimed it was either layoffs or liquidation. • Employee laid off in mid-November and told in January that she would be recalled in July. Total period of lay-off less than 35 weeks. 106
    107. 107. Expanded Right to Layoff? • Employee found new work and claimed constructive dismissal or termination – argued no right to layoff under her employment contract • Employer argued that since it had complied with the ESA there was no dismissal – the layoff had not exceeded the definition of “temporary” 107
    108. 108. Trites v. Renin Corp. 2013 ONSC 2715 • Court found that a temporary layoff that complies with the ESA is not termination • Court was of the view there was no room for suggesting constructive dismissal at common law arises from a temporary layoff complying with the ESA • However, in this case, the layoff was not temporary as employee did not receive substantial payments from the employer or supplementary EI benefits 108
    109. 109. Termination language strictly construed • Employer terminated without cause. Contract states “he would receive six months‟ notice or pay in lieu upon termination.” • Employer had drafted contract • Employee finds work within two weeks • The Employer paid the three weeks statutory requirement and refused to pay the balance 109
    110. 110. Termination language strictly construed • Employer argues unfair to allow employee to receive a windfall profit • Purpose of notice to permit employee to find another job and obligation should cease at that time • Court of Appeal found the damages are liquidated and therefore are not subject to mitigation 110
    111. 111. Bowes v. Goss Power Products Ltd., 2012 ONCA 425 • Justice Winkler stated that “there is nothing unfair about requiring employers to be explicit if they intend to require an employee to mitigate what would otherwise be fixed or liquidated damages” • Found that a duty to mitigate is not implied in an employment contract where it specifies a fixed amount of notice • The duty to mitigate should be set out in the agreement 111
    112. 112. Reference to “Benefits” in Termination Provision • Short-service employee fired without cause • Termination provision provided for termination “without cause at any time by providing you with notice or payment in lieu of notice, and/or severance pay in accordance with the ESA” which was “in satisfaction of all claims and demands against the Corporation which may arise out of statute or common law with respect to the termination of your employment with the Corporation. 112
    113. 113. Reference to “Benefits” in Termination Provision • Employee argued the termination provision was void because it excluded benefits during notice period and therefore violated ESA benefits continuation • Argued the „payment in lieu of notice‟ language and the „in full satisfaction of all claims‟ language, contra proferentum, meant that benefits were excluded • Employer argued that the lack of a reference to benefits meant they were left to ESA default 113
    114. 114. Stevens v. Sifton Properties Ltd. 2012 ONSC 5508 • Judge agreed that benefits were addressed by inference since the contract listed the set of entitlements upon termination and stated that they were in full satisfaction of all rights • The language “drew the circle” to exclude benefits • Found that even if employer‟s reading was a reasonable one, contra proferentum applied. Wanted to give employers an incentive to comply with ESA 114
    115. 115. Injury to Dignity and Respect • In 2008, Ontario‟s Human Rights Code amended to allow civil courts to award damages for human rights violations where part of another civil action (e.g. a wrongful dismissal). • Employee was a business analyst fired without cause after 16 months. Alleged termination based in part on her back problems. Employer had required her to return to full-time work and terminated her for failing to do so. 115
    116. 116. Wilson v. Solis Mexican Foods Ltd. 2013 ONSC 5799 • The judge was concerned with limited factual record but found back injury was a factor in termination: • Insisted on a “full recovery” before the plaintiff‟s return – impossible to know when/if there could be a “full recovery” • Refused to go through the proper process of discussing plaintiff‟s limitations. Gave plaintiff the “run around”. • Claimed it was a “corporate restructuring” but clearly related to disability • The judge awarded $20,000 for injury to dignity and respect 116
    117. 117. Class Action Over Retiree Benefits • General Motors restructuring to avoid bankruptcy during the financial crisis • Retiree life insurance and health benefits were cut • Class action brought on behalf of approximately 3000 salaried employees – argued that the benefit plan documents did not permit the reductions 117
    118. 118. Class Action Over Retiree Benefits • The court noted that retiree benefits gave retirees “peace of mind” that had been lost. Difficult or impossible to replace such benefits in retirement. Retirees expected core coverage for life. • Retiree benefits were an important form of deferred compensation. Not purely gratuitous on GM‟s part. • Earlier versions of amendment language in GM‟s benefit documents did not refer to former employees or retiree benefits 118
