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.

Can A Manager be Disciplined for After-Hours Conduct of Sexual Harassment?

| June 20th, 2017 | No Comments »

It may be commonly perceived that unacceptable conduct in relation the workplace only extends as far as the physical workplace or workplace events. Although questionable in certain circumstances, when the misconduct involves sexual harassment and is perpetrated by a managerial figure, prohibited workplace conduct may extend beyond the workplace itself to protect employees from unwanted and offensive conduct.

A case that illustrates the above is Simpson v. Consumers’ Association of Canada (OCA 2001). Simpson was an Executive Director for Consumers’ Association and was terminated for sexual harassment. The allegations against Mr. Simpson include propositioning a secretary, going to a strip club with a co-worker, having an open sexual affair with an assistant causing her to resign, and inviting workers to his cottage to swim unclothed among other things. Consumers’ Association terminated Simpson upon discovering the allegations and misconduct. Simpson then claimed unjust dismissal.

Simpson did apologize for the conduct in the workplace and claimed that the other misconduct happened outside of the workplace. However, the court found that there were workplace connections to the misconduct that took place outside of the workplace events. The court stated that sexual harassment is an objective standard which includes conduct that ought to reasonably be known as unwelcome. Given Simpson’s position in the company, he should have known his conduct was unwelcome and would receive adverse consequences. It is also important to note that the absence of sexual harassment policy in this workplace did not work in Simpson’s favour. Being in an executive position, sexual harassment policy could have easily been implemented by Simpson. This reaffirms the courts position on zero tolerance on sexual harassment absent of workplace sexual harassment policy.

Overall, sexual harassment perpetrated by an individual in a managerial position outside the workplace will have consequences. The fact that the conduct occurs outside the workplace does not protect managers or senior personnel from workplace discipline. The objective standard adopted by the courts ensures that sexual harassment by a managerial figure will not be tolerated outside the workplace, as this ought to be known to be unwelcome behaviour and could be subject to consequences.  If subjected to sexual harassment outside the workplace, it is always important to make the appropriate personnel aware and seek legal advice.

An employee in a managerial role is found to be engaging in sexual harassment: what is a reasonable punishment?

| May 15th, 2017 | No Comments »

When an employee is in a supervisory role and there is adequate evidence that the individual engaged in acts of sexual harassment towards other employees, then the employer’s obligation to its workers leaves limited options. Termination may be justified punishment and also the only option available to the employer due to the obligation to protect workers from sexual harassment.

Ontario Human Rights Code: Sexual Harassment

Of course, there are varying degrees of sexual harassment. Legally, sexual harassment is defined under the Ontario Human Rights Code 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.” By definition, there must be a course of action here that is unwelcome, which implies that single incidences may not require harsh punishment. However, if the conduct is serious, then termination is warranted.

Individuals in managerial roles are further prohibited by such behaviour because human rights law specifically prohibits sexual solicitation or advancements by managerial personnel. The Ontario Human Rights Code states that individuals in a workplace are entitled to be free from sexual solicitation or advancements from those in a position to deny or provide an advancement or benefit within a working relationship. In other words, those that possess the authority to grant or deny workers benefits or advancement in their careers are explicitly prohibited from acts of sexual solicitation and/or advancement upon workers in the workplace. This includes supervisors, managers, employers and so on.

Case Example: Gonsalves v. Catholic Church Extension Society of Canada

To illustrate the above, take the case of In Gonsalves v. Catholic Church Extension Society of Canada. Here, Gonsalves was the financial manager and supervised 10 female employees. Gonsalves was accused by a number of these workers of inappropriate comments, touching (which was also criminal), and using sexually charged language. It was also apparent that these workers were afraid to come forward because they were concerned about their job security. The president (the priest) heard these allegations and immediately fired Gonsalves, even though this behaviour ceased months prior. Further, there was no sexual harassment policy nor established rules of discipline and/or investigations.

