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.

 

Doing the “right thing”: Should an employer receive credit for correcting health & safety hazards after an accident? The Ontario Court of Appeal says “No”

The Ontario Court of Appeal recently ruled on whether corrective action taken by an employer after an accident (and an Order from a Ministry of Labour (“MOL”) Inspector) should mitigate the sentence the employer receives for breach of the Occupational Health and Safety Act (the “OHSA”).  In Ontario (Ministry of Labour) v. Flex-N-Gate Canada Company, an employee was injured after a bundle of metal sheets slipped off of a fork lift and struck the worker, causing serious injuries to her foot.  A MOL Inspector investigated the accident, and issued two orders to Flex-N-Gate.  The company complied with both orders immediately.  At trial, the Justice of the Peace found that the employer was guilty of offences under the OHSA, and imposed fines of $25,000 each on two counts, for a total fine of $50,000.  The total fine was well below the $500,000 maximum that an employer could face for each offence.

The employer appealed the decision to the Ontario Court of Justice, where the judge upheld the fines, but made them “concurrent”.  In effect, the total fine was reduced to $25,000.  Most significant to the judge’s ruling was her determination that Flex-N-Gate should receive credit for taking “ameliorating action” immediately following the issuance of the MOL orders, as a “reward” for doing “the right thing”.  The MOL appealed the decision.

At paragraph 19 of its decision, the Court of Appeal upheld the Ministry’s position on whether an employer should be credited for taking action after orders have been issued, stating:

… The court should not have discretion to treat an employer’s post-offence compliance, though statutorily required, as a mitigating factor on sentence.  Doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence.

The Court found that treating corrective action after an accident as a mitigating factor on sentencing would create a disincentive to employers from taking preventive action before an accident occurs.  The Court of Appeal cited case law under the Environmental Protection Act, and adopted the view that actions taken after an incident that breaches public welfare legislation could be seen as an aggravating factor, since it demonstrates that hazards were discernible and could have been corrected in advance.  In short, the Court concluded (at para. 30):

If, after having contravened a safety standard, an employer then acts to correct the problem, it is not “doing the right thing”; it is doing what the statute requires it to do.  It ought not to be “rewarded” for its compliance.

However, the Court did observe that corrective action that exceeds what is required by an Inspector’s order and/or steps taken in advance of an accident to prevent or reduce the risk are valid mitigating considerations.

The Court then went on to find that prior cases decided by the Court of Appeal had found that “concurrent fines” were not available to a court under the OHSA and the Provincial Offences Act.  The court must consider the totality of the fines imposed to ensure that the ‘punishment fits the crime’, but has no discretion to make the fines for two or more offences concurrent.

The decision should remind employers that identifying and mitigating health and safety risks to prevent accidents is the focus of the OHSA.  Unless an employer takes bigger steps than required by the MOL after an accident, the corrective action will not reduce the penalty to be imposed.  In fact, taking steps after an incident may signal to the MOL that the employer was aware of the hazard and not duly diligent in addressing it. 

Do you have a health and safety issue in your workplace?  Contact Lance Ceaser to discuss your questions about the Occupational Health and Safety Act or to obtain representation.

Unpaid Internships – Going the way of the dodo?

Recently, a lot of attention has been focused on unpaid internships offered to students and other young job-seekers in Ontario.  With internships topping the list of Ministry of Labour “blitz” targets, the shuttering of intern programs at the Walrus and Toronto Life in response to Ministry enforcement activity, and the decision by Rogers to eliminate their unpaid internship programs at Flare and Chatelaine, there appears to have been a sea-change in attitudes toward these programs.   Beyond enforcement action by the Ministry, employers may have also heard about a significant increase in litigation south of the border, as unpaid interns have brought class actions against large companies for alleged failure to abide by the Fair Labor Standards Act.  All of this has led many employers to question the feasibility of their own training programs.

So, should organizations continue to offer valuable work experience to youth entering the job market by providing unpaid positions?  The answer to that question is partly legal and partly practical.

The Employment Standards Act, 2000 (the “ESA”) provides that there are limited circumstances in which an employer can offer unpaid ‘training’ positions to young workers.  First, there is the typical “co-op” program (section 3(5)¶ 2).  To qualify, the work must be performed “under a program approved by a college of applied arts and technology or a university”.  Aside from structured co-op programs, however, there is a second, less concrete form of training arrangement that is likewise exempt from the ESA.  In order to meet the exception, all of the following conditions must be met:

1. The training is similar to that which is given in a vocational school.
2. The training is for the benefit of the intern, such as imparting new knowledge or skills.
3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
4. The training doesn't effectively take someone else's job.
5. The employer isn't promising a job at the end of the training.
6. The intern has been told that he or she will not be paid for their time.

The focus of these conditions is on the educational or experiential value of the opportunity to the intern.  For many employers, meeting all of the conditions will be challenging, particularly balancing the provision of valuable learning to the student while deriving little benefit from the work. The Ministry has been clear that these are “very restrictive conditions”, suggesting that very few such arrangements are likely to be found to comply with the ESA.

If an intern is found to not meet these conditions, then the Ministry will find that they are “employees” of the employer and subject to all of the terms of the ESA, including hours of work, eating and rest periods, overtime and minimum wage requirements.  Where unpaid interns are found to be employees, an Order to Pay wages and vacation pay is almost a certainty.

However, beyond the strict legal preconditions, there are practical considerations, too.  Many interns have expressed concerns with the quality of the internships that they have been offered.  And dissatisfied, unpaid interns are much more likely to generate complaints or legal claims.  Therefore, it’s imperative that organizations ask themselves some questions (which also happen to dovetail with the legal requirements above):

·         Is there work that can be provided to a young worker that will enhance their formal education and training?  If the work in question is repetitive and mechanical, it’s unlikely the intern will receive much value or satisfaction from the experience.  A training program should be designed that takes into account the educational background of the intern to ensure that valuable practical skills are being imparted.

·         Assuming there are functions that will have practical value to the worker, would the organization generally have those functions performed by an employee?  If so, it may appear that the employer is benefiting and increase the intern’s sense that they are essentially an unpaid source of labour.

·         Are interns part of the employer’s overall labour strategy, or in addition to the workforce that would normally be retained?  Again, if it appears that the employer is “counting on” interns in order to meet its production requirements, it’s likely the employer will appear to be benefiting from unpaid labour.

·         How long are internship terms?  Are the same workers being offered multiple renewals of their internship arrangement?  The longer interns are retained and/or the more frequently they are renewed, the more likely that resentment will build that their services are being supplied for free without any prospect of paid employment.

·         Will the employer be in a position to ultimately offer paid positions to some individuals who perform internships?  While an employer should not promise employment flowing from the unpaid training (see the 5^th condition above), if it is clear that future employment with the organization is improbable, interns may become frustrated.

Providing a good work environment and ensuring that the organization’s internship program generates real benefit for trainees is perhaps the best means of ensuring both compliance with the ESA and that interns will not become dissatisfied.

If in doubt whether existing internship arrangements are consistent with legal requirements, however, employers would be well-advised to consider converting internship positions to paid, fixed-term trainee roles.  Ensuring that trainees receive at least minimum wage and other entitlements under the ESA is perhaps the best means of avoiding compliance issues in the current environment.

If you have questions or concerns about an internship program, feel free to contact Lance Ceaser to discuss.

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.

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.

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.

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.

* * *

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.