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Posts tagged: employment lawyer Barrie

Workplace Investigations under the Occupational Health and Safety Act

By , December 11, 2018 10:17 am

The Occupational Health and Safety Act (OHSA) imposes several obligations on employers to investigate complaints of workplace harassment.  

When there is an incident or complaint of workplace harassment, OHSA requires the employer to conduct an investigation that is appropriate in the circumstances. An employer has a legal obligation to make the workplace safe so if there is any indication of behaviour that would make the workplace unsafe, the employer must address it. The investigation must be conducted by someone who has received information and instructions on how to conduct an investigation.

The OHSA requires that complaints of workplace violence or harassment, whether formal or informal, must be investigated. To reduce legal exposure and save costs, employers should ensure that at least one employee receives workplace investigation training.

When should an employer conduct an investigation?

Workplace harassment occurs when a person engages in a course of vexatious comment or conduct against a worker in a workplace which is known or ought reasonably to be known to be unwelcome. The definition of workplace harassment also includes sexual harassment.

Examples of workplace harassment include spreading malicious rumours or gossip, excluding or isolating someone socially, physically abusing or threatening abuse, making offensive comments or jokes, yelling or using profanity, constantly criticising a person, belittling a person’s opinions or displaying or circulating offensive pictures or materials.

Two of the most common examples of workplace harassment are bullying and sexual harassment.

Example 1: Bullying

A group of employees deliberately spread malicious rumours about a colleague’s personal life and make belittling comments about her physical disability. The employee does not file a formal complaint but her supervisor witnesses her colleagues engaging in this conduct.

Example 2: Sexual Harassment

An employee is subject to repeated jokes and comments about his sexual orientation. He files a complaint with his human resources representative.

What are an employer’s obligations in these circumstances?

Under OHSA, the duty to investigate will be triggered by “incidents” of workplace harassment, even if there is no formal complaint. The Code of Practice produced by the Ministry of Labour suggests that the obligation arises whenever a supervisor becomes aware of an incident, even if the supervisor fails to pass that information on to the employer.  When the employer becomes aware of an incident of harassment, a trained investigator must complete an investigation and provide the employer with a written report of the results of the investigation.

Consequences of a failure to investigate?

Failure to investigate or appointing an untrained investigator could result in the Ministry of Labour ordering the employer to hire an external investigator at the employer’s expense. External investigators are typically very costly. Further, despite their high fees, there is currently a shortage of workplace investigators.

Failing to conduct a proper internal investigation could not only have consequences under OHSA, but could also lead to costly consequences at both the Human Rights Tribunal of Ontario and the Courts.

If an employer does not have an internal investigation procedure then an employee is much more likely to file a complaint with the Ontario Human Rights Tribunal where an employer can be ordered to pay damages for failing to conduct an adequate investigation. Courts have also ordered employers to pay punitive damages for conducting faulty investigations.

Workplace investigations training

On Thursday February 14, 2019 we will be hosting a Workplace Investigation Training Session. This session will be moderated by  Monica Jeffrey of JMJ Workplace Investigation Law LLP. The cost is $399 plus H.S.T. for the day. Registration is limited. If you are interested in attending please contact us at 647) 204-8107 or at [email protected]

Keeping you Posted on Mandatory Postings in the Workplace

By , November 20, 2018 8:39 am

As an employer, there are several documents that you must post in your workplace. Some postings are mandatory for all workplaces, while others depend on the nature of the business and the hazards present in the workplace.

This blog describes some of these mandatory postings and provides you links to some of these required postings.

Please note that posters that are sold by private companies do not comply with the legal posting requirements, so please make sure that the workplace posters you use are the official and most recent versions.

Employment Standards Act (“ESA”)

All workplaces that are covered by the ESA are required to put up a poster called Employment Standards in Ontario. Developed by the Minister of Labour, this poster provides a high-level summary of employers’ obligations and employees’ rights.

Employers must post the latest version of this poster in an area where it is likely to come to the attention of employees. Further, all employees must be provided with a copy of this poster within 30 days of when they begin working.

