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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

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

Employee Satisfaction: An ounce of prevention is worth a pound of cure

Satisfaction and Engagement Surveys

Many employers employ quantitative and qualitative tools to measure employee engagement and satisfaction in the workplace. As 2015 draws to a close, and we reflect on the events of the previous year and plan for 2016, workplace engagement and satisfaction surveys can be a useful litmus test for employers seeking to promote a harmonious, productive and satisfied workplace.

Keeping employees happy and engaged can have an important preventative effect with respect to an organization’s legal costs. For example, studies have shown that proactively engaging employees and ensuring a positive work environment can reduce the number of workers’ compensation claims.  With the relatively recent advent of ‘bullying and harassment ‘ provisions in workers compensation legislation nationally, testing the level of satisfaction and engagement can militate against powder keg environments, and can give employers the basis for implementing targeted and useful preventative measures.

In British Columbia, the Workers Compensation Act Occupational Health and Safety Regulations provide that employers have an over-arching duty to “ensure the health and safety of all workers working for that employer”, which, relatively recently, includes a duty to ensure that the working environment is free of bullying and harassment.  Employee engagement and satisfaction surveys, then, can be a useful tool for organizations looking to test the level of, or improve, their compliance.  Furthermore, employees who negatively perceive their working environments may be more inclined towards alleging constructive dismissal, or to allege intentional infliction of mental distress, which can lead to liability for an employer.  Again, measuring employee satisfaction early-on can help to avoid potentially costly situations down the road.

This being said, satisfaction surveys do far more than merely assist an employer in meeting its legal obligations or to help an employer to avoid costly wrongful dismissal actions.  There are a multitude of studies which suggest that happy and engaged employees are more productive, more creative and more profitable for an organization.

Avoiding Pitfalls

Holiday parties are a great way to bring employees together in a way that removes them from the typical rigors of the workplace.  Employees who enjoy each-others’ company in a social setting may forge bonds which create more cohesive and productive teams in the office.

However, each holiday season, many employers face increased legal risk as a result of employer-organized holiday parties where alcohol is consumed. This being said, discrimination claims, harassment claims, and many other HR (and PR!) nightmares may be preventable with a few simple steps.  Of course, every situation is different, but common sense and responsible party-going should rule the day.  Things employers can do to help prevent against holiday-party fall-out include:

  1. As employees enjoy a few eggnogs at the firm party, ensure no one is over-served, and that transportation is available, and has been clearly pointed out to partygoers before and during the event;
  2. Redistribution of the organization’s harassment policies well ahead of any soirees, to serve as a gentle reminder that professional and respectful behaviour is always required regardless of the setting; and
  3. Redistribution of any social media policies, or the creation of such a policy, to ensure that employees are not snapping, and publically disseminating, photos of their co-workers without consent;

These measures, among others, may reduce the likelihood of toxic problems emerging in the workplace that could directly or indirectly result in legal risk exposure for the employer.

Wishing you a safe and joyful holiday season, and a happy and productive 2016!

Employee Satisfaction: An ounce of prevention is worth a pound of cure

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

Compliance Reminder – New Statutory Leaves in Ontario

Employers should be aware that effective as of October 29, 2014, statutory leaves of absence in Ontario under the Employment Standards Act, 2000 (the “ESA”) will be expanded to include the new “family caregiver leave”, “critically ill child care leave” and “crime-related death and child disappearance leave”.  These leaves of absence are in addition to the current Ontario “organ donor leave”, “family medical leave”, “personal emergency leave”, “pregnancy leave”, “parental leave”, “reservist leave” and “emergency leave – declared emergencies”.  Details of the new leaves of absence are as follows:

1.  Family caregiver leave – Up to 8 weeks per year can be taken in order to take care of a family member with a serious medical condition.

2.  Critically ill child care leave – Up to 37 weeks per year can be taken in order to care for a critically ill child under the age of 18.

3.  Crime-related child death and disappearance leave – Up to 52 weeks can be taken if an employee’s child disappears and it is probable that the child disappeared as the result of a crime.  If a child dies as a result of the crime, the leave period is increased to up to 104 weeks.

Each of these leaves of absence are unpaid, and under each leave time off can be taken by the employee in bits and pieces rather than altogether.  Employees using the critically ill child care leave may be eligible for Employment Insurance benefits for a portion of the leave; however guidance should be sought from Service Canada, as the leave provisions do not match up precisely with EI benefit eligibility.

As a reminder, the current statutory personal leaves of absence which are already in place in Ontario are the following:

(i)  Personal emergency leave – Up to 10 days of leave per year to deal with a personal emergency, illness, injury or urgent matter for oneself or a specified family member.  Personal emergency leave is only required in workplaces with 50 or more employees in Ontario.

