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“You quit!” “No I Didn’t, I’m Sick!”

In Betts v. IBM Canada Ltd., the Court was faced with a dispute between Mr. Betts, who claimed he was legitimately absent from his employment due to illness, and his employer IBM, which claimed that Mr. Betts effectively resigned by not returning to work after his application for short-term disability (“STD”) benefits was declined.

Mr. Betts had been employed with IBM for approximately 15 years, most recently in New Brunswick.  During his employment, he had had absences in the past for depression and anxiety, for which he had received STD benefits from IBM.

In October 2013, Mr. Betts stopped reporting for work, claiming he was disabled due to illness, being a further incident of depression and anxiety.  Shortly thereafter, without informing IBM, he moved to Ontario to live with his girlfriend.  His move contravened IBM’s STD policy, which required approval of the third party STD adjudicator before a move away from the employee’s usual place of residence during illness.

Mr. Betts failed to submit medical information by the deadline as stated in the Plan.  Ultimately, Mr. Betts submitted notes from a psychotherapist located in Mississauga, but again this contravened the terms of the Plan, which required that medical information be submitted from a registered physician (which the psychotherapist was not).  As a result, Mr. Betts’ claim for STD was declined, and on December 2, 2013, IBM wrote to Mr. Betts, advising him that he would have to either return to work or submit medical documentation to substantiate his appeal.

This pattern continued, with Mr. Betts submitting several appeals with further documentation from his psychotherapist, but without submitting documents from a registered physician.  Each time, IBM wrote to Mr. Betts to advise him that if he failed to submit the necessary medical documentation to support an appeal, he would have to either return to work or be considered to have voluntarily resigned.

IBM even extended the time for appealing, and after Mr. Betts complained that his manager was harassing him, assigned him a new manager.  Still Mr. Betts did not provide a note from a physician, and failed to return to work, despite IBM’s warnings that failure to do so would result in his deemed resignation.  Ultimately, Mr. Betts exhausted all levels of appeals, but refused to return to work, claiming that the note from the psychotherapist justified his continued absence.  IBM proceeded to end his employment, claiming abandonment.

The Court first cited the recognized test for determining resignation/abandonment, as follows:

Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract.

In cases of claimed abandonment, this is often an extremely difficult hurdle for an employer to meet.

Although the Court accepted that Mr. Betts suffered from depression and anxiety disorders, the Court also recognized that an employee suffering from medical issues is “not immune from being found to have abandoned his/her employment”.  The Court ultimately held that Mr. Betts was well aware of what was required of him, and that IBM made clear that the consequences of non-compliance would be loss of employment.  As such, notwithstanding that Mr. Betts argued that he did not intend to give up his employment, the Court held that the facts demonstrated that Mr. Betts had no real intention to return to work.  Mr. Betts’ undisclosed move to Ontario clearly factored into the Court’s analysis.

The Court specifically rejected the argument that IBM was under an independent duty to accommodate Mr. Betts over and above the terms of the Plan, and held that IBM was under no obligation to provide Mr. Betts with a leave of absence while it independently assessed Mr. Betts’ claim by retaining an independent physician to assess him.  Since Mr. Betts had not produced a note from a doctor as required by the terms of the Plan, IBM had no obligation to undertake such steps.

Since IBM’s expectations were clear and reasonable and IBM provided ample time and opportunity for Mr. Betts to comply, coupled with Mr. Betts’ failure to provide a reasonable explanation for failing to comply, the Court held that Mr. Betts had in fact abandoned his employment.

This case is a good example of how to proceed with an uncooperative employee.  At every turn, IBM was clear in its expectations, patient (and even generous) when dealing with time lines and “bent over backwards” to assist Mr. Betts.  IBM only proceeded with ending the employment relationship after its clear instructions were ignored, it provided Mr. Betts with ample warnings of the consequences of failing to comply, and it responded to his concerns about the workplace.  For employers dealing with such employees, this case is a good road map for successfully managing the relationship.

Betts v. IBM Canada Ltd., 2015 ONSC 5298

“You quit!” “No I Didn’t, I’m Sick!”

