When is Domestic Violence an Issue of Workplace Health and Safety

| August 1st, 2017 | No Comments »

It may not be well known, but there are instances where domestic violence is an issue of workplace health and safety. There is situation, therefore, where it is the employer’s responsibility to make sure an employee that is a victim of domestic violence is safe while at work. Violence may take many forms, as domestic violence is an attempt to gain power or control over a person with whom one has an intimate relationship. This may take many forms, such as texting, email, phone or stalking.

Where domestic violence is between two current employees, the employer has an unquestionable responsibility to ensure that the victim is free from violence while at work. This may include modifying tasks to ensure that the individuals do not cross each other during the course of work, limiting or eliminating communication between the employees involved, or even termination if it is impossible to ensure the victim’s safety and well being. In essence, domestic violence, in this case, would be viewed equally to workplace violence and should elicit the same response from the employer.

In the instance that the aggressor is not an employee, the employer still has a responsibility to ensure that the employee is safe while at work. This may include screening the employee’s calls, providing a photo of the abuser to security and reception, notifying security personnel in in case the aggressor appears at the workplace, ensuring that immediate help is called upon if physical contact is attempted at work, and providing a personal work plan to assist the victim. It is also important to ensure that the employee is safe during their route home after work, as the abuser may anticipate contact during this time. Allow the employee to express their concerns so that a meaningful plan may be developed.

Under the Ontario Occupational Health and Safety Act, employers are required to implement domestic violence policy and have a plan in place to minimize the impact of domestic violence if it becomes workplace issues. The program should include training to identify indicators, methods of reporting, educational materials and so forth. It is in the employers best interest to have an effective policy that goes beyond minimal requirements, as domestic violence may impact job performance, attendance, and workplace morale. Contact an employment law expert to ensure that workplace policies regarding domestic violence are current, and prevention programs are properly in place.

Know what you are owed past employment

| July 25th, 2017 | No Comments »

It is standard to receive a notice when an employer wishes to end an employment relation. This notice must grant a reasonable amount of time for the employee to find a comparable job. Alternatively, the employer may provide the employee payment equivalent to the amount the employee would have earned during the notice period, inclusive of all benefits, in lieu of a notice period. When an employer fails to provide notice, then the employee may litigate to receive the notice pay for the breach of contract. The length of the notice period or pay in lieu must consider certain factors, such as age, position, length of service and labour market conditions. Overall, notice period is intended to place an employee in a comparable position had there been no termination. However, employees may also face harsh treatment from employers wishing they resign, in hopes the employee leaves voluntarily – be mindful that an employee may still seek notice damages in this instance. If the time leading to dismissal and manner of dismissal itself caused significant hardship, employees may be owed additional compensation in aggravated and/or punitive damages.

 Aggravated damages are awarded as additional compensation to the employee when it can be established that the manner of dismissal was done in bad faith, and that the breach of contract caused mental distress or damages to reputation as it relates to future employment opportunities. Bad faith conduct may include being extremely insensitive or untruthful in the dismissal process. Further, the employee must be able to prove that damages such as mental distress were also suffered. For instance, it is not enough to claim mental distress or psychological harm. Rather, there must be evidence that proves mental distress was suffered during the course of dismissal.

Punitive Damages are awarded to the employee to punish the employer for actions during the dismissal that the courts find exceptionally indecent. For punitive damages to be awarded, there needs to be an ‘independent actionable wrong’ such as a breach of good faith. To be clear, these are additional wrongs committed by the employer, independent of the breach of contract. There also may be punitive damages awarded if it is determined that the employer’s misconduct was so malicious that it offends the court’s sense of decency – an example being an employer exploiting an employee’s disability in attempt to force them to quit.  Depending on the wrongs committed, damages may range from $10 000 – $450 000. It is important to note that punitive damages require wrongs that are exceptionally reprehensible, and are thus rarely awarded. An employment law expert will be able to assess the possibility of receiving such damages.

 Overall, when facing a dismissal that caused exceptional difficulty, it is advisable to seek the assistance of an employment lawyer. It may be the case that notice pay does not fairly compensate the harm suffered, and additional damages will need to be pursued.

Important Information for Conducting Criminal Background Checks for Condition of an Employment Offer

| June 7th, 2017 | No Comments »

Employers must treat criminal record checks similarly to other protected grounds of discrimination such as race, religion and so forth. A criminal conviction for which a person has been pardoned is a protected ground of discrimination under human rights law.  Any workplace policies that inadvertently have an adverse affect upon individuals with pardoned convictions must be dealt with accordingly.

Hiring Process

An employer concerned about employing an individual with a past criminal record may request a perspective employee to undergo a criminal background check. However, this should be done with proper precautions. It is advisable to make the background check a requirement once a conditional offer has been made. This would avoid any allegations that hiring practices contravened human rights law upon a discriminatory ground. For instance, requesting a criminal background check after extending a conditional offer avoids the possibility of a hiring decision being influenced by past criminal offences.