(ii)  Family Medical Leave – Up to 8 weeks of leave per year to provide care or support to certain family members for whom a qualified health practitioner has issued a certificate stating that the family member has a serious illness with a significant risk of death occurring within a period of 26 weeks.

(iii)  Organ Donor Leave – Up to 13 weeks of leave per year for those employees who have undergone surgery for the purpose of organ donation.

(iv)  Reservist Leave – Time off for reservists to assist with international and domestic emergencies, for the period of time required to assist with the operation.

In addition to the above leaves, all employers should be aware of their obligations to provide pregnancy and parental leave under the ESA.

Employers should review their employee handbooks prior to October 29th in order to determine how the new leaves fit with existing statutory and non-statutory leave entitlements.

Compliance Reminder – New Statutory Leaves in Ontario

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

A former employee received a 20-day jail sentence after she flagrantly disregarded a court order by disclosing the plaintiffs’ confidential business methods and disparaging their business reputation.

Background

In July 2013, Ceridian entered into an agreement with Pendylum Inc. (“Pendylum”) to assist in the delivery of services to Ceridian’s customers. Under the terms of its agreement with Pendylum, Ceridian required that all of Pendylum’s subcontractors, including the Defendant, submit to a background check.  The Defendant refused.  As a result, Pendylum terminated the Defendant’s contract.

Following her dismissal, the Defendant embarked on an email campaign with Pendylum and Ceridian that culminated in threats and conduct akin to extortion.  In November 2013, the Defendant sent a letter to Ceridian advising that unless she received the sum of $23.2 million, she would disclose confidential information relating to the Plaintiffs’ business and their customers.  The Defendant subsequently reduced her demand to $500,000.00. On April 24, 2014, the Defendant sent another letter to Ceridian, in which she threatened to circulate a “press release” on May 12, 2014 containing the Plaintiff’s confidential information to “every press agency and HR and payroll agency across Canada and the U.S.”.  By letter dated May 8, 2014, the Defendant repeated her threat of disclosing her “press release” on May 12, 2014.

In response to the Defendant’s threats, the Plaintiffs brought an ex parte motion for, amongst other things, an interim injunction. The Court granted a five-day interim injunction prohibiting the Defendant from publishing the press release. Although the Defendant had knowledge of the court order, she disregarded the order and proceeded to issue the press release, which was widely disseminated on the internet by numerous news outlets.

The Finding of Contempt

The Court concluded that the Defendant knowingly and deliberately breached the court order by:

  1. releasing the enjoined document to press agencies;
  2. making absolutely no effort to stop the public release despite the pleas and offers of assistance from the Plaintiffs; and
  3. failing to provide the Plaintiffs with the list of persons to whom she had disclosed the confidential information.

The Court noted that if the Defendant disagreed with the court order, then the proper route would have been for her to challenge it by appeal or by another proceeding before the courts, not by ignoring its terms.

The Sentence

When considering the appropriate sentence for the Defendant’s non-compliance, the Judge commented that in his nine years as a judge he had “never encountered a more defiant or less remorseful Defendant”.  The Court found that the Defendant was deserving of significant sanction for, inter alia, the following reasons:

  • The Defendant knowingly and deliberately breached the court order, which can be evidenced by the emails that she exchanged with the Plaintiffs’ counsel in which she wrote “the court order has no effect” and “[the judge] cannot violate my right to free speech.”
  • The Defendant took no steps to retract the press release even after she was aware of the court order.
  • The Defendant continued to attempt to extort a settlement even after she had knowledge of the court order.
  • The Defendant continued to refuse to provide a list of the persons to whom the press release/confidential information had been disclosed.
  • There was uncontroverted evidence that the Plaintiffs may sustain significant harm as a result of the press release, which may have an impact on the Ceridian’s business and position in a competitive market.

Based on the foregoing, the Court found the Defendant’s breach of the order to be serious and continuing.  Moreover, the Court found no mitigating factors – the Defendant did not show remorse; she did not apologize; she made no attempt to purge the contempt; she made no effort to stop the press release when she had days to do so; and she refused to provide the names of persons to whom the confidential information was disclosed.  Furthermore, at the sentencing hearing she continued to argue that: this is nothing more than a defamation case; the order should never have been issued; the order was not breached; and that the Court and counsel have “colluded.”

The Court determined that a fine was an inappropriate sanction on the facts of this case.  The Defendant was a single mother and the costs awards to date, totaling approximately $27,500, had not been paid and the Court accepted would probably never be paid.

Typically, incarceration for civil contempt is a sanction of last resort.  However, the Court held that where the “the administration of justice has been flouted or ignored in public, imprisonment may be necessary for the court to send a clear a message that society as a whole disapproves of anyone who deliberately disobeys a court order”. The Defendant was sentenced 20 days in jail, to be served intermittently over five weekends so as not to jeopardize her employment income as the sole provider for her family.

Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162 (CanLII)

20-Day Jail Sentence for Employee who Released Employer’s Confidential Information in Breach of Court Order

Top Ten Tips for the Workplace

Every now and then, it’s worth it for even the most seasoned HR professional to receive a reminder about best practices in the workplace.  Ensuring compliance with our Top Ten Tips list below will help to keep your workplace running smoothly.

1.  Ensure that all  employees sign employment agreements that clarify potentially contentious issues up front, such as entitlements on termination.

2.  If your workplace has any concerns about protecting company confidential information or intellectual property, ensure that employees also sign some form of Confidential Information and Intellectual Property Agreement (“IP Agreement”).

3.  Remember that employment agreements and IP Agreements must be signed before an employee’s start date.  If that doesn’t happen, then the employee must be provided with some sort of “consideration” for signing (eg. a signing bonus; a promotion and salary increase), and the consideration should be specifically referenced in the agreement(s).

4.  Remember that the law is ever-changing:  a good employment agreement template one year will not necessarily be legally compliant the next year.  An annual legal review of your employment agreement templates will provide a significant cost savings to your business in the long run.

5.  If it is important to your business that restrictive covenants be entered into, ensure that non-competition covenants are not used where non-solicitation and confidentiality covenants would suffice to protect the company.  In addition, ensure that the covenants are sufficiently narrowly drafted in terms of scope, duration and jurisdiction so that they can be upheld by the courts.

6.  Provide employees with at least several days to consider any employment agreements that they are being asked to sign, so that they may obtain legal advice if they wish.

7.  Ensure that your workplace is up-to-date and compliant with all of its statutory obligations.  In Ontario for example, that includes ensuring that all employees have undertaken mandatory Workers and/or Supervisors Health & Safety Awareness Training, ensuring compliance with the Access to Ontarians with Disabilities Act (AODA), ensuring compliance with the Pay Equity Act if applicable, and ensuring that your workplace has posted all required Employment Standards Act (2000) posters and all required Occupational Health & Safety Act posters and policies.

8.  In the event of employee disability issues, consider obtaining legal advice to help you to properly assess and monitor the situation, so that both your workplace and the employee are protected and treated appropriately.

9.  In the event that an employee must be terminated, ensure that he/she is provided with reasonable notice in accordance with the applicable statute, any applicable employment agreement, or the common law (except in the case of a just cause termination).  Do not seek a release unless the employee has been offered something more than the minimum statutory entitlements, and if the employee refuses the offer, provide all minimum statutory amounts even in the absence of a release.  Ensure that benefits and vacation pay continue to accrue through the statutory notice period, and ensure that the Record of Employment is properly completed and submitted in a timely manner.

10.  Don’t hesitate to seek legal advice.  Oftentimes, the biggest problems can be made much smaller if legal counsel is contacted before action is taken.

 

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Top Ten Tips for the Workplace

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

Does a “kick in the butt” excuse a punch in the mouth? That was the question facing the Court in the recent case of Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).

Peng Li and Winston Furguson worked in the shipping and receiving department of a furniture company. Li and Furguson’s coexistence was initially uneventful; however, their relationship had begun to disintegrate following allegations by Li that Furguson was stealing from the company.

On April 19, 2011, things between Li and Furguson reached a boiling point. After searching for Furguson throughout the warehouse, Li finally found his target and confronted him. What happened next was a source of disagreement between the parties, although the judge adopted the following facts. Li began speaking very closely to Furguson; so close that spit was transferred to Furguson’s face, albeit unintentionally. As Furguson tried to break free, Li kicked Furguson in the “butt” with his steel-toe boots. Furguson then wheeled and punched Li twice – one blow was inconsequential, the other was not as it resulted in Li incurring over $7,000.00 in costs for restorative dental services.

At trial, Li argued that he was entitled to damages from Furguson for the tort of battery. However, in the judge’s view, Li’s actions amounted to implied consent to the battery:

Having insulted, berated and confined a person at close quarters, then scuffled with them and kicked them I cannot see how a reasonable person could maintain that a punch or two in return was beyond their reasonable contemplation as being with the scope of what they had implicitly consented to.

 

In addition, the judge held that Li had provoked Furguson by kicking him. Although provocation was not a complete answer to Li’s claim of battery, it nonetheless operated to mitigate the damages that Li had in turn claimed.

In light of these facts, the judge dismissed Li’s claim in its entirety.

It is important to note that while Li had originally brought an action against his employer in which he made a number of claims, including one for “wrongful dismissal”, this action was discontinued before trial. Regardless, apart from the civil liability above, the altercation between Li and Furguson would certainly attract the attention of any employer’s workplace violence policy and potentially lead to discipline.

Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.)

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Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

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?