New details about the ORPP

On August 11, 2015, the Ontario government released long-awaited details about the Ontario Retirement Pension Plan (ORPP). Although there are design issues that need to be settled and many unanswered questions on how the ORPP will work, employers with Ontario employees are one step closer to understanding the impact of the ORPP on their businesses.

All Ontario employees age 18 and older (except federally-regulated workers) will be required to participate in either the ORPP or a comparable workplace pension plan by 2020. The timing for enrolment in the ORPP depends on which category an employer falls within:

Wave 1: Employers with 500 or more employees, without a registered pension plan, will be required to participate in the ORPP starting January 1, 2017.

Wave 2: Employers with 50 to 499 employees, without a registered pension plan, will be required to participate in the ORPP starting January 1, 2018.

Wave 3: Employers with 50 or fewer employees, without a registered pension plan, will be required to participate in the ORPP starting January 1, 2019.

Wave 4: Employers with a registered pension plan that is not comparable to the ORPP, or that have Ontario employees who are not members of their “comparable” pension plan, will be required to participate in the ORPP starting January 1, 2020.

Under the ORPP, the required employee and employer contributions will be phased in, depending on the applicable enrolment “wave”. By 2021, all participating employers and employees will be contributing 1.9% each (total 3.8%) of employees’ base salary to the ORPP annually.

Employers and employees that participate in a pension plan that is comparable to the ORPP will be exempt from participating in the ORPP. An employer that currently does not participate in a registered pension plan can establish a comparable plan prior to its scheduled ORPP enrolment date to qualify for exemption. Defined benefit (DB) and defined contribution (DC) plans will be considered comparable if they satisfy certain requirements. A DB plan that provides a minimum benefit accrual rate of at least 0.5% of an employee’s earnings will be comparable, while a DC plan must have annual contributions of at least 8% of an employee’s earnings (with at least 4% employer funded) in order to be comparable. Other group savings arrangements, such as group registered retirement savings plans (RRSPs) and deferred profit sharing plans, will not be considered comparable to the ORPP.

The government has stated that the ORPP Administration Corporation will “contact all Ontario employers in early 2016 in writing to verify their existing pension plans and assess the coverage offered by employers to their employees.”

What’s next:

The Ontario government continues to work on the design details of the ORPP, including developing appropriate comparability tests for other types of registered pension plans, exploring options for the self-employed, developing a buy-back mechanism for employees to purchase past service credits, and examining options to allow all Ontario employers with comparable plans to opt-in and participate in the ORPP. Other plan-specific information, such as the minimum earnings threshold, also must be confirmed. Additional details will need to be released prior to the implementation of the ORPP in 2017.

In the meantime, employers with Ontario employees should review their current retirement savings arrangements and determine whether changes should be made in light of the ORPP. For example, sponsors of non-comparable DC pension plans may want to increase mandatory employee and employer contribution rates in order to be comparable, and group RRSP sponsors may want to consider converting their plan to a DC pension plan given the many similarities of those plans. Before making changes, employers need to decide if participation in the ORPP is desirable for some or all of its Ontario employees and, if so, whether participation will be an alternative, or in addition, to the current workplace pension plan.

New details about the ORPP

Transgender Employees: Best Practices

Transgender rights are a burgeoning area of law across Canada. Most recently, amendments made to the Alberta Bill of Rights on March 10, 2015, which came into force on June 1, 2015[1], recognize gender identity and gender expression as being explicitly protected.[2] Newfoundland & Labrador recently promised to introduce a bill to amend provincial legislation so gender assignment surgery would no longer be required to change the sex designation on identity documents.[3] Likewise, the Yukon NDP tabled a petition for transgender equal rights in April, and in May, the Legislative Assembly debated amending legislation to allow changes of gender assignment on birth certificates without surgery.[4] Although British Columbia was the first province to eliminate the surgical requirement for amending sex designation, the Liberal government has repeatedly declined to sign a pledge supporting transgender equality legislation, attracting the ire of the Vancouver Pride Society. All of this follows on the heels of changes in human rights legislation in Ontario, Manitoba, and, at an as yet undetermined date, Nova Scotia.

