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Court Allows the TTC to Implement Random Drug and Alcohol Testing

In a recent decision, the Honourable Justice Marrocco of the Ontario Superior Court of Justice denied the request of the Amalgamated Transit Union Local 113 and Robert Kinnear (the “Applicants”) to restrain the TTC from conducting the random drug and alcohol testing of its employees.

The random testing applies to TTC employees who work in safety sensitive, specified management, senior management and designated executive positions, including the TTC’s CEO. The TTC expects to test 20% of its eligible employees per year, which means that statistically, each eligible employee has the chance of being tested once every five years. If selected, employees will be required to take an alcohol breathalyzer test and an oral fluid drug test. A failure to submit to a random test will be a violation of company policy, and employees who test positive will be considered unfit for duty.

The TTC first introduced random testing to its Fitness for Duty Policy in 2011 and the parties have since been involved in an ongoing arbitration on the same issue, which “has no end in sight”. The TTC approved the implementation of the random testing on March 23, 2016. Shortly thereafter, the Applicants applied to the Court for an injunction to stop the testing until the completion of the arbitration hearing.

The Applicants argued that random drug and alcohol testing would cause employees “irreparable harm” by infringing on the employees’ right to be free from unreasonable search and seizure. The Applicants also stated that the random testing: increased the likelihood of psychological harm to the employees, could damage the relationship between employees and management, and raised the risk of false-positive results.

In rejecting the Applicants’ arguments, the Court determined that TTC employees in safety-sensitive positions have a reasonably diminished expectation of privacy concerning their drug and alcohol consumption. In particular the Court noted that:

  • The employees’ duties, which include helping people make approximately 1.8 million journeys on the TTC’s system every day, as well as the TTC’s atypical workplace, which is “genuinely Toronto itself”, reasonably diminish the employees’ expectation of privacy concerning drug and alcohol consumption;
  • The TTC has chosen minimally invasive methods to conduct the random testing, which are superior to other methods available on the market;
  • The nature of the Fitness for Duty Policy is both disciplinary and remedial. Employees have the opportunity to challenge any positive results and have some degree of control over the information collected and generated in the testing process; and
  • Employees whose privacy has been “wrongfully infringed” by random testing have the opportunity to claim, and receive, monetary damages.

As such, the Court concluded that the TTC’s random drug and alcohol testing is an appropriate tool, which “will increase public safety”, as follows:

“After considering all the evidence, including the evidence to which I have referred, I am satisfied that, if random testing proceeds, [it] will increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.”

While the decision provides important insight on how the Court will approach the exercise of balancing employee privacy rights with the needs of a safety-sensitive workplace, it must also be remembered that this was an injunction application to prohibit the introduction of the Policy pending the arbitration, not a decision on the merits of the TTC’s Policy, which will be determined at arbitration. That said, the TTC has announced that the random drug and alcohol testing of its employees will begin this month (see the TTC’s press release here). The Court’s decision will likely encourage other employers in Ontario, particularly those in similarly-situated safety-sensitive workplaces, to follow suit.

A copy of the full decision can be found here: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078

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Court Allows the TTC to Implement Random Drug and Alcohol Testing

Bill 132 Update: MOL Releases Code of Practice to Help Employers Comply with OHSA’s Harassment Provisions

Further to our series of posts on Ontario’s new Sexual Violence and Harassment Legislation, which amends the Occupational Health and Safety Act, the Ontario Ministry of Labour has recently issued a Code of Practice to Address Workplace Harassment under Ontario’s Occupational Health and Safety Act. The Code of Practice deals with the OHSA’s new Workplace Harassment provisions, which come into force on September 8, 2016. The Code of Practice is effective as of that same date.

Importantly, although employers are not legally required to comply with the Code of Practice, those who do will be considered by the Ministry to have complied with the harassment provisions of the OHSA. As such, the Code of Practice is a practical tool that employers can use to ensure compliance.

The Code of Practice is divided into four Parts, each of which is further subdivided into a “General Information” section, which provides guidance on the interpretation of the OHSA’s Workplace Harassment provisions, and a “Practice” section, which details requirements that employers may follow to comply with the OHSA.