The court ruled that termination was the right punishment due to the seriousness of the sexual harassment that took place. Although there was not policy in effect, this was a zero-tolerance situation. Being in a supervisory role, Gonsalves could not be allowed to continually supervise employees in light of the misconduct. Further, one particular employee was threatened by Gonsalves to refrain from reporting the sexual advancements he had made towards her. This seriously impacted this individual and continuing to employ Gonsalves would cause this individual significant distress. The employer here had no other option but to terminate Gonsalves out of an obligation to provide a safe workplace free from sexual harassment.

Final Thoughts:

It is important to be aware that individuals in a managerial or supervisory role hold a significant amount of power over regular employees, so termination for sexual harassment may be the only option for employers. Employers are obligated to provide a workplace free of sexual harassment, so It is important to respond to any allegations against management or supervisors appropriately.  Proper investigations and precautions to protect those employees under the supervision of the accused should be taken as soon as possible because these employees are most vulnerable.

I felt forced to resign as a result of an illness or disability – what are my entitlements?

| April 27th, 2017 | 1 Comment »

Disability and Human Rights Law in the Workplace:

Employees have the right to be free from discrimination on the basis of discriminatory grounds, which includes Illness or disability. If an employee is faced with an illness or disability and needs accommodation to complete their work duties, an employer is obligated to accommodate to the best of their abilities. Unfortunately, there have been instances where rather than accommodating, managers or employers will seek to dismiss an employee or make the employee’s situation difficult to the point where they are forced to resign. This may include harassment, refusal to accommodate, or other actions that target the worker’s disability or illness in order to make work intolerable. In such instances, employee can quit and claim constructive dismissal. This simply means that the employer created an environment that would force any reasonable person to resign – in the eyes of the courts, this is the same as a wrongful dismissal.

Damages:

An employee that is wrongfully terminated is entitled to their severance package in addition to any entitlements for damages under human rights law.  Under human rights law, damages will be assessed by the seriousness of the discrimination and the effect it had on the employee (mental distress). Seriousness is assessed by the duration of the harassment suffered or an employee’s length of employment. This can apply to any harassment by management or supervisors, or coworkers that targets the illness/disability of an individual in the workplace. Under human rights law, these damages are intended to right the wrong of the violation suffered by the victim – not to ‘punish’ the employer. However, for extremely reprehensible acts, the courts seek to punish the action itself in order to send a message of retribution, denunciation and deterrence.  To highlight the difference, consider the case of Strudwick v. Applied Consumer & Clinical Evaluations, 2016 (ONCA).

Strudwick (Vicky) v. Applied Consumer & Clinical Evaluations:

In Strudwick v. Applied Consumers, Strudwick was an employee of 15 years that suddenly developed severe deafness from an unknown cause. Applied Consumers refused to accommodate Vicky, and her supervisor and general manager started a course of “public belittling, harassment and isolation in ways relating to her disability” and took additional action to make Vicky’s deafness more difficult in relation to her work duties. For instance, her supervisor made other workers call Vicky instead of using email for any inquiries, making it near impossible for Vicky to perform her job. At one point, management suggested that Vicky quit and claim disability. It was clear that these actions were done to force Vicky to resign. Management eventually dismissed Vicky on frivolous claims in front of her coworkers in a humiliating manner.

The termination was found to be wrongful dismissal and Vicky was awarded her entitled severance pay. Further, Vicky also was awarded $40 000 in damages for the violations she suffered under human rights law to rectify the wrongs. The judge, however, felt that simply rectifying the wrongs here did not denounce the nature of the actions management took. An additional $55 000 was awarded in punitive damages due to management’s harsh, malicious and reprehensible actions leading to termination.

Concluding Remarks:

The case above resulted in $246 049 in total damages due to further damages awarded for intentional infliction of mental distress and aggravated damages. If you are a worker faced with a situation of discrimination and harassment, it is important to seek legal consultation. Assessing damages for human rights violations may extend beyond human rights legislation for actions that are morally reprehensible. It is always best to seek the advice of an employment lawyer to ensure you receive just compensation in extreme cases.