In April 2014, the Ontario Human Rights Commission published its Policy on preventing discrimination because of gender identity and gender expression[5] (the “Ontario Policy”). The Ontario Policy defines gender identity as an individual’s sense of being a man, a woman, both, neither, or anywhere along the gender spectrum, which may be the same as or different from his/her birth-assigned sex. Gender expression is how a person publicly expresses or presents their gender, including behaviour, outward appearances such as dress or hair and makeup, and chosen name and pronoun.

Many other provinces have endorsed the Ontario Policy, recommending its guidelines as a useful resource for employers. The following are a few suggestions for Canadian employers supporting new transgender employees or current employees in the process of transitioning:

Accepting Gender Based on Self-Identification

The Ontario Human Rights Tribunal made it clear in 2012 that it is discriminatory for an employer to insist that an employee be treated in accordance with the gender assigned at birth for employment purposes, because such behaviour fails to treat that person in accordance with his/her “lived and felt” gender identity.[6] Tribunals/Courts in Ontario[7] and Alberta[8] have held that the former requirement for changing sex designation on birth documents (sexual reassignment surgery and corroborating statements from two physicians) is discriminatory and unnecessary.

All of the above strongly supports the notion that regardless of an individual’s birth-assigned sex, employers should be accepting of an employee’s self-identified gender and should not request further documentary proof.

Use of Preferred Name/Pronoun

Employers should support a new transgendered employee or a currently transitioning employee by using the employee’s preferred pronouns and names and, where possible, updating corporate records to reflect the same (including email signatures and letters of reference). Where documents reflecting an individual’s legal name/gender are issued, such as a record of employment or a T4, the individual’s preferred name/gender should be included alongside the legal name, wherever feasible. The Ontario Policy recommends that employers question whether there is a legal requirement for the collection of information about gender, and if such information is legally required (e.g. legally accurate SIN information is required for income tax purposes), there should be policies in place to ensure the confidentiality of the information.[9]

A Flexible Dress Code

If an employer has a dress code in place, such rules should not have a negative effect on transgendered employees. Employees must be allowed to dress in accordance with their expressed gender, and dress code policies should be flexible and accommodate transgender or gender non-conforming individuals (e.g. employees should not be required to wear clothing stereotypical of their birth gender, such as ties for men or skirts for women).[10]

Human rights legislation pertaining to transgender rights in all of the provinces is evolving at a rapid pace and Canadian employers would be well advised to ensure their workplace policies are inclusive and up to date. Developing transgender-friendly guidelines and rules will both foster a positive and productive work environment, as well as shield an employer from liability for discrimination, intentional or unintentional.

[1] Trans Equality Society of Alberta Fact Page, “Human Rights Across Canada,” last updated: July 2015, available online: http://www.tesaonline.org/human-rights-across-canada.html (“TESA Fact Sheet”).
[2] RSA 2000, c A-14.
[3] CBC News, “Transgender activist Kyra Rees wins court battle over IDs,” posted: July 22, 2015, available online: <http://www.cbc.ca/news>.
[4] Yukon Legislative Assembly, Official Report of Debates (Hansard) 33rd Legislature, 1st Session, No 212 (13 May 2015) at 6375-6376.
[5] Ontario Human Rights Commission, Policy on preventing discrimination because of gender identity and gender expression, released: April 14, 2014, available online: http://www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression (the “Ontario Policy”).
[6] Vanderputten v Seydaco Packaging Corp., 2012 HRTO 1977 at para 66 (available on CanLII).
[7] XY v Ontario (Government and Consumer Services), 2012 HRTO 726 (CanLII).
[8] CF v Alberta (Vital Statistics), 2014 ABQB 237 (CanLII).
[9] The Ontario Policy at p 35.
[10] Ibid at p 41.
Transgender Employees: Best Practices

What If Your Independent Contractor Is Really a Dependent Contractor?

Many employers hire independent contractors to assist in their workplace and in most cases, the assumption is that doing so will result in minimal or no notice of termination having to be paid at the end of the relationship.  A recent case has confirmed that that assumption can be a risky one to make.

