The reason for this suggestion is simple: without a contractual dismissal provision, an employer’s obligations in the event of dismissal without cause are unpredictable and often extensive.

Employees in Canada are entitled to notice of termination or pay in lieu of the notice period. Statutory regimes in every jurisdiction set minimum periods of notice, and employers cannot contract out of them. In addition, the common law provides that all employees are entitled to “reasonable notice” of termination.

The statutory regimes define specific periods of notice based solely upon length of service, making it fairly easy to assess the notice an individual will be entitled to upon termination. The common law situation is quite different. The courts have deliberately avoided using a black and white formula to define “reasonable notice”. Rather, the courts aim to consider all relevant factors to assess how long it will take an individual to obtain new employment. The list of potential factors to consider is lengthy, but there are a few core factors, which include:

• Length of service
• Age of the employee
• Type of position held
• Availability of similar positions

In addition, if the terminating employer induced the employee to leave prior secure employment, that will be factored into the equation.

Thus, with respect to the common law, it is impossible to predict the amount of notice or pay in lieu to which a particular individual is entitled. Each case will be assessed on its own particular facts.

However, parties may contract out of the common-law requirement of reasonable notice. Employers and employees can avoid the guessing game that the common law imposes, and simply agree on how much notice, or pay in lieu, will be required in the event of dismissal without cause.

When I tell clients all of this, they often reply, “Okay, but will that really hold up in court?” The answer is yes, but with a caveat: the contractual term must be drafted properly, and the parties must properly agree to the contract itself.

The Ontario Court of Appeal recently considered a contractual notice provision in Clarke v. Insight Components (Canada) Inc. Clarke joined the organization in 1995. In 2000, the company introduced a policy that all employees at his level would be subject to the following provision:

“Your employment may be terminated without cause for any reason upon the provision of reasonable notice equal to the requirements of the applicable employment or labour standards legislation. By signing below, you agree that upon the receipt of your entitlements in accordance with this legislation, no further amounts will be due and payable to you whether under statute or common law.”

Subsequently, the plaintiff was offered a substantial promotion: Managing Director. He signed an agreement that set out the terms and conditions of his new position, including the termination provision above.

Ultimately, the plaintiff was dismissed, and the company sought to rely on the dismissal provision. The plaintiff argued that the provision was unenforceable. The trial judge rejected his arguments, and he appealed, raising several objections to the provision, including that:

• The clause was ambiguous and therefore unenforceable
• The termination provision was not supported by consideration and therefore not legally binding

The Court succinctly rejected both arguments.

Established law requires that, to be enforceable, contractual provisions must be clear and unambiguous. Courts will interpret ambiguous provisions in favour of employees. For these reasons, I work with clients to ensure that their contracts, and particularly the dismissal provisions they use in employments agreements, are as clear as possible.

Many organizations make the mistake of including superfluous language that inadvertently raises questions about the intention behind the provision. For example, rather than clearly stating that an employee will be entitled only to the amounts required by statute, and nothing else, they will draft something along these lines:

“In the event of dismissal without cause, the employee will receive at least the minimum notice required by employment standards legislation.”

It is certainly open to argument that this language does not preclude other entitlements. There is no reason to include the words “at least”.

In Clarke v. Insight Components, the employee argued that the words “reasonable notice” in the termination clause created ambiguity, as that term is typically associated with the common-law notice requirements. However, the last sentence of the clause clearly excluded any further entitlements under statute or common law.

As for the alleged lack of consideration, this is, in my view, one of the most frequent mistakes employers make in implementing employment agreements. The law of contracts is clear that in order to have a binding contract, each party must offer consideration to the other. This is what distinguishes a binding contract from a “mere promise”.

In many cases, employers make a verbal offer of employment to a candidate, and then present the new employee with a written agreement when they arrive for work. By that point, the initial verbal agreement is already in place, including any terms that the parties discussed and a multitude of statutory terms. Among the latter is the requirement to provide reasonable notice of dismissal. It is not easy to replace this verbal agreement with a more detailed written one.

To avoid this mistake, I advise clients to make the initial agreement the offer of employment, rather than the final contract. In other words, once they have decided to hire a particular individual, they can say, “We are happy to make an offer of employment to you in accordance with the terms and conditions set out in this agreement”. The employer can then provide the employee with a formal agreement and a timeframe to review it, seek legal advice and then sign and return it, preferably well in advance of the employee’s start date. If the agreement is not available at the time of the discussion, the employer can simply indicate that an offer of employment will be made in accordance with the terms and conditions of a forthcoming written agreement.

