Follow these do’s and don’ts from my workplace law colum in this week’s Metro News to avoid becoming an author in your own workplace misfortunes. These simple guidelines will also help you take advantage of laws that are construed in favor of the employee, and help you challenge decisions you feel are unjust.
After her first few shifts as a customer service representative with Money Mart in Toronto, Marjorie Harriott noticed that her boss, Desmond Wade, liked women a bit too much. Wade would often ogle at female customers and employees, staring at their breasts and rear ends, making comments that they found offensive. Wade would also come too close to the female staff, sometimes touching them, and making them feel uncomfortable to be around him.
Matters came to a head for Harriott when Wade approached her at work and started to massage her neck. Harriott reported the incidents to a manager, who indicated that the company’s human resources representative would look into it. When she never heard back, Harriott telephoned another manager in human resources and complained that she had been harassed. A few weeks later, she was called to a meeting and told that the matter had been investigated and was closed. According to Money Mart, Harriott had to “work it out” with Wade.
Upset about the company’s failure to adequately investigate what she felt was sexual harassment, Harriott recently took Money Mart to a human rights tribunal, which is equal to a court for discrimination-based matters.
In my Workplace Law column in this week’s Metro News, 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.
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.
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.
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.
Have you ever wanted to tell your boss to F-off? Were you worried it would cost you your job?
In a recent Saskatchewan case, the court was asked to consider this very question.
Having worked for the same ownership at Regina-based Image 1 Hair Team for 22 years, hair stylist Lenna Bohay was upset that the Salon was sold to a coworker, Kelly Brown.
Brown confronted Bohay after work and Bohay admitted to a profanity laced conversation. Brown said she was told to “F-off”.
Bohay was fired, allegedly for cause, and not given any severance, so naturally, she sued. In the recent court decision, the judge found that although Bohay swore at her boss, he dismissal without pay or a warning was not justified.
The court rules that, given the employee’s long service, the employer “was required to provide a warning to the plaintiff that her behaviour must improve before she could be dismissed.”
In this week’s Metro News column, I discuss the case in more detail and provide the following takeaways for both employers and employees:
Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP. Dan@toronto-employmentlawyer.com
Have you ever wanted to criticize your boss but fear it may cost you your job?
What happens if you “go over your bosses” head to his or her manager with your concerns? Can you be disciplined?
According to two recently release court decisions, employees are entitled to criticize their managers without fear of immediate dismissal, as long as the form and content of this criticism does not go over board.
In this week’s workplace law section of the Metro News, I review the cases of a B.C supervisor and a production manager who leapfrogged their bosses to write angry letters to the superiors at the company. In the case of the production manager, he penned an angry letter to the company’s shareholders, knowing that the company was about to commence a share offerring.
In both cases, the courts said that criticism of the boss may reasonably be justified and will not necessary amount to cause for dismissal. However, the manner and tone in which they express this criticism must always remain professional.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues. dan@toronto-employmentlawyer.com.