Monday 31 March 2014

Customer Appreciation Event Gone Wrong – HRTO Finds Termination of Employee Retaliatory


 
Sheri McConaghie was a sales professional for Systemgroup Consulting Inc. from September 8, 2009 until her employment was terminated on March 19, 2012.  She was the only female sales executive with the company throughout her tenure, and worked in a male-dominated industry.  None of that would be particularly remarkable, nor would it have attracted the attention of the Human Rights Tribunal of Ontario (the “HRTO”), but for the events leading up to Ms. McConaghie’s dismissal.

In late 2011, after a new VP of Sales was hired by Systemgroup, it was announced that the employer would be holding two customer appreciation events early in 2012.  The first of these events was to be held in conjunction with “Men’s Day” at the Mansfield Ski Club (where the VP was a member).  While all sales staff were advised that two events were being held, Ms. McConaghie was not provided a calendar invitation for the event at Mansfield, nor was she given any details of the event, which was being offered solely to male staff and certain male customers of the company.  The electronic brochure for the event stated that the event was “A day for Men without Women and Children”, and included the tag line:  “Bring your friends, bring your acquaintances, just don’t bring your wife!”  The calendar invitation that was circulated also included “massage” and “Hooters Girls” as part of the planned activities.

When one of Ms. McConaghie’s clients brought Men’s Day to her attention, she addressed her concerns with being excluded from the event to the VP.  He clarified that only therapeutic massage was being offered and that there wouldn’t be any Hooter’s Girls in attendance (although they had participated in prior years, selling raffle tickets to benefit a program for disabled skiers).  The employer took the position that there was nothing objectionable about the males-only event.  Not surprisingly, Ms. McConaghie was not happy with this response, and took the issue up with the owner and President of the company.  However, she did not make any headway with him either and “agreed to disagree” on the appropriateness of the event.

Subsequent to raising concerns about Men’s Day, the VP ceased having one-to-one meetings with Ms. McConaghie, excluded her from a meeting with a client who would normally fall within the “vertical” she supported, and eventually ended her employment.  The employer asserted that it had long-standing performance concerns with Ms. McConaghie and this was the reason for her dismissal.

The evidence before the HRTO did not establish clearly whether or not the Applicant’s performance was, in fact, improving or stagnating.   However, her performance at the point of termination appeared to show improvement over the prior year.  Moreover, certain workplace issues that were brought forward by the employer were not significant enough to explain the decision and timing of the termination. 

After lengthy analysis of the evidence, the HRTO concluded that the exclusion of the Applicant from the customer appreciation event was discriminatory on the basis of gender, and that the employer’s behaviour after the Applicant raised concerns with Men’s Day amounted to reprisal, contrary to section 8 of the Human Rights Code.  While the employer could establish that there were some areas in which the Applicant needed to improve, it had not put the Applicant on notice that those concerns were critical or that her employment might be in jeopardy.  Looking at the timing of the decision to terminate Ms. McConaghie’s employment (about 5 weeks after she raised concerns about the event), and the absence of any other intervening event that would explain the decision to dismiss her, the HRTO concluded that the employer had no persuasive explanation to rebut the inference that the employer was reacting to the Applicant’s complaint about being excluded from Men’s Day.  This view was also supported by the fact that the Applicant’s VP had effectively cut off communication with her after she made her complaint, and had excluded her from meetings that she would have expected to be involved in.

The Tribunal concluded that the Applicant should receive the lost value of the Men’s Day event ($150), as well as wages for her period of unemployment (from April 16 to October 8, 2013), and damages of $18,000 as compensation for injury to dignity, feelings and self-respect, as well as pre-judgment and post-judgment interest.

While it’s startling that an employer would consider a “men-only” event appropriate in this day and age (particularly where there is diversity among one’s staff and customers), the case is a good reminder that employers still need to be vigilant about the types of events that they sponsor.  Where an employee raises legitimate concerns about how they have been treated, such as an allegation of discrimination, it will take significantly more than ambivalent performance indicators to establish that any negative treatment is unrelated to their complaint. Without compelling evidence, the employer will face potentially stiff sanctions.

If you have further questions about this decision or human rights in the workplace in general, please do not hesitate to contact Lance Ceaser.

Monday 17 March 2014

What is “reasonable notice”?