There are two major risks when attempting to impose new terms of employment on existing employees. First, if the employer offers no consideration, the new term may be unenforceable. Second, unilaterally changing the terms of the employment agreement or relationship can lead to a claim of constructive dismissal. In order to avoid a finding that they have constructively dismissed an employee, employers should consider negotiating the new terms in exchange for new consideration or providing appropriate notice of the change to the employment agreement.

In the Clarke case, the plaintiff argued that there was no consideration for the termination provision, which was adopted after the plaintiff had commenced his employment. However, the Court of Appeal found that when the new provision was introduced, “significant changes were made to the appellant’s remuneration package including some improvements”. In other words, he received some consideration. Therefore, the Court agreed that the termination provision was enforceable.

This is consistent with my recommendation to clients: that new terms of employment, such as a dismissal provision, be implemented at a time when the employee is offered something that they would not otherwise have received. This can include a promotion, a raise or a bonus, so long as these would not have happened automatically, in which case they are unlikely to be viewed as legitimate consideration.

The end result was that the company prevailed and the Court of Appeal found that the dismissal clause, first introduced by way of policy and then incorporated into the plaintiff’s contract when he was promoted, was enforceable.

Stuart Rudner, Miller Thomson LLP

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This year, Civic Holiday/Simcoe Day/First Monday in August falls on August 2, 2010.

In British Columbia, Saskatchewan, New Brunswick, and the Northwest Territories, the first Monday in August is considered the province’s national day and is a public (statutory) holiday under employment/labour standards legislation. Employees get a day off with regular pay or public holiday pay, depending on the province or territory. If the employee is required to work on the holiday, the employee must be paid regular wages and get a substituted day off with pay at a later date. For specific requirements for your jurisdiction, consult the Library section of HRinfodesk.

However, in Ontario, Manitoba, Alberta, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Yukon and federally regulated companies, the first Monday in August may be a discretionary day off with or without pay, but is not a recognized paid public (statutory) holiday under employment/labour standards legislation. Please note, in some provinces such as Manitoba and Alberta, a discretionary holiday must be subject to the same rules as all other public (statutory) general holidays. For specific requirements for your jurisdiction, consult the Library section of HRinfodesk. Quebec doesn’t recognize the first Monday of August as a holiday, statutory or otherwise.

For example, in Ontario, Civic Holiday/Simcoe Day/First Monday in August is a municipal holiday that the province generally observes. The holiday is mentioned in a number of Ontario statutes (e.g., The Municipal Act provides that municipal councils can make by-laws proclaiming a civic holiday and requiring the closing of shops on such a day) within the context of giving time off for specific types of employees or of regulating business hours, etc. However, because it is not designated as an official public (statutory) holiday in provincial employment standards or retail business holiday legislation, the Civic Holiday is a workday like any other for thousands of Ontario employees. As a result, public (statutory) holiday rules do not apply.

The concept of a midsummer holiday for a “day of recreation” in Toronto dates as far back as 1869. the House of Commons in England first established it as a Canadian version of a bank holiday in1871. In 1875, the Toronto City Council fixed the first Monday in August as a Civic Holiday. Toronto City Council officially called the holiday “Simcoe Day” after John Graves Simcoe, who was appointed the first lieutenant-governor of Upper Canada on September 12, 1791. He convened the first legislative assembly and established York (now Toronto) as the capital of the province. Several other Ontario municipalities have chosen to honour a significant local person or organization to help focus the celebration.

Accordingly, in Ontario, the decision to give employees the civic holiday off rests with employers. When employees are given the day off, their employers also decide whether it should be a paid holiday. Governments, banks and unions that have negotiated the vacation into collective agreements or employment contracts enjoy the August civic holiday as a public holiday or floater holiday. Many non-union employers voluntarily treat this as a holiday in the same way that they treat a paid public holiday.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | One comment |

Image taken from: www.cbc.ca

Elsa Torrejon was diagnosed in early 2009 with breast cancer. After telling her employer about her illness and requesting an indefinite leave to receive treatment, she found herself dismissed and fighting for her human rights.

On July 12, 2010, the Human Rights Tribunal of Ontario awarded Torrejon $22,640 for general damages and lost wages after ruling that her former employer discriminated against her on the basis of disability when it fired her days after she told them about her diagnosis.

After being dismissed, Torrejon wrote a letter to her supervisor setting out the requirements of the Human Rights Code to accommodate workers with disabilities. He testified that he did not read that letter at the time, and only looked at it two days before the hearing of this matter. He also testified that he failed to educate himself on the provisions of the Code.