Criminal Record Policy

Having a workplace policy that prohibits employment of those with past convictions for which a pardon has been granted is a violation of human rights law. However, there is an exception if, and only if, the workplace policy is a bona fide occupational requirement (“BFOR”). This means that under no circumstances is it possible to employ an individual with a past particular criminal conviction  without suffering undue hardship as an employer.

This is a difficult standard to meet. At the very least, a workplace policy that prohibits a past conviction should be limited to past convictions that closely relate to the job. For instance, if the nature of employment deals with handling sensitive financial information, then having a policy that disqualifies individuals based on recent past convictions of financial fraud would likely be reasonable.

Conclusion

When seeking to enforce or implement workplace policy that deals with criminal record checks, it is important to take all necessary precautions as this is a human rights matter. The policy should relate to past convictions closely related to employment and take into consideration the time past since the conviction took place. It is always best to seek consultation from an employment lawyer when dealing with human rights matters.

Health and Safety: Can a Corporation be held Criminally Negligent for the Conduct of Supervisors?

| April 11th, 2017 | No Comments »

Upon other employer duties relevant to health and safety, the duty to provide competent supervisors may be the most important. An employer may have all the requirements of a safe workplace, however, having a supervisor that is negligent may result in criminal charges against the business resulting in sever fines. Criminal negligence charges are for extreme cases such as the one below.

R. v. Metron Construction Corporation

The case of R. v. Metron Construction Corporation (Metron) is an important case to be aware of and also a sad one. In this case, Metron was given a project of restructuring the balconies of several high-rise buildings. The president of the company hired a project manager, whom then hired a supervisor for the workers on site. Swing-stage scaffolding was needed for the workers to work on the buildings’ exterior balconies. Life lines were required to be worn by each worker and were attached to each swing-stage, ensuring any falls wouldn’t result in injury or death. The supervisor was responsible for insuring that safety procedures were followed.

The company ordered additional swing-stage scaffolding that did not have proper labels for maximum capacity as required under the Ontario Health and Safety Act (OHSA). On December 24th, 2009, 6 workers including the supervisor boarded onto a swing-stage to travel to the 14th floor. The normal practice is for only 2 individuals to be on a swing-stage at once. The combined weight led to the collapse of the swing-stage, leading to 4 deaths (including the supervisor). There were only 2 life lines available on the swing-stage, only one of which was used properly – the worker that properly used the lifeline was uninjured and the other that used it improperly was injured. The use of a lifeline is also a regulation required by the OHSA. A report concluded that the combined weight and the faulty design of the swing-stage was the reason for the collapse. Further, had all workers used lifelines, the deaths would be prevented. A toxicology report also revealed that workers were under the influence of marijuana, including the supervisor.

Decision:

Metron was found criminally negligent under the Criminal Code for the conduct of the supervisor. This was due to the degree of blameworthiness and severity of the accident. Specifically, the departure from the 2-person limit norm, the improper use of lifelines, workers being under the influence of marijuana, and the fact that the supervisor allowed all this to take place were all factors leading to this decision. The fine was set at $750 000, from the initial $200 000 in order to denunciate and deter such negligence that place workers in danger.

Takeaway:

Corporations can be found criminally negligent for the actions of anyone in a supervisory role. Specifically, the court maintained that the seriousness and the corresponding penalty is not to be diminished by the fact that the negligence was the fault of the supervisor rather than a more prominent figure of the company. It is therefore important for human resource and health and safety professionals to be aware of the importance of having competent and diligent supervisors responsible for the health and safety of workers. Employers must ensure that supervisors are properly trained and that all standards are followed so that unnecessary accidents are avoided. Training, inspections, workplace policy and proper lines of communication should all be used as a means of maintaining high standards of health and safety. In addition, any violations by supervisors should be dealt with in a serious manner with discipline imposed accordingly. If there are any concerns in your workplace regarding health and safety policy and compliance, please seek the advice of an employment lawyer.

Establishing Whether an Employment Relationship Exists

| December 13th, 2016 | No Comments »

employment relationship agreementBoth parties have an interest in determining if there is in fact an employment relationship between the employer and individual providing service. If there is no employment relationship, then the Employment Standards Act (ESA) does not apply. For employers, this means that they are not liable for wrongful dismissal or other obligations that otherwise would apply under the ESA. Conversely, individuals providing service have an interest in establishing the existence of an employment relationship to make a wrongful dismissal claim in the appropriate situation.

