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Upcoming Ontario Ministry of Labour blitzes

Ontario’s Ministry of Labour has announced several upcoming blitzes during which it will ensure that employers in specified industries are compliant with particular areas of concern under the Employment Standards Act, 2000 (“ESA”).  Both provincial and regional blitzes have been announced.

A recent posting on this blog dealt with the issue of unpaid internships, in follow-up to the announcement by Toronto Life magazine and The Walrus magazine that they were ending their unpaid internships following recent government inspections.  Those inspections were part of the announced blitz with a focus on interns, which began in April and will continue until June in the areas of marketing/public relations, software development, retail, media, film and entertainment industries.

Also on the horizon is a provincial blitz to focus on vulnerable and temporary foreign workers which has been announced for the period from September to November 2014 in the following industries: restaurants, building services, personal care services, business support services and agriculture. 

Finally, that will be followed in early 2015 with a provinncial blitz on temporary help agencies, in order to ensure that they are compliant with the laws relating to temporary help workers.

On a regional level, Simcoe, Peel, Dufferin & York veterinary clinics and security service firms will undergo a general ESA blitz in June and July of 2014.  At the same time, Toronto and Durham region car dealerships and supermarkets will also undergo a general ESA blitz.  Ottawa, Kingston, Peterborough, Hamilton, Kitchener/Waterloo, London and Windsor seasonal businesses and tourism-related businesses will see their own general ESA blitz from June through August and finally, professional offices in Northern Ontario will see a similar blitz in June and July.

It is always good to have your house in order; however, for companies which may be targeted by one of the blitzes noted above, it is of particular importance that your business be compliant with the ESA.

For more information, the Ministry’s announcement can be found at the following link:  https://www.labour.gov.on.ca/english/resources/blitzschedule.php.

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Upcoming Ontario Ministry of Labour blitzes

Compliance Reminder – Accessibilty for Ontarians with Disabilities Act

The Accessibility for Ontarians with Disabilities Act (“AODA”) has been around for a while.  So what’s the big deal now?

For starters, recent Freedom of Information Act requests have demonstrated that about 70% of Ontario private sector employers with 20 or more employees have not yet complied with required self-reporting requirements to demonstrate that they are compliant with the AODA.  Perhaps more importantly, most private sector employers with 20 or more employees don’t even realize that they have certain obligations under the AODA as of January 1, 2014.

While reference should be had to the legislation for particulars as to the imminent requirements, the following should serve as a high level overview of what needs to be done by certain employers.

1.  Public sector employers with 20 or more employees are to file a compliance report with the Ontario government by December 31, 2013, confirming that they are currently compliant with the Accessibility Standards for Customer Service.  The filing can be done online.

2.  By January 1, 2014, those same employers must also develop policies governing how they will meet their requirements under the Integrated Accessibility Standards.   In addition, a multi-year accessiblity plan must  be developed, posted on the organizations’ websites, and provided in an accessible format upon request.

3.  For employers with 50 or more employees in Ontario that are launching a new website or undertaking a significant website refresh after January 1, 2014, the website is required to conform to the World Wide Web Consortium Web Content Accessbility Guidelines 2.0 Level A unless an exception applies or the company can demonstrate that meeting the guidelines is not practical.

Because most Ontario businesses are not compliant with the AODA, the Ontario government has begun issuing notices of non-compliance and has indicated that it intends to pursue businesses which are non-responsive.

For further information, see the Ontario government’s website on AODA requirements: http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/

 

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Compliance Reminder – Accessibilty for Ontarians with Disabilities Act

Human Rights claims in the Ontario courts – Now What?

Way back in 2008, the Ontario Human Rights Code was amended to permit human rights claims to be piggybacked onto wrongful dismissal actions in the Ontario courts.  Prior to that time, the only recourse for an employee with a discrimination claim was to make a complaint to the [then] Human Rights Commission.  Some 5 years later, the Ontario Superior Court of Justice has recently released its very first decision in a joint wrongful dismissal/discrimination action.

The case in question was the September decision of Justice Grace in Wilson v. Solis Mexican Foods Inc.  Patricia Wilson was a 16 month employee at the time of her termination, and off work due to back problems.  The reason given for Ms. Wilson’s termination was a corporate reorganization, but the court found that reasoning “[defied] common sense” as Ms. Wilson was never told about the impending reorganization while it was taking place.  The court looked closely at the communications between Ms. Wilson’s doctor and employer, and found that the only conclusion that could be drawn was that the employer was not happy with Ms. Wilson’s ongoing back problems and absences from work, or her requests for accomodation.  Justice Grace reiterated that as long as an employee’s disability is a factor in the decision to terminate, there will be a finding of discrimination.  That is the case whether the disability is the sole factor or simply one small factor in the decision-making process.  In this case it was clear to the judge that Ms. Wilson’s back problems were a significant factor in the decision to terminate, but the result would have been the same even if her back problems were but one factor along with the reorganization.