As described in an earlier post on the Ceaser Work Counsel Facebook page, the common law in Canada has adopted the legal rule that a contract of employment can only be terminated without cause if the employee is provided with “reasonable notice” of termination.  But what is “reasonable notice”?
Reasonable notice is the period of advance warning that an employer is supposed to provide an employee so that he or she has an opportunity to find alternative employment or business opportunities to mitigate the potential loss of income. In Canadian courts, the assessment of reasonable notice is usually based on the “Bardal factors” (i.e., the factors described in Bardal v. Global & Mail Ltd. (1960) 24 DLR (2d) 14(Ont. H.C.), at para. 21):
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
Generally speaking, where the employee is in a more senior position, has longer service and is older, the reasonable notice will be greater.  In some instances, however, the courts will look to the job market and the availability of other positions, particularly in hard-hit sectors of the economy or regions.
The Bardal factors have been criticized for producing disproportionately long notice periods for employees in more responsible roles, benefiting the highest wage earners, while more junior employees receive significantly shorter notice periods (see in particular the New Brunswick Court of Appeal’s decision in Medis Health and Pharmaceutical Services Inc. v. Bramble).  However, more recent decisions of the courts in Ontario have shown a willingness to increase the notice periods of less senior employees to bring some parity to the calculation (see for example Di Tomaso v. Crown Metal Packaging Canada LP).
There are a number of caveats to the foregoing analysis.  First, it must be remembered that the parties to a contract have the ability to modify what is considered reasonable notice by incorporating specific provisions into the employment agreement, provided that the contractual entitlement is at least equal to what is provided by the Employment Standards Act (the “ESA”).  In cases where the parties expressly limit entitlement to what’s provided under the ESA, the courts have honoured these terms (see for example, Simpson v. Global Warranty Management Corporation), in which the plaintiff could only recover pay in lieu of notice pursuant to the ESA).
Second, although the common law speaks of reasonable notice, it is not unusual for employers to provide employees with “pay in lieu of notice” (whether statutory or common law).  Provided the employer also continues other employment entitlements (such as benefits coverage) for the period during which notice would run, offering pay in lieu of notice is accepted practice and is generally viewed as compliant.  Of course, every situation has to be reviewed on its facts, bearing in mind the components of the employment relationship and any contractual clauses that relate to entitlements upon termination.
Third, the so-called “rule” of one month’s pay per year of service has been repeatedly and resoundingly rejected by the courts.  The Bardal factors are still supposed to govern.  That being said, a review of typical notice periods suggests that what the courts actually award seems to correspond to the alleged rule pretty consistently – in many cases, and looking at overall averages, it would appear that one month’s pay per year is at least a “guide” in the courts’ reasoning.  That being said, in the cases of shorter service, senior and older workers, the “rule” has much less relevance, and every case must be assessed on its particular facts.
Whether you’re an employer or employee, it is important to understand “reasonable notice”.  If you have further questions, please do not hesitate to contact Lance Ceaser to review your situation.

Wednesday 12 March 2014

Regulatory Round-Up #1: An overview of changes to Ontario’s Legislation and Regulations that employers need to be aware of


Ceaser Work Counsel strives to keep employers and HR professionals up-to-date on the ever-changing law of the workplace.  Here are three recent or upcoming changes to the legislative landscape that you need to be aware of.
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Stronger Workplaces for a Stronger Economy Act, 2013 (Bill 146)

Currently in second reading debate, the Stronger Workplaces for a Stronger Economy Act, 2013 (Bill 146), would make substantial changes to a number of employment-related statutes.

·         The Act extends protection to live-in caregivers under the Employment Protection for Foreign Nationals Act.

·         It extends the definition of “worker” under the Occupational Health and Safety Act (the “OHSA”) to include those who perform work for no pay, such as ‘unpaid interns’.  All of the protections afforded by the OHSA, including the right to refuse unsafe work, now apply to unpaid workers.

·         The Act reduces the “open period” under the Labour Relations Act, permitting decertification applications or union “raids” to occur within only the final two (2) months of construction industry collective agreements (instead of the current 3- month window).

·         The Workplace Safety and Insurance Act (the “WSIA”) would be amended to attribute the costs of workplace injuries to temporary agency workers to the “client” employer, rather than the agency.  Lost wages for temporary agency workers would be assessed on the basis of their income earned from the agency.

Most significant, however, are the changes the legislation would make to the Employment Standards Act (the ESA”). 
First, it would extend the time limit for recovery of unpaid wages to two (2) years, instead of the current 6-month limit.  The cap on recovery of wages of $10,000 would be eliminated, meaning that employers could be liable to the full amount of unpaid wages over a 2-year period.
Second, the amendments would create new responsibilities for temporary help agencies and the employers who utilize their services.  Agencies will now be responsible for tracking and maintaining records of all hours worked by agency workers for a period of three (3) years.  More importantly, the revisions to the ESA introduce “joint and several liability” for both the agency and the client employer with respect to the payment of wages.  This means that if the agency does not satisfy a claim for wages filed by a temporary worker, the client employer may be held responsible for any shortfall.

