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!

Accommodating Mental Illness in the Workplace

| August 23rd, 2016 | No Comments »

Accommodating mental illnessAccommodating mental illness is an extremely complex area for employers to navigate.  Unlike physical disabilities, the need for a mental health accommodation is often difficult to detect, and the employee’s medical prognosis can often be less predictable than a physical disability.   An employee may also be reluctant to ask for accommodation due to fear of stigma associated with mental illness.  However, employees are legally protected against discrimination or harassment on account of a disability, including a mental health disability.  In fact, employers have a legal duty to accommodate mental illness in the workplace.

When does Mental Illness Trigger a Duty to Accommodate?

Some mental health problems do not rise to the level of a recognized disability under human rights legislation.  For instance, a generalized complaint of ‘stress’ in the workplace, does not on its own amount to a disability.  There must be at least a diagnosis of some recognized mental disability, or clinically-significant symptoms, as identified from a health professional.  Examples of recognized mental health disabilities include generalized anxiety disorder, depression, alcohol addiction, or drug addiction. This is by no means an exhaustive list.

A diagnosis of a mental illness does not automatically trigger a duty to accommodate.  Many mental illnesses may be successfully managed or treated without the need for a workplace accommodation.  The duty to accommodate a mental illness is only triggered if there are work-related needs arising from the disability.

How is an Employer Required to Accommodate Mental Illness?

Accommodating mental illness can take a variety of different forms, such as a reduced work schedule, a leave of absence, or modified work duties.  Accommodations are meant to enable the employee to meaningfully participate and integrate into the workplace.  There is no single solution for accommodating mental illness.  Each case requires an individual assessment of the worker’s job requirements, their medical restrictions and needs.

Who gets to decide on the Accommodation?

The employer is not required to implement the employee’s preferred or ideal accommodation.  The obligation is only to implement a reasonable accommodation, considering the employer’s business operations and the employee’s medical restrictions as described by objective medical documentation. Even though the employee’s preferences are not decisive, accommodation is a two way street and should generally involve a dialogue with the employee, and the employer should take the employee’s input into consideration.

What if it is Not Feasible to Accommodate the Employee’s Disability?

The employer has a legal duty to accommodate to the point of “undue hardship”.  Accommodation often entails some inconvenience, cost or disruption to an employer, and these concerns are not necessarily an adequate justification against accommodation.   Speculative or anecdotal concerns about cost, health and safety or employee morale are not adequate excuses for refusing to accommodate mental illness. Concrete and objective evidence of undue hardship must be provided.   According to the Ontario Human Rights Commission, the cost standard should be a high one and in order to prove undue hardship, an employer should prove that costs are “so substantial that they would alter the essential nature of the enterprise or affect its viability.”

What are the Employee’s Responsibilities?

An employee seeking a mental health accommodation has a duty to cooperate in the accommodation process. This means that the employee should notify their employer of the disability and their accommodation needs, to the extent possible.   This includes sharing necessary medical information for the purposes of implementing an accommodation.

In many cases, the mental health disability itself my impact the employee’s decision-making, their ability to disclose, seek treatment or cooperate in the accommodation process.  When an employee is unable or refuses to disclose their accommodation needs, this makes implementing an accommodation particularly challenging for an employer.  In some instances, if the employee is able to reasonably communicate their accommodation needs but refuses to, the employer may not be required to accommodate the employee.

However, if an employer reasonably suspects that an employee may be suffering from mental illness and may need accommodation, the employer has a legal duty to inquire and assess the need for a possible workplace accommodation.   It is not a sufficient defence that the employer was unaware of the employee’s accommodation needs, when the employer ought reasonably to have known that the employee has a disability.

Can an Employer Ask for Objective Medical Information?

There is a fine balance between protecting an employee’s right to privacy of their medical information and the employer’s right to know the employee’s medical needs.  An employer is entitled to ask for objective medical documentation confirming the worker’s medical restrictions and the expected duration of the medical restrictions.  A one-liner handwritten note from a physician may not be sufficient to provide a reliable diagnosis of a mental illness, and the employer may be entitled to more specific information pertaining to the employee’s health condition.  However, the worker is not required to disclose detailed diagnosis or treatment information if that information is not necessary for the purposes of implementing an accommodation.

The employer is required to keep medical information confidential, and keep it on a needs to know basis for the purposes of handling an accommodation.  For instance, information pertaining to medical restrictions may need to be shared among certain human resources personnel and the employee’s supervisor(s), who may be required to implement the workplace accommodation.

 

Author: Jonquille Pak, Whitten & Lublin

How strict are non-compete clauses?

| December 4th, 2014 | 1 Comment »

Employee’s sometimes believe that non-compete clauses are valid subject to the size of their employer company. Many would be surprised to hear that this is not the case. If an employee works for company A and decides to move to company B, the employee should be vigilant about whether or not a non-compete clause exists and if it prevents them from working with company B.

Toronto Employment lawyer, Daniel Lublin clarifies in his Globe and Mail column that the belief that employers cannot prevent you from working within your industry is incorrect. In fact, judges will enforce clauses that are properly drafted. Experts in the field of employment law are people qualified to review these clauses and can advise you on whether or not they are enforceable. Leaving the strength of these clauses on pure chance is a very bad idea.

Read Daniel Lublin’s Globe and Mail column and full article Am I allowed to record conversations at work?

Negotiating your severance package

| December 4th, 2014 | No Comments »

Negotiating severance can be done independently or with the assistance of an expert. When employees are laid off, knowing what steps to take and how to negotiate severance becomes all new territory. Employees often feel lost since they do not know what steps to take in order to determine whether or not they need to negotiate a fair severance package.

Daniel Lublin, Employment lawyer explains in his most recent Globe and Mail column that whether or not you should negotiate a fair severance package is dependent on how good or bad the initial offer is. It also depends on how comfortable the employee feels with asking for more. However, it is advised to negotiate with caution. When negotiating correctly, employees protect themselves from the risk of getting less than initially offered. This is why it is best to consult with an employment lawyer.

To read more on this topic and for the full Globe and Mail article Am I allowed to record conversations at work?

Can my employer change my regular work schedule?

| August 5th, 2014 | 27 Comments »

All work environments have different expectations for an employee’s work schedule.  A long term employee could be well adjusted to his/her schedule when they are told by their employer that it is about to change. Is an employer legally allowed to change the work schedule and what are the implications?

Question:

 Can an employer change an employee’s work schedule?  In my case, I was working 7:00am to 4:00 pm, Monday to Friday for the last 7 years and now my company has told me to work some evenings and some weekends.  Can I refuse?

Answer: 

An employer is permitted to set hours of work and to make certain limited changes to your hours of work.  Work environments are not static and employers can require employees to work outside of their regular working hours.  However, if the employer makes a significant change to your work schedule without your agreement, such as requiring you to regularly work evenings and weekends, this may trigger a constructive dismissal.  You can refuse to accept the change in hours, in which case the employer may terminate your employment.  In these circumstances, you are entitled to demand a severance package.  Even if the employer does not formally terminate your employment, you can resign from your job and demand a severance package as though your employment had been terminated.    Ultimately, the employee bears the onus of establishing that s/he has been constructively dismissed from their job.  There is no specific formula in terms of what type of change in working hours triggers a constructive dismissal.   Each case is decided on its own facts and in particular, decisions are based on whether the employee has other obligations or circumstances that may make the change in work hours particularly onerous.