Having determined that Ms. Wilson had been discriminated against, the court awarded her $20,000 due to the fact that she “lost the right to be free from discrimination” and experienced “victimization”, and due to the fact that the employer orchestrated her dismissal and was disingenuous both before and during the termination.  That amount was in addition to the damages received in lieu of notice of termination.

Interestingly, the court did not comment on whether or not reinstatement of employment was an option, thereby leaving that issue to another court on another day.  While employees pursuing complaints at the Human Rights Tribunal can seek reinstatement, and while the Human Rights Code appears to permit courts to make similar orders, we still have no guidance as to whether reinstatement will become a tool used by our courts.

To view the decision, click here:  http://canlii.org/en/on/onsc/doc/2013/2013onsc5799/2013onsc5799.html

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Human Rights claims in the Ontario courts – Now What?

Technology in the Workplace

I have trouble programming my television and need my teenage daughter to lend a hand.  I also know that I am not alone in this world of rapidly changing technology.  It is of little wonder then, that even the best HR professionals can sometimes use a reminder of best practices when it comes to the use of technology in the workplace.  This ever-changing area encompasses so many technological issues that this is only intended to provide a very high level overview.

Workplace Surveillance:

For employers in a unionized workplace or employers which are federally regulated (eg. banks, telecoms), collective agreements and federal privacy legislation respectively  set out strict parameters with respect to what sort of workplace surveillance is permitted.  For employers in B.C., Alberta and Quebec, applicable provincial privacy legislation may also set out parameters with respect to permitted workplace surveillance.  For all other employers, the workplace surveillance findings of the Privacy Commissioner of Canada are instructive but not generally applicable.

With regard to the Privacy Commissioner’s findings, the use of video surveillance and GPS is generally not permitted for productivity management although it may be permitted if the employer can show a bona fide safety or security reason for the surveillance.  In those cases, employees should be given advance written notice of the surveillance and the surveillance must be reasonable in scope.  On the other hand, unionized workplace arbitration findings sometimes permit keystroke monitoring to manage productivity, but it is considered intrusive and other means of monitoring productivity should be used if possible.

Computer Use in the Workplace:

Much has been written about the extent to which employers can monitor an employee’s computer use in the workplace, particularly in light of the Supreme Court of Canada’s 2012 decision in the case of R v. Cole.  In that decision, the court held that employees have a reasonable expectation of privacy in connection with personal information on workplace computers.  This criminal decision involving Charter rights is only directly applicable to public sector employers, but it gives employers some idea of where the courts may go on this issue in the future.

As a result of this decision and the apparent desire of the courts to protect employee personal information even when located on company property, it is absolutely necessary for employers to have a computer use policy which confirms that: (i) the employer’s computer systems are company property and should only be used for company business; and (ii) employees should understand that they have no expectation of privacy when it comes to personal information when using the employer’s computer systems.  Employees should be regularly reminded about the policy and asked to confirm their understanding and agreement.

Teleworking:

The two biggest issues with allowing employees to work from home are productivity and confidentiality.  With respect to confidentiality, employers should assist in the set-up of the home office and insist upon some or all of the following protections: (i) home computers which are password enabled, email encrypted, firewalled and/or subject to biometric ID; (ii) all company work must go through the company’s internal network through a platform such as Citrix; (iii) sensitive company and customer information should not be maintained on laptop computers, cell phones or other portable devices; (iv) hard copies of sensitive company or customer information kept at home should be stored in a locked filing cabinet; and (v) home computers used for work purposes should not be accessible to family members.  It is also a good idea to conduct periodic checks in order to ensure that your employees are following proper procedures.

Social Media:

If your organization decides that it wants to permit social media in the workplace, drafting a good policy is your starting point.  Among other things, the policy should: (i) make it clear that employees cannot use social media to disclose company or customer confidential information, engage in workplace gossip, do anything discriminatory or harassing, or otherwise say anything which might harm the company or its customers; (ii) advise employees that their use of social media may be monitored; (iii) advise employees that the use of social media at work is for work-purposes only; (iv) require workplace bloggers to identify themselves by their real names and make it clear that the views expressed are not necessarily those of the organization (unless the organization requires blog entries to be approved prior to posting); and (v) require employees to have a stand-alone work account for their blogs so that they do not use a personal account for work-related matters.

On-Line Recruiting:

To understand what you can and cannot do on an on-line basis when it comes to recruiting, you need to understand what you can and cannot do off-line.  One of the general rules of thumb is that you cannot make a decision to not hire based on an employee’s age, race, religion, ethnicity, sexual orientation, etc.  If an employee is looked up online before a decision is made whether or not to hire, or even whether or not to interview, one runs the risk of finding out something about the employee’s personal background which could lead to a Human Rights complaint.  As a result, it remains best practice to interview first, and then make any hiring decision subject to reference checks and other background checks (and to obtain the prospective employee’s consent for those checks before undertaking them).

Closing:

Although technology is ever-changing and some of the issues set out above will become non-issues with the passage of time and technologies, the one constant thread which runs through most of these issues is the need to have strong policies which outline what is and isn’t permitted in the workplace.  Notwithstanding the same, employers should be aware of the fact that employees may have reasonable expectations of privacy in the workplace, even when using company technology.