Employee Medicinal Marijuana Use and Workplace Policy: What Are the Implications?

| March 6th, 2017 | No Comments »

If an employer has a workplace policy that restricts or prohibits the use of medicinal marijuana this could in effect be grounds for discrimination under human rights law. Although the policy may not explicitly target an individual, or be discriminatory due to the language used, it is the effect of the policy that is important. If the effect of the policy results in an individual facing inadvertent discrimination, then the employer must accommodate up to the point of undue hardship.

For instance, suppose a workplace policy limits the use of medicinal marijuana to certain times during the working day. This may not seem discriminatory since the employer does allow those individuals that need the use of medicinal marijuana to do so; however, there may be certain individuals that are negatively impacted. Certain cases may involve an individual that deals with unpredictable chronic pain. If proper treatment for this individual involves the use of medicinal marijuana on an as-needed-basis, then any policy that restricts such use would in effect be discriminatory.

An employer would legally be legally obligated to accommodate in instances where individuals are adversely affected up to the point of ‘undue’ hardship. Simply, the employer must accommodate in a way that would allow an individual to perform the essential duties of the job unless doing so results in unreasonable hardship for the employer. ‘Undue’ hardship is an elusive standard in employment law so if you are faced with any concerns of medicinal marijuana use in the workplace and workplace policy, seeking the consultation of an employment law expert is necessary. Safety sensitive workplaces also add an extra element of complexity. This would require the employer seeking information on the effects the medically prescribed marijuana has on the individual in relation to their job duties and workplace safety, just as would be required for any other medically prescribed drugs. Again, the advice of an employment law expert is strongly recommended in these circumstances.

What age discrimination looks like in the workplace

| January 11th, 2017 | No Comments »

“We do not want to invest in someone who will retire so soon.”

“Perhaps you would benefit from working with people your own age.”

“We prefer to maintain our youthful culture.”

“We prefer to hire more mature employees.”

What do all of these statements have in common? In each one, the speaker is drawing a distinction between the recipient of the statement, and those of a different age group, which negatively affects the recipient.  In the workplace, this can amount to discrimination on the basis of age, or “ageism”.

Age discrimination in the workplace is illegal, and all employees over the age of 18 (with limited exceptions) benefit from the anti-discrimination provisions of federal and Ontario human rights legislation.

Age discrimination can occur anytime an employee is unfairly distinguished because of his or her age.  Ageism does not need to be overt, or plain and obvious, in order to constitute discrimination.  In fact, ageism is quite often subtle, and done without malice or realization that ageism is occurring.

For example, an employer may want to maintain a certain culture that is more prevalent amoung younger generations, thereby denying employment to a senior applicant in the process.  While the employer’s intent may have been innocent, the consequence is that an older job applicant has been unfairly denied employment for no reason other than his or her date of birth.

Similarly, an employer’s desire to maintain a more mature workplace may inadvertently hold younger employees to higher standards in order to obtain employment.  The employer’s intent may be sincere, but the way in which prospective employees are vetted may not be.

Here are some important things both employers and employees should remember in order to avoid age discrimination:

  • Employers cannot deny a benefit or opportunity (such as employment, promotions, raises, etc.) to an employee that is in anyway motivated by the employee’s age
  • Mandatory retirement after a certain age is illegal
  • Even though laws dealing with age discrimination only apply to employees over 18 years of age, employers are still bound by their duties of good faith and fair dealing in connection with their younger employees
  • Anti-age discrimination laws apply not only during employment, but during the application and screening process as well.

Author: Marc Kitay, Employment Lawyer

5 Things That Make For a Hostile Work Environment

| December 12th, 2016 | No Comments »

Hostile Work EnvironmentA hostile work environment is created when an employer or colleague behaves in such a way that it is difficult or impossible for an employee to continue working. A hostile work environment is often considered a form of harassment.