    119. 119. O’Neill v. General Motors of Canada 2013 ONSC 4654 • The clause therefore was not clear on GM‟s right to make changes to benefits for retired employees. Interpreted contra proferentum against GM. • Duty of good faith in employment and the vulnerability of employees grounds to limit exercise of employer‟s unilateral powers to change benefits. • Judge granted summary judgment for breach of contract for salaried employees. Denied for executives because of different language. 119
    120. 120. Overtime Class Actions in Banking • Another case in the line of cases that includes Brown v. CIBC, concerning overtime pay • Former investment advisors alleged to be entitled to damages for unpaid overtime common in the job • The bank defended the certification of a class action on the basis that overtime eligibility depended on managerial and „greater right or benefit‟ exemptions, which are individual issues not suitable for a class action. 120
    121. 121. Rosen v. BMO Nesbitt Burns Inc. 2013 ONSC 2144 • Judge distinguished Brown v. CIBC where the managerial exemption prevented certification, on the basis of commonality of job descriptions/functions • Judge rejected the application of the “greater right or benefit” exemption – whether commissions were greater benefit than overtime was a common issue • Certified the class action • An appeal is anticipated 121
    122. 122. Emails That Go Astray and Contain Legal Advice • A non-performing employee accidentally cc‟d on an e-mail between the company‟s Director of Operations and the company‟s lawyer • Requested advice on potential termination • Despite efforts to recall the e-mail, the employee read the e-mail and provided copy to her lawyer • The employee took position that she was constructively dismissed 122
    123. 123. Emails That Go Astray and Contain Legal Advice • E-mail was privileged solicitor-client communication and the inadvertent disclosure did not waive privilege • Still unfair to the employee to preserve privilege • Without email, the employee would be at a significant disadvantage in establishing the context for the action • Therefore, entitled to rely on the email 123
    124. 124. Fernandes v. Marketforce Communications (2012 ONSC 6392) • Including the wrong person on an e-mail is an understandable mistake that happens to everyone • This case is a useful reminder of the potential consequences of such a mistake 124
    125. 125. Restrictive Covenants Even Harder to Enforce • Employee received over $5 million when he sold his interest in company • Employee agreed to work for purchaser and received shares in new entity • Employee signed a non-competition clause that ran 24 months from the date he disposed of his shares in new company 125
    126. 126. Restrictive Covenants Even Harder to Enforce • Court recognized that non-competes in sale context treated differently than pure employment • Clause needed to be reasonable in scope, geographic ambit (all of Canada) and time • Court of Appeal ruled that clause unreasonable because of the way the time limit was defined 126
    127. 127. Martin v. ConCreate USL LP 2013 ONCA 1840 • Court did not like uncertainty of the time limit • Sale of shares required consent of lenders and company • Not clear if Martin could ever get rid of shares 127
    128. 128. Martin v. ConCreate USL LP 2013 ONCA 1840 • Martin permitted to operate competitive business within months of receiving $5 million • Martin‟s new company obtained over $32 million in business • Purchaser company went bankrupt • Case will not be appealed 128
    129. 129. When Does the Obligation to Reinstate End? • Supervisor, Regulated Substances, Asbestos developed generalized anxiety disorder because of work-related stress • Medically cleared to work, provided it did not involve asbestos removal • Sought other positions, which Employer failed to consider or offer her • Application made in 2004; liability decision released in February 2012 • Parties unable to agree on remedy and HRTO released remedy decision in early 2013 129
    130. 130. When Does the Obligation to Reinstate End? • Pay loss of wages, CPP and pension loss from June 26, 2003 until date of reinstatement (over 8 ½ years) • Reinstatement to suitable alternative employment including adjusting her length of seniority (and provide up to 6 months of job training) • Could not involve personal liability for health and safety similar to the potential liability caused by working in asbestos 130
    131. 131. When Does the Obligation to Reinstate End? • Out of pocket expenses for dental and medical expenses • Pay adverse tax consequences • Pay applicant $30,000 as compensation for the injury to her dignity, feelings and self-respect; • Interest (pre and post judgment) 131
    132. 132. Fair v. Hamilton-Wentworth School District, 2013 HRTO 440 • Until Fair, very few cases where HRTO ordered reinstatement over objection of employer • Aggressive approach to remedies • Significant efforts must be made to accommodate employee, including into a different position if available • Demonstrate efforts to be flexible, creative • Cannot use overall cost-cutting as an excuse • Large employers particularly vulnerable 132
    133. 133. Thank You Hugh Christie Tel: 416-369-7265 Email: hugh.christie@gowlings.com Michael Comartin Tel: 416-862-4321 Email: michael.comartin@gowlings.com John Illingworth Tel: 519-575-7507 Email: john.illingworth@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london
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