In addition, the supervisor erroneously believed that under the Employment Standards Act, he had no obligation to accommodate any period of a disability-related leave. The judge set him straight:

The employer had “a duty to make an individualized assessment of whether it could accommodate the applicant, which it failed to do. The respondent did not lead evidence at the hearing that it could not accommodate the applicant’s absence.”

As we say in legal circles, Ignorantia juris non excusat.

In English: ignorance of the law is no defence! The legal principle being that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.

Applying this principle to this case: an employer that does not educate itself about its obligations under the Human Rights Code, and any employment-related law and how they work together will not be successful in arguing it does not have to accommodate an employee to the point of undue hardship.

This is why training and education are so important for those who manage employers’ human capital. In addition, staying abreast of changes in the law or it’s application is even more important.

The Ontario Human Rights Commission ordered the employer to ensure its employees completed the commission’s online course, Human Rights 101, and to confirm in writing that they had indeed completed the training.

So what should the employer have known about dealing with an employee who is ill? Here is a brief overview:

In Ontario, even if the Employment Standards Act is silent about sick leave, and does not require an employer to provide paid sick leave, employers with 50 or more regular employees must provide eligible employees with 10 unpaid days of personal emergency leave each calendar year.

Personal emergency leave can be taken for the following reasons:

• Personal illness, injury or medical emergency
• Death, illness, injury, medical emergency or urgent matter relating to the following family members:
  • A spouse (including both married and unmarried partners, of the same or opposite sex)
  • A parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
  • The spouse of an employee’s child
  • A brother or sister of the employee
  • A relative of the employee who is dependent on the employee for care or assistance

Note that employees are not entitled to personal emergency leave for medically unnecessary cosmetic surgery unrelated to an illness or injury. An employer is allowed to ask an employee to provide evidence that he or she is eligible for a personal emergency leave. The employee is required to provide evidence that is reasonable in the circumstances.

Employees cannot carry over unused personal emergency leave days to the next calendar year. The 10 days of personal emergency leave do not have to be taken consecutively. Employees can take personal emergency leave in part days, full days or in periods of more than one day. If an employee takes only part of a day as personal emergency leave, the employer can count it as a full day of leave.

Employers with 49 or fewer employees are not required to provide personal emergency leave, but may do so if they wish. However, where an employee is absent from work because he or she is suffering from an illness or disability, the employer does not have just cause to summarily terminate the employment relationship simply by reason of the employee’s absence. The absence from work due to illness or disability does not breach the contract. However, a long absence may “frustrate” the employment contract, which can discharge the parties’ respective obligations under the contract. In cases where an employee suffers an obvious permanent illness or disability, and the condition prevents the employee from carrying out his or her job requirements, frustration of the employment contract is clear.

However, no matter the size of your business, under the Ontario Human Rights Code, all employers have a duty to accommodate an employee’s disability, illness or injury to the point of undue hardship, and the employee has a duty to co-operate and communicate with the employer during and after the accommodation process has been established.

Accommodation will often include a leave of absence to allow the employee time to deal with and recover from the illness. There is no fixed rule as to how long a disabled employee may be absent before the employer meets its duty to accommodate. Human rights commissions indicate that it depends on the employee’s ability to resume performing the essential duties of her or his job, considering the unique circumstances of every absence and the nature of the employee’s condition.

Nothing in law requires you to provide a paid leave of absence unless you have a policy or insurance benefits that says otherwise.

Factors that employers must consider when dealing with employee absences due to illness are:

• Predictability of absences both: when they will end and if they might recur
• The frequency of the absence; the employee’s prognosis and length of absences (it is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence)
• The nature of the business and the operational needs

When dealing with an illness that will exceed three days, you should always ask the employee’s doctor to provide you with a prognosis of impairment, to confirm:

• The existence of a disability (without getting a specific diagnosis)
• If and how long the employee will need to be absent from work
• How long the impairment will last (permanent or temporary)
• What you can do to accommodate the employee’s impairment and allow the employee to continue to work
• How long you need to accommodate the impairment

An employee with a disability should be assessed in terms of his or her ability to perform essential duties of the job, and cannot be judged incapable of performing them until efforts have been made to accommodate him or her up to the point of undue hardship. The first step to accommodation is to distinguish the essential from the non-essential duties of the job (although courts and other decision-making bodies have provided little guidance on how to do this). Where possible, non-essential duties should be re-assigned to other employees.

