By: Ellen Low

So, it’s finally summer, and it turns out you hate your job, your manager, and working in general.  Can hating your job be a human rights issue?  It depends.  In certain circumstances, an employee who hates working, and the way they are being managed, could raise human rights issues in the workplace.

While employers have the right to manage the workplace and issue instructions to employees, a human rights issue may arise when an employee is so unhappy with the workplace that it manifests itself in an illness, such as depression, anxiety disorder, stress, or high blood pressure.  In instances where the workplace is actually making the employee ill, human rights legislation may provide the employee with protection against discrimination based on the protected grounds of disability.

These protections include an employer’s obligation to accommodate the disability,  as well as a general prohibition against terminating an employee’s employment as a result of the disability.

For example, an employee may legitimately obtain a doctor’s note requiring a leave of absence due to stress.  While the employer has the right to request further information from the employee regarding any workplace limitations, accommodation requirements, and a potential return-to-work date, the employer is prevented from retaliating against the employee for taking the required time off or requesting accommodation in the workplace.

Employees who hate working and the way they are being managed, should speak to an employment law professional for practical advice on navigating sick leave entitlements, disability, human rights, and other issues.  But, employees hoping sick leave will give them the extra-long summer vacation they’ve been looking for should know that abuse of sick leave, or fraudulent sick leave, is grounds for immediate termination.

Janet Williamson, a health care worker at a retirement home in Mitchell, Ontario, was summoned to a meeting and told that if she took her vacation as planned, she would lose her job.

Williamson had agreed to join an 87-year-old resident on a Mediterranean cruise when the resident’s partner cancelled the last minute before their trip. Williamson received approval for the time off and agreed to step in.

However, a few days before the cruise, Williamson was called to a meeting with a newly-appointed CEO and told that her plans were a violation of her employer’s policy on accepting gifts from residents and given an ultimatum: If she went on the trip, she would be fired.

In my Metro news article from this week, I discuss the case in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

By: Cédric P. Lamarche

An article by Michele Henry published in the Toronto Star on June 21, 2010, discusses the case of a young black woman who was sexually harassed and was the object of racial taunts at work.

The object of the reprehensible conduct, Stacey Walker, worked at Toronto Western Hospital’s imaging department as an imaging technologist.  The author of the article reports that the inappropriate conduct towards Ms. Walker included the following:

• Displaying racially charged cartoons in the workplace;
• Making statements such as “Don’t beat me up massa” and  “Get up, give me your seat and go make me some stew”;
• Inappropriate and suggestive touching, such as massaging her shoulders;
• Stating “I wish you weren’t wearing a shirt or bra, that way I could give you a better massage”;
• Calling her Shaniqua, Chaka Khan, La Toya and Dark Walker; and
• Throwing her credentials badge on the floor and whipping a bottle cap at her legs while she bent over to pick it up.

This conduct, according to the article, started only 9 days after Walker’s first day on the job.  Ms. Walker complained to management, but her complaints fell on deaf ears and were ignored for 16 months.  During this time, the conduct continued and rumors quickly spread through the Hospital.  Many of Ms. Walker’s colleagues formulated their own conclusions and impressions regarding her complaints.  Only once Ms. Walker’s complaints reached the ears of a senior manager, a formal internal investigation was launched and, according to the article, confirmed the inappropriate conduct.

Employees who believe that they are being subjected to discriminatory conduct at work should not dismiss the inappropriate behaviour.  It is paramount that the employees review any discrimination and/or harassment policies implemented in their workplace and follow their protocol.  Note that as of June 15, 2010, employers in Ontario have an obligation to formulate policies addressing workplace harassment and violence, due to the recent amendments to the Occupational Health and Safety Act.

Employees are also encouraged to consult with employment law experts to review their case.  Even if an internal investigation is conducted, the employer may be liable to the employee if they do not abide by strict guidelines dictated by law.  Situations of discrimination or harassment can give rise to cases of constructive dismissals, in addition to human rights violations.  In Ms. Walker’s case, despite the Hospital’s investigation into the matter and despite any affirmative actions taken by the Hospital to remedy the poisoned work environment, the Hospital’s unreasonable delay in addressing Ms. Walker’s complaints may sufficiently demonstrate that the employee – employer relationship has been tainted to the point where continued employment would be intolerable.

Reading last week’s headlines about the case of Debrahlee Lorenzana, the New York banker claiming she was fired because her good looks distracted her male colleagues, raised an alarm as to the public’s various misconceptions of critical issues in workplace law. Here are just a few of them.

In one article, the author claimed that Lorenzana’s wrongful dismissal case against her employer sparked a debate over “workplace sexual harassment.” Turning this case into an issue of sexual harassment could indeed be an interesting development in workplace law – except that it is wrong.

Is it discriminatory to rely on looks when firing an employee? In another article, the author suggested that if Lorenzana was treated differently because of her appearance, it could constitute discrimination under human rights laws. This would also be a major development in human rights law, except that it is also wrong.

In my  Metro news article from this week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues. You can reach Daniel at dan@toronto-employmentlawyer.com. For even more on workplace law, follow him on Twitter at www.twitter.com/danlublin.

By: Cédric P. Lamarche

The upcoming G20 has spurred much talk about the large sums of money that the Canadian government is spending on the event.  Reports indicate that the Harper government plans on spending almost 1-billion for the summit.

Securing Toronto’s downtown core during the short meeting “requires the largest deployment of security personnel for a major event in Canadian history.”  According to the RCMP, the deployment of police, military and private security personnel will cost an estimated $321 million.

Due to the sudden need for security personnel and the hefty amounts invested, many government subsidized security positions have become available.  These positions are very appealing for many who currently work in the private security industry and earn meager wages.  According to newspaper advertisements by a company awarded a federal government contract, security guards hired for the event will earn approximately $20-$24 per hour.  This represents about double the average hourly wage earned by security guards in Ontario.

Some private security firms have expressed concerns regarding the retention of their staff during the summit.  As mass hiring begins, many private security firms are concerned that the attractive salaries will result in a high attrition rate, which may lead to staff shortages.

As attractive as the highly paid work opportunities may appear, security personnel should be very careful before bailing on their current employers.  Employment contracts often contain restrictive covenants (such as non-competition clauses) limiting one’s activities while employed, or following the termination of employment.  The breach of an enforceable restrictive covenant may give rise to legal liability.

The simple fact that an employment contract contains a non-competition clause does not automatically mean that it is enforceable.  Canadian courts will scrutinize these types of clauses very carefully to determine whether or not they should apply.  Restrictive clauses will be enforced if the courts conclude that the restrictions are reasonable to protect the proprietary interests of an employer as well as the interests of an employee to pursue his/her skills and earn a livelihood in a free and open market.  The question is whether a restrictive covenant does more than what is necessary to protect legally recognized interests of employers.

Whether or not a restrictive covenant is enforceable will depend on the circumstances of every case.  Before crossing the street to work for the competition, employees are encouraged to be diligent and have their employment contracts reviewed by employment law experts.

Cédric Lamarche is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

By: Ellen A. S. Low

If you’ve got a legal problem- you’re not alone. A recently released study titled “Listening to Ontarians: Report of the Ontario Civil Legal Needs Project” looks at how well low, and middle-income earners are being served by the existing Ontario civil justice system.  The study found that one out of every three respondents had had some sort of civil legal problem in the last three years.

The report, authored in part by former Ontario Chief Justice Roy McMurtry, and funded by the Law Society of Upper Canada, looks at the types of legal problems facing low and middle income Ontarians, how people find legal services, and makes recommendations to address some outstanding civil legal needs in Ontario.

In determining where respondents found legal services, almost 70% of respondents sought legal assistance from a lawyer whom they paid. Those surveyed were generally very satisfied with the assistance they received from lawyers and other professionals in the civil legal system, in fact, 80% of those surveyed stated that they found the assistance helpful.

With respect to the types of legal problems respondents were encountering, employment problems ranked third along with housing, land, and real-estate issues.

With respect to employment problems approximately 28% had taken less than a year to resolve. However, those who sought legal advice for employment matters stated the resolution process should be ranked low in terms of fairness.  In fact, 23% of respondents ranked the process for resolving an employment problem as “very unfair.”

Negotiating and resolving employment problems on your own can be extremely difficult.  Considering some previous horror stories, dependable legal advice for employment problems is invaluable.  If you have an employment law issue which warrants legal advice, please contact our office to arrange an initial consultation with counsel.

Ellen A. S. Low is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

By Cédric P. Lamarche

The recent events involving Canadian Armed Forces Brigadier-General, Daniel Ménard, have raised many questions regarding the propriety of relationships at work.

Ménard, who falls under the purview of the Canadian military law regime, was recently accused of engaging in an intimate relationship with a member of his staff.  The accusations have resulted in Ménard’s removal from his command post in Afghanistan.  Under the rules established by the Canadian Armed Forces, soldiers are strictly forbidden from engaging in acts of intimacy while away on deployments.  These rules were put in place in order to prevent the deterioration of discipline and structure within the ranks.

Military rules aside, is an employer permitted to terminate an employee for having a romantic relationship with a colleague?

Employers do have the right to implement reasonable policies and require that their employees adhere to them.  As long at the policies are exercised reasonably, fairly and in good faith by the employer, employees must comply with the rules established by management.  In order to be fair and reasonable, employers must ensure that company policies are clearly communicated to their employees, that employees are provided with the clear message that failure to follow company policies could result in disciplinary action, including discharge, and that the policies are applied equally across the board.

Pursuant to federal and provincial human rights legislation, employers have a duty to provide employees with a work environment free from harassment, including sexual harassment.  Accordingly, employers must take the necessary steps to prevent and eliminate certain types of unwanted negative sexual behaviour and attitudes from the workplace.  As a result of the Royal Assent of Bill 168, the “steps” that Ontario employers must take include the implementation of written policies which specifically address workplace harassment.

The problem with consensual romantic relationships in the workplace is that they may lead to conflicts of interests.  The obvious example is that of a manager involved in an intimate relationship with a subordinate.  In that example, the employee who is in a position of power may have the ability to influence managerial decisions involving his or her partner.  As can be gleaned from this simple example, employers may be faced with problems that arise where a consensual intimate relationship between employees leads to power abuses; problems that can be particularly difficult to manage.

The implementation of workplace policies containing anti-conflict of interest guidelines may be the answer to these problems.  Such policies should discourage employees in positions of power from engaging in relationships or situations that would either create or lead to the perception of a conflict of interest.  At the very least, the policies should impose an obligation upon managers or employees who exercise managerial decisions affecting employees with whom romantic interests are shared to disclose the potential conflicts such that decisions affecting particular employees can be impartially reviewed or require the decision makers to be removed from the decision making process.

Policies or rules forbidding romantic relationships between employees in the workplace will have limited efficacy as their enforceability is highly questionable.  Employees who are subjected to such policies or rules could certainly challenge them on the basis of unconscionability.  Whether such challenges will be successful will likely depend on the nature of an employer’s business and the reasonableness of the policies.

Cedric Lamarche is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

By: Ellen A. S. Low

As temperatures continue to rise, both employers and employees may be wondering about their respective obligations when it comes to working in the heat.

Pursuant to the Occupational Health and Safety Act employers have a duty to take reasonable precautions to protect workers.  This includes an obligation to develop policies and procedures to protect workers in hot environments.

The Workplace Safety and Insurance Board (“WSIB”), Heat Stress Awareness Guide encourages employers to have a “Hot Weather Plan” to prevent preventing heat-related injuries and illnesses in the workplace.  The Hot Weather Plan should include regularly monitoring heat and humidity in the workplace using a thermal hygrometer, and adjusting work schedules to allow for water and rest breaks based on the humidex reading at specific work sites.

The Heat Stress Awareness Guide puts the onus on employers to develop and implement a Hot Weather Plan, but stresses that employees must also be familiar with the symptoms of heat stroke and heat exhaustion.  Both employers and employees should know the risks of working in a hot environment, and what can be done to reduce the potential risk of heat-related illnesses.

One example I’ve seen was a ‘heat plan’ at an automotive manufacturing plant where for each 45 minutes of work in the sun, employees were required to take a 15 minute ‘cooling break’ in a shaded area where water and popsicles were provided.

Violations of the Occupational Health and Safety Act can result in penalties. Employers should ensure they are compliant to avoid potentially hefty fines. Contact our office for more information on how to develop and implement a “Hot Weather Plan” or for further information on other workplace safety obligations.

Whitten & Lublin LLP is a team of legal experts who provide practical advice and advocacy for workplace issues.

There is a scam being run by employers across the country, and it is permitted by law.

Most employment law prohibit dismissal during or after maternity leave.  Yet it happens anyway.  This is because there are various “exceptions” in the legislation permitting dismissal where it is unrelated to the leave.

In Ontario, the Employment Standards Act, 2000 states:

53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

What this essentially means is that where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a pregnancy or parental leave reinstatement will not be required.

Although many employers try to fit employees within this exception, it is not meant to permit dismissal in cases that are not clearly unrelated to the leave.  The question usually asked is, but for the leave, would the employee have lost their job?

In my Metro news article from last week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

By Cédric P. Lamarche

Puisque l’internet permet l’accès à un monde électronique sans frontière, la majorité des employeurs adoptent des règles très rigides en ce qui a trait à la consultation de sites internet lors des heures de travail.  Effectivement, ces règles visent à réduire les activités qui ne se rapportent pas au travail, et plus particulièrement, l’accès au contenu explicite qui se trouve en ligne.  Grâce à des technologies sophistiquées qui permettent la détection et la documentation d’activités électroniques, les employeurs peuvent assurés avec beaucoup plus de facilité l’observation de ces règles.

Dans un article intitulé Surfing porn still popular at work, qui a été publié récemment dans le Globe & Mail, l’auteur discute du fait qu’un nombre très élevé de personnes consultent régulièrement des sites internet pornographiques lors des heures de travail.   Selon l’article, les résultats d’une recherche démontrent que 70% des gens qui accèdent des sites pornographiques le font lors des heures de travail.  À titre d’exemple, l’auteur présente le cas d’un avocat sénior qui fut trouvé à passer jusqu’à huit heures par jour à consulter des sites pornographiques alors qu’il était au travail.

La question suivante devient donc très pertinente pour les employeurs ainsi que les employés : Est-ce qu’un employeur peut congédier un employé, avec motif valable, pour avoir consulté des sites pornographiques au travail ?  À première vue, la réponse à cette question semble évidente.  Toutefois, comme c’est souvent le cas dans le domaine du droit du travail, elle ne l’est pas.

Alors que la consultation de sites pornographiques au travail semble constituer un acte grossier qui pourrait vraisemblablement nuire à la réputation d’un employeur et causer des répercussions sérieuses pour une entreprise, il faut considérer les protections qui sont offertes aux employés par l’entremise du Code des droits de la personne de l’Ontario.  Notamment, le Code protège les employés contre la discrimination fondée sur l’existence présumée ou réelle, actuelle ou antérieure, d’un handicap.  Il reste à savoir qu’est-ce qui peut possiblement être considéré comme étant un handicap.

Est-ce qu’une dépendance à la pornographie peut être considérée comme étant un handicap ?

Si la réponse à cette question est dans l’affirmative, comme c’est le cas pour la dépendance à des substances contrôlées ainsi qu’à l’alcool, un employeur pourrait avoir l’obligation de prendre des mesures d’adaptation envers l’employé souffrant d’un tel handicap.  Ainsi, un employeur qui congédie un employée pour avoir consulté des sites pornographies lors des heures de travail, pourrait faire face à une requête pour discrimination devant le tribunal des droits de la personne s’il peut-être démontré que l’employé souffre ou semble souffrir d’une dépendance à la pornographie.