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Posts tagged: employment lawyer

Sexual Assault and Sexual Harassment At Work

By , January 25, 2018 4:30 pm

In the wake of workplace sexual assault allegations against Patrick Brown, I continue to reiterate what employers of any kind can do to try and prevent and discourage sexual harassment and sexual assault at work.

Given the context of the recent allegations, the first point appears particularly important.

1. As individuals, rethink flirting, compliments, or seeking romantic relationships at work. Legally, before acting, you need to be certain that advances, comments and conduct is consented to and wanted by a co-worker; otherwise, it can be sexual harassment. Definitely, do not make sexual advances to a subordinate. If you have power over a person’s job, pay, duties etc. it is difficult to decipher whether consent is truly given. Repeated advances made to a peer (as opposed to a subordinate), even where no explicitly sexual or gender-based comments are made, can affect a person’s dignity and sense of value as an employee. As an individual, you could be found personally liable under the Human Rights Code (the “Code”) for sex- based discrimination, sexual harassment, or sexual solicitation. As an employer, you can be vicariously liable for your employee’s conduct if you knew about it and did nothing. 

2. Employers can create a culture of no tolerance for harassment and violence. But this ethos must start at the top. Employers should have policies against harassment, including sexual harassment and violence in the workplace. This is a very basic first step to setting the culture. It is also required under the Occupational Health and Safety Act (“OHSA”) for employers with more than five employees.

3. Promptly respond to every sexual harassment complaint. Do not let anyone brush it off, excuse the behaviour, or consider it a “harmless joke”. Adequately investigating such a complaint is required under OHSA and the Code. Treat the complaint as truthful and made in good faith. Take complaints seriously – whether the complaint is about crude jokes or sexual assault. “Locker room talk” is not permissible in Ontario workplaces. These factors will be considered by judges and tribunal members whether assessing whether a complaint was investigated properly. It also creates a workplace climate where employees feel they can share their stories.

4. Investigate all incidents as well as complaints. Do not wait for an employee to come forward to investigate sexual harassment. It is mandatory under OHSA to investigate any incident that comes to the employer’s attention. Remember: A formal complaint is not needed. Learning of incidents of sexual harassment or violence but not investigating them is a violation of OHSA. Allowing the behaviour to continue unchecked also creates a culture of tolerance for this behaviour. Waiting for a woman to share her story before intervening puts the pressure on the woman to create change.

5. Men need to call out other men when they are engaging in belittling, harassing, or abusive acts against women. An employer can be liable for a poisoned work environment if there is a culture of sexualized joking even if it is not targeted at a particular individual.

6. Do not punish someone for coming forward. Even if you investigate and cannot substantiate the allegations, this does not mean it did not occur. Punishing someone for making a harassment complaint is generally considered a reprisal and can result in reinstatement and back pay under both the Code and OHSA.

7. Show respect to women. This includes equal pay for equal work, and fair merit- based promotions. In some contexts, this is required by law through the Code, the Employment Standards Act, and the Pay Equity Act. It also creates a workplace that values women and will diminish sex-based discrimination or harassment.

8. Stop language that diminishes women such as names like “honey”, “babe”, “dear”, or “girl”. This is subtle sex-based discrimination and elevates lowers their status.

 

For over 30 years, MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions and would like to discuss them with a lawyer, please contact me at [email protected] or 647-633-9894.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

Investigating Workplace Harassment Complaints: Get Ready for Changes to the OHSA

By , July 26, 2016 7:20 am

“Bob is harassing me.”

Your spidey senses should be tingling. Because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.

Immediately after you are told about Bob the alleged harasser you should determine whether the person is alleging workplace harassment.

Under the Ontario Human Rights Code (the “Code”) harassment on any of the 16 prohibited grounds (like sex and race) is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

Effective September 8, 2016, workplace harassment under the Occupational Health and Safety Act (the “OHSA”) will be defined as (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.

An employee who has been harassed within the meaning of the Code can obtain damages from her employer from the Ontario Human Rights Tribunal or from the Ontario Courts. An employee who complains he has been harassed under the OHSA cannot claim damages.

Sexual Harassment: A Special Kind of Harassment

For reasons that I do not understand, the Ontario government has decreed that effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under OHSA. Accordingly, an employee who has been sexually harassed will thereafter be able to commence legal proceedings in at least 3 legal fora; namely;

1. An application under the Code

The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. In a 2015 decision an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150 000 in general damages.

2. A complaint under the OHSA

An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The only obligation is to investigate and report back to the person.

3. An action in Ontario’s Superior Court

An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision a judge awarded a former employee over $ 300 000 damages in connection with sexual harassment/assault in the workplace.

