Avoiding Risk at All Stages of the Employment Life-Cycle

As 2014 nears its end, I thought I'd offer some general guidance for employers.

Like pretty much anything else, the employment relationship can be neatly packaged up into three parts: the beginning; the middle; and the end.  Each of these stages of the relationship can be characterized conceptually by a predominant theme.  For purposes of this post, I'll call them "Expectations", "Performance" and "Cessation".  What occurs at the Expectations stage will have the largest impact as it can significantly change how the contract is performed and what happens when it ends.  Likewise, the Performance phase will influence when and how the contract ends.  Once the relationship has reached the Cessation stage, there is little that can be done to alter the outcome, other than to manage risks that have already been created earlier in the employment life-cycle.

So, how do you significantly reduce the risks inherent in the employment relationship?  Let's look at each stage and the critical steps that employers should consider.

Expectations

Prior to and at the time of hiring, employers need to consider how "expectations" are communicated to prospective or new employees.  Clear expectations eliminate misunderstandings and lay the groundwork for a transparent and accountable workplace.  Setting expectations takes some work, but removing ambiguity at the outset of the employment relationship sets the stage for employees to perform their duties and helps manage the risks (and costs) associated with ending employment.

• Review job descriptions on a regular basis to ensure they accurately reflect the job as it is currently performed.  A role profile that does not align with the role may mislead a new employee as to the expectations for their performance.
• Where appropriate, develop policies that are clear and unambiguous. Ensure that policies align with actual practices and procedures in the workplace and set reasonable expectations for both parties.  If a policy is difficult to enforce, it is likely to go by the boards.
• Document variable pay programs, such as annual bonuses or incentives, and make sure that new hires are given an explanation of how they work.
• Develop a solid, enforceable employment agreement.  Use plain language to spell out the terms covering wages, variable compensation, vacation and benefits entitlements, and the parties' rights and obligations on cessation of the contract.  Carefully review termination language in particular to ensure compliance with employment standards.  Failure to do so could lead to claims for 'reasonable notice' in the courts.
• Ensure that all required documentation is reviewed with new employees and signed off before they commence employment.  If policies are referenced or incorporated into the employment agreement, ensure that new hires are provided with the policies and acknowledge having read and understood them.

Performance

Once the formalities of hiring are out of the way, the real hard work begins.  While there is much that can be said about how to get the best out of employees while they are working for the organization, I'd like to focus on just a handful of keys that are likely to improve productivity while reducing legal risks.

• Whenever in doubt, be guided by fairness and reasonableness in administering the relationship.  It's sometimes easy to lose sight of the issue and focus on the employee, but this can prove disastrous. Enforce rules consistently, but with a contextual approach that weighs the circumstances, the history of the particular employee, how past issues were dealt with, and any mitigating or aggravating factors. Be prepared to be flexible in appropriate situations. Failure to insist on fairness can lead to morale issues (such as claims of favoritism or discrimination) and can also undermine the effectiveness of your workplace policies.
• Provide good supervision. Sounds simple, but it isn't.  It starts with careful selection criteria when hiring or promoting supervisory and managerial staff. I would suggest that it's better to look for leaders rather than technical experts. Yes, experience in the field is important, but it's often hard to make an exceptional 'lone wolf' into a good manager, no matter how accomplished they are. Follow-up on supervisory hiring with training on the basics of managing people (including the basics of human resources and employee relations). Failing to provide solid supervision invariably leads to underperformance that is not managed (and cannot be relied on later as cause for termination) and a failure to keep an eye on the workplace (which often results in complaints of harassment or bullying).
• Document, document, document. It's trite, but true. Failing to keep notes of conversations and coaching sessions can be costly later when you need to establish a pattern of inappropriate conduct or poor performance that you have tried to address.  Get in the habit of making brief notes to file, showing the date and time of discussions with employees. Ensure that all notes ultimately make it into a file that others can find later. Otherwise, you risk losing evidence that you'll need later when an employee challenges unwelcome discipline. 
• Make sure that managers actually manage. This means bringing issues to employees' attention when they arise (not months later when patience has worn thin), documenting conversations about the issue, providing timelines for improvement, and following-up in a timely fashion.  Managing performance, behaviour and attendance are tedious and time-consuming processes, but they should be the primary expectation that is placed on supervisors and managers.

Cessation

If the employer has paid proper attention to the details in the first two phases of the employment relationship, the third stage, Cessation, will typically be less risky and costly, and much more manageable.  Still, there are a few things to bear in mind.

