First and foremost, on behalf of First Reference and Stringer LLP, thank you to all who attended our annual employment law conference on June 2. Also, thank you to all who joined the conference on twitter by following @firstreference and the hashtag #learnthelatest.
Also, a big thank you to Renu Mandhane, Chief Commissioner of the Ontario Human Rights Commission, for taking the time to speak to conference attendees about some of the key human rights issues that arise in employment.
The 2016 Ontario Employment Law Conference was a huge success! If you missed it, check out the highlights and wrap-up below.
Getting ready for the WSIB experience rating revolution
Ryan Conlin of Stringer LLP kicked off the conference by discussing getting ready for the WSIB experience rating changes coming January 1, 2019. The Ontario Workplace Safety and Insurance system is about to undergo one of the most important changes in decades. The Workplace Safety and Insurance Board (“WSIB”) is preparing to completely eliminate the current experience rating programs (NEER, CAD-7 and MAPP) for Schedule 1 employers. The WSIB is proposing to implement a completely new system which eliminates the practice of imposing surcharges or providing refunds. Employers should take steps to prepare for a completely new system.
The following are a few important points that were discussed by Ryan regarding changes that have been proposed by the Workplace Safety and Insurance Board (“WSIB”).
- The experience rating system under the NEER, CAD-7 and MAPP would no longer exist.
- 155 rate groups and employer classification would be eliminated into one of 34 different rate classes (previously 22, but adjusted due to stakeholder feedback because 22 rate classes was not enough to reflect the diversity of risk).
- Each rate class would be assigned “risk bands”. Risk bands correspond to a range of premium rates that an employer can be assessed based on the company’s accident history and other actuarial factors, i.e. amount of insurable earnings.
- The proposed system essentially would make larger employers responsible for a larger percentage of their own claim costs than smaller employers. The WSIB has built in protections for smaller employers who would otherwise face significant premium adjustments as a result of one serious accident.
- The WSIB will review six prior years of accident history to calculate which risk band an employer will be in.
- An employer will be capped to moving three increments on a risk band in a given year.
Bill 132 and the new sexual violence and harassment rules for employers
The second session was held by Jessica Young of Stinger LLP, who discussed the new rules that are coming for employers to address sexual violence and harassment in the workplace.
Effective September 8, 2016, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2016 (Bill 132), amends various pieces of legislation including the workplace harassment provisions of the Occupational Health and Safety Act (“OHSA”).
The OHSA defines “workplace harassment” as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. The definition of “workplace harassment” under the OHSA is expanded to include “workplace sexual harassment”.
Employers already have significant responsibilities regarding workplace harassment under the OHSA. Such responsibilities is expanded under Bill 132 and include:
- imposing specific requirements on employers regarding workplace harassment investigation procedures. Pre-existing workplace harassment provisions under the OHSA do not specify what procedural steps must be included in a workplace harassment investigation policy.
- clarifying what is not workplace harassment, i.e. “reasonable action” taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
- developing and maintaining a written program to implement the workplace harassment policy, in consultation with the joint health and safety committee or a health and safety representative, if any. No consultation was previously required.
- Ensuring that incidents and complaints of workplace harassment are investigated, and following particular procedural steps. No such duty was previously required.
In addition, new powers for OHSA inspectors to order an employer to retain an “impartial person” to conduct an investigation into allegations of workplace harassment is provided for in the law.
Bill 132 will require employers to review their workplace harassment policies and make modifications where needed.
Constructive dismissal and suspensions
In the third session of the day, Allison Taylor of Stringer LLP discussed employee suspensions and whether or not they trigger a constructive dismissal.
Allison discussed a recent decision issued by the Supreme Court of Canada (“SCC”), Potter v. New Brunswick Legal Aid Services Commission (“Potter”), that could have significant implications for employers considering the suspension of an employee for misconduct.
Six lessons from Potter were highlighted:
- Always suspend with pay rather than without pay (pending an investigation i.e. administratively).
- Even when providing pay, do not suspend indefinitely.
- Consider a contract clause which permits changes by employer unilaterally (express not implied right).
- Consider a specific clause giving right to suspend (court may not enforce if unreasonable in scope).
- Ensure that suspension is justified.
- Always provide employee with cogent reasons for suspension and projected timeframe.
Allison also shared some “do’s” and “don’ts” when it comes to workplace suspensions, which included the following:
- Expedite investigation even where pay is being provided.
- Always ensure that language used in communication is respectful and civil.
- “Have a higher road than the employee” and “never have a knee jerk reaction”.