How to Establish Whether There is an Employment Relationship

The relation between an individual providing service for an organization may be ambiguous at times – an example includes long-term contracted employees. The tests developed by the courts were established overtime and are used to analyze the fundamental nature of the employment relationship, and ultimately whether there can be a wrongful dismissal claim. The four tests below are not used in isolation by the courts; the courts will apply all relevant factors. As such, the question of whether there is an employment relationship can be complex and warrant the expertise of a legal expert. The tests below are not comprehensive and are meant to serve as a general guide.

The Control Test

The control test views the essence of the employment relationship being a question of control over the work performed. The most important aspects of this test include the discretion over payment, the control over the timing, type and manner of work, and disciplinary power. If the individual is subject to a high degree of control over the duties being performed, terms of payment and discipline imposed by those receiving the service, this is indicative of an employment relationship.

The Fourfold Test

In the case of professional or highly skilled individuals, the control test may not truly capture the essence of the employment relations as skilled employees tend to have more autonomy and control over their work. The fourfold test seeks to determine the owner of the business. Likewise, the test analyses the degree of control the employer has over the work, the ownership of tools, who stands to make a profit, and conversely, who is at risk of a loss. Generally, if the employer owns the tool and equipment and bears most of the risk for a loss, then this is indicative of an employment relationship.

The Organization Test

This test is usually a last resort used in conjunction with some of the factors in the control or fourfold test when no clear answer is rendered. This test seeks to establish whether the individual’s services are fundamental to the business or if the individual is dependent upon the organization as their main source of income. It is used as a broad overview in determining whether an employment relationship exists.

The Permanency Test

This test is most appropriate for contract employees and seeks to establish the overall stability of the relationship. Indicators of an employment relationship include the employer providing training, selecting the individual for employment rather than having a staffing agency make the placement, and continued supervision. In such instances, a long-term contracted individual may be seen as an employee rather than a contract worker.

Forgotten Employee Rights: Overtime Pay for the Salaried Employee

| December 7th, 2016 | No Comments »

employee rights to overtime payIt’s hard to understand your employee rights. Many salaried employees believe they are not entitled to overtime pay.  This is a surprisingly common myth. There are a large number of salaried professionals who receive an annual salary, who work extremely long hours and never receive a dollar in overtime pay.   Many employees may leave a lot of money on the table each year without ever realizing it.

The reality is that unless you fall into an exempt occupational category, you are entitled to overtime pay.   Most salaried employees are entitled to overtime pay.  Federal and provincial employment standards legislation mandate that employers must provide overtime pay, regardless of whether you earn commissions, a base salary or an hourly rate. The manner in which you are paid has nothing to do with your eligibility for overtime pay.  Overtime pay for salaried employees is generally calculated by converting your annual salary to an hourly rate and overtime is paid at 1 ½ times the regular hourly rate for each overtime hour worked.

Employees who exercise managerial or supervisory functions or belong to certain exempt occupational groups are not entitled to statutory overtime pay.  That said, employees who bear the title of ‘manager’ or ‘director’, but who do not exercise supervisory or managerial functions, are still entitled to overtime pay.  It is not a valid justification for an employer to rely on a job title alone to avoid its overtime obligations.

Being entitled to overtime pay is one thing, but the practical hurdle is often proving the overtime hours. Most salaried employees do not have a system of tracking their hours of work, so overtime hours are often overlooked or difficult to prove after the fact.  The reality is, that even if you are a salaried employee, your employer bears the onus of tracking your overtime hours.  Even though it is the employer’s responsibility, you should be doing the same. Maintaining a daily time sheet on your own can validate the actual number of overtime hours you work in support of your overtime entitlement.

Overtime rules vary slightly by province. In Ontario, employees are entitled to overtime pay at time and a half, for hours worked in excess of 44 hours in a week.   In some provinces, employees are entitled to daily and weekly overtime.    You should check with the employment standards office in the province where you work to determine the overtime rules that apply to you.  Some employers may have overtime policies that are more generous than employment standards.  You should also review your employer’s overtime policy, if one exists, to determine if you may have additional rights or benefits under the policy.

 

Author: Jonquille Pak, Employment Lawyer

The Laws Regarding Employee Monitoring Software

| July 28th, 2016 | No Comments »

facebook at workEmployee monitoring software serves one primary purpose: to make sure employees are doing what they are supposed to.  It can be installed on computers and other devices and can track an incredible amount of information.

For example, while some software simply tracks when employees log on / off their devices or what websites they visit, other software can go much farther.  For example, some can track every keystroke made by an employee.  That can include keystrokes in personal, web-based emails that employees thought would remain private.  Other software includes the ability to replay each word typed and every move of a cursor.

However, just because the software makes these things possible, does not mean that employers should be using them.  In many cases, they should not.  For example, its use may breach an employee’s reasonable expectation of privacy.  This will depend on whether the company specifically prohibits the use of company devices for personal matters, how invasive the software, whether the software is used secretly or with the employee’s knowledge and consent, and many other factors.