Earlier this year, the Ontario Superior Court of Justice released its decision in the case of Keenan v. Canac Kitchens.  For those familiar with employment law in Ontario, the name Canac Kitchens will be familiar as it has been on the losing end of a number of employment law cases.

In this particular case, Lawrence and Marilyn Keenan were employed by Canac Kitchens beginning in 1976 and 1983 respectively.  In 1987, both were advised that their employment was coming to an end but that they could carry on as independent contractors.  Independent contractor agreements were signed and the Keenans carried on as before.  They continued working for Canac until the company closed its operations in 2009.  No notice of termination or pay in lieu of notice was provided.

The court looked back at the 2009 Ontario Court of Appeal decision in McKee v. Reid’s Heritage Home Limited and confirmed that employment relationships exist on a continuum, with employees at one end, independent contractors at the other, and dependent contractors in the middle.  The court also confirmed that unlike independent contractors, dependent contractors are entitled to reasonable notice of termination.  In determining the status of the Keenans, the court looked to the following:

  • Whether the individuals were limited exclusively to the service of the company;
  • Whether the individuals were subject to the control of the company, not only as to the product sold, but when, where and how it was sold;
  • Whether the individuals had an investment in the “tools” relating to their service;
  • Whether the individuals undertook any risk in relation to their business, or had an expectation of profit apart from a fixed fee or commission; and
  • Whether the business was that of the individual or the company.

While there were some factors in this case which suggested an independent contractor agreement, the court was particularly fixated on the fact that the Keenans worked exclusively for Canac until 2007.  Although they did some small amount of work for a competitor between 2007 and 2009 due to a shortage of work at Canac, the judge accepted that Canac turned a blind eye to same.  In other words, for all intents and purposes the Keenans provided services only to Canac for almost the entire duration of the relationship.  Moreover, Canac had almost complete control of the work performed by the Keenans.

As a result, the court found that although the Keenans were contractors, they were in a dependent relationship to Canac and therefore entitled to notice of termination.  Due to the 32 and 25 years of service provided by Lawrence and Marilyn respectively (which resulted in an average length of service of 28.5 years between the two of them), the court found that a whopping 26 month notice period was reasonable.

As always, independent contractor agreements should be entered into with careful consideration as to the true nature of the relationship between the parties.  As the saying goes, “if it walks like a duck and talks like a duck, the chances are good that it’s a duck”.  In such a case, no amount of contractual drafting will lead to another conclusion.

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What If Your Independent Contractor Is Really a Dependent Contractor?

Ontario pension plan sponsors: it’s time to look at your SIPPs

Employers that provide registered pension plans to their Ontario employees should review their Statement of Investment Policies and Procedures (“SIPPs”) within the next few months.  New Ontario SIPP requirements are coming into force:  SIPPs will have to be filed with the Ontario pension regulator, and they will have to address new issues described below.

Electronic filing of SIPPs with the Ontario regulator will be mandatory in 2016.  You shouldn’t  assume that your pension service provider will attend to the filing for you.  It’s the legal responsibility of the registered administrator of the plan – usually the employer – to ensure that the SIPP is adopted and filed on time.  For most plans, the filing deadline is March 1st, 2016.

There is no change to the requirement that SIPPs be reviewed and confirmed, or amended, at least annually.  If your company has not yet conducted its 2015 SIPP review, now is the time to become familiar with the new SIPP requirements and address them as part of your 2015 review.  Doing so will avoid having to do another review in early 2016.

Under the new rules SIPPs must state whether environmental, social and governance (“ESG”) factors have been incorporated into the pension plan’s investment policies and procedures and, if so, how those factors were incorporated.  There is no legal or standard definition of  “ESG factors”.  On June 30th the Ontario regulator released draft “Investment Guidance Notes” (here)  which provide background information on the new rules.  Notably, the regulator expects the administrator to “establish and document its own view or understanding on what is meant by ESG factors” and “consider whether or not it will incorporate ESG factors and document the basis for its decision.”  The regulator expects such documentation to appear in meeting minutes or in an “internal memorandum”.

