Serving Alcohol At Workplace Events: Employer Liabilities

| October 2nd, 2017 | No Comments »

It is not uncommon for employers to sponsor or hold workplace events with alcohol being served. An example may be a Christmas party either held at the workplace or at an event hall. Employers must be aware, however, that certain risks of liability are present when holding such events. Essentially, employers must take on the same responsibilities of regular commercial alcohol vendors such as a local bar or restaurant. Employers should do all that is possible to monitor employee alcohol consumption, provide for transposition, and implement procedures that aid in limiting alcohol consumption to safe levels.

An example of the responsibilities employers have when serving alcohol at workplace parties can be seen in the case of Hunt v. Sutton Group Incentive Realty (Ontario Superior Court, 2001). The employer here held a Christmas party at the workplace with alcohol available. An employee became intoxicated while at the party and then attended a bar with co-workers and continued to drink. The employee then attempted to drive home but suffered a severe car accident that left the employee with brain damage. This employee was successful in suing the employer for negligence, alleging that the employer failed to take proper steps in protecting its employees from harm. The court ruled that the employer had a responsibility to protect its employees beyond the physical workplace. Specifically, it was not enough that the employer provided alternative transportation home. The employer here should have taken measures to limit and monitor employee alcohol consumption at the workplace Christmas party, rather than have an unsupervised open bar.

In light of this case, employers should take the following precautions when hosting or sponsoring parties that serve alcohol. Ensure that alcohol is not the sole activity; provide food and various activities. Also, make sure that alcohol distribution is controlled. Having authorized or designated servers are the best way to accomplish this objective. Employers may also choose to issue a limited amount of alcohol tickets per employee. Employers should also stop serving alcohol a few hours before the end of the event. Having personnel to aid in detecting when employees have consumed alcohol past a reasonable limit is also advisable. Transportation arrangements are also very important and strongly recommended.

I am being bullied at work by my boss. What do I do?

| September 26th, 2017 | No Comments »

Question: I am being bullied at work by my boss. What do I do?  She yells at me daily.

She has asked me things like; can you read? Are you deaf? Are you dyslexic? Do you know how to spell? If she misplaced something I get yelled at. If a client doesn’t read a document I asked them to read I get yelled at. I have been yelled at and talked down to in front of clients.

I actually have a breakdown every Sunday at the thought of going in on Monday.  I have left work crying numerous times.

What do I do?

Answer: Just like many have learned on playgrounds as children, you have to stand up for yourself and stand up against bullies.  However, as many have also learned, standing up to a bully directly can cause a lot of pain and suffering, and there is usually a better way.

In the context of workplace bullying, there is a better way.  In most cases, you can empower yourself by taking timely and detailed notes of each instance of bullying and, within limits, even recording conversations with the bully.  This is often the first step, as the notes and recordings make it easier for you to explain the situation to your HR department, your bully’s manager, or even a lawyer.  It may also be worthwhile to get a doctor’s note; if the stress is too much to bear, you may be able to take a temporary leave of absence (sometimes paid, sometimes unpaid).

You should also do so knowing that the law protects you from mistreatment in many ways.  Harassment is prohibited by both the Occupational Health and Safety Act and, for certain kinds of Harassment, the Human Rights Code.  Further, if the environment really has become toxic, you may be allowed to leave and start a constructive dismissal claim.

 

At Whitten & Lublin, we have been successfully standing up to bullies and protecting employees for many years.  If you’re experiencing workplace bullying, call us for help!

What is Ethnic Discrimination in the Workplace?

| September 18th, 2017 | No Comments »

Ethnic discrimination occurs when an employee is treated different than his or her colleagues based on their ethnicity in a manner that is unfair.

A person’s ethnicity refers to the national, cultural or religious group(s) to which they belong, or are perceived to belong.  A person’s ethnicity can be shown visually (i.e. if they wear a turban), linguistically, (e.g. if they have a Chinese accent), or it can be difficult to detect.  A person’s ethnicity is associated with their cultural identity, and it can change over time.  In contrast, a person’s race is generally seen as an unchangeable part of their biological makeup.

Ontario’s Human Rights Code prohibits ethnic discrimination in the workplace.  Ethnic discrimination often overlaps with other types of discrimination under the Ontario Human Rights Code, such as race, place of origin, creed and ancestry.

Ethnic discrimination in the workplace can come in many forms, some of which are very commonplace.  A manager who makes fun of his subordinate’s hijab would likely have engaged in ethnic discrimination.  An employee who is denied a receptionist position based the fact she is not proficient in English may have experienced ethnic discrimination.  She could make an application to the Ontario Human Rights Tribunal claiming discrimination on the basis of ethnic origin.  However, the potential employer could defend against her claim by arguing to the Tribunal that English proficiency is a legitimate requirement for the position.  The Tribunal will closely analyze the claim that English proficiency is required for a position.  In many cases, an employee does not need to have perfect English skills in order to perform the duties associated with a particular position.

Author: Simone Ostrowski, Whitten & Lublin

How to Deal With Workplace Violence

| September 18th, 2017 | No Comments »

It is exceedingly important that businesses have clear policies and procedures in place to address workplace violence, which comply with the statutes that govern workplace violence – including the Ontario Occupational Health and Safety Act.  Under this Act, employers are required by law to prepare a written policy that defines workplace violence, provides examples of it, sets out a clear program for filing internal complaints and investigating them, and describes any other steps the company will take in relation to workplace violence.

Companies may be required in appropriate circumstances to hire an external provider both to train their staff, and to investigate incidents of workplace violence as they occur.  They are also required to provide protection from any workers with a history of violence, and to reasonably protect workers who are at risk of domestic violence.

Because workplace violence is considered a “safety hazard”, workers have a right to temporarily stop performing their duties until the issue is adequately addressed.  Employers will be required to put a safety plan in place to ensure that any risks are limited to the extent legally required.  In some cases, employers may also be expected to provide counseling services, if the workplace violence incident is of a sufficiently serious nature.

Where a company fails to comply with its legal obligations, it is at risk of substantial fines, extra attention from the Ministry of Labour, unhappy employees, reduced productivity, damages for wrongful or constructive dismissal, reinstatement of terminated employees (together with back-wages) and increased legal fees – among other things.

 

Author: Daniel Chodos, Whitten & Lublin

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