An employer shouldn’t determine that a disabled employee is unable to perform the essential duties of a job without actually testing the person’s abilities. It is not enough for the employer to assume that the person cannot perform an essential requirement; rather, it must determine that fact objectively. The most appropriate accommodation is the one that meets the individual’s needs, promotes the employee’s integration and encourages full participation in the workplace and ensures dignity and confidentiality.

Case law is clear that the employer has to determine whether there are different ways the employee could perform the work while still accomplishing the employer’s legitimate work-related purpose. As much as possible, the employer must respect the skills, capabilities and potential contributions of the disabled employee.

According to most human rights commissions’ policies on accommodation, integration in this context means inclusiveness: taking steps to facilitate the employee’s equal participation in the workplace, as opposed to creating a separate system to accommodate the employee’s needs.

The Supreme Court of Canada states that the employer has a legal obligation to show that it has considered all viable forms of accommodation. If an employer rejects these forms, it must be able to show why each rejection was reasonable.

There are some limits to employers’ obligation to accommodate. For example, an employer is not required to create a new position to satisfy the needs of the employee. Nor is an employer required to maintain a position indefinitely for an employee who cannot attend work due to a disability.

Employers are permitted to terminate an employee’s employment where the employment duties have become impossible to perform or the contract has been frustrated by a fortuitous or unforeseeable event or circumstance. If an employee is unable to perform her or his pre-disability job, and there is no chance in the foreseeable future for the employee to do so, the courts have stated that an employer would have the right to dismiss.

However, before terminating, you must ensure you have done everything possible to reasonably accommodate the employee to the point of undue hardship, and you must have medical evidence indicating that the employee cannot do the job he or she was hired for and will not be able to for the foreseeable future or permanently.

You should also remind the employee that he or she has an obligation under human rights to communicate with you and co-operate in the accommodation process and during the leave of absence.

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

Under the Human Rights Code, an employer is required to take whatever steps it can to accommodate a disability of an employee, so long as such steps do not cause “undue hardship” to the employer. In considering what is undue hardship and how far the employer’s duty to accommodate illness will go, the Supreme Court of Canada has held that “the employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future”. In that case, the medical opinion presented to the trial court indicated that the plaintiff would not be able to return to work.

The case law is also clear that where an employer relies on an inability of the employee to work as grounds for frustration of the contract, the onus is on the employer to establish that frustration. For example, in one decision, the Ontario Superior Court refused to find that the contract had been frustrated even though the plaintiff had been absent from work for approximately 14 months. In that case, the trial judge had held that the evidence demonstrated that there was a hope that the plaintiff would be able to return to work eventually.

It has also been held by the Ontario court that, in determining whether or not disability will constitute frustration, the court must consider the entirety of the relationship. The court must look at whether or not the illness or incapacity is of such a nature that it is likely to continue for a period of time, or that it would be unreasonable for the employer to wait any longer for the employee to return to work. The position held by the absent employee will also be a relevant consideration. For example, in one Ontario case the judge felt that, “when the absent employee is a senior executive whose absence cannot be long tolerated if the business is to succeed then a relative short period of incapacity may frustrate the contract”.

The most recent decision on this issue was released on June 15, 2010, by the Ontario Superior Court. The case dealt with a claim brought against Costco Wholesale by a former employee dismissed as a result of an alleged inability to return to work. In this case, the employee had been off work for almost four years, and there was no stated prospect of his imminent return. In its decision, the court rejected the employer’s position that the absence resulted in frustration of the contract. First of all, the court found that the onus was on Costco to prove that the employee “can no longer fulfill the basic obligation of his job for the foreseeable future”. Costco failed to bring any medical evidence to support such a finding. It is interesting to note that the judge considered the fact that Costco had provided a long-term and short-term disability program, which he felt was evidence of the fact that a long-term disability and possible return to work were in the contemplation of the parties when the employment commenced.

The court therefore held that the employee had been wrongfully dismissed and awarded the employee 10 months pay in lieu of notice.

It should be pointed out that this result could have been avoided if Costco had had a clearly written disability policy dealing with long-term disability of its employees.

Earl Altman
Garfinkle, Biderman

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Where does that particular offence fall? Did it undermine the employment relationship?

Notwithstanding whether such a firing would stand up in Canada (and the widespread condemnation that CNN has received), the message is clear: think twice before you post personal stuff on the Internet, and if you’re still unsure after two thinks, just don’t do it.