• If the employer will be terminating the employment relationship, be prepared to pay.  It can be very costly to allege 'just cause' for termination.  The courts and tribunals will only find cause in the clearest of cases and on very compelling evidence. If in doubt, terminate on a without cause basis (and move to the bullet point immediately below).
• If there is a contractual termination provision in the employee's contract, ensure that you understand the employer's obligations and abide by them carefully.  No termination provision?  You'll have to choose between the statutory minimum (which is typically quite meagre), the employee's common law entitlement (typically quite generous) or something in between.  If in doubt, obtain legal advice.
• Plan and prepare for the termination meeting to ensure that it is conducted in a professional and respectful manner.  Try to avoid ending employment on a Monday morning or a Friday afternoon (except in the most extreme cases), and be conscious of any occasions that could place the employer in a bad light (e.g., try not to terminate the employee on their birthday or in the weeks immediately preceding Christmas).  Hold the meeting somewhere that provides privacy and where other employees won't be alerted to what is going on. Ensure that you consider arrangements to get the employee home in the event that they carpool or won't be in any condition to drive. Avoid escorting the employee through areas where coworkers are present following the meeting.  Failure to abide by these relatively simple rules could lead to a claim for enhanced or added damages in the event the employee later alleges wrongful dismissal.
• If the employee is looking to end the employment relationship, try to get their resignation notice in writing and verify that they have provided appropriate notice.  Ensure that they are given time to reconsider, particularly if they resign under stressful conditions or following a heated exchange. Whenever possible, conduct an exit interview to assess whether the climate in the workplace may have influenced the decision to leave.  It is valuable to find out whether there are unidentified issues that could lead the departing employee or others to raise concerns with harassment or bullying before you receive a claim.
• Prior to any employee's departure, make sure that you recover company property.  In particular, smartphones, laptops, VPN tokens and system/application passwords should be obtained to avoid the potential for a disillusioned employee being tempted to take data or engage in other post-termination misdeeds.  Once the employee has departed, ensure that all access is removed and that passwords are changed, as necessary.

While the foregoing guidance is not exhaustive, and is no substitute for legal advice, it does provide an overview of some of the larger risk management issues that employers face.  Being proactive, setting clear expectations, and ensuring that those expectations are routinely met, will go a long way to avoiding or reducing many of those risks.

Does your organization need advice on how to reduce the HR risks it encounters?  Need guidance on a particularly thorny or complicated employment situation?  Contact Lance Ceaser for expert assistance.

A Tale of Two Cities (in Alberta): The Good and Bad of Managing Human Rights in the Workplace

Two recent decisions from the Wild Rose province demonstrate the dangers an employer can face when confronted with human rights issues in the workplace, and how to appropriately address an employee’s request for medical accommodation.

In Robinson v. City of Edmonton, the complainant was a bus driver for the City who suffered from environmental ulticaria, a type of chemical sensitivity to things like diesel fumes and perfume.  For the first 8 - 9 years of her employment as a transit operator, the complainant was able to control her symptoms with over-the-counter medications, but her condition progressively worsened and she was prescribed a medication that had the side-effect of making her drowsy.  That being said, up until 2009, the City had consistently accommodated the complainant by allowing her periods of medical leave and by allowing her to trade or “sell” her shifts to other transit employees (including her husband, who was also a transit worker).  However, starting in August 2009, the complainant was off work on STD due to her medical condition.  She applied for LTD in the fall of 2009.

The complainant’s supervisor asked her to provide her LTD application and a resume in mid-October.  The City was contemplating whether there might be a different transit operator position – a Light Rail Transit (LRT) operator role – that would accommodate the complainant’s condition.  LRT operators drive from a self-contained booth, and are therefore separated from many of the irritants that would trigger the complainant’s sensitivities.  It was decided to offer this option to the complainant.  Based on this form of accommodation being made available (and confirmation from the complainant’s doctor that she was cleared to attempt a trial as an LRT operator), the LTD carrier found that she was not “totally disabled” from her own occupation, and denied her claim for benefits.

There was some dispute in the evidence about whether the complainant understood that she was being offered the LRT role as an accommodation for her return to work, but the Tribunal concluded that she was in fact aware that this alternative was being proposed.  Instead of accepting the LRT trial, however, the complainant tendered her resignation in December, stating that she did not believe she was cleared to return to work without restrictions as she still could not safely drive (while medicated) and no other options were open to her. 