Note, this poster is provided in several languages so if English is not the majority language of the workplace, then the poster must also be posted in the majority language –  if made available by the Minister of Labour. Multilingual material can be found on the Ministry of Labour’s website.

Occupational Health and Safety Act (“OHSA”)

Employers that are covered by the OHSA must display this poster titled “Health & Safety at Work: Prevention Starts Here” on the rights and duties of workers and employers. This poster also includes the contact number of the Ministry of Labour that is to be used for reporting work refusals, critical injuries, and fatalities.

Employers must also post a copy of the OHSA in the workplace. This Act contains safety regulations and outlines employee rights and responsibilities. It can be downloaded for free online here or hard copies can be purchased from ServiceOntario for $8 each.

In addition, under OHSA, employers must place the names and locations of their workplace Joint Health and Safety Committee members in a conspicuous place so that it is easy for employees to find. For example, a good location may be the a lunchroom. A committee is required in each workplace that employs 20 or more workers.

If your workplace has more than 6 regularly employed workers, then you must prepare and post policies on health and safety, workplace violence, and workplace harassment. We can help you develop these policies.

If your workplace has fewer than 6 regular employees workers, then there is no obligation to post the above three policies in writing unless ordered to do so by an inspector.

Workplace Safety and Insurance Act (“WSIA”)

Employers that are covered by the Workplace Safety Insurance Act must display the “in case of injury” poster that outlines steps workers need to take if there is an injury at work. The link above is to the newest version of the poster, released September 17, 2018. Although there is no date as to when employers must post this version, it is recommended that employers switch to this new version.

Smoke-Free Ontario Act (“SFOA”)

Employers that have an enclosed workplace or other smoke-free and vape-free places mentioned in the SFOA must post enough individual signs regarding tobacco  and e-cigarettes or the combined version of the tobacco and e-cigarette signs. These signs must be placed at every washroom, entrance, and exit to make sure that all are aware that they cannot smoke tobacco or cannabis or vape anything in these areas.

Areas where individuals are prohibited from holding or smoking lighted tobacco, lighted cannabis, using an e-cigarette, or consuming a prescribed substance in a prescribed manner include an enclosed workplace, enclosed public place, a school, a building of the grounds surrounding the building of a private school, a child care centre, and indoor common areas in buildings or university residences. Indoor common areas include, but are not limited to, elevators, hallways, parking garages, entertainment rooms, laundry facilities, and exercise areas. However, there are exemptions listed in the SFOA that allow a person to smoke or hold lighted tobacco or cannabis or an e-cigarette in an indoor room in a residence that also serves as an enclosed workplace if certain conditions are met.

Other Recommended Posters and Information to Have at the Workplace

Employers who use or store hazardous products at their worksites have additional duties under the OHSA such as ensuring that hazardous products are labeled and obtaining material and safety data sheets for hazardous products. For instance, safety data sheets should be made available in the workplace in order to provide training and instruction for workers.

Finally, to comply with the Accessibility for Ontarians with Disabilities Act (“AODA”), employers with 50 or more employees must develop a Customer Service Policy and an Accessibility Plan. This Policy and Plan are to outline what actions the employer is taking to comply with AODA as well as so employees (and others) know what to expect regarding accessibility.

This Policy and Plan can be posted in the workplace or on the employer’s website or in such a place as is reasonable.

Conclusion

You now have the tools to download, print, and post some of the posters that must be posted in your workplace. Others may be required at your workplace.

If you would like more information on posting requirements about your specific workplace, you may contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] 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.

Employment Law Update: Mid-Year Report

By , June 26, 2018 3:34 pm

In this blog, as we enter the dog days of summer, I will review five current trends and developments in Ontario’s employment laws.

1.  A New Sheriff is in Town: The PC party has replaced the Liberal party as Ontario’s governing party

I anticipate this change in government will result in less government regulation of Ontario’s workplaces. During the election campaign, Doug Ford promised not to increase the minimum wage from $ 14.00 to $ 15.00 on January 1, 2019. I will let you know in a future blog whether he keeps this promise.

