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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

New Rule of Thumb: 6 Months’ Pay Per Year of Service?

Posted in Termination, Wrongful Dismissal
Benjamin Aberant

So much for the rule of thumb that an employee should receive one month of notice for every year of service. The Toronto Star has reported on a recent wrongful dismissal decision that Ontario employers should consider, especially when hiring senior managers or executives. Except for the 12 month notice period that was awarded, the facts of the case seem unremarkable. The company terminated, without cause, the employment of a 52 year old executive, who had 19 months of service.

The interesting part of the decision is that the executive, who had still not found work after 14 months, was then awarded a 12 month notice period. This is probably much higher than the company expected when it was considering the termination. If it had obtained a legal opinion prior to the firing, the advice was probably that the executive would be awarded a notice period somewhere around 6 months. Continue Reading

From the Desk of the HR Manager, July 2014

Organizational Dress Codes

Posted in Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

Employees act as the face of an organization and representatives of its overall brand and image. Appropriate and professional work attire is necessary in building and maintaining this distinct impression with customers and clients alike.

The type of industry and work environment that an organization operates in can certainly direct the expected level of attire. A more casual level of dress may be encouraged in a creative work environment, whereas more formal business attire may be suitable in a corporate setting.

It is important that an organization implement a comprehensive professional dress and image policy which sets guidelines and expectations, identifying attire which is, and is not, appropriate. Addressing inappropriate behaviour regarding unsuitable attire is important in ensuring that the organization’s brand and image is maintained. It is necessary that Managers and Human Resources enforce the policy in a constructive, respectful and tactful way. Also be mindful that employers may be required to be flexible with dress codes to deal with religious accommodation under human rights law. Moreover, in the unionized context, arbitrators will require that dress code policy be reasonable.

Examples of appropriate business-casual attire may include: Examples of inappropriate attire may include:
  • Blazers
  • Blouses
  • Casual collared shirts, knit tops, sweaters & turtlenecks
  • Golf shirts
  • Jackets
  • Shirt & tie
  • Sports Blazers
  • Vests
  • Casual dresses & skirts
  • Tailored walking shorts as part of a suit
  • Capri pants as part of a suit
  • Dress pants
  • Casual pants (dockers, cotton twill, corduroy, khaki type pants)
  • Tailored slacks
  • Dress sandals, loafers/flat shoes
  • Anything that is overly revealing
  • Sports jerseys
  • Sweatshirts
  • Tops with bare shoulders, backs or midriffs, tank tops, halter tops
  • T-shirts
  • Miniskirts
  • Shorts
  • Spaghetti strap dresses, slip dresses
  • Cargo pants
  • Denim pants
  • Exercise wear
  • Leggings
  • Athletic shoes
  • Flip-flops, beach footwear
  • Boating/deck shoes
  • Winter, hiking boots

Employers Should Take Advantage of Human Rights Summary Hearings

Posted in Discrimination, Human Rights
Daniel Pugen

Summary Hearings at the Human Rights Tribunal – A Short History

A few years back, the human rights system in Ontario was overhauled. The Human Rights Commission was to no longer investigate complaints and refer them to the Human Rights Tribunal (if they had some merit).  All cases were to now go directly to the Tribunal for adjudication. Applicants (who are primarily employees) would have “direct access” to the Tribunal.

While the goal was to speed up the process, many employers soon found themselves forced to attend a hearing to defend frivolous complaints. The Tribunal responded by adopting a summary hearing process, which can be initiated by the Tribunal or at the respondent’s request. Under this process, the applicant must demonstrate that the complaint has a “reasonable prospect of success”. The summary hearing usually occurs by teleconference with limited disclosure of documents. If the application is not dismissed, it moves on to a full hearing. Continue Reading

From the Desk of the HR Manager, June 2014

Posted in Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

Regular attendance is key to maintaining a successful, productive organization.  A full-time job cannot be performed by a part-time employee. An employee should be expected to come to work ready to perform the requirements of their job every day; excessive tardiness and absenteeism cannot be tolerated. Managing employee attendance is critical in maintaining an efficient and effective workforce, and creates a number of challenges for organizations.

Perhaps the most significant challenge presented by poor attendance is the impact to overall productivity. If employees cannot be depended on to come to work when scheduled, operations may be short-handed, which can lead to unnecessary costs. Additionally, other employees may be forced to take-on more work in order to compensate for the missing individual. This can have impacts on overall employee morale and engagement, where there may be a perception that the absent employee is not pulling their weight, or is being given special treatment.