After reviewing the evidence, the Tribunal concluded that the City had not discriminated against or failed to accommodate the complainant.  The complainant should have understood that she was being cleared to return to a ‘transit operator’ role in LRT and that the City was prepared to accommodate her in this position (at least on a trial basis).  Her doctor was on side with this option (as it would likely reduce her symptoms and lead to reduced medication usage) and there were no collective agreement impediments to this approach (i.e., she had sufficient seniority to sign up for LRT shifts, once she received required training).  The Tribunal held that “Accommodation is a two way street” and that the complainant had effectively ended the accommodation process by insisting that she could not drive safely and by resigning her job.  In the circumstances, the duty to accommodate did not require the City to decline the complainant’s resignation or offer her the job back.

On January 15, 2014, the Alberta Court of Queen’s Bench upheld the decision of the Tribunal, concluding that its decision was not only reasonable, but that it was “correct”.

The result in City of Calgary v. Canadian Union of Public Employees, Local 38, on the other hand, was not so favorable to the employer.  In that case, before Arbitrator Phyllis Smith, the issue was whether the employer had violated its obligations under the collective agreement in dealing with the sexual harassment complaint of the grievor, MP.  MP had been sexually assaulted by a foreman who worked for the City on a number of occasions in the fall of 2010.  Some incidents were caught on a spy camera that the grievor and her husband installed in the workplace after her initial complaints were not addressed effectively by her supervisor.  The foreman was ultimately suspended by the employer and an investigation was undertaken.  The grievor also brought criminal charges against the foreman.

Shortly after the foreman was suspended, the grievor came in to work to find what she thought was rat poison on her keyboard.  The incident was reviewed by management, but the investigation was never completed as the grievor was moved to another City facility temporarily.  When the grievor questioned what was being done about the incident, she was rebuked by her manager and warned about compliance with the Respectful Workplace Policy.  The grievor later alleged that her manager was following her home (which was found to be untrue), and so the employer determined that the grievor should attend a mandatory IME to clear her to return to work after a week of vacation.  The grievor did not attend the IME session, upon learning that the doctor was a psychiatrist whose report would be provided to the employer.  The grievor did, however, provide a note indicating that she was fit to be at work and returned to her original office location.  Upon her return, she was counselled on respectful interactions with co-workers and asked to return certain office keys that she’d had in her possession for a long time.

A grievance was filed on her behalf and she also made a complaint to the Alberta Human Rights Commission (which was held in abeyance pending the outcome of the grievance arbitration).  The foreman was permitted to take retirement, and the employer took the position in the grievance process that it had acted appropriately. 
In her decision, the Arbitrator concluded that “there was a total failure on the part of those responsible to meet the obligations under the Collective Agreement, human rights legislation, occupational health and safety legislation and the City’s Respectful Workplace Policy”.  The City was not only vicariously liable for the sexual assaults on the grievor, but for a number of serious missteps that followed:

·         Not starting an investigation when the issue was first raised by the grievor to her immediate supervisor, leaving the abuser in charge of the workplace where the grievor worked;

·         The grievor’s manager claiming that he viewed the evidence from the spy camera as “inconclusive” and not removing the grievor from the workplace or taking any steps to prevent reprisals;

·         Moving the grievor back into the workplace before the “rat poison” investigation was completed contrary to her concerns for her safety, and counselling her on being disrespectful;

·         Sending her for a psychiatric IME when she stated an intention to speak to the mayor about the situation, and insisting that she have a fitness certificate before she could return to work from a previously scheduled vacation;

·         Only removing the grievor from the workplace after her union intervened, and then only transferring her to a temporary ad hoc location, causing additional stress; and

·         Maintaining that the grievance had no merit throughout the grievance procedure.

After reviewing the evidence, the Arbitrator awarded the grievor lost wages (past and future), general damages, damages for pension loss, and special damages, totalling approximately $850,000 (less a discount for various contingencies).  The Arbitrator described the situation as a “tragic case” in which a “vulnerable victim” had her situation worsened by “insensitive management”, greatly exacerbating the effects of the sexual assaults.

If any lesson is to be learned from these two cases, it’s that careful, proactive steps can greatly mitigate an employer’s risks, particularly when addressing sensitive issues like human rights.  Failure to act with urgency and care comes with very high and unnecessary costs.

If you have a question about this post or have a human rights issue you’d like to discuss, please don’t hesitate to contact Lance Ceaser.