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Technology in the Workplace

Changes May be Coming to Ontario’s Minimum Wage

On July 17th, the Ontario Ministry of Labour announced that it has appointed a Minimum Wage Advisory Panel, chaired by Anil Verma, Professor of Human Resource Management at the University of Toronto’s Rotman School of Management.  It is intended that the panel will examine the province’s current minimum wage policy and provide advice on how Ontario should determine the minimum wage in the future.  The Ontario government’s recent announcement stated that the panel will also recommend a process to set future minimum wages in a way that is both fair to workers and predictable for businesses. 

The panel intends to consult with business and labour groups, workers, anti-poverty advocates, young workers, and academics.

Interestingly, the current Ontario general minimum wage is $10.25 per hour, which is a 50% increase since 2003.  As well, Ontario already has one of the highest minimum wages in Canada.  That said, Ontario is one of only three provinces which does not have a formal mechanism for calculating or adjusting the minimum wage.  It can be expected, therefore, that the panel is likely to endorse some sort of mechanism as part of its report.

Interested parties are invited to make submissions to the panel prior to October 18, 2013.  Submissions may be made to the Minimum Wage Advisory Panel by mail to 400 University Avenue, 12th Floor, Toronto, Ontario, M7A 1T7, by fax to (416) 326-7650, or by email to minimumwage@ontario.ca.  In addition, interested parties can make online submissions through the Ministry’s website:  http://www.labour.gov.on.ca/english/es/submissions.php.

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Changes May be Coming to Ontario’s Minimum Wage

Receipt of Pornographic Material was not Just Cause for Dismissal: Appeal Court

In the 2001 case of McKinley v. B.C. Tel, the Supreme Court of Canada ruled that a contextual approach is required in order to determine whether there is just cause for termination of employment.   A recent wrongful dismissal case involving receipt of pornographic material illustrates how the contextual approach will be applied by courts.

In February 2013, the Court of Appeal of New Brunswick upheld a lower court finding in the case of Asurion Canada v. Brown and Cormier,  to the effect that dismissal without notice was a disproportionately severe penalty for receiving pornographic emails at work.  At the time of termination, Cormier had been with Asurion for 8 years and was a call centre supervisor.  Brown was employed by Asurion for 9 years and was vendor payables specialist.  Both men had a good employment history with the company.  Both men, unfortunately, also had a mutual friend who liked to send them pornographic emails.

During the period from mid May to mid July 2010, Cormier and Brown were sent over a dozen unsolicited emails from their friend.  The emails were promptly sent to home email accounts and deleted.  They were not shared with anyone at work. When Asurion became aware of the emails in July as a result of its network monitoring system, both men were dismissed immediately due to breach of the company’s policies and breach of trust.

While the company did have a policy which prohibited “accessing, transmitting, receiving or storing discriminatory, profane, harassing or defamatory information”, the court found that the policy was not reasonable given that: (i) ”receiving” information does not involve a positive act; and (ii) the emails in question were unsolicited.  More importantly, the court confirmed that the response of the company was not proportionate to the actions of the employees.  In particular, these longstanding employees had unblemished records, none of the emails were shared with fellow employees, and the images attached to the emails fell within the category of “perfectly legal adult pornography” and were not in violation of the Criminal Code of Canada.

Asurion had an employee handbook with a comprehensive Computer Use and Harassment policy.  The company’s employees were required to read the company’s policies and there was some suggestion that they were reminded of the Computer Use policy each time that they logged onto their work computers.  The company went even further, and used a network monitoring system in order to ensure that the policies were being complied with.  Ultimately it was all for naught, as the policy was found to be unreasonable and the application of it was disproportionately severe when viewed through the lens of the employees’ years of service and specific actions or inactions in the case at hand.

This recent decision serves as a good reminder that any time a termination for cause is being considered, the employer should consider not just the offending actions of the employee, but the other relevant circumstances of the employee’s employment.

Asurion Canada Inc. v. Brown and Cormier, 2013 NBCA 13 (CanLII)

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Receipt of Pornographic Material was not Just Cause for Dismissal: Appeal Court

Reinstatement of Employment Ordered – a Decade after Disability Leave Commenced

In a March 2013 decision that is likely to be challenged in the courts, the Ontario Human Rights Tribunal has ordered the reinstatement of an employee a decade after she went on disability leave, together with loss of wages from June 2003 until the date of reinstatement.

In a 2012 decision in  Fair v. Hamilton-Wentworth District School Board, adjudicator Joachim found that the respondent school board had discriminated against the employee by failing to accommodate her disability.  In particular, in 2001 she developed an anxiety disorder as a result of the highly stressful nature of her job, and went on long-term disability.  She was subsequently assessed as capable of gainful employment in 2004.  From mid 2003 onwards however, the school board failed to take any steps to offer her available alternative work, even though similar jobs were advertised and the employee underwent job hardening in positions for which the employer was seeking employees.