Below are five actions that can accidentally, or on purpose, make for a hostile work environment, and how to resolve them:

  1. Verbal abuse or physical threats against an employee’s well-being. It goes without saying that yelling, swearing, or making verbal threats of physical harm towards an employee will create a hostile work environment. Violence itself is not necessary, the fear of harm may be enough.
  1. Insulting or degrading comments based on the personal characteristics set out in the Ontario Human Rights Code. Comments or actions that are unwelcome and based on personal traits like race, age, gender, religion or family status, to name a few, will create a hostile work environment.
  1. Unwelcome sexual remarks or contact, leering, unwelcome requests for dates, displays of sexually offensive pictures, or the spreading of sexual rumours. In addition to creating a hostile work environment, such behavior may also result in a claim of sexual harassment.
  1. Conduct that intimidates, humiliates or demeans an employee. Insults, name calling, or the spreading of rumours can amount to workplace bullying, and a hostile work environment.
  1. Targeting a particular employee by providing them with excessive and unjustified criticism, impossible goals and deadlines, or sabotaging the employee’s work. Such behavior is conducted in bad faith and is another form of bullying.

It is the employer’s responsibility to address and prevent conduct that has created a hostile work environment. An employee faced with a hostile work environment should report any harassing behavior to a superior. Once the employer is made aware of the allegations of harassment, there is an obligation on the employer to investigate and resolve the situation.

Employers are required to prevent hostile work environments from developing.  Under the Occupational Health and Safety Act, employers with five or more employees are required to prepare a workplace policy about workplace violence and harassment. Employers must also develop and maintain a written program to implement the policy, which must include measures and procedures as to how workers are to report workplace harassment, as well as setting out how incidents or complaints will be investigated and dealt with.

Finally, if an employee is subjected to behavior that is in violation of the Ontario Human Rights Code, the employer may be faced with a human rights claim if they allow the hostile work environment to continue or develop.  Employers should take allegations of a hostile work environments seriously, and also be pro-active in fostering a safe and healthy work environment.

Author: Whitney Manfro, Whitten & Lublin

Holiday Party & Corporate Liability

| November 29th, 2016 | No Comments »

holiday party at workA staff holiday party is a great way of celebrating the holiday season.  It can also be an effective way of showing appreciation to employees.  These events can be lots of fun, but what many employers often forget is that they can attract unwanted liability. 

The most common types of legal issues employers face as a result of staff parties are related to harassment and alcohol consumption.  The following are brief guidelines that employers should carefully consider in order to create a fun-filled holiday celebration, while avoiding legal liability.

Harassment

An employer can be held liable for harassment, including sexual harassment, even if it occurs after hours at a staff social event.  The following are simple things that employers can do to not only help reduce the risk of harassment, but also the risk of liability if harassment does occur: 

  • Develop and circulate an anti-harassment policy that clearly states that it applies to all work functions, including all social events;
  • Members of management should be reminded that they are expected to set an example for other employees during workplace functions;
  • Invitations for a holiday party should include a reminder that the anti-harassment policy extends to the event;
  • Consider inviting non-employees to the event.  The presence of customers, suppliers, or significant others can help reduce the occurrence of harassment or offensive behaviour;
  • Take steps to limit the consumption of alcohol;
  • Anti-harassment training should have fact scenarios that include work social events; and
  • Have an action plan ready in the event of an incident of harassment, and be prepared to implement it. 

Realistically, employers may not be able to fully control how guests behave at social events.  However, they can certainly avoid being held responsible for another guest’s conduct if they take proactive steps to help prevent the conduct, and if they take appropriate and swift action in response to inappropriate conduct.

Alcohol Consumption

The consumption of alcohol at a work function can lead to undesirable conduct by guests.  One of the main concerns employers should have is being held liable for injuries or damages caused by an intoxicated guest.

A social host is not typically liable for injuries/damages resulting from a guest who has consumed alcohol at the host’s residence.  However, employers are not ordinary social hosts.  The case law in Canada suggests that employers who host staff holiday party owe a duty of care to their employees which is closer to that of a commercial host.  Consequently, an employer who hosts a party has a greater duty to protect intoxicated individuals and the public than a social host. 