The Code of Practice’s Preface indicates that following its requirements is “just one way in which employers can meet the legal requirements regarding workplace harassment” and a failure to comply with all or part of the Code of Practice may not be a breach of the OHSA. However, the Code of Practice also states that, while employers may choose to adhere to one or all of the Code of Practice’s Parts, if an employer does adhere to a Part, it must adhere to all of the Practice requirements under that Part in order to be deemed in compliance with the related Workplace Harassment provision in the OHSA.

The Code of Practice’s “General Information” sections provide guidance on the interpretation of the OHSA’s Workplace Harassment provisions, as follows:

  • Part I: Workplace Harassment Policy – This section outlines the contents of a Workplace Harassment Policy and explains that employers may choose to prepare a separate Workplace Harassment Policy or combine it with their workplace violence, occupational health and safety and/or anti-discrimination and anti-harassment policies. A template Workplace Harassment Policy is included in the Code of Practice (Sample Workplace Harassment Policy)
  • Part II: Workplace Harassment Program – This section considers reporting mechanisms for incidents and complaints of Workplace Harassment. In particular, it clarifies that a person who receives a complaint of Workplace Harassment should not be under the alleged harasser’s direct control. Further, in instances where the worker’s employer or supervisor is the alleged harasser, an alternate person who can “objectively address the complaint” must be designated to receive reports of Workplace Harassment, such as an employer’s board of directors and/or a consultant. Further, the Workplace Harassment program should set out whether this person would only receive the complaint, or whether this person would be expected to carry out an investigation.

    This section also considers the consequences of incidents of Workplace Harassment. In incidents arising from individuals who are not the employer’s workers, the section suggests that employers could either modify or refuse its services to such people. Consequences for workers could include: apologies, education, counseling, shift changes, reprimands, suspension, job transfer, termination or, in instances where workplace harassment is prevalent or commonplace, training for everyone in the workplace.

  •  Part III: Employer’s Duties Concerning Workplace Harassment – This section relates to investigations into Workplace Harassment and provides that: an “appropriate investigation” must be “objective”; the investigator must not be “directly involved in the incident or complaint” or “under the direct control of the alleged harasser”; and the investigator should have knowledge of how to conduct an investigation appropriate in the circumstances. The parties to the complaint should be updated periodically on the status of the investigation. The Code of Practice includes a sample investigation template, which can be found here: Sample Investigation Template
  • Part IV: Providing Information and Instruction on a Workplace Harassment Policy and Program – This section outlines the scope of the “Information and Instruction” that an employer must provide to its workers under the OHSA. Employers provide information and instruction on “what conduct is considered workplace harassment” and supervisors need to receive specific instruction on “how to recognize and handle a workplace harassment incident”. The employer should keep records of the information and instruction provided to its workers for at least one year.

Notably, the “Practice” sections list additional requirements that are not contemplated by the OHSA’s new Workplace Harassment provisions, including, but not limited to:

  •  Indicating, in a Workplace Harassment Program, when an external person will be retained to conduct a workplace harassment investigation (for example, but not limited to, when the alleged harasser is a president, owner, high-level management or senior executive);
  • A timeframe of 90 calendar days or less to complete an appropriate investigation, unless there are extenuating circumstances warranting a longer investigation (e.g. more than five witnesses or key witnesses unavailable due to illness);
  • Listing seven steps to an investigation that an employer must complete, at a minimum, including giving the alleged harasser(s) the opportunity to respond to allegations raised and, in some circumstances, providing the worker who has experienced Workplace Harassment with a reasonable opportunity to reply; and
  • That corrective action, if any, that is or will be taken as a result of the investigation, must be communicated in writing within 10 calendar days of the investigation being concluded.

The Code of Practice attaches a Sample Workplace Harassment Program, which provides guidance on addressing the Code of Practice’s requirements.