In March 2013, adjudicator Joachim rendered her decision in relation to the remedy for this case of discrimination.  She found that because: (i) the employee had commenced her initial complaint with the Ontario Human Rights Commission only 4 months after her employment was terminated; (ii) the delay was largely at the hands of the Commission; and (iii) the employee had confirmed that she was seeking reinstatement when her application was subsequently filed with the Tribunal, there was no good reason to not order reinstatement due to the passage of time.

As a result, the employer was ordered to reinstate the employee despite her absence from work for almost a decade.  In addition, the employer was ordered to pay the employee’s lost wages, benefits, expenses and pension contributions over that period of time, which amounted to over $400,000 (subject to any employment insurance and related deductions).  Finally, adjudicator Joachim awarded the Applicant $30,000 as compensation for the injury to her dignity, feelings and self-respect.

Despite the likelihood of an appeal, this is an important decision as it illustrates the potential liability associated with a failure to return an employee to work after his or her disability leave.

Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII)

 

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Reinstatement of Employment Ordered – a Decade after Disability Leave Commenced

New Ontario Job-Protected Leaves

On March 5, 2013, the Ontario government introduced new legislation which, if passed, would create three new job-protected leaves.

The Employment Standards Amendment Act (Leaves to Help Families), 2013, proposes new leaves that build on the existing Family Medical Leave under the ESA.  They are as follows:

Family Caregiver Leave - up to 8 weeks of unpaid leave for employees to provide care and support to a family member with a serious medical condition.

Critically Ill Child Care Leave – up to 37 weeks of upaid leave to provide care to a critically ill child.

Crime-Related Child Death and Disappearance Leave - up to 52 weeks of unpaid leave for parents of a missing child and up to 104 weeks of unpaid leave for parents of a child that has died as a result of a crime.

If passed, the leaves would allow parents and other family caregivers to provide care and support for loved ones without fear of losing their jobs.  These leaves are in addition to the current Family Medical Leave, which is available when a family member has a serious medical condition with a significant risk of death occurring within 26 weeks.  A doctor’s note would be required for the Family Caregiver Leave and the Critically Ill Child Care Leave.

Complementing the new federal Helping Families in Need Act, employees covered by the Critically Ill Child Care Leave and the Crime-Related Child Death and Disappearance Leave would be eligible to apply for federal Employment Insurance benefits.

The Ontario’s government’s news release and “backgrounder” may be accessed here.

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New Ontario Job-Protected Leaves

Natural Disasters in the Workplace – What Do I Do?

Did you know that the Ontario Ministry of Labour has a Q&A on how to deal with natural disasters in the workplace?

The Q&A, which can be found at the link listed below, covers issues such as whether or not an employee can be forced to take vacation days in the event of a natural disaster which prohibits him or her from working, or whether an employee must be paid if he or she is told to not come to work during the disaster.

Apart from basic issues covered in the Q&A, there are a number of other things to be aware of in the event of a natural disaster.  The Emergency Management Statute Law Amendment Act, 2006 (Ontario) permits the Premier and Cabinet to introduce legislation intended to govern emergencies such as natural disasters.  In addition, the Employment Standards Act, 2000 (Ontario)  provides for unpaid emergency leave for declared emergencies such as natural disasters, which is different than the standard emergency leave to deal with an ill or injured family member.

While an employer may not wish its employees to come to work in the event of a natural disaster, there may also be situations where certain employees are in fact required to work precisely because of the natural disaster, even if the workplace is under quarantine.  The ESA specifically permits certain employees to work in those situations, if their skills are required due to an emergency.  Likewise, although employees may rely on the Occupational Health & Safety Act (Ontario) (“OHSA”) to refuse to work if they are concerned that the condition of their workplace may jeopardize their health or safety, exemptions to OHSA require certain essential employees to work notwithstanding those conditions.

In addition to the above, there are a number of other pieces of provincial and federal legislation which work together to answer some of the key questions about how to deal with a natural disaster in the workplace.  Whether that disaster relates to health issues (eg. SARS, H1N1), loss of the workplace premises or something else, this combined legislation will help employers determine the appropriate response to disasters, and it is recommended that employers be proactive about understanding their obligations so that they are prepared in the event that disaster strikes.

To access the Ministry of Labour’s Q&A, click here.  For more information about all of the workplace issues involved in the event of a natural disaster, a more thorough discussion can be found here.

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Natural Disasters in the Workplace – What Do I Do?

HR Professionals: The Key to Smooth Corporate Acquisitions

Although human resources professionals are not always recognized for their efforts during a corporate acquisition, the work which they do behind the scenes can often make the difference between an acquisition succeeding or failing.  The following is a brief summary of key issues for HR professionals to stay on top of, long before an acquisition is ever contemplated, during the due diligence phase and right through to closing.

There are two types of transactions which can result in the purchase and sale of a business – a share purchase and an asset purchase.  In a share purchase, the corporate identity of the target company does not change and as a result, the employees remain employed by the same purchaser after closing.  Unless new employment agreements are negotiated with the purchaser, the employment terms and conditions of those employees will not change on closing.  In an asset purchase however, only certain assets of the target company are purchased and the employees are therefore generally terminated by the target company unless they agree to accept new employment with the purchaser.

