Over the weekend a number of United States intelligence reports were leaked to the public alleging a close connection between Pakistan’s most powerful spy agency and Taliban militants fighting NATO troops in Afghanistan.

On Sunday, the on-line whistle-blower, Wikileaks, released 91,000 U.S. military records dating between January 2004 and December 2009.

The reasons behind the information leak remain unclear.  However, we suspect that if the identities of those involved with the security breach are ever revealed, that they will seek the protection of any applicable “whistleblower” laws.

“Whistleblowing” is the term given to an employee’s unauthorized disclosure of information he or she honestly and reasonably believes violates the law, professional standards, or involves mismanagement, corruption, abuse of authority, or demonstrates a danger to the public or other employees.  In general, employees are prohibited from divulging or publishing his or her employer’s confidential information; however, in rare circumstances an employee will be allowed, or may be required, to disclose that information.  However, in whistleblowing cases, the courts must strike a balance between the interests of the employer in protecting their business against false accusations which would damage their reputation, and an employee’s right to exercise free speech without getting fired for doing so.

The Supreme Court of Canada has not addressed the issue in an employment-law context, but in unionized workplaces the Court has indicated that in certain circumstances the employee can “go public” so long as he or she has exhausted all internal whistleblowing mechanisms.

Employees may be protected in their whisleblowing based on legislation and the Criminal Code but will want to consider speaking with counsel to determine the availability, or extent, of legislative protection.

A recent article by Sally Evans in the Times Live reports the situation of an African employee who was terminated as a result of undergoing a sex change.

For several years Chris Ehlers worked as a sales representative for Bohler Uddeholm Africa, a male dominated multinational steel retailer based out of Africa.  In early 2008, Ehlers began to undergo a series of sex change procedures.  Ehlers soon became the subject of disrespectful comments by co-workers.  For example, Ehlers received an SMS message which said: “I will never have respect for low-class and a wannabe woman”.

Ehlers complained to Bohler’s management.  Following a formal inquiry, Ehlers was provided with the following ultimatum:  revert to being a man or accept a severance package.  Eventually, Ehlers was terminated after a second inquiry into the complaint found that the employment relationship had been seriously prejudiced by Ehlers.  This decision was premised on the belief that an employer has the right to protect its business image in a predominantly male-oriented market.

Ehlers is now suing Bohler for discrimination.  Despite having been offered the equivalent of $21,000 CAD to settle the case, Ehlers’ desire is to be reinstated in her position at Bohler.

Ehlers advances the position that she ought to have been kept on as a Bohler employee regardless of gender.  Ehlers had and continues to have the necessary occupational qualification, skill and knowledge to perform the duties required of a Bohler sales representative.  Ehlers’ ability to perform the work did not change in any material way once Ehlers’ identity was changed from Chris to Christine.

In response to Ehlers’ discrimination lawsuit, Bohler claims that Ehlers had failed to disclose to the company that she was undergoing sex change procedures.  Once disclosed, the parties initially agreed that Ehlers would hide the effects of the process and continue to wear men’s attire in order to protect the company’s image.  As soon as it became clear that Ehlers would identify herself as a woman in the workplace and dress in women’s attire, Bohler claims that her “continued presence in the office had become impractical”.

There is no doubt that in Canada the protections provided to employees pursuant to Federal and Provincial human rights legislation trump any interest that an employer may have in regard to its image.  The mere fact that an industry or market is male or female dominated does not make it acceptable to discriminate on the basis of gender.

If an individual is qualified to do the job, as was Christine Ehlers, gender should not come into the equation unless there are exceptions expressly contemplated by the legislation.  For example, in Ontario the following exceptions allow discrimination on the basis of sex in the employment context:

• Employment-related benefits plans;
• Services and contracting with respect to reasonable bona fide insurance differentiations, distinctions, exclusion or preference;
• Employment by religious, philanthropic, educational, fraternal or social institutions where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination; and
• Employment where a person’s sex is a bona fide occupational requirement.

If Bohler was arguing its case in Canada, it would be required to satisfy an adjudicator that Ehlers’ gender is a bona fide occupational requirement for the performance of the duties of a sales representative in the steel industry.  In my view, Bohler would face a lot of resistance in Canada.  After many years of political advocacy, our society has finally started to recognize that a person’s gender does not, in any way, determine one’s ability to perform work-related duties.  To accept Bohler’s position would constitute a regression to the many advancements our society has made with respect to the equality of sexes.

By: Cedric P. Lamarche

A recent decision from the Ontario Human Rights Tribunal serves as a reminder that employers should tread carefully when dealing with employees suffering from disabilities.

