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Posts tagged: Human Rights

Why Asking Your Employee to “Go Clubbing” Could Cost You

By , September 19, 2017 11:36 am

Most employers understand that sexual harassment at work is against the law. Despite this, sexual harassment is still pervasive in Ontario workplaces. Where managers and employers can get into trouble is the area of sexual solicitation.

The Human Rights Code states that employees have the right to be free from advances in the workplace from those able to offer or deny a benefit –  i.e. sexual propositions from a boss with the offer of a promotion are not permissible.  This is true where the person making the proposition knows or should know that it is not welcome.

Examples of this type of behaviour – and the real consequences of it – are evident in Anderson v. Law Help ltd.

The Case

Safari Anderson started working for Law Help Ltd. as a paralegal.  After some time, her boss starting asking her about her plans outside of work.  He started with inquiring about what she was doing on Saturday night.  He later asked her if she wanted to “go clubbing” with him.  He asked whether she would like to “hang out” on the weekend or “go away together” for the weekend. He told her he was thinking about her and that liked her. He told Ms. Anderson he would take care of her, implying that if she spent time with him, she would advance at work.

Mr. Giuseppe then punished Ms. Anderson for not going out with him outside of work.  He stopped paying her. He treated her in a hostile manner. He yelled at her and refused to let her attend a medical appointment. Ms. Anderson ultimately had to resign.

The Human Rights Tribunal of Ontario reviewed all of the evidence and found that Mr. Giuseppe’s advances breached the Code. It reiterated that persistent propositions can create a negative psychological and emotional work environment. While the language used by her boss, Giuseppe Alessandro, was not overtly sexualized, it was not allowed under the Code.

The Tribunal ordered Law Help Ltd. and Mr. Giuseppe to pay Ms. Anderson $22,000 for the injury to her dignity along with lost wages she incurred after quitting.

Lessons

As an employer or manager, asking out a colleague or employee can be expensive, and not because of the cost of the date.  Even where there are not sexual or gender-based comments, repeated advances of this nature are not allowed in Ontario’s workplaces.  They can affect people’s dignity and sense of value in their jobs. Manager and employers must be extremely careful when engaging co-workers or subordinates in any form of romantic or sexual relationship.

For more information about sexual harassment in the workplace, please see here and here.

If you have concerns about your employee’s behaviour and would like to speak to a lawyer at MacLeod Law Firm, you can reach us at inquiry@macleodlawfirm.ca  or 647-204-8107.

“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.”

Can my organization implement a drug testing policy at the workplace?

By , July 24, 2017 10:24 am

If you’ve been following the news over the last few months, you know that the Ontario Superior Court of Justice refused to allow the union’s injunction against the TTC’s random drug and alcohol testing policy. More recently, the Supreme Court of Canada upheld the termination of an employee who was terminated for violating his employer’s drug testing policy. These developments have led to us answering many questions from employers (and news publications) about whether they can also test their employees for drugs and alcohol.

Despite the TTC’s success at court, employers should proceed with caution when instituting drug and alcohol testing at the workplace. Firstly, the issue before the court was not whether such a policy was discriminatory. Secondly, the court refused the union’s injunction because of both the safety-sensitive industry and the wide area in which the TTC operates. Furthermore, the caselaw preceding the TTC decision shows that there is a high evidentiary burden an employer must satisfy to justify random drug testing its employees.

Because addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code, drug and alcohol testing has human rights implications for people with addictions. For example, a human rights issue may arise where a positive test leads to automatic negative consequences for a person based on an addiction.

However, courts and tribunals recognise that it is a legitimate goal for employers to have a safe workplace, particularly in safety-sensitive industries. Therefore, there is caselaw that has recognised that a drug testing policy is justifiable if an employer can show that the policy is a bona fide (i.e. legitimate) requirement of the job. However, even if the policy is a legitimate requirement, employers should strive to minimise any potential discriminatory impact, and be prepared to accommodate employees with addictions who are negatively impacted by the policy.

Another requirement for a drug and alcohol testing policy to be found justifiable is that it must measure impairment, as opposed to drug or alcohol use. For example, while alcohol testing is able to measure a person’s impairment quite accurately, because drugs can remain in a person’s system for quite some time after their use, drug testing is less accurate at measuring impairment rather than drug use. For this reason, alcohol testing tends to be more permissible than drug testing. Similarly, testing after an accident or a “near-miss” is more justifiable than random testing.

