Refusing Unsafe Work In Ontario

| October 5th, 2017 | No Comments »

Workers in Ontario covered under the Occupational Health and Safety Act have a right to refuse, reasonably believed unsafe work that is not essential to the job. For instance, if working at high heights is essential to complete the tasks of the job, this cannot be reused if there is adequate safety equipment and regulations in place.

Under the Occupational Health and Safety Act, workers have a right to refuse unsafe work on the basis of:
1. equipment, machinery or devices that the worker is required to operate that is likely to endanger the worker or other around
2. the physical condition of the workplace itself posing a danger to the worker of any others around, which includes the likelihood that workplace violence will occur
3. any equipment, machine or device is not up to code under the Occupational Health and Safety Act

If a worker has a reason to believe that work required is unsafe due to any of the above, the worker must report this to their employer or supervisor, and that supervisor/manager must start an investigation immediately. The investigation must be done in the presence of a health and safety committee member that represents employees, if applicable, or the workplace health and safety representative. Further, during the investigation, the worker must be in a safe place as close as possible to the workstation, and available to the employer or supervisor for investigatory purposes. The worker also must receive regular pay during the investigation.

Upon the conclusion, if the investigation, the worker must be given the results, and any remedies implemented, if applicable. If the worker then still has a reason to believe the work is unsafe the employer, the worker, or a person on the behalf of the employer or worker must contact an inspector from the Ministry of Labour. The worker must remain at work during normal working hours in a safe place, and available to the inspector for investigatory purposes. Other workers must not be given the work or task refused unless the worker has been advised of the reason for refusal in the presence of a health and safety committee member that represents workers, or a health and safety representative.

The above guidelines are meant to educate workers on their basic right to refuse work believed to be unsafe. Refusals that are done in good faith cannot be subject to any reprisals from an employer, and workers have a duty to report any unsafe work immediately. For a comprehensive view of protection granted under refusal of unsafer work, refer to section 43 – 53 of the Occupational Health and Safety Act (Ontario).

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

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.

Constructive Dismissal: Some common signs and considerations to make

| June 19th, 2017 | No Comments »

Constructive dismissal is a legal term that means the employer imposed changes upon the working relationship that caused the employee to quit. This, in turn, is viewed the same as an unlawful dismissal and entitles the employee damages in notice pay at the very least.

To claim constructive dismissal, the change to the employee’s job must be unilateral, meaning that the employee did not consent to the changes. In addition, the changes must also be fundamental to the employment relationship, signifying that the employer intended to end the employment relation. Courts will examine the particulars of each case to determine if the changes made amounted to constructive dismissal. Some common examples include changes in the amount of responsibility one has, having supervisory duties taken away, intentionally making the work environment intolerable (bullying, ridicule, humiliation), or a decrease in pay.

Having a significant increase of job duties without an increase in compensation may also amount to constructive dismissal, however, there are things courts look for when making this determination. Courts will look at whether the restructuring was necessary for the survival of the business, the state of the economy, and whether such changes were made in good faith and in relation to a business goal. If there is a sign that an employee agreed to the extra duties, whether implicitly or explicitly, a constructive dismissal claim will usually be unsuccessful.

When deciding to ‘quit’ and pursue a constructive dismissal claim, it is important to ask whether the changes imposed signify the employer’s intention to end the employment relation. Absent of a significant pay decrease, it is important to consult with an employment lawyer before deciding to leave employment. What may initially be seen as a fundamental change to an employee’s job may not always be the case. Alternatively, for exceptional circumstances, additional damages in addition to notice pay may be necessary to rectify the treatment to which an employee was subjected. Always seek the advice of an expert before deciding to claim constructive dismissal.

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.

At what point is the duty to accommodate no longer necessary for an employer under human rights law?

| May 3rd, 2017 | 1 Comment »

Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground.  The most common grounds of discrimination within the workplace include religion, family status and disability. Other grounds of discrimination include race, colour, sexual orientation, age, sex, and others. Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground. The policy or job requirement does not have to overtly discriminate to be in violation. There simply needs only to be a discriminatory effect. The only exception is if the workplace policy or requirement qualifies as a ‘bona fide occupational requirement’ (BFOR). In order for a policy or workplace task to qualify as a BFOR, there are three points that must be satisfied that the courts have established. Below are each of the points along with an explanation as it relates to workplace policies or job requirements.

  1. The employer must show that the standard (policy/requirement) is rational in relation to the performance of the job.

This is a simple evaluation of whether the standard in question helps to fulfill a workplace goal. For instance, being able to lift 10 lbs. for an office worker may be required to access and retrieve large stacks of files. Having the requirement of being able to lift 10 lbs. in this case would qualify as a job requirement that rationally connects to the job.

  1. The standard in question must have been adopted in an honest and good faith belief that it is necessary to fulfil the work-related purpose.

The employer must also adopt the standard with the belief that it will fulfill a workplace goal or function. Maintaining the above example, the requirement of being able to lift 10 lbs. of weight for the purpose of retrieving needed work materials (such as large documents, files, etc.) would qualify as a good-faith measure. Being able to retrieve files on a regular basis that one is required to work with is a work-related purpose that would require someone to physically lift a minimal amount of weight.

  1. The standard in question must be reasonably necessary to accomplish the legitimate work-related purpose.

The final requirement is the most difficult to establish. In order to establish that the standard is reasonably necessary, employers must show that they would suffer ‘undue hardship’ by accommodating the individual. This step requires employers to explore alternatives that are less discriminatory and still accomplish the work related goal. Sticking with the above example, for a worker that cannot lift 10 lbs. due to disability, reasonable alternatives may include having other workers assist the worker when they are unable to lift the necessary documents/files, providing electronic files instead, or so on.

The idea is that it must be possible to accommodate the individual so that they can perform the essential duties required for their job. If this is not a possibility, then the employer has satisfied the requirements to establish the policy or work requirement is a BFOR. Typically, accommodation requires an employer to adjust working conditions so that the employee is able to perform the essential duties of the job. If the employer is unable to accommodate the employee to this point, then the burden of accommodation has been met.

Concluding Remarks:
Once a workplace standard is established as a BFOR, an employer is not required to accommodate. However, it is always advisable to explore alternatives to avoid unnecessary litigation. When exploring alternatives for accommodation it is essential that employers take an approach of good faith. This includes joint problem solving between the employee and considering doctor opinions if available. When in doubt, it is always best to seek the advice of an employment lawyer, as accommodation can present unique challenges that require legal expertise.

Medical Marijuana Use in a Safety Sensitive Workplace: Can an Employer Deny an Employee Use?

| March 13th, 2017 | No Comments »

Medical marijuana may be prescribed for several medical reasons. Under human rights law in Ontario, workers have a right not to be discriminated against on the grounds of ‘disability’ which encompasses illness. The use of medicinal marijuana in the workplace must be treated the same as any other prescription drug that a worker uses for a medical condition. In order to use medicinal marijuana in the workplace, the employee must provide medical documentation stating the nature of the disability (reason for use), and whether he/she is able to safely work while using medicinal marijuana while requesting accommodation.

Under human rights law, employers must accommodate an employee with a disability up to the point of ‘undue hardship’. In safety sensitive workplaces, accommodation may present increased challenges for employers. Under occupational health and safety law, workers cannot be a threat to their own safety or the safety of others within the workplace. An employer must, therefore, balance the duty to accommodate and the need to maintain a safe working environment.

There is no blanket standard that can be applied with regards to accommodation of medicinal marijuana use in safety sensitive workplaces. Each case must be examined in relation to the worker’s needs, the work duties and organization of work, and other factors that may have an effect on accommodation. For instance, the interconnectedness of work roles on an assembly line may present greater difficulties in terms of granting a worker the time needed to take prescribed usage of marijuana. If usage requires inhalation, then the worker must be relieved by another available worker that can perform the same role. This is because inhalation must be done in a designated smoking area. Accommodation efforts in this hypothetical may raise question such as: can other workers that can perform the same role be made available at all times? Can the marijuana be taken by ingestion with food while on the assembly line? Does being under the influence raise a health and safety concern? Can this worker be retrained for other similar roles that would alleviate potential health and safety and/or accommodation issues? With regards to the worker’s ability to perform the job duties without any concern for health and safety while under the influence, the worker’s physician must provide documentation showing that there are no issues.

The above was only one of many different scenarios that may arise. Employers are advised to have sufficient workplace policies with regards to prescription medication and workplace safety. This includes having procedures for reporting the use of medicinal marijuana and requesting accommodation, proper procedures for using medicinal marijuana when needed, and defining what is considered impairment with regards to health and safety matters. This is by no means a comprehensive guide. The consultation of an employment law expert should be sought so that unnecessary and costly future litigation is avoided for failing to accommodate up to ‘undue hardship’.

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