SIPPs for defined contribution (“DC”) registered pension plans will have to contain a significant amount of new information.  The Ontario regulator released a separate draft “Investment Guidance Note” (here) for “Member Directed Defined Contribution Plans”.  It lists eight categories of information that should be included in SIPPs for DC plans, including the requirement to disclose how investments are selected, communicated and monitored.  Most interesting is the proposed requirement that the SIPP specify “the frequency and type of reporting” that the administrator will require from the plan’s service providers.  The regulator provides an example:  the SIPP may have a statement that quarterly reporting will be provided by the record keeper on fund performance, fund allocation, web-site usage, and other service-level statistics.  This level of disclosure regarding monitoring of service providers should cause administrators to take a fresh look at how they govern their DC plans.

The Ontario pension regulator has invited public submissions on both of its draft Investment Guidance Notes.  All feedback will be made public.  Click here for information about how to comment on the drafts.

Ontario pension plan sponsors: it’s time to look at your SIPPs

Ontario’s Changing Workplaces Review

In May, Ontario’s Ministry of Labour commenced what is being called the “Changing Workplaces Review”.  The review is intended to take a close look at the Employment Standards Act, 2000 (“ESA”) and the Labour Relations Act, 1995 (“LRA”), with the special advisors making recommendations to the Ontario government.  The review has been ordered both to address the significant period of time which has passed since both statutes were enacted, and the changes that have occurred in the workplace and society since then.   The special advisors appointed to conduct the review and issue recommendations are Michael Mitchell, a former Toronto partner from employee-side law firm Sack Goldblatt Mitchell, and the Honourable John Murray, a former judge and former a management-side lawyer.

It is anticipated that the advisors’ report to the government will touch on such things as: (a) the increase in non-standard working relationships (eg. involuntary part-time work, temporary jobs, and self-employment); (b) greater workplace diversity; (c) technological change; and (d) minimum standards under the ESA and LRA.  More specifically, and with reference to the questions posed in the government’s Guide to Consultations, it can be expected that the advisors may look at things like: (i) whether there should be more or less (or different) overtime exemptions for different groups of employees; (ii) whether additional types of leaves of absence are recommended; and (iii) whether the notice of termination provisions currently set out under the ESA are sufficient.

Public consultations are being held across the province from June through September, and written submissions can also be provided to the advisors by email, fax or regular mail prior to September 18th.  For further details on the dates and locations of public consultations, as well as where to direct written submissions, please click here.

 

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Ontario’s Changing Workplaces Review

Another Ontario Termination Clause Decision in Favour of Employees…

The Ontario Divisional Court recently affirmed the lower court’s decision in the case of Miller v. A.B.M., an important case with respect to the interpretation of termination provisions in employment contracts. Regular readers of this blog may recall our earlier blog discussion about the lower court’s decision.

In Miller, the employee signed an employment agreement with the following termination clause: “Regular employees may be terminated at any time without cause upon being given the minimum period of notice prescribed by applicable legislation, or by being paid salary in lieu of such notice or as may otherwise be required by applicable legislation.” The termination provision did not expressly state that benefits would be continued during the statutory notice period under the Employment Standards Act, 2000 (the “ESA”). As a result, the court found that the termination provision contravened the ESA. In upholding the lower court’s decision that the termination provision was void and common law notice should instead be substituted, the Divisional Court made the following findings.

First, the court stated that the employment agreement in question distinguished salary, pensions and car allowance under the heading of ‘remuneration’, but that the termination provision specifically just referenced salary. As a result, it was clear that just salary was to be provided on termination.

Second, the court found that the employment agreement’s silence on providing benefits during the notice period did not lead to a presumption that benefits would be provided. At best, the court found that there was an ambiguity in the agreement with respect to the question of whether benefits would be continued, and ambiguities should be interpreted against the drafter (in this case, the employer).

This case confirms the law set out in earlier decisions such as Wright v. Young and Rubicam Group of Companies and Stevens v. Sifton Properties Ltd. In short, in order to ensure that the termination provision in an employment agreement is not set aside, it must be carefully drafted and it must not appear to undercut the minimum provisions of the ESA. If the termination provision does not expressly state that benefits will continue during the ESA notice period, then the employer risks having the termination provision set aside.