To help reduce the risk of liability arising from an intoxicated guest’s actions, employers should be following these simple tips:

  • Only serve a reasonable amount of alcohol to every guest.   Effective methods include the issuance of a set amount of drink tickets per guest, and limiting the period during which alcohol is served;
  • Do not provide open access to alcohol; 
  • Hire certified, licensed and insured professionals to look after the distribution of alcohol;
  • Serve food at the event;
  • Prevent “binge drinking” by discouraging/prohibiting drinking games;
  • Offer a selection of non-alcoholic beverages;
  • Hold the event off-site at a licensed and insured establishment;
  • Appoint members of management to monitor alcohol intake by guests, warn people against driving intoxicated, and to arrange taxis for intoxicated guests;
  • Provide paid transportation to and from the event for all guests; Invitations to the event should include a statement discouraging drinking and driving and excessive alcohol consumption.  Similar announcements should be made regularly throughout the event;
  • Do not conduct any business at the event; and
  • Avoid drinking with employees at other sites after the conclusion of the social event.

If an employer wishes to throw a staff party without having to worry about liability, it should refrain from cutting corners at the organizational stage.  Careful and thoughtful preparation is the key to a successful and liability-free event.

What to do about Bullying in the Workplace

| November 17th, 2016 | No Comments »

bullying in the workplaceBullying was unacceptable when you were a kid on the playground.  It is no different that you are adult in the workplace.  Whether it is your co-worker or your boss, it is not allowed.  If you experience bullying at work, you can confront the bully.  If you are not comfortable doing that (perhaps because your boss is the bully), consider contacting a human resources representative, a member of the company’s joint health and safety committee, or your boss’ boss.  It is also important to review any discrimination / harassment / bullying policies and complaint processes that applies in your workplace, as this will help guide your path.

Usually, the complaint should be handled by someone objective (not the person you complained about), and both you and the person you are complaining about will be given an opportunity to explain what happened.  Occupational health and safety legislation sets out certain basic requirements for harassment investigations.

Since bullying can often be difficult to prove, do your best to keep track of instances of bullying – keep emails where the bully’s tone was unreasonable, keep doctors notes regarding any impact the bullying has had on you, and create a journal listing the details of every time you felt bullied – details like where it happened, when it happened, who witnessed it, and what exactly what was said.  Try to describe the event in a fair and objective way.  These steps will help to ensure that your complaint is taken seriously.

If none of those private options work, consider contacting the Ministry of Labour.  If the company does not fulfill its basic obligations to investigate, an inspector from the Ministry can appoint an investigator, at the company’s expense, to ensure that your complaint is investigated and that it is done properly.

Of course, you can also seek legal advice at any time.  Depending on the nature of the bullying, the company could be liable for, among other things, constructively dismissing you, breaching your human rights, or intentionally inflicting mental distress on you.

Author: Stephen Wolpert, Whitten & Lublin

Recognizing Signs of Discrimination in the Workplace

| March 8th, 2016 | No Comments »

discrimination in the workplaceThe most common form of discrimination in the workplace is not immediately obvious and you may not even realize that it’s happening to you. Identifying subtle forms of discrimination requires examining all of the circumstances to determine if you have been treated differently from your colleagues on the basis of such identifying factors as your age, gender, race, or disability.

Some indicators that there might be an issue in your workplace include: a lack of diversity; repeatedly being passed over for a promotion even though you have strong performance reviews; exclusion from training or career development opportunities; favouritism in assigning high profile or lucrative projects; receiving differential treatment (in comparison to your co-workers) with respect to discipline; suddenly receiving negative performance reviews after a long history of positive reviews; being asked to perform tasks with unreasonable deadlines (i.e. you are being set up for failure); exclusion from opportunities for social interaction; being held to a higher performance standard; and unwarranted criticism of soft skills such as your “communication style”.

If you suspect that you are being discriminated against, you should begin keeping a detailed diary of the above types of events and make note of any specific incidents, including dates, times and names of any potential witnesses. You should also consider consulting with a lawyer to discuss your particular situation and to obtain assistance in making a formal complaint where it is warranted.

Author: Priya Sarin, Partner at Whitten & Lublin