Keeping Your House in Order:

All too often, proposed acquisitions fall through after the purchaser becomes aware of potential employee liabilities which it will have to assume in the event of an acquisition.  As an HR professional, you can assist with minimizing those liabilities long before an acquisition is being contemplated, by ensuring that: (i) well-drafted employment agreements are properly entered into; (ii) the company is protected with any necessary confidentiality, intellectual property and restrictive covenant agreements; (iii) there are no significant wages, vacation pay and overtime pay accruals; (iv) employee claims and complaints are kept to a minimum; and (v) mandatory statutory obligations are complied with (eg. WSIB registration; compliance with the Occupational Health and Safety Act; compliance with the Pay Equity Act).  When potential employment liabilities are kept to a minimum, it greatly reduces the risk of a purchaser walking away from a deal due to the added costs of correcting the liabilities.

Due Diligence:

HR professionals should be aware of the fact that even in an asset purchase, the Employment Standards Act, 2000 contains successor employer provisions.  In particular, section 9 of the ESA states that if a purchaser hires an employee of a vendor within 13 weeks of closing, the purchaser will be deemed to have taken on the employee with all of his or her prior years of service with the vendor.  Therefore, although the inclination may be to think that the purchaser in an asset deal can “fix” employment problems hand-in-hand with the hiring of employees on closing, sometimes employees will balk at going to a new employer if they are not being hired on similar or better terms to those which governed their employment with the vendor.  In this regard, it is often helpful for the vendor to work with the purchaser during the due diligence phase in order to determine who will be provided with offers of new employment and what the new and continuing terms of employment should be.

HR professionals in Ontario should also be aware of the fact that the Personal Information Protection and Electronic Documents Act (PIPEDA) does not yet have a business transaction exemption.  Although employee personal information is not generally caught under PIPEDA, it can be subject to PIPEDA when employee personal information is being collected, used or disclosed for commercial purposes such as an acquisition.  In order to ensure that there are no personal information breaches in connection with the acquisition of a company, if you work for the vendor it is wise to get the employees to sign a consent to the disclosure of their personal information at the time that they are first hired, as to do so in the midst of a transaction can tip employees off before the transaction becomes publicly known.  Whether or not the employees have signed consents at the time of hire, it is also wise for the vendor and the purchaser to enter into confidentiality agreements with respect to employee personal information which may be disclosed in relation to the transaction.

Closing:

As the closing of the transaction approaches, it is particularly important for HR professionals for both the vendor and the purchaser to try to work together to determine such issues as who will take responsibility for accrued vacation, whether releases will be sought from employees who are part of an asset purchase, whether and what type of new employment agreements will be offered to those employees who are remaining on, and ensuring that employees who are not remaining on are properly terminated at or prior to closing.  As well, there is often a need for certain key employees to remain on for a limited period to assist with transition work, and thought often needs to be given to whether those employees should be provided with a special retention bonus agreement or whether the expectation is that they will simply work out their notice of termination period doing transition work.

As always, it is important for HR professionals to obtain legal advice from an employment law specialist in conjunction with the above steps.  Together, they can make the difference between a difficult acquisition and a successful one.

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HR Professionals: The Key to Smooth Corporate Acquisitions

Happy New Year! – Ministry of Labour Inspections for 2012-2013

The Ontario Ministry of Labour has announced that it will focus its proactive  inspections for 2012-2013 on workplaces where there is a history of employment standards violations, where young and/or vulnerable workers are employed, and/or where large or increasing portions of the Ontario workplace are employed.

Among the specific sectors identified for targeted proactive workplace inspections in the coming year, are the following:

  • auto mechanics
  • building services, including security, parking, cleaning and food services
  • car dealerships
  • fast food restaurant franchises
  • gas stations
  • hotel/hospitality
  • private schools
  • temporary help agencies

As always, it is a good practice to be prepared for any surprise workplace inspections which may come the way of your business.  For further information on how best to prepare, please contact FMC Law’s employment and labour group.

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Happy New Year! – Ministry of Labour Inspections for 2012-2013

The Return of Large Punitive Damages Awards in Wrongful Dismissal Cases?

Are large punitive damages awards in wrongful dismissal coming back?  Looking at the trial court’s decision in the case of Pate v. Galway-Cavendish and Harvey (Townships), which is currently under appeal, one wonders.

Mr. Pate was a 9+ year employee at the Townships, who was terminated for cause due to his alleged non-remittance of building permit fees.  When he refused to resign (after being given no details of the allegations against him), he was dismissed and the matter was reported to the police.  In part due to the allegations against him and the ensuing criminal trial, Mr. Pate’s marriage and his side business with his wife both failed.  In addition, he was unable to re-establish a career as a municipal official.