Lessons to be Learned

As we get closer to marijuana being legal in Canada, questions around workplace safety and the permissibility of drug testing are bound to increase. We will continue to publish additional information as more relevant cases are released. In the meantime, if you are considering implementing a drug and alcohol testing policy at the workplace, you should consult an employment lawyer to find out whether such a policy would survive the scrutiny of a court or tribunal.

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.

Employer Obligations: Pregnancy and Parental Leaves

By , May 1, 2017 2:10 pm

We often get calls from employers asking about their rights and obligations toward employees seeking pregnancy and parental leaves.

Applicable Legislation

About 90% of employees are provincially regulated and in Ontario the Employment Standards Act (the “ESA”) is the governing legislation. For more information about the ESA, click here.

Federally regulated employers such as banks, airlines and the federal government are governed by the Canada Labour Code.

Employees on pregnancy and parental leave are often entitled to employment insurance benefits and this legislation applies to most provincially and federally regulated employees.

This blog discusses proposed changes to the applicable federal legislation and summarizes an employer’s obligations to pregnant employees under the ESA.

Proposed Changes to the Canada Labour Code & the Employment Insurance Act

On March 22, 2017, the Canadian Federal Government released the 2017 Budget which proposed changes to parental and maternity leaves for federally regulated employees and employment insurance benefits. The primary changes are as follows:

  • Extending the pregnancy and parental leave under the CLC to 18 months
  • Parents have a choice to receive EI benefits for 12 months or 18 months.
  • If parents choose 18 months the total amount is less.  Benefits would be calculated at 33% of average weekly earnings instead of 55% for 12 months. The maternity leave benefits would remain at 55%
  • Birth-mothers can claim EI maternity benefits from 12 weeks before their due date (up from 8) 

The federal government has not tabled legislation to implement these proposals and no changes have been made to the current laws. We will inform you in a subsequent blog if and when any amendment to the current laws take place.

The Ontario government has not tabled any comparable changes to the ESA but we expect the government to propose significant changes to the ESA later this year. For a summary of some of the changes under consideration, click here.

The balance of this blog summarizes some of the relevant provisions in the ESA relating to pregnancy and parental leaves. This is legal information and the reader should consult an employment lawyer to obtain legal advice on an specific situation involving a pregnant employee.

An Employer’s Obligations to Pregnant Employees and Employees Seeking Parental Leave under Ontario’s ESA

Pregnancy Leave

Pregnancy Leave is often referred to as maternity leave. It is only available to women as birth-mothers. Employees who are full-time, part-time, permanent or term contract employees are eligible for a pregnancy leave.

  • The pregnant employee must have worked for the employer for at least 13 weeks prior to her expected due date.
  • The pregnancy leave is 17 weeks unpaid.
  • The leave can start as early as 17 weeks before the baby’s due date but must start at the latest on the day the baby is born.
  • If the employee starts the leave 17 weeks before the due date and is still pregnant at 17 weeks, the leave continues.
  • The employee may need to provide a medical note to her employer of the baby’s due date.

Miscarriage:

  • If an employee suffers a miscarriage within 17 weeks of the due date, she is eligible for pregnancy leave.
  • The leave must start on the day of the miscarriage.
  • The leave will end 17 weeks after leave began or 6 weeks after miscarriage – so the leave could be longer than 17 weeks.

Parental Leave

A new parent is entitled to an unpaid leave from work to care for a new child. This covers fathers, mothers, adoptive parents, and those in a relationship with a new parent who intend to treat the child as their own.

  • The employee must have worked for the employer for at least 13 weeks prior to her the leave.
  • Birth-mothers are entitled to 35 weeks of unpaid parental leave if they also take pregnancy leave (for a total of 52 weeks of unpaid leave).
  • Other parents are entitled to 37 weeks of leave.
  • Birth-mothers must start the parental leave as soon as their pregnancy leave ends.
  • Other parents must start their leave within 52 weeks after the child is born or placed with the parent for the first time
  • The leave must be taken all at once, the employee cannot break it up.
  • The total weeks between both parents could be 89 weeks.

Notice of Pregnancy Leave

  • The employee must give an employer two weeks written notice before beginning a pregnancy or parental leave.
  • The employee does not have to inform the employer of a return date. If she/he does not provide a return date, it is assumed that the leave will be the full period.
  • If the employee wants to return earlier or resign her employment, she/he must give four weeks written notice.

Right to Reinstatement

When returning from pregnancy or parental leave, an employee must be reinstated in their former position, or be given a comparable position in the same location and with the same wages and benefits. If wages went up while away, the returning employee must be paid at the higher rate.

If an employer has dismissed an employee for legitimate reasons that are totally unrelated to the fact that the employee took a leave, the employer is not required to reinstate the employee.