Accordingly, managing attendance effectively should be a key priority for all employees. Here are some tips:

  1. Implement an attendance management policy and program which establishes expectations and identifies specific, progressive consequences for each level of infraction. Make sure it distinguishes between culpable and non-culpable absences.[i] For example, generally speaking, employees cannot be penalized for non-culpable absences (e.g. statutory leaves).
  2. Consistently apply and enforce that policy. Employers must be diligent and consistent in managing absenteeism, but it is important to be fair and flexible.
  3. The Employer has a statutory obligation to accommodate employees who are disabled. There may also be a requirement under a collective agreement. In meeting this obligation, employers should alter or modify work methods or schedules, as well as make facilities accessible wherever possible. Ensure that any accommodation is based on dialogue with the employee and that the employee is providing the necessary information (see next point) so that the accommodation can work.
  4. Wherever possible, it is recommended that medical documentation be provided by a specialist who is treating the employee, rather than simply a note from the individual’s family doctor. Remember that some collective agreements have restrictions on obtaining medical information. Employers should be diligent in ensuring employees justify their absence and in determining the employee’s restrictions and functional abilities, as they may be able to accommodate the individual.
  5. Document, document, document! Keep records which account for all interactions regarding an employee’s record of absenteeism.

 


[i] There are two types of absenteeism: culpable and non-culpable (or innocent). Culpable absenteeism refers to an unexcused absence for which the employee is blameworthy (e.g. sleeping in, no call/no show). Non-culpable (or innocent) absenteeism, refers to a recognized and approved excused absence (e.g. vacation, bereavement, etc.).

 

Ontario Court of Appeal puts the “Reasonable” back into “Reasonable Notice”

Posted in Employment Standards, Termination
Daniel PugenMatthew Demeo

Determining the actual notice period an employee is entitled to upon termination is often a frustrating exercise for employers. This is especially true of the more recent case-law which has tended to place more emphasis on certain factors (age and tenure) at the expense of other factors (nature of position and compensation). There have been widely divergent awards in recent years. This undermines the ability of employers to plan, with some certainty, for large scale restructurings and the required notice/severance to provide staff.

The recent Ontario Court of Appeal decision of Kotecha v. Affinia Canada Ltd, 2014 ONCA 411 (“Affinia”) is both a blessing and curse for employers. First, the good news.  The Court of Appeal has put the brakes on escalating awards for lower skilled and older employees. The employee was a 70 year old machine operator who had worked for the employer for twenty years.  He was originally awarded 24.5 months’ notice on a motion for summary judgment.  On appeal, the Court of Appeal concluded 18 months was appropriate. In making this reduction, the Court of Appeal has supported the general notion that notice periods in excess of 24 months will only be awarded in exceptional circumstances – according to the Court of Appeal, this was not such a case.     Continue Reading

Ontario Human Rights Commission Releases New Policy on Mental Health Disabilities and Addictions

Posted in Discrimination, Human Rights
Benjamin Aberant

On April 16th, we reported on a new policy published by the Ontario Human Rights Commission (the Commission) entitled Policy on Preventing Discrimination Because of Gender Identity and Gender Expression. Last week, the Commission published a new policy entitled the Policy on preventing discrimination based on mental health disabilities and addictions.

This new policy was created out of recognition that persons with mental health and disabilities “have faced considerable and longstanding discrimination, stigmatization and social exclusion in Canada and across the world”.   For Ontario employers, this is an important policy as the Ontario Human Rights Code (the Code), under the protected ground of “disability”, prohibits discrimination in employment on the basis of mental health disabilities and addictions. Continue Reading

Wal-Mart (Still) Pays High Price for Failing to Investigate Employee’s Complaint

Posted in Employment Standards, Investigations
Meaghan McWhinnie

A recent Ontario Court of Appeal decision Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, is an important reminder to employers that failing to properly investigate allegations of harassment in the workplace can be incredibly costly.

Facts

Ms. Boucher was an Assistant Manager of a Wal-Mart retail location. After she refused to falsify a log book, the location’s Manager (Mr. Pinnock) became abusive towards her. Mr. Pinnock continuously belittled, humiliated and demeaned Ms. Boucher, often in front of co-workers, in the hopes that she would eventually quit.

Ms. Boucher tried to obtain help from Wal-Mart by bringing a compliant about Mr. Pinnock’s behaviour to management through the company’s “Open Door Communication Policy.” The policy permitted and encouraged employees to voice their workplace concerns to senior management in a confidential manner. In breach of the policy, Ms. Boucher’s request for a meeting with senior management was leaked to Mr. Pinnock, who then threatened her with reprisal for reporting him and subjected her to an “increasing torrent of abuse.” Despite substantial evidence of Mr. Pinnock’s abuse, including first-hand accounts from co-workers who described Mr. Pinnock’s actions towards Ms. Boucher as “ferocious” and “horrific,” Wal-Mart concluded that Ms. Boucher’s complaints were unsubstantiated and notified her that she would face discipline for making unsubstantiated complaints. Mr. Pinnock was neither disciplined nor even cautioned for his conduct . Continue Reading

From the Desk of the HR Manager, May 2014

Psychological Health in the Workplace

Posted in Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

The Canadian Mental Health Association recognizes May 5th through 11th each year as Mental Health Week in Canada. The impact of psychological illness in the workplace is becoming increasingly prevalent, resulting in decreased productivity, increased absenteeism and impacts on an employer’s health care programs, as well as negative consequences for employee engagement and morale, employee well-being and organizational culture.