The Ministry of Labour indicates that the Code of Practice is “designed to help employers meet their obligations” with respect to the OHSA’s Workplace Harassment provisions. As such, it provides insight on the Ministry of Labour’s expectations for developing, implementing and maintaining Workplace Harassment Policies and Programs. While employers do not need to comply with the Code of Practice’s requirements to ensure compliance with the OHSA, a consideration of the information and requirements set out in the Code of Practice will help employers address Workplace Harassment in a manner that is consistent with the Act and the Ministry’s expectations. The full text of the Code of Practice can be found here.

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Bill 132 Update: MOL Releases Code of Practice to Help Employers Comply with OHSA’s Harassment Provisions

The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

As we previously reported, the amendments to the Occupational Health and Safety Act introduced by Ontario’s Sexual Violence and Harassment Legislation, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, come into force on September 8, 2016.

By way of reminder, the OHSA amendments expand the Act’s definition of “workplace harassment” to expressly include “workplace sexual harassment”. The amendments also impose additional obligations on employers with respect to their workplace harassment policies, programs and investigations.

With September 8th quickly approaching, the countdown to compliance is on and employers must take the following steps to ensure they meet the Act’s requirements:

  1. Review and revise existing workplace harassment policies and programs to ensure that they specifically contemplate “workplace sexual harassment”.
  2. Work in consultation with the joint health and safety committee or health and safety representative (if applicable) to develop and maintain a written workplace harassment program, which sets out:
  • reporting measures and procedures for workers to report incidents of workplace harassment to their employer or supervisor and, in the event that the employer or supervisor is the alleged harasser, to a person other than the employer or supervisor;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.
  1. Establish internal timelines and practices to ensure that the written workplace harassment program is reviewed as often as necessary, but at least annually.
  2. Ensure that internal processes are developed and implemented to:
  • conduct investigations into all incidents and complaints of workplace harassment; and
  • inform the workers involved in the incident and/or complaint of the results of the investigation and of any corrective action that has been, or will be, taken as a result.
  1. Develop and maintain resources that provide workers with information and instruction on the contents of the workplace harassment policy and program.

In addition to the OHSA’s existing enforcement mechanisms, the amended Act grants inspectors the power to order an employer to have an impartial third party conduct a workplace harassment investigation, at the employer’s expense. Notably, the OHSA amendments do not detail the circumstances in which an inspector can, or will, issue such an order.

The Ontario Government’s It’s Never Okay Action Plan, which led to the OHSA amendments, indicates that the Government intends to issue a new “Code of Practice” for employers, which will describe in more detail the steps that employers must take to comply with the OHSA amendments. The Code of Practice is expected to be released on or around the September 8th coming into force date and will hopefully provide more guidance on the implementation of the Act.  Stay tuned as we will provide a further update upon its release.

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The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

The Ontario Ministry of Labour recently announced its 2016 and 2017 enforcement blitz and initiative schedule. In an effort to emphasize the importance of protecting workers’ rights and ensuring employer compliance with both the Occupational Health and Safety Act (the “OHSA”) and the Employment Standards Act, 2000 (the “ESA”), the Ministry has prepared a coordinated inspection blitz schedule under the Employment Standards Program and the Occupational Health and Safety Program. The blitzes commence this month and are set to continue until March 2017.

The Employment Standards inspection blitzes will focus on high-risk sectors where there is a history of ESA violations and/or where young workers, vulnerable workers and/or an increasing number of Ontarians are employed. This will include the following sectors: Construction, Food Services, Retail Trade, Professional Services, Services to Buildings and Dwellings, Other Amusement and Recreation Industries, and Personal Care Services.

The OHSA inspection blitzes will focus on sector-specific hazards with the aim of raising awareness and increasing compliance with the OHSA. The provincial OHSA Blitzes will target the Construction, Industrial and Mining Sectors with a focus on: Falls, New and Young Workers, Mobile Cranes and Material Hoisting, and Safe Material Tramming Underground.