Employees continue to earn credits toward length of employment, length of service, and seniority during periods of leave.

Continuation of Employee Benefits

During a pregnancy and parental leave, the employee is considered to be continuously employed for the calculation of vacation entitlements, wage increases, termination entitlements, and pension, medical and other benefits ordinarily received.  The employer must also continue to pay benefit premiums during pregnancy leave—except in situations where the employee pays part of the benefit premium and chooses not to pay their portion during the leave.

Human Rights Protections

Under the Ontario Human Rights Code, every employee has the right to equal treatment with respect to employment, and to be free from discrimination because of family status or sex including pregnancy. Discrimination occurs if an employee experiences adverse treatment as a result of a pregnancy, because he or she took a leave to care for the new child, or because she is breast-feeding.

An employer cannot fire or lay off an employee because she is pregnant. An employee cannot be denied opportunities at work because they are, or may become, pregnant. This includes training, promotion or receiving certain projects.

If an employee is pregnant or nursing and requires modification to their job function or another position, your organization may be required to accommodate the employee’s needs.  The Ontario Human Rights Commission has stated that accommodation could include establishing a flexible work schedule, temporary reassignment or providing a quiet area for rest during breaks.

The cost of not accommodating a pregnant employee can be significant. For example, the Human Rights Tribunal of Ontario recently held in Ifrah v. National Income Protection Plan Inc, that an employer’s decision not to pay an employee on parental leave a bonus because she was on maternity leave for the last month of the retention period was discriminatory.

Similarly, the cost of terminating an employee can be significant. In Wratten v 2347656 Ontario Inc., an employee was awarded $20,000 as general damages because her employer terminated her employment after learning the employee was pregnant.

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 directly at 416 317-9894 or at doug@macleodlawfirm.ca

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.

 

 

 

Wrongful Dismissal Update: The Number of Damage Claims Being Awarded By Trial Judges are Going Up

By , January 17, 2017 8:45 am

Once upon a time, employees did not sign employment contracts with termination clauses and employment lawyers fought over the appropriate “reasonable” notice period.  In 2017, employees now often claim, among other things, wrongful dismissal damages, human rights damages, moral or Wallace damages, punitive damages, and damages for the intentional infliction of mental stress.

By way of example, this blog discusses a recent case decided by a judge of Ontario’s Superior Court after a 27-day trial.

Doyle v. Zochem Incorporated, 2016 ONSC 3199

In this case, a 44-year-old female supervisor with 9 years’ service was fired without any notice of termination. She earned a salary of about $ 85 000, worked in a male dominated workplace, and her termination came shortly after filing a harassment complaint. After her termination, the employee spiralled into depression. She applied for short-term disability benefits but even though the employer’s doctor supported the claim the Company denied it.

In an 82 page decision, the judge awarded the terminated employee three different types of damages.

Wrongful Dismissal Damages

The court concluded the employer should have provided the employee with 10 months notice of termination and ordered the employer to pay her over $ 80 000 in damages which was equal to the remuneration she would have received during this period (including pension contributions, and profit share) less the termination pay and severance pay she received after her termination.

Moral Damages or Wallace Damages

The judge ordered the employer to pay the employee $ 60 000 because of manner of the termination. The Company’s managers were extremely insensitive at the time of her termination; they were cold and brusque and she was not given a reason for her termination. In addition, the judge concluded, among other things, that the Company’s response to the short-term disability claim was insensitive.

Human Rights Damages

The judge ordered the employer to pay the employee $ 25 000 because of how it responded to her harassment claim, including a faulty one-day investigation into it.

Damages for the intentional infliction of mental stress

The judge concluded that even though a manager harassed and demeaned the employee knowing she suffered from depression, she did not intend to cause the employee mental stress and therefore he did not award the employee damages for this claim.

Lessons To Be Learned

  1. Employers should make a reasonable attempt to settle these kinds of cases before litigation is commenced. In this case, the employer made a six month “take it or leave it” offer which was clearly less than her wrongful dismissal damages. I shudder to think about the legal costs associated with a 27 day trial.
  2. Employers have an obligation to act in good faith including at the time of termination. There is no reason to be insensitive to an employee at the time of termination. Doing so will only open up the employer to unnecessary legal liability.
  3. Employers have an obligation to conduct an adequate investigation into a human rights or harassment complaint. An investigation into a sexual harassment complaint should be conducted by someone who is adequately trained. Failure to do so will only open up the employer to unnecessary legal liability.

 

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 doug@macleodlawfirm.ca

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 doug@macleodlawfirm.ca

“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.”

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