Header graphic for print

Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

SCC Constitutionalizes the right to strike for unionized employees

Posted in Employee Obligations, Employment Standards, Labour Relations
Matthew Demeo

On the heels of its labour friendly decision in Mounted Police Association of Ontario v. Canada (“MPAO”) which granted RCMP officers the right to unionize (and which our colleagues in Vancouver wrote about here), the Supreme Court of Canada (“SCC”) released its highly anticipated decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL”). In SFL, the SCC was tasked with determining whether the prohibition on the right to strike for public sector employees the Government deemed “essential service employees” was a violation of section 2(d) of Charter of Rights and Freedoms (“Charter”), which protects the right of freedom of association. This case presented the SCC with the opportunity to revisit whether there is constitutional protection for the right to strike. An issue it decided in the negative almost 30 years ago. Continue Reading

A “Without Cause” Dismissal is Not Automatically an “Unjust” Dismissal: A Federal Employment Law Update

Posted in Employment Standards, Labour Relations, Policies
Justine Lindner

The decision in Wilson v. Atomic Energy of Canada Limited, released by the Federal Court of Appeal (the “FCA”) on January 22, 2015, marks the end of a long-standing tug of war. The FCA held that non-unionized employees in the federal sector do not have a “right to a job” and that dismissal from employment on a without cause basis is not automatically an “unjust dismissal” under the Canada Labour Code (the “Code”).

Part III of the Code provides an adjudication process for non-unionized employees who claim that they have been unjustly dismissed from their employment. An adjudicator may order the employer to provide compensation or other remedies to the employee, including reinstatement. Continue Reading

Sorry but I can’t help you with your purchase, I’m being accommodated by my employer

Posted in Accommodation, Disability, Discrimination, Human Rights, Retail
Daniel Pugen

It is part and parcel of a retail employee’s job to interact with customers and assist them in making purchases.  However, if an employee with a disability/injury has trouble in performing this essential duty, how far must the employer go in accommodating that employee?

A recent Human Rights Tribunal decision dealt with an interesting accommodation request by an employee with a wrist injury.  That employee requested that she should be allowed to tell customers (when working alone) that they had to return to the store at a later date so they could be assisted by another employee who did not have her physical restrictions.  Thankfully, the Tribunal found in favour of the employer.  It was an essential duty of the position to be able to assist customers and telling customers that they had to go away and come back later was unreasonable in the circumstances. Continue Reading

Terminated for Tweeting: A Tale of Two Toronto Firefighters

Posted in Employment Standards, Labour Relations, Social Media, Termination
Matthew Demeo

When used properly, social media can be a powerful tool for connecting individuals, marketing businesses and mobilizing the masses behind a cause.   However, many organizations have learned the hard way that inappropriate social media use by employees  can have a detrimental effect on an organization’s reputation.

Continue Reading

Federal Labour Law Amendments: Harder to Certify a Union (and Easier to Decertify a Union)

Posted in Unions
Daniel PugenJustine Lindner

On December 16, 2014, the Act to amend the Canada Labour Code (“Code”), the Parliamentary Employment and Staff Relations Act and the Public Sector Labour Relations Act (certification and revocation – bargaining agent), also referred to as theEmployees’ Voting Rights Act received Royal Assent and became law.  This new legislation significantly changes the rules for certifying and decertifying a union for federally regulated employers.  Those changes essentially make it easier to decertify a union and harder to certify one.

The amendments to certification and decertification requirements bring the Code in line with the labour legislation in several provincial jurisdictions, including Ontario.  Now, a lower threshold of employee support is required to trigger a decertification vote.  Plus, “card check” certification (where a union could be certified without a vote) is eliminated.  Now, a vote must always be held.

Decertification

Under the previous regime, any employee who claimed to represent a majority of employees in a bargaining unit, and who could provide evidence to that effect, could apply to the Canada Industrial Relations Board (the “Board”) for an order revoking the certification of the union. This application usually triggered a secret ballot representation vote of the bargaining unit employees. Continue Reading

Worldwide Code of Conduct Reasonable Exercise of Management Rights

Posted in Labour Relations
Meaghan McWhinnie

Many multinational corporations have issued company-wide codes of conduct setting out baseline rules that apply to all of their global operations. A recent Ontario arbitration decision provides a good precedent for employers who may be concerned about balancing corporate governance interests against the rights of unionized employees when instituting universal codes of conduct.

In Candu Energy Inc. v. The Society of Professional Engineers and Associates, Arbitrator Keller approved the right of a multinational employer to institute a code of ethics applicable to all its employees, including its unionized workforce, concluding that it was a reasonable exercise of management rights.

Facts

SNC-Lavalin Inc. (“SNC”), Candu’s parent company, introduced a company-wide Code of Ethics (the “Code”) providing guidelines on professional and ethical standards expected of all SNC employees, whether unionized, non-unionized, managerial or executive board member. The Code applied to employees in all units of SNC and all subsidiary and associated companies around the world, including Candu. Continue Reading

From the Desk of the HR Manager, December 2014

Setting Performance Objectives

Posted in Employee Obligations, 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.