Lessons to Be learned

1. Make sure you have a written policy to investigate workplace harassment complaints in place by September 8, 2016. For information about our fixed fee service, click here.

2. Sexual harassment complaints can be more legally complicated than other kinds of harassment complaints.

3. Investigate all workplace harassment complaints quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties, etc. Not all investigations need to be treated the same.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

AODA Update: New Regulation Taking Effect July 1, 2016

By , June 27, 2016 11:56 pm

The Accessibility for Ontarians with Disabilities Act (“AODA”) is constantly changing. So when there has been yet another change to AODA it takes all of my energy not to cover my ears and yell “LAH, LAH, LAH” at the top of my lungs.

Employment Standards Regulation: January 1, 2017

The most important amendment to AODA that applies to employers with 1 to 49 employees takes effect on January 1, 2017. For a description of our compliance service in connection with the Employment Standards Regulation, click here.

Ontario Regulation 165/16: July 1, 2016

Before the Employment Standards takes effect, however, another regulation – O. Reg. 165/16 – will take effect on or about July 1, 2016. It will consolidate all of the accessibility standards in the Integrated Accessibility Standards Regulation. Thereafter both small (1 to 49 employees) and large (Over 50 employees) organizations will be required to do the following:

Changes to AODA Requirements

  1. Training– currently, organizations are only required to provide customer service training to employees and volunteers who deal with third parties, and those who participate in developing the organization’s policies. However, the new regulation will require organizations to, as soon as practicable, train: (a) all employees and volunteers; (b) every person who participates in developing the organization’s policies; and (c) every other person who provides goods, services or facilities on behalf of the organization.
  2. Documenting policies, practices and procedures – currently, organizations with 20 or more employees must “document” their customer service policies, practices and procedures, and make a copy of that document available on request. However, when this regulation takes effect, this requirement will only apply to organizations with 50 or more employees. In other words, organizations with 20 to 49 employees are no longer required to document their customer service policies, practices and procedures.

Besides documenting their customer service policies, practices and procedures, large organizations must also (a) notify persons to whom it provides goods, services or facilities that the document which describes the organization’s policies, practices and procedures is available upon request; and (b) prepare a document that describes the organization’s training policy, summarizes the content of the training and specifies when the training is to be provided. Both documents must be provided to any person upon request.

All organizations with 20 or more employees must confirm their compliance with the above requirements by submitting an accessibility compliance report by no later than December 31, 2017.

Lesson to Be Learned

We recommend that you review and update all of your organization’s AODA policies, practices and procedures to ensure you are in compliance with the upcoming changes.

MacLeod Law Firm Update

I am very pleased to announce that I have hired Nadia Halum as our newest associate lawyer. She articled for us this past year. Please join me in welcoming Nadia to our firm. She can be reached at (647) 985-9894 or [email protected]

 

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

 

 

Employee Terminations: The ABCs

By , January 18, 2016 11:24 pm

Today’s Job market

In this age of globalization and precarious employment most people change jobs many times in a career.

Changing jobs is a fact of workplace life for most people. Some people are terminated and other people voluntarily resign. Either way an employer should consider employee terminations to be a given and manage them.

Termination Clauses in Employment Contracts Are Common

One way to mange the costs associated with terminations is to require all new hires to sign an employment contract with an enforceable termination clause.

Even with an enforceable termination clause, however, some terminations can become litigious. This blog addresses three types of terminations that can become litigious.

Terminating a Pregnant Employee

Terminating an employee while she is pregnant, on pregnancy leave, or at the end of a pregnancy leave is fraught with legal danger. A person taking a pregnancy leave generally has the right to return to her job (or a comparable job if her job has been eliminated) at the end of the leave under Ontario’s Employment Standards Act. Similarly under Ontario’s Human Rights Code (the “Code”) an employer cannot discriminate against an employee because of sex which is defined to include the right to equal treatment without discrimination because a women is or may become pregnant. The Ministry of Labour and the Ontario Human Rights Tribunal (the “Tribunal”) can and have ordered employers to pay significant damages above the termination pay owing under a pregnant employee’s employment contract.

Terminating a Disabled Employee

Terminating an employee who is disabled involves navigating a legal minefield. The Code prohibits discrimination against disabled employees. The Code also requires an employer to accommodate an employee’s disability unless it results in undue hardship. The Accessibility for Ontarians with Disabilities Act imposes numerous obligations on employers. The courts and administrative tribunals like the Tribunal can and have ordered employers to pay significant damages to disabled employees who have been terminated.

Terminating an Older Employee

In 2008, mandatory retirement was abolished for most people in Ontario. In the same year the stock market crashed and many peoples net worth dropped dramatically making it more difficult to retire.

