header_iceberg.jpg

Posts tagged: workers compensation

Are All Employment & Labour Lawyers Created Equal?

By , April 4, 2018 8:47 am

Are there many employment & labour lawyers in Ontario?

There are many employment & labour lawyers working in Ontario – especially in large urban centers like Toronto. I go to a Christmas party each year that is attended by about 150 employment & labour lawyers and it is always sold out. Every employment and labour lawyer, however, is unique. Your challenge is to find the lawyer that best suits your needs.

What does an employment lawyer do?

Some lawyers practice a subspecialty within employment law like workers compensation or pay equity. The lawyers at the MacLeod Law Firm are not specialists; we are employment law generalists.

What kind of services does an employment law generalist provide?

Most employment law generalists draft employment contracts and employment related policies and can make sure employee handbooks comply with Ontario’s employment laws.

It will come as no surprise that most employment lawyers advise on employee terminations and draft severance packages. If necessary our lawyers appear in court or at administrative tribunals like the Ontario Human Rights Tribunal on behalf of our clients.

Helping employers comply with new employment laws has been increasingly important in recent years as the provincial government imposes more and more statutory obligations on employers. The MacLeod Law Firm has a fixed fee service to help employers comply with these new obligations.

Employee protection under the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act has been extended in recent years so most employment lawyers have a good understanding of the province’s human rights laws. We provide human rights advice to a myriad of clients each year – especially on an employer’s obligation to accommodate a disabled employee.

Employee protection under the Ontario Health & Safety Act has also been extended in recent years so most employment lawyers can advise on an employer’s obligations under this law. The MacLeod Law Firm  represents employers who have been charged under OHSA.

What is a labour lawyer?

A labour lawyer provides advice and representations to unionized employers.

What kind of services does a labour lawyer provide?

A labour lawyer can recommend that an employer adopt certain practices and policies that will make employees less inclined to want to join a union.

If a union tries to unionize a workforce then a labour lawyer can respond to the Union’s certification application at the Ontario Labour Relations Board on behalf of the employer.

If a union is certified to represent an employer’s workforce then a labour lawyer can negotiate a collective agreement with the Union on behalf of the employer.

If a union files a grievance under a collective agreement then a labour lawyer can represent the employer at an arbitration hearing.

The MacLeod Law Firm provides all of these services to our unionized clients.

The MacLeod Law Firm – Our Value Proposition

We give an employer confidence and peace of mind on employment law and labour law issues because we quickly and competently deal with workplace issues in a way that makes business sense.

We understand that every client has unique legal needs and each client has a different legal risk tolerance. We get to know our clients and their businesses so the advice we give makes business sense.

If you require the services of an employment and labour lawyer and want to see whether the MacLeod Law Firm is a good fit for your organization, please contact our Managing Partner, Doug MacLeod. For over 30 years he has been advising employers on all aspects of the employment relationship. You can contact Doug directly at 416 317-9894 or at [email protected]

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.

 

How to Prevent A Poisoned Work Environment: Navigating the Grey Zone

By , January 27, 2015 9:05 am

With the upsurge of technology, there is more opportunity for our interactions to be broadcast and misinterpreted. Many employees have cell phones and some employers and employees communicate via text message. In today’s workplace, the dynamic between employers and employees is also increasingly informal. Jokes are passed around. No hard feelings, right? Wrong. One “light-hearted” text message or off hand joke may come back to haunt an employer. Bottom line, making an offensive or prejudiced comment can create a poisoned work environment. This can result in a damage award against an employer under Ontario’s Human Rights Code (the “Code”).

A Definition: Or lack thereof

The term “poisoned work environment” is not found in the Code. When deciding whether comments or conduct amount to a “poisoned work environment” most adjudicators do not refer to a generally recognized definition of this term. Accordingly it is difficult to predict whether a specific comment(s) and/or action(s) will likely be found to create a poisoned work environment.

A Case Study

In one case an adjudicator under the Code made the following findings of fact:

1. The owner of the restaurant made a comment in reference to at least one former Black employee being on “Jamaican time.” The person who filed the complaint under the Code, a waitress, was not Black. She self-identified as being a white Canadian of Irish-Scottish descent.