Mr. Pate was subsequently acquitted, and it was determined by the trial judge that the employer had failed to disclose key information to the Crown which would have resulted in no charges having been laid in the first place.  The trial judge felt that the employer’s conduct merited relief in the form of a punitive damages award, due to the fact that damages for wrongful dismissal could not adequately address the fact that Mr. Pate’s career was effectively destroyed due to the allegations.  However due to the principle of proportionality, the trial judge awarded Mr. Pate only $25,000 in punitive damages.  The Ontario Court of Appeal subsequently overturned that decision and ordered that a new trial be conducted with respect to the quantum of punitive damages and another issue.

With reference to the damage caused to Mr. Pate as well as the fact that both the criminal proceedings and the wrongful dismissal trial took years to be dealt with, on the second time around the trial judge took full advantage of the Court of Appeal’s open invitation to punish the employer for its conduct, and increased the punitive damages award from $25,000 to $550,000.

While the matter is under appeal once again and it may be that the $550,000 was excessive, the Court of Appeal’s unusual invitation to the trial judge to reassess punitive damages at a higher amount makes it clear that our province’s highest court is not averse to punishing employers whose conduct is deserving of signficant punishment.

Pate Estate v. Galway-Cavendish and Harvey (Townships), 2011 ONSC 6620 (CanLII)

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The Return of Large Punitive Damages Awards in Wrongful Dismissal Cases?

Obligation to Post Ontario’s New Safety Poster

On October 1, 2012, Ontario Ministry of Labour inspectors began enforcing employers’ legal obligation to post the MOL’s new safety poster.

The poster, which is available in 17 languages, is called “Health and Safety at Work – Prevention Starts Here”. It may be downloaded and printed from the MOL’s website (click here). 

Section 25(1)(i) of the Occupational Health and Safety Act requires employers to “post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers”.  The MOL states that the poster is such “explanatory material prepared by the Ministry”, and therefore it must be posted.

On its website, the MOL says, “The poster summarizes workers’ health and safety rights and responsibilities and the responsibilities of employers and supervisors. It also reminds employers that they must not take action against workers for following the act or for raising workplace health and safety concerns, and seeking enforcement of the OHSA. The poster encourages workers to get involved in health and safety and explains when and why to contact the Ministry of Labour.”

The poster also sets out a toll-free number for employees to call the MOL.

Ontario employers should ensure that the poster has been posted in their workplace.  Inspectors will look for it when they arrive at workplaces.  By posting the poster, employers send a signal to MOL inspectors that they are on keeping on top of health and safety law developments.

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Obligation to Post Ontario’s New Safety Poster

Ontario Human Rights Commission’s “Policy On Competing Human Rights”

An employee’s guide dog causes a severe allergic reaction for co-workers.  A religious employer requires employees to sign a faith-based code of conduct as a term of their employment. These are examples of cases where competing human rights may exist in the workplace.

In order to assist organizations working through disputes which pitch competing human rights against one another, the Ontario Human Rights Commission developed a policy earlier this year which is meant to be a tool for resolving those disputes.  Although any dispute which pits competing human rights against one another will inevitably be determined based on the specific facts involved, the Commission’s policy has created a framework to assist with resolving those disputes before they become the subject of litigation.

The process for addressing competing human rights claims is as follows:

STAGE ONE: Recognizing competing rights claims:

Step 1: What are the claims about?

Step 2: Do the claims connect to legitimate rights?

(a) Do the claims involve individuals or groups rather than operational interests? (b) Do the claims connect to human rights, other legal entitlements or bona fide reasonable interests? (c) Do the claims fall within the scope of the right when defined in context?

Step 3: Do the claims amount to more than minimal interference with rights?

STAGE TWO: Reconciling competing rights claims

Step 4: Is there a solution that allows enjoyment of each right?

Step 5: If not, is there a “next best” solution?

STAGE THREE: Making decisions

- Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for Ontario Human Rights Commission policy

- At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario

It is important to note that the Commission’s policy is not “law”, but rather is the Commission’s recommended approach.  The Commission does not have the legal authority to require employers to follow the policy.  In any event, employers should take proactive steps to address competing rights by being familiar with caselaw and considering the Commission’s policy.  A full copy of the Commission’s policy can be found at the following link:

http://www.ohrc.on.ca/sites/default/files/policy%20on%20competing%20human%20rights_accessible_2.pdf

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Ontario Human Rights Commission’s “Policy On Competing Human Rights”

Termination For Cause: Another Case of “Employer Beware”

A termination for good business reasons does not always equate to a termination for just cause.  In the recent decision of the Ontario Superior Court in Barton v. Rona Ontario Inc., Mr. Justice Lauwers stated that even if an employee’s serious misconduct was such that the employer concluded that it needed to dismiss him to make an example of him, the misconduct might not necessarily be sufficient to warrant a termination without notice.