In the meantime, two laws the Liberal government introduced are scheduled to take effect on July 1, 2018 and January 1, 2019.

One law changes the way public holiday is calculated. Bill 148 changed the way public holiday pay was calculated, however, effective July 1, 2018, public holiday pay will once again be calculated using the formula that applied prior to the coming into force of Bill 148. In other words, the employee’s public holiday pay for a given public holiday will be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

The second law will require an employer to provide salary information to job applicants and prohibit employers from asking job applicants about their salary history. In particular, on April 26, 2018 the  Pay Transparency Act was passed. Unless Doug Ford repeals this law, on January 1, 2019 all employers will be prohibited from either directly/ indirectly asking candidates about past compensation, they will be required to post a compensation rate or range for all publicly advertised job postings, and they will be prohibited from reprising against employees who make inquiries about compensation practices.

Last year, the Liberal government announced it was hiring 175 employees to make sure Ontario employers are complying with the Employment Standards Act. Many of these people have now been hired, and trained and are conducting inspections of Ontario’s workplaces. The government has stated it intends to inspect 1 in 10 Ontario workplaces each year.

For more information on how we help employers comply with the Employment Standards Act, click here

2.Cannabis Use Will Be Legal On October 17, 2018

The federal government has announced that cannabis use will be legal on October 17, 2018. In the meantime, the Ontario government must decide how to regulate the sale of cannabis in Ontario. Employers need to decide whether or not to introduce or amend a drug and alcohol use policy. An employee who is impaired at work can be a health and safety problem particularly if the employee is working in a safety sensitive position. Drug testing to address this issue is, however, an extremely controversial and complex legal issue. In fact, a number of drug testing cases have been appealed to the Supreme Court of Canada.

To assist employers with this issue, we can draft a drug use policy for a fixed fee.

3. It Is Increasingly Difficult To Predict Whether The Courts Will Enforce A Termination Clause

I have been writing about this issue for a number of years. Despite numerous Ontario court cases including several Court of Appeal decisions I still cannot predict with any degree of certainty whether a termination clause will be enforced. In 2017, the Court of Appeal in North v. Metaswitch Networks Corp. basically overturned its 2016 decision in Oudin v. Centre Francophone de Toronto on the same issue. In the 2018 decision in Nemeth v Hatch Ltd, the Court of Appeal  found that the following clause was enforceable:The Company’s policy with respect to termination is that employment may be terminated by either party with notice in writing. The notice period shall amount to one week per year of service with a minimum of four weeks or the notice required by the applicable labour legislation. Most employment lawyers including myself were surprised by this decision.

We will review and draft needed changes to your employment contract including the termination clause for a fixed fee. For more information on our employment contract service, click here

4. Notice Period For Older Senior Managers May Be Trending Upwards

Since 1960, Ontario judges have been applying the Bardal factors when determining the appropriate reasonable notice period in wrongful dismissal cases. The age of an employee and the employee’s position are two factors that are taken into account.

A couple of 2018 decisions suggest that Ontario judges may be increasing the notice period for older, senior, relatively short service employees. In Chambers v. Global Traffic Technologies Canada Inc a 57 year old general manager with 2.5 years service was awarded 9 months pay in lieu of reasonable notice. In Hale v. Innova Medical Ophthalmics Inc. a  59 year old President with 6 years and 8 months of service was awarded 18 months termination pay. To reduce the litigation risk associated it is a good idea to require these kinds of employees to sign an employment contract with a termination clause – if you can figure out how to draft an enforceable termination clause!