2. The owner adopted a tagline for the Valentine’s Day promotion that he, according to the adjudicator “knew or ought reasonably to have known could reasonably be interpreted as inviting customers to kiss staff and that he reasonably ought to have known that this would make the waitress uncomfortable.” During the promotion period customers would get a 14% discount if they kissed each other (or if the customer was alone, if they kissed themselves, for example, on the hand) and staff would take a picture of the customer’s kiss and post it on a wall under the hearing “love starts here.” As part of this promotion, the owner required his staff, which was predominantly female, to wear a button that said, “A kiss gets you 14% off.”

3. The owner asked the waitress whether it was true that girls like anal sex, and that after the waitress demurred in response, the owner replied, “oh come on, you know you’ve tried it.”

4. The owner sent a text message to the waitress’s boyfriend that said, “Katie was little red riding hood, were you a wolf, did you eat her?” with a winking smiley face at the end. The adjudicator concluded: “ I found that the text message was sent as a joke or double entendre by [the owner] to use the context of the little red riding hood fairy tale where the big bad wolf literally eats the young girl to convey a double meaning to suggest the sexual act of cunnilingus.” The owner did not send the text to the waitress.

The Cost of Creating A Poisoned Work Environment

In this case, after a two day hearing, the adjudicator concluded the owner created a poisoned work environment and awarded the waitress $ 3000 as compensation for injury to her dignity, feelings and self-respect.

Lessons to be Learned:

1.Be very careful about using racial, sexual or other stereotypical comments unless you are absolutely sure they will not offend.

2.If a female employee objects to a business promotion because it makes her uncomfortable then carefully re-consider the promotion or address the identified concerns.

3. References to sexual acts should always be avoided in the workplace

4. Be cautious about inadvertently making sexual innuendos

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

Preventing Legal Fires: Employment Contracts, No Discrimination Policies and Disability Management Programs

By , November 11, 2014 10:38 am

I have been providing employment law advice to employers for over 25 years. I provide preventive advice and I put out legal fires. When I provide the former services I am a solicitor and when I provide the latter I am a barrister.

For various reasons, small employers are generally reluctant to pay a solicitor for preventative advice. In my experience, failure to do so can result in the employer paying a lot more money to a barrister in the future to put out legal fires.

This blog discusses three kinds of services that you can purchase from an employment lawyer that can reduce or prevent legal claims.

Employment Contracts

An employment contract sets out the terms and conditions of an employee’s employment. After learning the benefits of this contract, any rational employer should pay an employment lawyer to prepare a properly written employment contract. For example, the termination clause alone could save an employer over $ 40 000 in connection with the termination of a 12 year employee who earns about $ 50 000 per year.

No Discrimination Policy

A no discrimination policy prohibits discrimination in the workplace and establishes a complaint process for employees who believe they have been subjected to discrimination. Employees are knowledgeable about their right to not be discriminated against because of pregnancy, their age, their race, their gender and 12 other personal characteristics. It costs an employee nothing to file an application with the Ontario Human Rights Tribunal (OHRT). Defending this kind of application can be very costly and if you win the case the employee will not be ordered to pay your legal costs. Damage awards can be significant. An adjudicator recently ordered an employer to reinstate a disabled employee with 9 years back pay.

If you have an internal complaint process there is a good chance the employee will use it and you can avoid a complaint to the (OHRT). It also makes business sense to have this kind of policy because it is an early warning signal that discrimination is taking place. Without it, undetected discrimination can result in absenteeism, lost productivity and resignations.

Disability Management Program

A disability management program establishes a process for managing disabled employees. Disabled employees have special rights. Among other things, an employer is generally required to accommodate a disabled employee unless this would result in undue hardship.

When confronted with a disabled employee who is requesting accommodation, some small employers simply lay off the employee and tell the employee to collect employment insurance disability benefits, or refuse to transfer the employee to a vacant position within the organization. In some cases, this is a big mistake that can result in expensive litigation. For example, failure to re-employ an employee who has a workplace disability can cost an employer two years of the employee’s salary under Ontario’s workers compensation legislation.

We suggest that an employer establish a disability management program. This program can, among other things, give you the right to send the employee to a doctor of your choosing. It can also establish a procedure for you to follow in each case so you have satisfied the procedural duty to accommodate.

The Current Legal Landscape

New employment laws and higher damage awards should make small employers take pause and consider whether paying for these three services is an investment worth making. The alternative, which is a legal fire storm, can cripple a small business.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on employment law issues. If you have any questions concerning your rights and obligations in relation to your employees, you can contact him at 416 317-9894 or at [email protected]

Panorama Theme by Themocracy