Elsa Torrejon, a 51 one year old single mother, was employed with Weston Property Management Corp. of Toronto as a leasing agent.  In late January of 2009, Torrejon was diagnosed with stage II breast cancer and her physician recommended that she undergo treatment as soon as possible.  In light of the diagnosis and the treatment recommended by her physician, Torrejon advised her employer that she would require an indefinite leave from work in order to undergo surgery and treatment.  She advised Weston that she was well enough to remain at work until the day before her first scheduled surgery.  In response, Weston advised that her last day at work would in fact be her last day of employment with the company, merely 8 months after commencing work with Weston.  On her scheduled last day, Weston handed Torrejon her last paycheque, her T4 and her Record of Employment.

Claiming that she had been discriminated against on the basis of her disability, Torrejon brought an application before Ontario’s Human Rights Tribunal.

The Tribunal did not hesitate to find that in terminating her employment, Weston had discriminated against Torrejon on the basis of disability.  Specifically, the Tribunal concluded that Weston had failed to accommodate Torrejon by allowing her to take a leave of absence while she underwent treatment.  Based on the evidence at the hearing, it was clear that Weston did not understand an employer’s obligations under the applicable human rights legislation.  Weston openly admitted that it believed that it could legally terminate Torrejon’s employment as a result of her illness.

In order to compensate Torrejon for Weston’s violation of her human rights, the Tribunal ordered Weston to pay Torrejon $20,000.00 in general damages and for lost wages.  The Tribunal also required Weston to undergo human rights training due its complete lack of appreciation for an individual’s human rights.

In Ontario, employees are protected from discrimination and harassment in the workplace on the basis of disability.  This includes, past, present and perceived disabilities.  Pursuant to the Ontario Human Rights Code, employers have an obligation to accommodate disabled employees short of undue hardship.  This duty includes accommodating a disabled-related absence of work, such as the one Torrejon had requested from Weston. 

The law recognizes that accommodation is a shared responsibility.  Everyone involved, including the person seeking accommodation, should cooperate, share information and attempt to find mutually agreeable solutions.  Many accommodations can be made easily and at little cost.

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.

What happens when an employee is assaulted by a supervisor? As an Ontario court just ruled, when push comes to shove, the employer may also be responsible.  Bell Mobility’s failure to investigate the case below compounded its own liability.

Richard Ayotte was a pushy boss – literally. Ayotte was seen as critical, intimidating and aggressive, thinking it would achieve results.

In 2005, Ayotte took his assertive approach too far. When one of his staff, Marta Piresferreira, allegedly failed to book a meeting, Ayotte yelled and swore at her, refused to listen to her explanation, and pushed her backwards hard enough that she hit a filing cabinet. When Piresferreira followed him to his office to protest his behaviour, Ayotte threatened her with probation.

Piresferreira later returned to work expecting an apology. Instead, she was given a Performance Improvement Plan requiring her to report to Ayotte daily or face discipline, including termination. She refused to sign, went home, and complained to the company, Bell Mobility.
The same day, Piresferreira received a letter from Bell stating it had spoken to Ayotte and that he would apologize – and then the case would be closed. No one spoke with Piresferreira to get her side of the story or to express concern for what had happened.

During the months that followed, Bell made several attempts to get Piresferreira to return to her job. Eventually, Bell just claimed she had resigned. Piresferreira was diagnosed with post-traumatic stress disorder and never returned to work.

To read more on this case, visit my Workplace Law column from this week’s Metro News.

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

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.

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.

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.

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.

By: Ellen A. S. Low

A recently-released Dutch study examines perceived differences between women who adopt their partner’s name, and those who chose to keep their own last name after marriage.

As part of the study, 50 participants were asked to judge a female job applicant for a human-resources manager position, as well as to estimate her potential salary.  Based on the results, participants were less likely to hire the woman if they knew she had taken her partner’s last name.  Further, participants estimated that the woman who took her partner’s name would earn, on average, $1,150 less per month than the woman who kept her own name.

In Ontario, differential treatment in your employment based on whether you are a “Mrs.” or a “Ms.,” is prohibited by the Ontario Human Rights Code (the “Code”), and may be discrimination on the basis of marital status.  The Ontario Human Rights Tribunal has previously determined that “perks” which are only available to married persons may be discriminatory.  For example, the Tribunal has held that it was discriminatory for a company to provide a “return-home” flight every three weeks to married employees, but deny the same benefit to non-married employees. Further, the Tribunal has also determined that the Code is breached if an employee is dismissed, or not hired, because of her marital status. For example, a company breached the Code by refusing to hire a married employee because it assumed she would be unwilling to relocate. The Tribunal held this was discrimination based on marital status.

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