5. The Cost Of Health & Safety Violations Is Likely Going Up

The Ministry of Labour investigates most “critical injuries” as that term is defined under Ontario’s Occupational Health & Safety Act (“OHSA”) and the Ministry often charges an employer for a violation of OHSA in connection with such an accident. Fines for relatively minor injuries often exceed $ 50 000. On December 17, 2017,  the maximum fine for a breach of OHSA increased from $ 500 000 to $ 1 500 000. The Ontario Court of Appeal has stated that deterrence and the size of an employer are two factors that trial judges should take into account when determining fines under OHSA. In the future, I therefore expect the Ministry of Labour will be looking for larger fines from large profitable employers when negotiating plea bargains.

We help employers comply with OHSA. For more information on our fixed fee service, click here

For 30 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 [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.

What does “failing to take every precaution reasonable in the circumstances for the protection of a worker” mean?

By , January 19, 2018 10:03 am

When the Ministry of Labour lays charges under the Occupational Health and Safety Act (“OHSA”) after a workplace injury it often includes a charge under section 25(2)(h) of OHSA which states that an employer is required to “take every precaution reasonable in the circumstances for the protection of a worker”.

A recent case, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 interpreted this rather broad statutory obligation.

The Facts

Martin Vryenhoek died when he fell from a temporary welding platform. The platform was 6 feet and 6 inches tall, did not have guardrails, and no fall arrest equipment was utilized. The employer was charged under the OHSA for, among other things, “failing to take every precaution reasonable in the circumstances for the protection of a worker”. Under the applicable regulation, the installation of guardrails was not specifically required, and the worker was not specifically required to wear fall protection equipment because he was working at a height of less than three metres.

The Trial Decision

The trial justice acquitted the employer, concluding that the applicable regulation was a “complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this.”

The Court of Appeal Decision

The Court of Appeal disagreed with the trial judge and stated that an employer’s duty under section 25(2)(h) to take every precaution reasonable in the circumstances does not depend on the existence of a specific regulation prescribing or proscribing particular conduct. Instead, this Court found an employer’s duty under 25(2)(h) is broader than what is contained in the prescribed regulations. The Court also concluded the trial judge failed to ask whether the installation of guardrails was a reasonable precaution necessary in the circumstances of the case. A new trial has been ordered.

Lessons to be Learned

  • An employer can comply with all of its obligations under the regulations under OHSA and be convicted.
  • The duty to take every precaution reasonable in the circumstances for the protection of a worker is broader than the specific obligations that are set out in OHSA and the accompanying regulations.
  • To be in a position to show it took every precaution reasonable in the circumstances an employer should implement a health & safety program which, among other things, identifies workplace hazards and potentially unsafe situations and implements training and instruction in relation to these hazards and unsafe situations. This can include daily toolbox meetings in some circumstances. For other measures that an employer can introduce, click here.

For over 30 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 [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.

Employer Alert: Government Announces Proposed Changes to Ontario’s Employment Standards Act

By , May 30, 2017 2:46 pm

Today the Ontario government announced that it intends to introduce several amendments to the Employment Standard Act. The changes will be included in the Fair Workplaces, Better Jobs Act, 2017.

Here are five of the proposed changes:

Minimum Wage increased by 31.5% by January 1, 2019

The current minimum wage for most employees is $ 11.40 per hour. The government proposes increasing this rate to $ 14 on January 1, 2018 and to $ 15 per hour on January 1, 2019.

Increased Vacation Pay

This change would require an employer to provide 3 weeks paid vacation to an employee after 5 years employment. The current minimum standard is two weeks a year for all employees.

Equal Pay for Temporary Agency Workers

This change would require employers to pay workers from a temporary help agency the same pay as their permanent employees performing the same job.

Personal Emergency Leave

All employers must provide an employee with up to 10 days of personal emergency leave a year. Further, the first two days off for personal emergency leave are required to be paid. Currently, small employers with less than 50 employers are exempt from providing any personal emergency leave days.

When Will the Changes Take Effect?

The government intends to pass legislation relatively quickly as some of the proposals would take effect January 1, 2018.

I will publish additional information in a future blog on the proposed changes when the Fair Workplaces, Better Jobs Act, 2017 is introduced in the Ontario Legislature.

 

 

 


 

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 [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.

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