In addition to province-wide blitzes, the Ministry will conduct local blitzes in predetermined regions throughout the province targeting specific sectors. For the ESA blitzes this will include the Child Day-Care Services, Manufacturing, Fitness Centres, Tow Truck Companies, and Small Manufacturing sectors; for the OHSA blitzes this will include the Industrial and Construction sectors.

The Ministry will report the results of its inspections shortly after they are completed and will track its findings to ensure improvements in compliance and fewer workplace injuries. The Ministry reports that since 2005, it has recovered over $144 million in wages and other money owed to employees through its inspections, claims and collections and, since 2008, has issued more than one million compliance orders for safety issues across all sectors.

Even if you are not in a targeted sector, be aware that in addition to the 2016/2017 inspection blitzes, the Ministry’s officers will continue to conduct their ongoing enforcement efforts, so they may still show up at your door. As such, all employers, and particularly those in sectors targeted by the 2016/2017 blitzes, should take steps to ensure that their workplaces are compliant with both the ESA and OHSA. The Ministry of Labour’s Inspection Blitzes and Initiatives Announcement and 2016-2017 Schedules can be found here.

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Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

Bill 132 Update: Ontario’s Sexual Violence and Harassment Legislation to Become Law September 8, 2016

In a previous post, we reported on Ontario’s new sexual violence and harassment legislation, Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. On March 8, 2016, Bill 132 received Royal Assent.

To recap, Bill 132 amends various existing statutes with respect to sexual violence, sexual harassment and domestic violence. For employers, Bill 132 presents important workplace-related changes, by amending the Occupational Health and Safety Act (OHSA) to require employers to implement specific workplace harassment policies and programs and ensure that incidents and complaints of workplace harassment are appropriately investigated.

First, Bill 132 expands the OHSA’s definition of “workplace harassment” to include “workplace sexual harassment”, defined as:

  1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Bill 132, however, also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of its workplace is not workplace harassment.

The Bill, as passed, requires an employer, in consultation with a joint health and safety committee or a health and safety representative (if any), to develop, maintain, and review at least annually, a written program that implements the employer’s workplace harassment policy. Further, employers must provide workers with appropriate information and instruction on the contents of their workplace harassment policies and program. An employer’s written program must set out, among other requirements:

  • measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.

Further, employers must conduct appropriate investigations in response to incidents or complaints of workplace harassment. Following an investigation an employer must inform both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) of the results and of any corrective action that has been, or will be, taken.

Notably, an inspector now has the power to order an employer to conduct an investigation by an impartial third party, and obtain a written report by that party, all at the employer’s expense. Bill 132, however, does not specify the circumstances in which an inspector can, or will, order an employer to conduct such an investigation.

The above-noted OHSA amendments come into force on September 8, 2016. In order to ensure compliance with the legislation, employers must take steps beforehand to update and implement policies and programs related to workplace harassment.

Bill 132 Update: Ontario’s Sexual Violence and Harassment Legislation to Become Law September 8, 2016

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

The Ontario Government recently introduced Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters as a response to the Government’s “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” policy statement announced earlier this year.

Bill 132 will amend various existing statutes with respect to sexual violence, sexual harassment, and domestic violence. For employers, important changes will stem from Bill 132’s proposed amendments to the Occupational Health and Safety Act (the “OHSA”), which include modifying the current definition of “workplace harassment” and imposing additional obligations on employers concerning their workplace harassment policies, programs and investigations.

Under Bill 132, the OHSA’s definition of “workplace harassment” will be expanded to include “workplace sexual harassment”, which is defined as:

  1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
  2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Notably, Bill 132 also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

Bill 132 will require an employer’s program to implement a workplace harassment policy under section 32.06(2) of the OHSA to further set out:

  • Measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • How incidents or complaints of workplace harassment will be investigated and dealt with;
  • That information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or is required by law; and
  • How a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is a worker of the employer) will be informed of the results of the investigation and of any corrective action taken.

An employer will be required to renew its program at least annually and provide its workers with appropriate information and instruction on the contents of both the policy and program.