The Facts:

Barton was employed by the defendant for over 10 years and at the time of termination he was an assistant store manager.  Under his watch, an order picker truck was used to lift a wheelchair-bound employee from the ground floor to a second floor training centre and back again, for computer training (due to the fact that the only training office in the store was on the second floor and not otherwise accessible to wheelchairs).  This incident was contrary to the defendant’s safety expectations as set out in the Employee Handbook, the Health and Safety National Manual and the Occupational Health and Safety Act.  While Barton indicated his discomfort with the planned incident to both the operator of the order picker truck and the disabled employee, he was aware that the disabled employee wanted to attend the training and he did nothing to stop the employees from proceeding with their plan.  The incident turned out to be even more dangerous than might otherwise have been the case, as the wheelchair was not secured to the skid during the descent to the ground floor, and as the area around the order picker truck was not secured and someone walked under it during the lift. Fortunately for all, nobody was hurt during the incident.

Several employees were disciplined due to their part in the incident, but Barton’s employment was terminated for cause due to the fact that he was held to a higher standard than the non-managerial employees.

The Decision:

Mr. Justice Lauwers referenced Mr. Justice Echlin’s statement that just cause is “the capital punishment of employment law”.  He also referenced the contextual approach set out in the leading case of McKinley v. B.C. Tel and stated that although Barton’s misconduct was serious, his performance appraisals were good, he had no disciplinary record and he did not give permission for the lift or descent (although neither did he stop them).  By applying the principle of proportionality set out in McKinley, he found that Barton’s actions were not sufficient to warrant a with-cause termination.  He found that while there may have been good business reasons for Rona to terminate Barton’s employment and make an example of him in order to ensure that this sort of incident did not happen again, those reasons were not sufficient to elevate the termination to one without notice.  As a result, Barton was awarded 10 months of damages due to wrongful dismissal.

Barton v. Rona Ontario Inc., http://canlii.ca/t/fs8n7

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Termination For Cause: Another Case of “Employer Beware”

What constitutes consideration to uphold an agreement?

In the recent decision of Downey v. Ecore International Inc., the Ontario Court of Appeal found that a confidentiality agreement signed by a consultant on his first day of work was not void for lack of consideration.

Paul Downey entered into discussions with Ecore in 1999 for employment with the company.  One of the key terms of his employment was to be the signing of a confidentiality agreement, due to the nature of Ecore’s business and Downey’s position.  He then asked whether he could instead provide services to Ecore as a consultant through his company CSR Industries Inc., as it would be more advantageous from a tax perspective, and a consulting agreement was subsequently executed between Ecore and CSR.  Although Downey was not a signatory to the consulting agreement, he was described within it as a “Key Person of the Consultant”.  A couple of weeks later, on the first day of work, Downey executed a confidentiality agreement in favour of Ecore, in his personal capacity.

In 2011 Downey commenced an action against Ecore on the basis that it allegedly owed him compensation for his assignment to the company of inventions he had created.  In response, the consulting agreement was terminated.  A central question in the resulting jurisdictional motion was whether or not the confidentiality agreement signed by Downey was invalid due to a lack of consideration.  The initial motions judge determined that it was indeed invalid, as it was CSR rather than Downey who was a party to the related consulting agreement and deriving compensation as a result of the arrangement.

The Court of Appeal had a different view of the matter.  Simply put, it found that the confidentiality agreement formed part of a single transaction between Ecore, Downey and CSR, constituted by both the consulting agreement and the confidentiality agreement.  It came to that conclusion upon a review of each agreement, as well as the evidence of initial employment discussions between Ecore and Downey.  When looking at the totality of the evidence of the intentions of the parties as well as an interpretation of the agreements, the court found that the true business reality of the relationship emerged.

Importantly, the court also decided that the company’s grant of permission to Downey to access Ecore’s proprietary information in order to perform services under the consulting agreement, had been independent consideration for signing the agreement. In that respect, the court noted that the “Background” preamble to the agreement stated:

“Employee will be granted access to confidential and proprietary information of the Company as part of his employment.  Employee is entering into this Agreement to grant to the Company protections regarding the Company’s proprietary information.  The parties of [sic] this Agreement agree and intend to be legally bound by the covenants as set forth in this Agreement.”

The court stated that,” The mutual promises contained in this provision constitute a quid pro quo that formed the basis for the Confidentiality Agreement: Downey would be granted access to Ecore’s Proprietary Information, which was necessary to allow him to perform the Services under the Consulting Agreement, and the information so disclosed would be subject to confidentiality protections in favour of Ecore.”

Downey v. Ecore International Inc., http://canlii.ca/t/frz4j

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What constitutes consideration to uphold an agreement?

Ontario Human Rights Code to protect transgendered individuals

Ontario’s Human Rights Code, which is celebrating its 50th anniversary on June 15th, is being amended to protect transgendered people after a landmark vote in the Ontario legislature yesterday.  The amendment will prohibit discrimination in employment and other areas, on the basis of gender identity and gender expression.

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Ontario Human Rights Code to protect transgendered individuals

Ministry blitz of temporary agencies

From June until the end of August, 2012, the Ontario Ministry of Labour will be undertaking proactive inspections of temporary help agencies across multiple sectors.  Approximately 735,000 Ontarians work in temporary jobs, arranged through nearly 1,000 temporary help agencies.  The purpose of the blitz is to ensure that those agencies are in compliance with the 2009 Employment Standards Amendment Act (Temporary Help Agencies).

