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2016 – Looking forward, looking back

As the first blog post of the year, I thought it apt to first wish everyone a very happy, healthy and prosperous New Year and second, to take the opportunity to take a quick look back and a long look forward at what might be coming down the road this year in human resources policy.

 

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To IME or not to IME, this is the question

In the recent decision, the Ontario Human Rights Tribunal (“OHRT”) addressed the issue of when it would be reasonable for an employer to request an Independent Medical Exam (“IME”) from an employee during the accommodation process. The OHRT ruled that an employer request for an IME will be justified when it was “reasonable” in the circumstances of creating an individualized accommodation plan.

 

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Privacy Commissioner releases annual report regarding portable storage devices

On December 10, 2015, the Privacy Commissioner of Canada released an annual report to Parliament highlighting a result of an audit of the government’s management of portable storage devices and reported data breaches.

 

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Employee not discriminated against as breastfeeding a “choice”- Federal Court of Appeal Decision

The recent decision by the Federal Court of Appeal addresses the employer’s duty to accommodate. Ms. Laura Flatt, the applicant, sought a judicial review from the Public Service Labour Relations and Employment Board (Board) after her grievance against her employer, the Treasury Board of Canada, was dismissed. The applicant had filed her grievance based on discrimination on the grounds of sex and family status contrary to the Canadian Human Rights Act.

 

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Tribunal orders pharmacy to pay $8,000 as a result of racial profiling

Under section 46.3 (1) of Ontario’s Human Rights Code, an employer may be vicariously liable for the discriminatory acts of their employees. Such was the case in the recent Human Rights Tribunal decision.

 

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Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with 2016 projected salary increases and criminal background checks.

 

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Context is key: New trial for dismissed CIBC employee

Rule of law

In a decision handed down April 27, 2015, the British Columbia Court of Appeal ordered a new trial. In particular, the court found that the trial judge had misapprehended the evidence and CIBC’s legal arguments, such that the trial judge’s overall conclusion could not stand.

 

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Are your sexual harassment and harassment policies proactive or reactive?

While at the First Reference Conference one year, an interesting conversation arose among attendees at my lunch table, where more than one complained that her workplace refused to implement an anti-bullying policy (as was required under the Ontario Occupational Health and Safety Act), apparently because doing so would open the floodgates (as the HR Manager was the alleged bully).

 

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Use caution when managing your sick leave policy

When a health centre updated its sick-leave procedures, it thought it would be making it easier and safer for employees to return to work after an illness. In practice, things played out very differently.

 

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Unlimited vacation: flashy gimmick or prudent policy?

Sir Richard Branson recently announced a change to Virgin’s vacation policy. According to virgin.com the policy: permits all salaried staff to take off whenever they want for as long as they want. There is no need to ask for prior approval and neither the employees themselves nor their managers are asked or expected to keep […]

 

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Do you agree that workplaces should have a dress code?

Human resources experts agree that employees appreciate knowing your expectations about how they should dress for work-if they exist. However, some managers and employers disagree with dress codes. One of our subscribers wondered what our readers think, so in a recent HRinfodesk poll, we asked, Do you agree that workplaces should have a dress code?

 

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Family status: Recent interpretation under the Human Rights Code

Requests for accommodation due to family status is becoming more common as societal norms continue to change. The leading case in Ontario that addresses the worker’s rights and the employer’s obligations on the ground of family status is arguably Devaney v. ZRV Holdings Limited.

 

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Employee complaints, gripes, whines and other good business advice

Retired football coach, broadcaster and motivational speaker Lou Holtz said, “Never tell your problems to anyone…20% don’t care and the other 80% are glad you have them.” Although this may have some truth for most of us, employers must be careful not to fall into either category.

 

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Knowing your limitation periods under the Human Rights Code

The Human Rights Code allows for a person who believes that their rights under the “Code” have been infringed upon to file an application to the Human Rights Tribunal of Ontario. The “Code” states that the application must be made within one year after the incident, or if there were a series of incidents, within one year after the last incident in the series. But what happens when a person files an application outside of the limitation period?

 

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Constructive discrimination: The case of Tawney Meiorin

Constructive or adverse discrimination in employment occurs when rules or standards are established that do not discriminate at first glance, but have an adverse effect on persons whose rights are protected under human rights legislation. In such a case, the burden shifts to the employer to establish that such rules or standards are essential to the job, also known as bona fide occupational requirements (BFOR’s. British Columbia (Public Service Employee Relations Commission) v. BCGSEU is the leading case which addresses this issue. This seminal human rights case from the Supreme Court of Canada established a three-part test which has become the standard to evaluate constructive discrimination.

 

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