When faced with a “workplace harassment” incident or complaint, under Bill 132 an employer will be required to ensure that an appropriate investigation is conducted and that both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) are informed of the results and of any corrective action that has been, or will be, taken. Notably, Bill 132 will allow an inspector to order an employer to have an investigation and report completed by an impartial third-party, at the employer’s expense.

Bill 132 passed first reading on October 27, 2015. If passed, the provisions of Bill 132 relating to the OHSA will come into force either six months after receiving Royal Assent or on July 1, 2016, whichever is the later date.

The Bill can be found here. A press release from the Ontario Government announcing Bill 132 can be found here

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

Employee denied bonus payment on the basis of “somewhat draconian” termination provision

In the recent Ontario Superior Court of Justice decision, Kielb v National Money Mart Company[1], an employee was denied a bonus payment upon termination based on the provisions of the employment contract.  In the decision, Justice Akhtar confirmed that “the harshness of [a] provision does not make it invalid if both parties have agreed to it”.

The plaintiff, a lawyer named Jonathan Kielb, commenced employment with National Money Mart Company (“Money Mart”) in 2008. The employment contract that Mr. Kielb signed included a termination clause, as well as the following provision in respect of his bonus (the “Limitation Clause”):

Any bonus which may be paid is entirely at the discretion of the Company, does not accrue, and is only earned and payable on the date that it is provided to you by the Company. For example, if your employment is terminated, with or without cause, on the day before the day on which a bonus would otherwise have been paid, you hereby waive any claim to that bonus or any portion thereof. In the event that your employment is terminated without cause, and a bonus would ordinarily be paid after the expiration of the statutory notice period, you hereby waive any claim to that bonus or any portion thereof.

On April 21, 2010, Money Mart terminated Mr. Kielb’s employment on a without cause basis, and offered him 8 weeks of pay in lieu of notice (inclusive of the 2 weeks of statutory termination pay), in compliance with the termination clause of his employment contract.

With respect to the bonus, since Mr. Kielb was not an employee on the September 17, 2010 payment date, and the payment date was not within Mr. Kielb’s statutory notice period, Mr. Kielb did not receive any bonus payment in respect of the 2010 fiscal year. [2]

Mr. Kielb’s position was that the bonus was an integral part of his compensation, and therefore should be payable up to the last day worked and through the contractual notice period, despite the language in the Limitation Clause.  Mr. Kielb argued that because the bonus was an integral part of his compensation the Limitation Clause was unenforceable, because it was: contrary to public policy, inconsistently applied, and/or ambiguous, contradictory and illegal.

In considering Mr. Kielb’s arguments, Justice Akhtar came to the following conclusions:

  • Given Money Mart’s representations to Mr. Kielb at the time of hiring, the bonus did form an integral part of his compensation package. However, the Limitation Clause was not contrary to public policy and as such, it operated to restrict Mr. Kielb’s right to the bonus payment. Mr. Kielb was dismissed in April and since the bonus payment date did not fall within the 2-week statutory notice period, Mr. Kielb was not entitled to any bonus payment.
  • Additionally, while Money Mart’s treatment of Mr. Kielb’s bonus entitlement may have differed from its treatment of other terminated employees’ entitlements, Mr. Kielb was nevertheless ineligible for the bonus payment because of the terms of the Limitation Clause.
  • Lastly, the Limitation Clause was unambiguous. The language was clear that Mr. Kielb was only entitled to a bonus if the payment date fell within the statutory notice period, and since the payment date was well outside of this period, Money Mart was not required to make a bonus payment.

This case is a good example of how an employer can use clear and unambiguous language in an employment contract to restrict its liabilities upon termination, specifically with respect to bonus payments.  While Money Mart’s verbal representations to Mr. Kielb about its bonus program caused the bonus payment to be an integral part of his compensation package, Mr. Kielb accepted the position with full knowledge that on termination his entitlements would be restricted by the Limitation Clause, and was consequently bound by its terms.

[1] 2015 ONSC 3790.

[2] Had it been payable, the bonus would have amounted to 59.4% of his base salary (i.e. approximately $86,239.56).

Employee denied bonus payment on the basis of “somewhat draconian” termination provision