I wonder if the reverse holds true for employers and managers? What would happen if a company wrote disparaging comments about its employees on its Facebook page, or if management regularly published lists of weak workers on the company blog? Sounds like that would damage the employment relationship. It would probably be considered harassment, too, and maybe constructive dismissal.

Of course it holds true both ways. In fact, while employees owe their employers respect (both at and away from work), employers owe their employees something more, because the employer is always in the position of greater power. The law and employment contracts attempt to balance this power by preventing employers from acting arbitrarily toward their workforce but still allowing them to discipline and terminate when appropriate.

That’s the question though, isn’t it: what is appropriate? What behaviour deserves punishment? When does a comment deserve termination?

When it comes to poor online judgment, there’s no formula, and I think it’s fair to say that we’ll be seeing a lot of back and forth in the courts in the coming years before anything even close to a standard arises. In the meantime, I guess I’ll just keep my angry thoughts about my boss and co-workers to myself. (Just kidding—I love my work! I am shy about talking about my employer online, though.)

There’s more to this story, too. As I mentioned, CNN is facing a backlash suggesting that the news group acted heavy-handedly in firing Nasr. CNN will get a lot of bad press out of this, and in the age of the Internet, any smaller employer that tries something similar could face a similar public response. I also suggested that Nasr’s firing might not have sat well with a Canadian court. If an employer can argue successfully that an employee has damaged the employment relationship beyond repair, then it can get away with a termination, but a more likely scenario is the employee’s behaviour would warrant a slap on the wrist and some progressive discipline.

What do you think? Can a single comment on Facebook or Twitter be deserving of the ultimate employment punishment? Should employers even worry about what their employees are saying about them online?

Adam Gorley
Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

The employee had signed a number of agreements including a unanimous shareholders’ agreement, and an employment agreement. Both agreements imposed obligations of non-solicitation, non-competition and confidentiality on the employee. The shareholders’ agreement specifically prohibited the employee from carrying on business in competition with his employer, soliciting the employer’s customers or taking any action that would harm the business interest of the employer. This obligation continued for a period of 12 months.

Following the termination of the defendant’s employment, he sought to open his own business providing services which were competitive with those of his former employer. In fact, his former employer found two business plans for the new business on the computer system that the employee used while in the course of his job. When the former employer discovered the activities of its ex-employee, it commenced an action against him, and sought an injunction from the Court to prohibit him from engaging in such competitive activity.

In considering whether to grant the injunction, the Court reviewed the test set out in the leading case of R.J.L. McDonald v Canada:

1. Is there a serious question to be tried?
2. Will the applicant suffer irreparable harm if the injunction is not granted?
3. Does the balance of convenience favour the party seeking the injunction?

The Court first considered the restrictive covenants in both the employment agreement and the shareholders’ agreement. While the judge was not prepared to make a decision as to whether or not they were enforceable based on the record before him, he did conclude that the employee’s challenge to the enforceability of those covenants would have to await a full hearing of the issues at trial. The judge therefore concluded that there was a serious issue to be tried.

He next considered whether or not the company had suffered irreparable harm. The judge’s analysis focused on the comparative size of the two businesses, and the maximum amount of revenue which it could be said that the defendant was taking from the plaintiff. The judge pointed out that the evidence at best indicated the defendant was generating revenue of approximately $34,000 per month. On the other hand, the plaintiff’s revenue exceeded $75,000,000 in the previous fiscal year. The judge therefore concluded that, even if he accepted the best case for the plaintiff, the amount of business which it was losing was comparatively minor.

The judge also reviewed the volume of affidavits filed by the moving party to conclude that, in spite of the volume of material, that the former employer had proved only two isolated incidents of solicitation by the defendant. He therefore concluded that further evidence was required to make any finding on that issue. He therefore rejected the plaintiff’s argument that it was suffering irreparable harm.

To put the final nail in the coffin, the judge held that refusing to grant the injunction would have minimal effect, if any, on the viability of the plaintiff’s business. However, issuing the injunction prohibiting the individual defendant from working for the defendant company would, in all likelihood, result in the cessation in operations of the defendant. In summary, the judge found that there was no irreparable harm and that the balance of convenience clearly favoured the former employee.

What the decision highlights is the continuing difficulty that employers’ counsel will experience before the Ontario courts in seeking to enforce restrictive covenants. Given the costs in bringing such motions, employers should be reluctant to do so in all but the clearest cases.