Third, the ESA is amended to create informational obligations for employers and the concept of the “self-audit”.  Employers would be required to provide all employees with a poster prepared by the Ministry of Labour setting out employee entitlements under the Act.  Employment Standards Officers (“ESOs”) are also now empowered to order an employer to conduct a self-audit of its records in order to determine whether it is compliant with the Act, and to provide the ESO with a report of its findings.  In its self-audit report, the employer must explain how it has determined that it is in compliance.
It should be observed that the amendments appear to focus on two vulnerable groups of workers:  temporary agency workers (so-called “temps”) and unpaid interns.  With respect to the former group, employers who rely on contingent labour will want to carefully review their contracts with the help agencies to ensure that the obligation to pay wages or other costs of the placement remain the responsibility of the agency.  Provisions that address responsibility for taxes and other statutory amounts will need to be reviewed and revised to ensure that the agency can be charged back for any amounts found due and owing by regulatory bodies, including any WSIB claims costs that are attributed to the “client” employer under the amendments to the WSIA.

By adding unpaid workers to the definition of “worker” in the OHSA, it appears that the Government is responding (at least in part) to claims that unpaid interns are becoming much more common and are prone to exploitation.  It may also be that the new “self-audit” mechanism in the ESA is intended to provide another enforcement tool to address those employers who inappropriately utilize unpaid interns, although the Government has not expressly called out this intention.  (Note:  In a future post, I’ll discuss the contentious issue of unpaid workers, such as students and interns.)


Regulation 297/13 under the Occupational Health and Safety Act

Not unlike the new informational obligations in the ESA created by the Stronger Workplaces for a Stronger Economy Act, a new regulation introduced by the Ministry of Labour looks to enhance workplace parties’ understanding of their responsibilities under the OHSA. 
Regulation 297/13 (Occupational Health and Safety Awareness Training) introduces new training requirements for workers and supervisors:

·         Employers are to ensure that all workers and supervisors receive “basic occupational health and safety awareness training” in the following areas:

o   The duties and rights of workers under the OHSA;

o   The duties of employers and supervisors under the OHSA;

o   The roles of health and safety representatives and joint health and safety committees under the Act;

o   The roles of the Ministry of Labour, the WSIB and designated health and safety entities under the Act;

o   Common workplace hazards;

o   The Workplace Hazardous Materials Information System (WHMIS) with respect to controlled products; and

o   Occupational illness, including latency.

·         Employers are to ensure that supervisors complete this basic training within one week of performing supervisory duties (unless the supervisor provides proof to the employer of having previously completed a materially similar training program).

·         The basic occupational health and safety awareness training program for supervisors should also cover how to recognize, assess and control workplace hazards, and to evaluate those controls, and sources of information on occupational health and safety.

·         The employer must maintain records of the training that it has provided, including records of any individuals who were exempt under the Regulation.  The employer must also provide workers and supervisors with written proof of their completion of the basic training program.

·         In workplaces requiring a joint health and safety committee, the employer must ensure that committee members receive the necessary training to become a “certified member”.

Employers will have until July 1, 2014 to become compliant with the new Regulation.

The Registered Human Resources Professionals Act, 2013 (Bill 32)

While not entirely new (Bill 32 was simply the reintroduction of Bill 28 that was originally introduced in the Legislature in 2010), the recently passed Registered Human Resources Professionals Act, 2013 (the “RHRPA”) does bring heightened regulation and oversight to the practice of human resources.  In a nutshell, the biggest changes are as follows:
·         Enhanced structure and authority for the Association to establish qualifications for membership by human resources professionals and students and to conduct practice inspections;

·         Prohibition against using specific HR designations by non-members or those not authorized to do so, and a complaints procedure which includes fines of up to $25,000 for those found to have contravened the Act;

·         The establishment of oversight committees for complaints, discipline, reviews, capacity and appeals;

·         Creation of a capacity review procedure to determine whether a member may be incapacitated from his or her HR practice; and

·         Establishment of inspection and investigation procedures, with broad powers granted to inspectors and investigators under the Act.

All HR professionals, and particularly members of the HRPAO will want to familiarize themselves with the Act to ensure that their HR practice is compliant.
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If you have any questions about these legislative changes or about Ontario's employment laws generally, please don't hesitate to contact Lance Ceaser at (519) 200-1611 or by email.