The Mental Health Commission of Canada reports that one in five Canadians will experience a mental health illness or problem each year, and that nearly one in four members of the working population is affected by mental health illness which may lead to absenteeism or “presenteeism”[1] (i.e. when employees are physically present, but due to a physical or emotional issue, are distracted to the point of reduced productivity).[2] Approximately 30% of short and long-term disability claims in Canada are attributed to mental health problems and illnesses, amounting to an economic impact of approximately $20 billion annually from workplace losses.[3]

The DSM-5 (“Diagnostic and Statistical Manual of Mental Disorders”), which provides practitioners and regulatory bodies with a comprehensive inventory of mental disorders, was amended in 2013 to include a number of new disorders including but not limited to: Caffeine Withdrawal, Cannabis Withdrawal, Mild Neurocognitive Disorder, Premenstrual Dysphoric Disorder and treating extended grief over the loss of a loved one as depression. As Toronto Partner, Daniel Pugen, points out the inclusion of these types of disorders may increase employee leaves of absence as well as the cost of employer’s health care programs.

It is critical, that employers be proactive and transparent in their approach to dealing with the mental health of their employees, including:

  • Implementing an Employee Assistance Program (EAP) to provide employees and their dependents with a confidential resource, and ensuring that the contact information is provided to all employees as well as posted in a conspicuous area in the workplace;
  • Training managers and employees alike on the importance of tolerance, mutual respect and how to recognize and address signs of a problem; and
  • Promoting mental health awareness, generating discussion and communication, and implementing programs and initiatives to remove the negative stigma associated with mental illness.

Best Practice Tips

  1. Consider contracting out the adjudication of short-term disability claims, in order to save costs (i.e. engaging an ASO arrangement).
  2. When considering employee accommodations or return to work, HR should seek physician statements from specialists, not simply from the individual’s family doctor, in order to make the most appropriate decisions.
  3. When developing Physical Demands Analysis for each position in your organization, ensure that a Psychological Demands Analysis is completed simultaneously. Understanding the cognitive impacts of each role will aid in assessing risk, preventing exposure and ensuring that individuals are appropriately accommodated, whenever necessary, for an early and safe return to work.

 


[1] Mental Health Commission of Canada. (2014). Issue: Workplace. Retrieved from http://www.mentalhealthcommission.ca/English/issues/workplace?terminitial=30

[2] The Roberts Centre of Integrative Medicine. (2014). Presenteeism in Canada. Retrieved from http://rhealth.ca/corporate/2012/11/05/presenteeism-in-canada/

[3] Mental Health Commission of Canada. (2014). Issue: Workplace. Retrieved from http://www.mentalhealthcommission.ca/English/issues/workplace?terminitial=30

 

“Men’s Day” Customer Appreciation Event Discriminatory

Posted in Discrimination, Human Rights, Termination
Daniel PugenMeaghan McWhinnie

In McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, the Ontario Human Rights Tribunal (HRTO) found that an employer discriminated against a female employee on the basis of sex by sponsoring a customer appreciation event that was for men only. The HRTO also found that the employer retaliated against the employee after she complained about the event to her supervisor.

The case is an important reminder to employers to be cautious with respect to the type of events that they sponsor and the importance of record keeping when performance managing employees.

Continue Reading

Family Status and Childcare Obligations – The Federal Court of Appeal Weighs In

Posted in Discrimination, Employee Obligations, Family Status, Human Rights, Litigation
Kate McNeill-Keller

On May 2, 2014, the Federal Court of Appeal (FCA) rendered its decision in Canada (Attorney General) v. Johnstone (Johnstone), along with its decision of an appeal in a similar case called Canadian National Railway v. Seeley (Seeley). A full e-alert with our discussion of these cases and the implications for employers can be found here.

Both Johnstone and Seeley involved mothers of young children who requested relief from a workplace schedule or assignment which would have left them without adequate childcare. In Johnstone, the employee worked a rotating shift and requested a fixed work schedule to accommodate her childcare obligations. Although the employer, Canadian Border Services Agency (CSBA), had accommodated other full-time employees in this way, it declined to do so and instead, offered her part-time work which would have negatively affected her benefits, pension and promotion opportunities. In Seeley, the employee worked for Canadian National Railway (CN) and requested an exemption when she was asked to report to Vancouver to cover a labour shortage, claiming that there would be no childcare arrangements available during her absence. CN denied Ms. Seeley’s request and eventually terminated her employment because of her failure to report to work in Vancouver.

Continue Reading