Earl Altman
Garfinkle, Biderman LLP

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As you well know, employees get a day off with regular pay or public holiday pay (depending on the province or territory of employment). If the employee is required to work on the holiday, the employee must be paid regular wages and get a substituted day off with pay at a later date (depending on the jurisdiction). Canada Day is observed on July 1 (it is not a movable holiday under the Canada Holiday Act); the only exception is if July 1 falls on a Sunday, it is observed the following business day, which is Monday. (Newfoundland and Labrador has a different rule under the Shops’ Closing Act.) For specific requirements for your jurisdiction, consult the Library section of HRinfodesk.

On June 20, 1868, a proclamation signed by the Governor General, Lord Monck, called upon all Her Majesty’s loving subjects throughout Canada to join in the celebration of the anniversary of the formation of the union of the British North America provinces in a federation under the name of Canada on July 1st.

Second, several laws in various jurisdictions are coming into force today. They are as follows:

• The minimum wage increases in Newfoundland and Labrador to $10 per hour on July 1, 2010.
• All “sharps” including IVs, scalpels and hypodermic needles, must be replaced with alternative safety devices by all health care providers in Alberta as of July 1, 2010. The requirement is now specified in the Occupational Health and Safety Code. Individual employers are responsible for providing training for all of their employees.
• Effective July 1, 2010, there are payroll related changes for Nova Scotia and Newfoundland and Labrador. The new Payroll Deductions Tables (T4032), new Payroll Deductions Supplementary Tables (T4008), new Tables on Diskette (TOD), new Payroll Deductions Online Calculator effective July 1, 2010 are now available on the CRA website.
• As of July 1, 2010, the Ontario Needle Safety Regulation, 474/07 will apply in all workplaces where a hollow-bore needle is used for therapeutic, preventative, palliative, diagnostic or cosmetic purpose. In addition to hospitals and long-term care facilities which were already covered, the regulation will now apply to workplaces such as ambulance services, home care services, public health programs, and health care/first aid services in schools, industry and other workplaces.
• Ontario Regulation 259/10 (Designated Substances) under the Occupational Health And Safety Act revokes and substitutes Regulations 490/09, which sets out new and revised Occupational Exposure Limits (OELs) that come into force on July 1, 2010. Eleven of twelve standalone designated substance regulations are being consolidated into one designated substances regulation. Regulation 278/05, Asbestos on Construction Projects and in Buildings and Repair Operations, was not consolidated. In addition, Regulation 833 has been revised to update occupational exposure limits or listings for several hazardous chemical substances in the Regulation respecting Control of Exposure to Biological or Chemical Agents.
• The Ontario Long Term Care Homes Act and its accompanying Regulation comes into force on July 1, 2010. The Act establishes a new system of governance for long-term care homes in Ontario. It replaces the Nursing Homes Act, the Charitable Institutions Act and the Homes for the Aged and Rest Homes Act. The new Act and Regulation govern the requirements relating to long-term care home resident care, services, admissions, operations, funding, licensing, compliance and administrative matters in all long-term care homes in Ontario.
• Changes to the Alberta Protection for Persons in Care Act, which builds upon the strengths of the current Act and will improve protection for Albertans by emphasizing the prevention of abuse and including enforcement mechanisms, comes into force on July 1, 2010. The Act promotes the prevention of abuse of adults who receive government-funded care or support services. There are several aspects of the Act of interest to employers and employees; among them, all service providers must require a criminal records check from every successful employment applicant, every new volunteer and any other individual engaged by the service provider to provide care or support services. For more, go to www.seniors.alberta.ca/CSS/persons_in_care.
• The HST comes into force in Ontario and British Columbia on July 1, 2010. More can be found on the CRA website. the Nova Scotia HST increases from 13% to 15%, due to an increase of the provincial portion of the HST from 8% to 10%.
• Changes to Saskatchewan’s construction labour laws take effect July 1. The amendments to the act, Bill 80, allow a trade union to organize a company on a multi-trade, or “all employee” basis, such as the Christian Labour Association of Canada or the Communications, Energy and Paperworkers unions, as well as on a single trade basis. Also, any trade union will be able to certify an employer and employers can choose the Representative Employers’ Organization that will represent them in collective bargaining. Employers will also be able to negotiate site-by-site collective agreements with a multi-trade union outside of the provincewide bargaining system, thereby avoiding the need for an REO. Bill 80 also allows an employer to file an abandonment complaint against a trade union that has been “inactive in promoting and enforcing its bargaining rights against the employer for a period of at least three years before the application.”
• Starting July 1, Quebec companies will be imposed larger fines for non-compliance with safety rules. These increases will be implemented in two stages: the fines will double as of July 1, 2010 and will triple as of January 1, 2011.