Among other things, the Ministry will be checking for compliance with:

-  displaying employment standards information in the workplace

-  issuing complete wage statements

-  rules related to hours of work, eating periods and overtime pay

-  minimum wage

-  public holiday rules

-  vacation pay and vacation time

-  the prohibition against agencies charging illegal fees to employees

Further information can be found at the following link:  http://news.ontario.ca/mol/en/2012/06/protecting-vulnerable-workers.html

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Ministry blitz of temporary agencies

L’importance de la disposition de cessation d’emploi

La décision qu’a rendue la Cour supérieure de justice de l’Ontario (CSJO) dans l’affaire Wright v. The Young and Rubicam Group of Companies a confirmé que les dispositions de cessation d’emploi qui figurent dans les contrats de travail ne seront pas reconnues valides si le texte de celles-ci est ambigu.

En 2005, Wright a été embauché à titre de cadre par la société défenderesse. Avant son premier jour de travail, il avait déjà signé un contrat prévoyant des droits en cas de cessation d’emploi, lesquels allaient d’une semaine de préavis à 34 semaines de salaire de base, selon le nombre d’années de service. Lorsqu’il a été congédié en 2010, Wright a reçu 13 semaines de salaire en guise de préavis, conformément au contrat en question. Insatisfait du montant reçu, il a intenté une action et présenté une requête en jugement sommaire.

Lors de l’audience, la juge Low a invalidé le contrat de travail, car elle estimait, comme Wright, que ce dernier aurait dû recevoir le préavis de licenciement prévu sous le régime de la common law. Le contrat a été invalidé pour deux raisons. Premièrement, le contrat ne respectait pas les normes minimales fixées par la Loi de 2000 sur les normes d’emploi de l’Ontario (la « LNE ») et, par conséquent, M. Wright aurait pu toucher une indemnité plus élevée, pour quelques-unes des années visées, en vertu du délai de préavis prescrit et de la prestation de départ prévue par la LNE qu’en vertu des clauses de son contrat. Cela n’est pas permis, même dans les cas où il n’existe qu’une faible possibilité que le contrat soit moins généreux que la LNE. La deuxième raison, mais la plus importante, c’est que la disposition sur la cessation d’emploi ne contenait aucune mention relative au traitement des avantages sociaux durant la période vidée par le préavis. La juge Low n’a pas jugé pertinent le fait que les avantages sociaux aient été fournis à Wright durant la période visée par son préavis statutaire et a déclaré que la disposition sur la cessation d’emploi aurait dû énoncer clairement les droits aux avantages sociaux, de même que les droits en matière de préavis et d’indemnité de départ.

Peu importe la fréquence à laquelle votre société examine et révise ses contrats de travail, un examen approfondi est toujours recommandé. De plus, à la lumière du jugement de la CSJO, les employeurs devraient envisager d’inclure, dans leurs contrats de travail, le traitement des avantages sociaux en cas de cessation d’emploi.

Wright v. The Young and Rubicam Group of Companies :
http://www.canlii.org/en/on/onsc/doc/2011/2011onsc4720/2011onsc4720.html

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L’importance de la disposition de cessation d’emploi

The “Wright” Way to Draft a Termination Provision

In the recently released Ontario Superior Court of Justice decision in Wright v. The Young and Rubicam Group of Companies, it was confirmed that a termination provision in an employment agreement will not be upheld if there are any ambiguities in the language of the provision.

Wright was hired in 2005 as an executive at the defendant company.  He signed an agreement prior to his start date, which provided for entitlements on termination ranging from 1 week of notice to 34 weeks of base salary, depending upon his length of service.  On being terminated in 2010, he was given 13 weeks of pay in lieu of notice pursuant to that agreement.  Unhappy with that amount, he commenced a claim and brought a motion for summary judgment.

At the hearing, Justice Low overturned the employment contract and agreed with Wright that he should have received common law notice of termination. The contract was overturned for two reasons.  First, because it did not track the language of the Employment Standards Act, 2000 (Ontario) (the “ESA”) carefully, there were a few years under which Wright might have earned more by way of statutory notice and statutory severance under the ESA than under his contract.  That is not permitted, even in cases where it is only a contingent possibility that a contract may undercut the ESA.  Secondly and more importantly, the termination provision did not mention the treatment of benefits during the notice period.  Justice Low found that it was irrelevant that benefits were in fact provided to Wright during his statutory notice period, and stated that the termination provision should have clearly set out the benefits entitlement as well as the notice and severance entitlement.

No matter how many times your company may review and revise its employment agreements, a further review is always recommended.  And in light of this decision, employers should consider dealing, in the employment agreement, with treatment of benefits on termination.

Wright v. The Young and Rubicam Group of Companieshttp://www.canlii.org/en/on/onsc/doc/2011/2011onsc4720/2011onsc4720.html

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The “Wright” Way to Draft a Termination Provision