 

Recent Cases Highlight Individuals’ Liability for OHSA Violations

Three recent decisions of the Ontario Court of Justice show just how imperative it is for employers and workers to take their responsibilities under the Occupational Health and Safety Act (the “OHSA”) seriously.

Following a lengthy trial, that started in 2011 and was concluded in 2013, Justice of the Peace Mary A. Ross Hendricks passed down her sentence in Ontario (Ministry of Labour) v. J.R. Contracting Property Services in March this year.  In October 2008, a worker employed by J.R. Contracting was on the roof of a residential garage tossing loose shingles into a trash bin when he rolled off, landing on a concrete walkway.  As a result of his fall, he injured his spinal cord, leaving him permanently paralyzed from the waist down.  The Ministry of Labour investigated and charged the company, Teisha Lootawan (as a supervisor), and Andrew J. Haniff (for obstructing the investigation). 

At trial, the evidence disclosed that the injured worker was employed by J.R. Contracting and that he was neither provided with fall equipment nor trained in its use, although he was sent to perform work on a roof that was over three (3) metres off the ground.  The fact that he and his co-worker had drank as many as three beers before starting the job did not reduce the company’s culpability for failing to take all reasonable precautions in the circumstances.  The Justice of the Peace also concluded that Ms. Lootawan had been responsible for directing the two workers to the job location (a residential property in Toronto), and told them that they would be working on the roof, but did not ensure that they had and used fall protection.  In the course of the Officer’s investigation, it was found that Mr. Haniff had refused to answer any questions with respect to what he had done after receiving a call from the homeowner, although this information was relevant to the accident investigation.

The company received a $75,000 fine, which was in the mid-range for an accident of this nature, for failing to take all reasonable precautions to protect the safety of a worker.  Mr. Haniff was fined $2,000 for his refusal to cooperate with the Officer’s investigation. However, most surprisingly, the Justice of the Peace ordered that Ms. Lootawan serve 45 days in custody, to be served continuously.  In large part, this sentence reflected the fact that Ms. Lootawan had prior convictions under the Provincial Offences Act (for violation of the Environmental Protection Act), had been sentenced to jail on an intermittent basis in the past, and had not paid over $50,000 in fines that were previously imposed.  The JP was persuaded that neither fines nor an intermittent custodial sentence would be likely to deter Ms. Lootawan from committing further infractions.

In another case recently reported by the Ministry of Labour, a JP ordered fines against both a Mississauga construction company and one of its Directors.  In R. v. Starland Contracting Ltd. (unreported).  During one visit to the site (where the company was working on the construction of a self-service car wash), an inspector from the Ministry of Labour had observed a worker on a roof without a hard hat or fall protection.  The same inspector paid a follow-up visit to the site a couple of months later, where he encountered one of the Directors of the company (Murad Ebeid) acting as a supervisor on site.  When the inspector approached him, Mr. Ebeid swore at the inspector, told him to leave the site, and made threatening gestures and comments towards the inspector. When asked, Mr. Ebeid also refused to show identification to the inspector.  On a visit the next day, the company could not produce a Notice of Project or Form 1000, and then failed to produce the documentation by the date ordered by the inspector.

For its violations of the Act, the company was fined $29,500 (for failing to ensure a worker was using fall protection and wearing a hard hat, and for failing to comply with an order of the inspector).  Mr. Ebeid was also fined $8,500 personally for obstructing the inspector and for failing to show I.D. when requested.

These cases highlight the risks for supervisors who are not compliant with their obligations under the Act.  However, another recent reported case suggests that workers are also not immune from prosecution.  On November 13, 2014, Justice of the Peace Mary A. Ross Hendriks ordered a worker to pay a fine of $1,500 for his violation of the OHSA.  The worker, Christopher Schwaemmie, was working as a hoist operator on a Toronto job site when he was observed jumping from a hoist tower to a nearby rooftop, approximately 50 feet above the ground.  Mr. Schwaemmie was wearing a fall protection harness and lanyard, but was not tied off.  The worker pled guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres.

These decisions demonstrate that employers, supervisors and employees all need to be more vigilant in ensuring work is performed safely, particularly when work at heights is involved. They also demonstrate the willingness of the Ministry of Labour to pursue charges against individuals (not just large, corporate employers) where the Act is not being followed. 

If you have questions about these decisions, your obligations under the OHSA, or are facing potential prosecution, please do not hesitate to contact Lance Ceaser.