Enjoy your day off and deal with it tomorrow!

Yosie Saint-Cyr
Human Resources and Compliance Managing Editor

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Image taken from: www.blogto.com

Now that The Big Do is over, and the security fences are coming down in Toronto and Huntsville—hopefully—let’s take a moment to reflect on how all the hubbub affected local businesses.

I guess the first questions are: did the G8 or G20 summit affect your operations in any way, and how?

It’s fair to say that most businesses in downtown Toronto experienced some sort of disruption over the weekend and the week leading up to the G20 summit. From what I’ve read in the papers and heard from friends who work in the security zones, many employers decided to send most employees home for the period—not on vacation mind you, but to telecommute—while maintaining a “skeleton staff” at the office. Remember, we’re talking thousands of workers—including all levels of government—here in one of the densest employment areas in the country.

But many businesses, like shops, restaurants and others that rely on walk-in customers, simply chose to close for the period. What else could they do?

I’ve read less about what’s happening in Huntsville for the G8, but I’d like to know how the summit affected organizations up there.

Another question is: was it worth it?

Besides the value of whatever potential political decisions the assembled world leaders made or agreed to make in the future, one way that people will inevitably measure the value of the summits to the cities Toronto and Huntsville and Canada in general is by the amount of money that the delegates and their retinues spent during their stay. According to this calculation, it will be mainly hotels and other accommodation and hospitality services, like caterers and limousines that have benefited.

I doubt that the costs of the summits will be balanced by the economic inputs, even though the media are saying thousands of people—mainly bureaucrats, journalists and protesters—descended on the summit locations. But I do have hope for a significant positive long-term outcome: a massive increase in telecommuting.

Maybe I’m grasping at straws here. I understand if you think so. I was surprised myself when the thought came to me the other day. But it is just possible that the summits redeem their costs by encouraging employers to rethink telecommuting. In fact, a massive boost in telecommuting could even balance the billion dollar price tag for the summits—over time, lots and lots of time.

Still, while I don’t want to say that that benefit would have made the summits entirely “worth it”—the true intended value of these things is political—I believe that telecommuting is an advance that has and will have many positive effects as it spreads throughout organizations across the country. And if that spread starts in Toronto, then great!

You’ve probably heard most of this before, but employers gain many advantages by having employees telecommute. By working from home, employees don’t have to spend hours in traffic, which has negative individual, social and environmental effects. (Personally, I believe that automobile traffic is an evil that we should be exerting great amounts of energy to combat.) Moreover, telecommuting employees don’t use workplace resources, such as electricity, heating, air conditioning and physical space.

For my part, when I work from home—which I do several days a week—I often start earlier and finish later, and I have fewer distractions.

There are disadvantages: not all employees or jobs are compatible with telecommuting, and for the moment many employees probably couldn’t handle the freedom. But reasonably simple shifts in work culture, management styles and task allocation could improve the prospects of success for a work-from-home program at any organization.

Well, what I really want to know is how the summits affected your work over the past week and weekend. Did you send workers home? Will you do so in the future? Or was it business as usual?

Adam Gorley
Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | 4 comments |

I wrote last month that 42 percent of Canadians considered themselves “stressed, tired and vacation-deprived” in 2009, compared to only 33 percent the year before. Well, it’s only gotten worse. Expedia.ca’s 2010 Vacation Deprivation Survey found that 47 percent of Canadian workers felt that way.

The stress part certainly makes some sense. A lot of workers felt extra pressure to perform during the worst part of the recession, and that pressure hasn’t lifted yet. No doubt many chose to forgo their vacations, either to make sure to get that extra job done or to make sure their employers knew they were there. And working that extra time is going to tire you out sooner or later. It’s a vicious downward spiral of worry.

The thing is, many workplace health and stress experts say that the only way to break free from the spiral is to take that vacation.

But this year Canadian workers gave different reasons for avoiding vacation, and emphasized the economic concerns much less.

• 13 percent needed a vacation “more than ever” due to recession-related stress. 18 percent said the same last year.
• 14 percent felt guilty about taking a vacation due to the economy, compared to 17 percent last year.
• 14 percent said they just didn’t schedule their vacation far enough in advance to make all the days fit.
• 12 percent said “work is their way of life and they’re too busy to get away”. (Who are these people?)
• 10 percent said that their partner couldn’t get away from work. (I bet many of those partners were worried about the economy though.)

Now look at this:

• 53 percent of Canadians return from a vacation feeling “rested, rejuvenated and connected to their personal life”.
• 39 percent return feeling “better about their job and more productive”.
• 48 percent of workers feel jealous of their co-workers when they go on vacation.