As a result, for financial (and other) reasons, many people are now working past age 65. This is causing problems in the workforce. Young people are having difficulty finding jobs, and some employers – particularly those in the manufacturing sector with physically demanding jobs – are required to address – for the first time – the physical and mental challenges that are experienced by some employees who are 70 or 75 years old.

Terminating a long-service employee who is over 55 years old can attract significant liability. This is one group of employees who often have not signed employment contracts and can be entitled up to 24 months notice of termination (or more) at common law. This kind of employee is also entitled to damages under the Code. Although an older employee is entitled to look for alternative employment to reduce wrongful dismissal damages I suspect few judges would expect a 70 year old to look very hard.

Lessons to be Learned

1. All new employees should be required to sign an employment contract with an enforceable termination clause.

2. Pregnant, disabled and older workers have special rights. It is possible to terminate these kind of employees by providing the person with notice of termination however we suggest that you consult with an employment lawyer before doing so.

 

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship including employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

Another Host Bites the Dust at CBC: Evan Solomon Fired for Moonlighting

By , June 16, 2015 12:18 am

Last week the CBC fired another one of its high profile hosts, Evan Solomon.

 According to news reports, Mr. Solomon ran a part-time business in his spare time and earned income by helping an art dealer sell paintings. CBC knew about the business but claims it did not know the full extent of Mr. Solomon’s involvement in the business until last week.

Apparently a dispute arose concerning the amount of commission the art dealer owed Mr. Solomon for a particular sale. This dispute was recently settled. Almost immediately afterwards, some one leaked Mr. Solomon’s relationship with the art dealer to the Toronto Star who contacted the CBC. Mr. Solomon was terminated the next day.

Mr. Solomon’s Grievance Rights

Mr. Solomon is a union employee so he can file a grievance claiming he was fired without cause and he can seek reinstatement with full back pay.

If Mr. Solomon was a non-union employee and he filed a wrongful dismissal action the same issue would arise: Was his moonlighting just cause for termination?

Can an Employee Moonlight?

A full-time employee is generally entitled to have a part-time job or operate a side business as long as these outside activities do not result in a conflict of interest with his or her full-time job. There are exceptions to this general rule.

An employer can, however, limit an employee’s right to take on another job or earn self-employment income by contract. For example, some employment contracts include a clause, which states an employee will not engage in other employment or in any self-employment without the employer’s prior written consent.

Similarly, some employers require all new employees to sign a conflict of interest policy or a Code of Conduct policy as a condition of employment.

In this case, the CBC has alleged that Mr. Solomon violated its conflict of interest and ethics policy and that his actions were inconsistent with journalistic standards and practices.

One of the guidelines in the CBC’s Conflict of Interest and Ethics Policy states: Employees must not use their positions to further their personal interests. As far as this guideline is concerned, does the CBC need to prove that Mr. Solomon offered to interview someone on his show on the condition that the person bought a piece of art from him? If so this seems unlikely. Not the kind of thing a former Governor of the Bank of Canada or a former CEO of Blackberry would likely do.

From the outside looking in it appears that CBC host, Amanda Lang’s alleged conflict of interest involving RBC was much worse that Mr. Solomon’s alleged transgressions yet CBC stood by her and fired Mr. Solomon.

I am not aware of the standards of journalism that apply to this case. I assume one such standard is the requirement to disclose personal or business relationships with interviewees if you are hosting a TV show although I suspect interviewers like Peter Mansbridge knows many of the guests he interviews and he does not disclose the full extent of the relationship in each interview. For example, if he has played golf with someone, or vacationed with someone, or been paid to speak to someone’s company before an interview is he required to disclose this information to CBC or to the audience at the beginning of the interview?

If Mr. Solomon interviewed someone who paid him a commission for the sale of art and he didn’t disclose this relationship to the CBC then there could be a problem. In this regard, it appears that Mr. Solomon may have sold art to the former CEO of Blackberry but according to news reports this person declined Mr. Solomon’s request for an interview.

The Devil is In the Details

As in most legal cases, the devil is in the details. If Mr. Solomon grieves his termination, the threshold issue will be whether Mr. Solomon’s outside activities justified any discipline at all. (i.e Did he breach the CBC’s conflict of interest policy and ethics policy?)

If so, the next issue is whether termination was a disproportionate or an excessive response to the misconduct. If so, the arbitrator hearing the case can substitute a lessor penalty.

What Will Happen to Mr. Solomon: My Prediction

 I think Mr. Solomon will file a grievance under the CBC’s collective agreement.

Given his length of service, clean disciplinary record (assuming this is the case), and his immediate and heartfelt apology, I would not be surprised if an arbitrator reinstated Mr. Solomon to his position at the CBC. If however he materially lied to the CBC about his role in his side business then the result could be different because it would be difficult to maintain the trust that is needed to continue the employment relationship.

 

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

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