For employers who have not had the termination provisions in their employment agreement templates reviewed recently, now would be a good time to ensure that they are in order and to consider updating them if they are not.

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Another Ontario Termination Clause Decision in Favour of Employees…

Required New ESA Poster for Ontario Workplaces

The Ontario Ministry of Labour has prepared and published a new Employment Standards Act, 2000 (“ESA”) poster entitled “Employment Standards in Ontario”. The poster is version 6.0 in a long line of ESA posters and Ontario employers were required to post it in the workplace effective as of May 1, 2015. The poster outlines for employees their rights under the ESA and the requirements of employers under the ESA.

The Ministry’s rules regarding the new ESA poster are as follows:

  • The poster must be in English but if the majority workplace language is other than English and if the Ministry has version 6.0 available in that language, then both posters must be posted side by side.
  • Version 5.0 should be removed at the time that version 6.0 is posted.
  • In addition to posting the poster in the workplace, employers are also required to give a copy of the poster to each employee by June 19, 2015.
  • New employees hired after May 20, 2015 must be given a copy of the poster within 30 days of hire.
  • The poster may be given to employees in hard copy form, as an email attachment, or as a link to an internet database (but then only if the employer ensures that the employee has reasonable access to the database, a computer and a printer).
  • The poster is available in English, French, Arabic, Chinese, Hindi, Portuguese, Punjabi, Spanish, Tagalog, Thai and Urdu.

An English copy of the poster can be obtained at http://www.labour.gov.on.ca/english/es/pdf/poster.pdf and a French copy of the poster can be obtained at http://www.labour.gov.on.ca/french/es/pdf/poster.pdf. For copies of the poster in other languages, please go to the following link: http://www.labour.gov.on.ca/english/es/pubs/poster.php.

 

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Required New ESA Poster for Ontario Workplaces

Hidden Camera Leads to Dismissal

An arbitrator recently upheld the termination of a “reliable and capable” Personal Support Worker (a “PSW”) with no prior disciplinary record, because of significant mistreatment of an individual she was responsible for, and because she did not show the kind of insight required.

The Grievor had 6 years of service as a PSW in a licensed long-term care home (the “Home”). Her most recent performance appraisal showed perfect attendance and an overall rating of 41 out of 48 for the relevant review period.  She was nominated for the “2013 Face of Safety Award”, but by May 2013 she had become the face of the villain in a video that was widely circulated in the media.

The Home served vulnerable residents living with significant physical, psychological and/or behavioural impairments. The Grievor’s role as a PSW involved assisting residents with their activities of daily living (ADL), often alone and unsupervised. The resident at the centre of this grievance was an 85-year old woman living with Alzheimer’s (the “Resident”).

The Grievor claimed that on the day of the incident that culminated in her termination, smells emanating from the Resident’s room alerted her to the fact that the Resident needed to be cleaned and changed. She testified that although the Resident resisted care, she persisted out of concern for the Resident’s comfort and her fear that the Resident might develop sores if left unattended in the “pool of urine and feces”. The Grievor also testified that because the Resident was resisting care, she showed the Resident the soiled washcloth to prove to her that she needed care.

The 7-minute montage from a hidden camera that the Resident’s son had placed in the room, and later shared with the media, told a different story. The Resident was seen lying contentedly on her bed until the Grievor attempted to get her out of bed. As the Resident resisted, the Grievor pulled the Resident, grabbed her by her neck and tried to lift her out of bed. The next few minutes were not captured by the camera, as the Grievor and the Resident moved to the bathroom. After they returned the Resident lay on the bed without protest, rolled onto her side without protest and appeared totally compliant. The Grievor then waved the feces-covered cloth in the Resident’s face. As a result the Resident became agitated and began to refuse care. The Grievor persisted in delivering care and roughly pushed the Resident and rolled her around. At no point in the video did the arbitrator see any soiled bedding or any “pool of urine and feces”.