So just go! Leave the office, and don’t come back the next day. This is what I feel like saying to people who think they can’t take a vacation. But I know it’s not quite so easy.

One commenter responded to the first part of this post that:

“Vacations are good when the person taking time off does not have to return back and put in 12 hour shifts to catch up on the work that piled up… For those of us whose ordinary work weeks run into 50+hours, taking a vacation is unthinkable as the ‘catch up’ weeks after vacation will be a nightmare.”

I don’t doubt in the least that this is a pretty common condition. And the survey has something to say about it as well:

• 34 percent of Canadian workers found that technology makes it difficult to disconnect from work stress while on vacation.
• 30 percent checked their phone or email messages while on vacation.
• 23 percent like to stay connected to their work while on vacation via social media. (Sounds like there might be some underlying issues here.)
• 22 percent said that they had actually cancelled vacation plans due to work conflicts.

On the other hand:

• 60 percent said that they need to disconnect completely from work to truly relax and enjoy their vacations.
• 42 percent said that technology makes it easier to take vacations because they can remain connected to work.

So there are some conflicting attitudes here. We want to disconnect and enjoy our vacations, but we have lots of excuses not to!

I think it’s important for both employers and employees to remember that the health of your workforce is at stake here, and the health of your company. If workers are so busy that they don’t have a moment to themselves, let alone the time to take a day or a week off here or there, you might have problems brewing. When employees start suffering stress-related injuries and demonstrating mental health problems, you might also face some employment standards or occupational health and safety trouble.

Well, I’m not trying to bring anyone down. I’m saying employers have an opportunity to make their employees “feel better about their job and more productive”, by forcing employees to take vacation, and make sure that the workers are not overwhelmed with work when they return.

Let me know what you think about vacations, and whether you’ll be taking all of your days this year!

Adam Gorley
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

As any soccer fan knows, the FIFA World Cup is currently being played live during the day. Not surprisingly, studies show that absenteeism soars during special events such as the World Cup.

This may concern some employers, since the tournament is a month long (June 11 to July 11), and there are initially three or four group matches (along with pre- and post-shows) per day! (See how the broadcast schedule compares with your employees’ work habits.)

What’s more, workers can easily watch the games online at their work computers. This means that employees may be effectively absent while at work, engaging in “virtual absenteeism”.

There is no vaccine for World Cup Flu, and there’s not much that can be done once a person catches it. The symptoms include: a desperate need to watch as many games as possible; the inability to talk about anything but soccer; devotion to at least one team; and the inability to sit still or speak to anyone while a game starts. At the height of the flu, judgment may become impaired, and a person may be tempted to call in sick and miss work to watch a game.

I confess: I am a passionate soccer fan, and I have contracted the World Cup Flu. I can understand what goes through a fan’s mind once the tournament has begun. But I can also see the employer’s side of things: work must get done!

In my experience as both a devoted fan and committed employee, I’ve found the only way to resolve this dilemma during the work week is to watch the repeats after work. All the games are replayed in the evening. However, soccer enthusiasts who take this route must make sure that they do not talk to anyone about sports results or watch, listen to, or read any news until they get home to watch the game(s). Also, flex time allows me to start work very early and catch at least some of the last game of the day.

But there are ways that employers can minimize the impact and even create opportunities for employee engagement.

One solution may be to create a “Don’t Talk About Soccer Games at Work Policy” and encourage employees to watch the encores after work. That way, they can enjoy the games in complete and private bliss as they take in the background buzzing of the vuvuzelas.

Employers could also encourage employees to use their unused vacation time or any accumulated time in lieu of overtime to enjoy the matches live.

Alternatively, employers could implement a flex-time policy for employees, at least during the World Cup or for the critical games near the end of the tournament.

It may be a neat idea to get involved in the occasion by having casual Fridays where employees sport the jerseys of their favourite teams. Or perhaps show some enthusiasm and have a World Cup party during a match that is important to the majority of the employees.

This way, employers may be able to dodge the problem of having employees reach the height of World Cup Flu, where they lose their ability to reason and miss work. But if the outbreak has hit hard, it might be too late. Employers may find that the rate of physical or virtual absenteeism is out of control and can only be stopped by disciplining employees for unauthorized absences. If so, employers are recommended to start with a warning and escalate from there.

I’m wondering: are your employees suffering from the World Cup Flu? If so, how have you contained it in your workplace?

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2010 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |