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

| April 11th, 2017 | No Comments »

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

R. v. Metron Construction Corporation

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

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

Decision:

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

Takeaway:

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

Geographic Relocation and Constructive Dismissal

| February 17th, 2017 | No Comments »

Constructive dismissal is when an employer alters the fundamental conditions of the employment contract, which gives the employee little choice but to resign. Many employees do feel that relocation is constructive dismissal. The general rule for establishing constructive dismissal is whether the employment contract has been fundamentally changed. Relocation may be a fundamental change to the employment contract as displayed in past court cases. The following are a few factors to be aware of when deciding to seek representation by an employment lawyer.

It is important to be aware of whether relocation is an implied term of the employment contract as terms of the employment contract are often not in writing. ‘Implied’ terms are certain provision that should be reasonably assumed even though not formally written. In the case of a relocation request from an employer, the request may be implied in a number of circumstances. This includes whether the employer has relocated other workers in the past, whether the business is international (has many locations internationally), and the size of the organization. When the business is international and the position is not a demotion, it is generally seen as an implied condition of the employment contract and therefore not grounds for constructive dismissal.

Other factors to be aware of are whether the relocation is temporary, whether there are changes to other fundamental terms of the employment contract (such as pay and responsibilities), whether relocation expenses are being covered by the employer and whether undue hardship will result from the relocation. Further, the relocation must be done in good faith (i.e. for a legitimate business purpose). If you feel that a relocation request would be constructive dismissal for the reasons mentioned or any other factors, it is important to seek legal consultation from an employment law expert.

Courts have ruled against employers when relocation was not a term included in writing within an employment contract, even when the business was international with offices in other countries. For employers, it advisable to included relocation clauses in initial written employment contracts if this is a reasonable expectation given the nature of the company’s operation. For any uncertainties, seek the advice of an employment lawyer.

Employee Duty to Mitigate Damages After Being Terminated

| January 18th, 2017 | No Comments »

Being terminated from employment can be an emotional and impassioned time but it is important that employees remain mindful of their duty to mitigate damages. This simply means that an employee must make the necessary efforts to lessen their losses and, in turn, the amount of damages the employer is obligated to pay. In court, employees are required to initially show that they have taken reasonable steps to mitigate damages.

The duty to mitigate requires the employee to accept a comparable position if offered by the employer providing the working environment has not turned hostile. As established by past court cases, this offer may be made immediately or after some time has passed. The offer, however, must be a position that is comparable and not one that leads to embarrassment or loss of status. In determining whether a position is comparable, factors usually include wage/salary, location, status, and training. Employees must also seek and accept comparable offers of employment from other employers. If it is proven that a comparable position was offered by another employer and it was turned down, employees may not be entitled to damages from their previous employer.

If an employer challenges the employee’s efforts in mitigating damages, they must go beyond just proving that there was an availability of comparable jobs during that time. The employer must also show that the employee had a reasonable chance at obtaining such positions and that the employee failed to pursue the employment opportunities.

There are many other factors that can influence the amount owed in damages depending on the complexity of the situation. Such factors may include retraining and career changes, the decision for the employee to pursue their own business and so forth. It is thus important to speak to a legal expert to clear up any uncertainties and to ensure the amount paid in damages is fair.

Things a Leave of Absence Policy Must Include

| May 16th, 2016 | No Comments »

Leave Of AbsenceLeave of absence policies are meant to provide employees with work-life balance and in certain circumstances, to give employees needed time away from work in urgent or compelling circumstances.  Some employers may also grants leaves for educational or career development.

Certain types of leaves may be at the discretion of the employer, and managers may balance operational needs against an individual’s leave request.   Other types of leaves, however, are non-discretionary, and an employee has a legal right to take the time off of work.  It is fundamental to any leave of absence policy to distinguish between those types of leaves that are discretionary and those that are not.

Job-Protected Leaves

Certain leaves of absence are compulsory under applicable employment standards legislation.   In Ontario, the Employment Standards Act, 2000 (“ESA”) sets out various categories of job-protected leaves, which include the following:

  • Pregnancy leave
  • Parental leave
  • Personal emergency leave
  • Family caregiver leave
  • Family medical leave
  • Critically ill child care
  • Organ donor leave
  • Reservist leave
  • Crime-related child death or disappearance leave in circumstances where a child has died or gone missing as a result of crime

Additionally, under the Ontario Juries Act, an employee who is summoned to attend court as a juror, is entitled to an unpaid leave.

The purposes of the leaves, their length and their eligibility criteria vary. However, all of these leaves are non-discretionary, meaning that if the employee in question is entitled to take the leave, the employer must grant it.

Some employers may choose to pay an employee for all or part of a mandatory leave or provide top-up benefits to supplement employment insurance income, but this is not mandatory.

Under the ESA, employers are required to continue making contributions to the employee’s group benefit plans. This includes ongoing contributions to pension, life and extended health insurance, accidental death and dental plans, if applicable.  Furthermore, employees must allow the employee to continue accrue service and seniority during the leave period.

Most importantly, employees are entitled to be reinstated to their employment following a compulsory leave.  If the employee’s job has been eliminated, the employer is required to reinstate the employee to a comparable position.

Vacation

Provincial employment standards legislation also sets out minimum requirements governing vacation leaves.  In Ontario, employers are require to provide employee with at least two weeks of vacation leave and vacation pay in the amount of 4% of gross wages.

Employers must provide the vacation time, even if an employee does not ask to take it.  Vacation time may be waived only if an employee provides their written agreement to forego vacation and the agreement is approved by the Ministry of Labour.  The employer is still required to process the employee’s vacation pay, regardless of whether the vacation time has been properly waived.

If the employee’s earnings fluctuate over the course of the year, for example, the employee may earn commissions, incentive pay, overtime, in addition to base salary, employers must ensure that when calculating vacation pay owed, that the employee receives a minimum of 4% vacation pay on total gross wages, including variable compensation.

Leaves Related to Disability and Family Caregiving

Separate from the above, employers have a general duty under human rights legislation to accommodate an unpaid leave of absence in the case of an employee who is unable to work because of a disability.  Similarly, employers have an obligation to accommodate time off for an employee is unable to work on account of family caregiving responsibilities. There is no specific time limit to these types of leaves.  The length of the leave depends on the nature of the individual’s needs.   It is important that any leave policy allow the employer flexibility in granting additional time off where needed in these situations.

Consistency

Generally, a leave policy should be applied fairly and consistently across the workforce.  A protocol should be in place for managers to assess leave requests and identify when a leave is compulsory and when it is within their discretion to approve the time off.

Author: Jonquille Pak, Whitten & Lublin

Parental Leave For Fathers

| March 31st, 2016 | No Comments »

parental leaveWhat are your options when it comes to parental leave for fathers? In the past, many families assumed that dad should work and mom should stay home with the kids. But parents today often choose to divide responsibilities differently, more same-sex couples are having kids, and numerous other changes have taken hold. As a result, it is now much more common for fathers to take parental leave. So what are they entitled to?

The answer is that they are entitled to everything that a mother is entitled to (except those mothers who took another form of leave, known as pregnancy leave, immediately beforehand).

In particular, at any time in the first year after a child is born or comes into a father’s custody (for example, through adoption), the father can take a parental leave. The leave is unpaid and can last for up to 37 weeks.

To be eligible for parental leave, a father must:

  • Have worked for his employer for at least 13 weeks; and
  • Give at least two weeks notice of the leave to his employer before the child’s arrival, or, if the child arrives earlier than expected and the father stops work, within 2 weeks of stopping work.

Also, circumstances can change during a parental leave, and fathers have the right to take the full parental leave, return to work earlier (but not later), or resign. Whatever their choice, the father on parental leave must give their employer at least four weeks of notice.

 If you have questions about parental leave, we can help.

Author: Stephen Wolpert, Whitten & Lublin

Legal implications from 2014 workplace employment cases

| January 28th, 2015 | No Comments »

Big employment cases from 2014 drew a good amount of attention to workplace law. Specifically, it demonstrated the legal implications to employees and employers.  To date, we continue to see the consequences of these fallouts. Whether through poor judgment, ignorance of the law or quite simply wrongful conduct, Canadians and Americans have been at the forefront of workplace legal disputes. Some cases that have drawn media attention include the Jian Ghomeshi scandal regarding allegations of sexual harassment, Donald Sterling and his discriminatory comments, the two Liberal MP’s accused of harassment. The list goes on.

Toronto Employment Lawyer, Daniel Lublin discusses in his most recent Globe and Mail article five (5) key points to look out for regarding employment issues that arose in 2014, and will continue to have an impact in 2015. These include:

  1. The freedom of speech fallout;
  2. Behavior unbecoming;
  3. Probing Allegations;
  4. Boomers Beware; and
  5. Honesty is the best Policy.

To understand these key points in great detail, read Daniel Lublin’s Globe and Mail column and full article Fallout still spreading from big workplace cases

 

What does the law say about extreme work hours?

| November 25th, 2014 | No Comments »

Employment law and the issue of extreme work hours are tricky. Employers can hire an employee and request that they work an extensive amount of time.  On the onset, this seems illegal and confusing for employees.  However, this scenario shows that there is a difference between what is ethical and what is legal. Is it legal for an employer to require an employee to work in excess of 100 hours a week, without time off?

Toronto Employment lawyer, Daniel Lublin explains that overwork is just that, overwork. By law, the request by an employer asking a manager to work long hours is not illegal. However, it is important for all employees to take into account their job title and whether or not their employment contract addresses overtime pay. Specifically, there are restrictions in an individual’s job title that determine whether or not you are entitled to overtime pay.

To read and understand more on this topic, follow Daniel Lublin’s article Our company’s work hours are extreme and his Globe and Mail column

Confidentiality Clauses with Teeth

| November 18th, 2014 | No Comments »

Confidentiality clauses are provisions within an Employment Contract/Agreement that should not be taken lightly. When carefully drafted, they can and have been known to be strictly enforced by the Courts and can be cause for some serious implications. With that being said, employers and employees should consult with an employment law expert to get advice on how to best protect their interests. Employees should read and understand their Confidentiality clause to ensure that their rights are protected under the law.

In Patrick Snay v. Miami’s Gulliver Preparatory School, the Courts enforced the Confidentiality provision, even after reaching a resolution. Mr. Snay was ordered by the Court to repay the entire settlement for breach of the Confidentiality clause. While the case of Jan Wong, a former Globe and Mail columnist who published a book about his employment settlement, was ordered by the Court to repay the entire settlement and cover the Globe’s legal fees. This demonstrates the gravity of a well written Confidentiality clause and the effective use of the legal language.

 

Your legal questions answered

| November 17th, 2014 | No Comments »

Toronto Employment lawyer, Daniel Lublin hosted a live chat on the Globe and Mail’s Career section, where he answered reader’s legal questions regarding their employment law matters. These topics varied from terminations and severance packages, mass layoffs, non-compete/non-solicitation clauses, maternity leave legal rights and the legality with respect to employment contracts.

This month alone, the media has been soaring with news of mass terminations at SNC Lavalin Group Inc. (laying off 4,000 workers) and Wal Mart Canada (laying off 200 workers). Other big companies, such as CIBC and Bombardier have headed in the same path.  As a result, employees and employers alike are being affected and questioning what their legal rights are.

Mr. Lublin provided the following facts and suggestions to provide some sense of direction in regards to your employment matters:

  • An Employer can never absolve itself from the requirement to pay severance under the Legislation; if you are Employer- you can pre-define severance requirements to the minimum, if you are an Employee- you want to negotiate and challenge the severance clauses (amount of pay) or get rid of them altogether.
  • You should never be forced to sign anything on the spot!  Advise your Employer that you are not signing anything until you have a chance to review and consider the offer. Tell the Employer you will get back to them in a couple days.
  • Terminations for “cause” place an onus on the Employer to prove misconduct that was beyond reproach and intolerable. If it cannot be proven, you can be awarded wrongful dismissal damages. For “cause” terminations require no advanced warning and severance pay is not a requirement.
  • Always try negotiating with your Employer before resorting to a lawsuit. However, even in negotiating, you should consult with an Employment Law expert who can negotiate on your behalf and advise you on where and how you can negotiate.
  • Courts will uphold non-compete/non-solicitation clauses when drafted and implemented properly, and not overly restricted in terms of length or geography. That said, not too many clauses meet all of these requirements.

Teacher dismissed after 40 year-old risqué films discovered

| October 22nd, 2014 | No Comments »

Recently, 73 year-old Jacqueline Laurent Auger was dismissed from her place of employment at a Montreal prestigious private school, based on 40 year-old soft porn discovered by her students. This case is appealing in that it involves a former career in risqué films, but also in the context of the impermanent nature of short-term contracts. Toronto employment lawyer, David Whitten adds that this is a perfect example of how “past lives” can impact our employment in the digital age.

Mr. Whitten further explains that short term contracts impose no obligations on employers at the conclusion of the contract.  Indeed, severance is not payable if a short term contract expires and is not renewed.  Had Ms. Auger been an employee of indefinite duration, it is unclear whether or not her past “risqué film career” would have provided legal cause to terminate her without a severance.  However, her statement that the headmaster had “said something stupid” may very well have justified summary dismissal.

For employment law advice, based on your individual needs, consult with an expert who can guide you and provide legal advice.