As we set to embark upon the year’s end, now is an appropriate time to begin goal setting and implementing employee performance objectives for the new year. Establishing clear expectations which are tied to the overall mission and vision of the organization, and which are aligned with and cascaded from senior leadership, will ensure that employees understand their role and value within the organization, and will work to continually motivate them throughout the year. Continue Reading

Ontario Government Makes Major Changes to Workplace Laws

Posted in Employment Standards, Labour Relations, Occupational Health and Safety, Workers Compensation
Daniel Pugen

Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014, has received royal assent and is now the law.  As we have previously reported, this Bill significantly amends workplace laws, including the Employment Sandards Act, 2000 (“ESA”), the Occupational Health and Safety Act (“OHSA”), the Labour Relations Act (“LRA”) and the Workplace Safety and Insurance Act (“WSIA”)

Some of the major changes include:

  • Linking minimum wage increases to the Consumer Price Index. The Government would publish the new minimum wage arising from the formula by April 1st of each year.
  • Eliminating the $10,000 cap on claims for unpaid wages.
  • Replacing the 6 month and 12 month time limitation for claiming unpaid wages by a single 2 year time limit for all wage claims.
  • Requring employers to provide the Ministry of Labour’s poster on the ESA to every employee.
  • Allowing the Ministry of Labour to order employers to engage in a “self audit” for the purposes of determining ESA compliance.
  • Making temporary help agencies and employers who use such agencies jointly and severally liable for wage claims from temporary workers.
  • Shifting the experience rating costs for WSIB purposes to the employer who uses temporary labour.  Also, reporting obligations to the WSIB would apply to both the temporary agency and the client.
  • Expanding the definition of “worker” under OHSA to apply to unpaid labour, like “interns” and certain school placement workers.
  • Reducing the “open period” during which a displacement or decertification application could be brought from 3 months to 2 months.

Although some of these provisions will not take effect immediately, all employers should be aware of these significant new changes and alter their workplace policies and practices accordingly.

A more detailed summary of these changes can be found here.

From the Desk of the HR Manager, November 2014

Holiday Parties

Posted in Occupational Health and Safety
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.

With the holiday season fast approaching, many organizations are in the midst of planning their annual holiday parties, meant to recognize the culmination of a year of hard work by employees and celebrate the holiday season. Although this time of year is marked with celebration and provides for a valuable team building opportunity, it can also bring with it particular obligations and potential liabilities for an employer.

When planning and hosting a holiday party, there are a number of factors that an organization must consider in order to reduce liabilities and take every precaution reasonable to ensure the health, safety and protection of its employees. These include:

1.    Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes; accordingly, it is important to limit the in-take of alcohol by guests. This can be achieved by setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); and/or providing a controlled number of drink tickets per guest.

2.    Transportation

Ensuring that there are transportation options available to employees, following the conclusion of a holiday party is very important, especially where alcohol has been served. A good practice is to pre-arrange transportation with a local taxi company, either by ensuring that there are taxis on standby and/or providing taxi chits to employees following the conclusion of the event. In some cities there are designated driver services available whereby a licensed operator will drive an individual and their vehicle home when they are unable to drive themselves.

3.    Discrimination

Given the abundance of faiths, religious denominations and practices that an organization’s employees may affiliate themselves with, it is important to ensure that holiday parties remain non-denominational in nature. This will ensure that no employee is made to feel excluded and will eliminate the likelihood of a Human Rights violation and subsequent claim.

4.    Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour by individuals. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party. This will ensure that employees are mindful of their actions towards others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged.

5.    Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities. Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback.

Moreover, assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities.

From the Desk of the HR Manager, October 2014

Posted in Occupational Health and Safety
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 excitement is building in anticipation of this year’s annual McCarthy Tétrault Client Conference on Friday, November 7, 2014.

The Conference will open with a plenary discussion of Mental Health in the Workplace. As society works to remove the stigma associated with mental health issues, employers grapple with how to identify, address and manage such issues in the workplace. In this session, Paul Boniferro, myself and special guest speaker Dr. Ash Bender will bring together three key perspectives – legal, human resources and occupational medicine – to provide insight and practical advice on this difficult but increasingly important topic.

Dr. Bender is a staff psychiatrist with the Mood and Anxiety Disorders Program at the Centre for Addiction and Mental Health (CAMH). He is the Medical Head of the Work, Stress and Health (WSH) program which is a multidisciplinary program specializing in assessment, treatment and research of occupational disability. Dr. Bender is also an Assistant Professor with the Faculty of Medicine at the University of Toronto and has several publications in the area of workplace mental health.

In order to bridge the gap between the three key perspectives – legal, human resources and occupational medicine – the presentation will focus on the following:

  • Emerging legal issues for employers
  • How organizations can take a proactive approach
  • Communicating with employees about mental health
  • Addressing employee concerns and the accommodation process
  • Special circumstances and challenges for employers

We look forward to seeing you on November 7th!