Even if it doesn’t breach an employee’s expectations, using monitoring software may breach privacy legislation.  PIPEDA – the Personal Information Protection and Electronic Documents Act – and various provincial acts limit how many private organizations in Canada may collect, use and disclose personal information.  In most cases, organizations would need an individual’s consent before even collecting that information, much less using it.  As a result, keystroke monitoring that happens to catch an employee typing an email about a personal matter – such as a personal medical issue or their financial circumstances – may result in an inadvertent breach of the legislation.

In other words, employers should think carefully about whether they need to use monitoring software and, if so, how to ensure that they only use it with the proper controls, policies and consents in place.

For their part, however, employees also need to beware – many people work in environments where there is no reasonable expectation of privacy or where the information being collected is not ‘personal’ and could, if discovered, put their job at risk.

 

Author: Stephen Wolpert, Whitten & Lublin

Pokémon GO vs. Work FLOW

| July 26th, 2016 | No Comments »

 

no pokemon at work

In case you have been living under a rock for the past month the Pokémon GO game craze has hit Canada.   Players catch, trade and battle Pokémon that pop into existence alongside real-world physical objects when viewed through a smartphone.  A large element of the game requires players to travel to various locations to engage Pokémon.

In less than one month Pokémon GO is reported as being on more than 6 percent of Android devices in Canada, it is the most downloaded app in the history of the App Store and in the past weeks it has had more active users than twitter with more engagement than Facebook.

The game’s level of engagement means a number of people are playing it during their working hours and productivity is likely impacted.  After all, employees have been reported to have left the workplace on unscheduled, unapproved and extended breaks to catch or train Pokémon.  The result at this time seems to be a number of amusing signs posted in workplace but the concern should be greater and knowledge around the topic of time wasting should be understood and properly monitored.

Generally, an employee found playing games on company time does not justify a termination for cause.   Stated differently, catching Pokémon during working hours is unlikely to justify a dismissal without proper notice or payment in lieu of notice.  A termination with cause is regarded as the capital punishment of employment law and time wasting of this sort is not enough to justify it.

Despite the above, various factors could influence a judge to uphold a just cause dismissal.  For example, a disciplinary record tied to time wasting / time theft; game playing while driving or using company equipment (putting the safety of others at risk), an employee’s senior level, game play on a company issued devices, frequent game play, attempts to conceal or deny the misconduct and/or an intentional violation of a company cell phone, hours of work, internet or distracted driving policies may justify a with cause termination.

pokemon go work

Employees should be mindful that even though it is unlikely that their employer can justify a termination for cause on account of Pokémon GO game play they are certainly not free from serious consequences.  Most of Canada’s non-union employers can still impose other discipline and certainly terminate without cause.  Stated differently, employees can be fired for playing the game so long as an employer provides notice of that termination or makes payment in lieu of notice.  If a valid termination clause is in the employment contract the employer might only need needs to provide a few weeks’ notice before the employee becomes a full-time Pokémon GO hunter and Employment Insurance collector.

It will not be long before Pokémon GO results in reported dismissals but don’t let the excitement cloud your reality.  If you have any questions on this topic or other areas of employment law consider contacting our team to assess you situation.  If you are looking for well thought out options our team is well equipped to “catch ‘em all”.

 

 

Recording conversations at work?

| December 4th, 2014 | No Comments »

Are recording conversations at work legal or illegal? Employees and employers alike have raised this question and it is usually not a simple answer. The workplace is an environment where disputes can arise, and when they do, individuals believe that recording conversations is a way to build evidence. This may or may not be the case.

Employment lawyer, Daniel Lublin explains that recording conversations can be deemed legal or illegal based on the participants of the recording. Where deemed illegal, the recorder can be charged with an offence under the Criminal Code of Canada. To further understand the implications of what is legal and illegal, you should consult an expert who can help you understand the risk of recordings.

Read more on this topic and Daniel Lublin’s Globe and Mail column and full article Am I allowed to record conversations at work?

Employment offer was ended before it started

| November 21st, 2014 | No Comments »

Employment offers are known to make recruits pleased and satisfied with the prospect of beginning a new journey. It also gives them a sense of security in knowing that their financial obligations will be met. What if an employee is given a job offer and this offer is ended before employment begins? Does the employee have grounds for a law suit or legal recourse? Does this classify as a breach of contract?

The answer is based on a number of factors, including, but not limited to your ability to obtain alternative employment or restrictions that prohibit you based on your employment contract. Daniel Lublin, Toronto employment lawyer points out that where an Agreement is signed and cancelled before work begins, this is considered a breach of contract. For specific employment advice, consult with an employment lawyer to guide you through the assessment of your situation and to provide you with legal feedback.

Read Daniel Lublin’s Globe and Mail column and full article I got fired after my operation