The Home alleged that the Grievor’s conduct constituted abuse, breached the Resident’s Bill of Rights under the Long-Term Care Homes Act, 2007 and breached several organizational and generally accepted protocols.‎

The Home led evidence that given the Resident’s frailty and the manifestations of Alzheimer’s, it was critical that the Grievor comply with the protocols the Home had developed for dealing with resistance. Instead, the Grievor began by ignoring the two-person lifting and transferring protocol. She also ignored the universally accepted “leave and reapproach” method. When the Resident refused care, instead of persisting, the Grievor should have left, waited a few minutes and then reapproached with the assistance of another employee. The Home maintained that the Grievor’s conduct was a significant breach of trust requiring not just discipline, but termination.

The arbitrator agreed. He said the Grievor demonstrated a “fundamental lack of judgement”, falling within the definition of abuse and going to the heart of the employment relationship. He also acknowledged that long-term care employees like the Grievor held positions of public trust and public interest, which demanded a very high standard of conduct.

The arbitrator commented that reinstatement would have been very likely if he had found that the Grievor had accepted full responsibility and provided him with confidence that she would not repeat her conduct. Moreover, if he had accepted her explanation as being credible and consistent with the video he would have seriously considered reinstatement. Instead, the arbitrator concluded that the Grievor did not seem to grasp that in future she should use the “leave and reapproach” method. Although the Grievor apologized and declared her willingness to undergo counselling and do whatever was required to repair the employment relationship, this was, in the eyes of the arbitrator, not enough to give him the confidence that would make reinstatement appropriate.

The Grievor’s ideal response would have been one that satisfactorily explained her conduct, demonstrated insight, and above all, instilled confidence she would never repeat her conduct. An earnest response would not have “downplayed her culpability”.

On one level this case is a reminder that grievances can turn on the ability to adduce evidence or elicit testimony about the likelihood that an employee will re-offend. Beyond that, this is an important reminder of the value of effective recruitment and selection processes. Employers should design recruitment and selection processes to identify candidates who likely possess the insight to appreciate and apply the policies and training that are provided to help them deal with difficult situations.

St. Joseph’s at Fleming Long-Term Care Facility v Canadian Union of Public Employees, Local 2280, 2015 CanLII 2811 (ON LA) 

Hidden Camera Leads to Dismissal

Upcoming Employment Standards Blitz – Precarious Employment

Beginning in May 2015, the Ontario Ministry of Labour will begin a province-wide employment standards workplace inspection blitz targeting the janitorial, security, business services, fitness and recreation centres, amusement, and recreation sectors. The Ministry of Labour has labeled the blitz’s focus as “precarious employment”, likely due to the high occurrence of part-time and other atypical forms of employment in these sectors. This blitz follows the release of the Ministry of Labour’s results on its vulnerable and temporary foreign workers employment standards blitz last fall.  Those inspections found 171 non-compliant employers, recovering over $175,000 for 1,406 employees.  As is typical, the most common violations included non-compliance with the public holiday pay, vacation pay, and overtime pay requirements of the ESA.

Employers should keep in mind that part-time employees are protected under the ESA.  As such, they are entitled to minimum wages (currently at $11 per hour in Ontario, but soon to increase), vacation pay, public holiday pay, and overtime pay. These employees will also have rights upon termination, including under both the ESA and to sue for wrongful dismissal at common law.

Any employer found to be non-compliant with the ESA can face a compliance order, an order to pay, a ticket with a fine, a notice of contravention, or prosecution. These penalties can bring significant financial consequences. In 2012, a Mississauga operator of 25 fitness clubs was fined $100,000 for violating the wage provisions of the ESA.  In addition, with the amendments brought by Bill 18 now in effect, wage claims may grow, as there is no longer a monetary cap on the wage amount that the Ministry of Labour can order an employer to pay per employee.

In addition to the sectors targeted by this blitz, employers across the province may face stricter regulations and increased enforcement, as the Ontario government undertakes a formal review of both the ESA and the Ontario Labour Relations Act to address the rise of precarious employment.

Upcoming Employment Standards Blitz – Precarious Employment