- Don’t focus on “people talk” i.e. as on social media.
- Make sure you follow your own workplace policy as an employer when it comes to handling suspensions.
- Paper the suspension (letters before and during the process may demonstrate reasonableness of employer’s position).
Thereafter Jeff Murray in the fourth session of the day proceeded to discuss the continually evolving law of privacy and what it means for employers.
Jeff talked about a 2012 matter, Jones v. Tsige, where the Ontario Court of Appeal recognized a new tort of intrusion upon seclusion.
The tort requires:
- intentional intrusion;
- on another person’s seclusion or private affairs; and
- reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.
The court in this case cautions that a claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. It is limited to information regarding finance, health, sexuality, employment, diary or private correspondence.
Is it an intrusion upon seclusion for an employer to look at a job candidate’s social media? Jeff says “no”. Public information does not meet the criteria of “seclusion”. Although, there may be other risks, specifically with respect to discrimination, of looking at a candidate’s social media presence.
In sum, Jeff provided a few lessons learned when it comes to privacy in employment:
- In Ontario, the law of privacy is driven by case law.
- There is a significant distinction between accessing and disclosing personal information.
- Employers and employees both have significant responsibilities to protect personal information.
- Clear and comprehensive policies and data protection systems are essential.
Key human rights issues that arise in employment
During the lunch period, Renu Mandhane, Chief Commissioner of the Ontario Human Rights Commission (“OHRC”) discussed some of the key human rights issues that arise in employment, and shared her own personal experience in relation to workplace promotion.
…[w]hen you address human rights issues proactively, it’s not only the right thing to do and a legal obligation, it also increases employee morale and ultimately productivity.”
Employment standards update
Jeremy Schwartz of Stringer LPP in the fifth session of the day, discussed changes coming to employment standards legislation in Ontario, including two new proposed leaves.
The proposed leaves are as follows:
- Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016: This proposed leave would be accessed by an employee with at least 6 months of service who suffers the death of a child under the age of 18. Such an employee would be entitled to a 1 year unpaid leave from the date of the death. Such new protected leave will put an additional burden on employers. Particularly, small employers may be required to keep positions open for long periods of time, which can impose a significant cost and operational impact.
- Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016: This proposed leave would allow a victim of sexual or domestic violence, or the parent of a victim, to take up to 10 paid days of leave per calendar year with respect to various aspects of dealing with the violence. For this leave, there is no requirement that an employer regularly employ at least 50 people before employees become eligible.
It is important to remember that there is no undue hardship analysis for leaves under Ontario’s Employment Standards Act (“ESA”).
Cause for concern? All leaves under the ESA (recent and proposed) could be taken consecutively. They do not cancel each other out. This could be challenging for employers because an employee could spend years out of the workplace on job protected leaves.
Family status accommodation: How far do employers have to go?
In the sixth and last session of the day, Landon Young of Stringer LLP discussed where the lines are being drawn in regards to how far employers have to go to accommodate employees with family care responsibilities.
According to the Ontario Human Rights Code (“Code”),
“Every person has a right to equal treatment with respect to employment without discrimination because of […] family status […].”
Family status accommodation:
- may arise in relation to obligation to care for any family member.
- usually arises in context of child care obligations.
- often arises in connection with other prohibited Code grounds as well.
Landon discussed the matter of Johnstone v Canada (Border Services), which created a test for family status discrimination in the context of childcare (the “Johnstone Test”). The court held that in order for a claimant to demonstrate a prima facie case of discrimination in a situation involving childcare obligations, they must show the existence of the following factors.
The Johnstone test
- child is under the claimant’s care and supervision;
- childcare obligation at issue engages the claimant’s legal responsibility for that child vs. personal choice;
- claimant has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions; and
- a workplace condition or rule interferes with the childcare obligation in a non-trivial way.
Landon provided some useful tips on how to handle workplace accommodation requests, including:
- distinguish between employee “needs” vs. “wants”.
- ask for detailed information regarding care obligations and options explored by employee.
- document options offered to employee regarding accommodation request.
- be mindful of setting a “precedent” with employee accommodation arrangements, but do not refuse accommodation on that basis.
Prior to the close of this year’s conference attendees had an option of attending one of the following three sessions:
Session 1: Accommodating employee disabilities #learnthelatest1
Session 2: Terminations of employment #learnthelatest2
Session 3: Responding to workplace accidents #learnthelatest3
For a little insight on what was discussed during the breakout sessions, follow the corresponding hashtags on Twitter, as provided above.
Thank you again for everyone’s participation in this year’s conference. We look forward to seeing you next year!
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