As of March 28, 2011, the blog can now be viewed on Canadian HR Reporter‘s home page, www.hrreporter.com.

You can read Jeffrey R. Smith’s current blog on the website: Can’t handle the truth?

No additional blogs will be posted here.

Friendly personal relationships at work can be nice, but workplace boundaries are different from regular socializing

By Jeffrey R. Smith

There’s a saying that the world needs more hugs. That may be true, but it doesn’t necessarily translate to the workplace.

People who work together often develop personal relationships, sometimes as friends and sometimes even romantically. However, everyone has a different perspective on the boundaries between workplace relationships and personal relationships and this line can get a little blurry. Employers must be careful not to go too far over the line or they can face serious complaints, regardless of the intentions of those involved.

Employees usually like a friendly boss, as it can lead to a more relaxed atmosphere in the workplace and a co-operative environment, especially in a team environment. But in a recent British Columbia case, a friendly boss who tried to encourage positive energy in his employees took it too far.

An owner of two retail carts in Victoria hired two teenage sisters to work at one of the carts in the summer of 2008. The owner had some new-age beliefs related to Reiki, a Japanese spiritual practice that dealt with healing energy. He often talked about this philosophy to his employees and customers and displayed healing crystals at the cart.

The owner often tried to purify the cart of negative energy and offer positive energy at the beginning of the workday by hugging the two girls in extended hugs, sometimes lasting up to 10 seconds. However, the hugs made the girls uncomfortable and, even though one of them said so, he insisted on continuing the practice.

The girls filed a successful complaint of sexual harassment. The employer may have genuinely been trying to create a positive environment according to his beliefs, but he should have recognized the possibility his employees wouldn’t see it that way, particularly after one of them expressed her discomfort. For him, perhaps a hug was just a hug, but for his workers, his status as a boss (not to mention a significant age difference) made it uncomfortable.

What if a similar situation happened between co-workers or a manager and direct report that had a mutual friendship? If they were usually comfortable enough with each other that they had frequent physical contact such as hugging, is there a risk of sexual harassment if one individual suddenly changes her mind on what’s appropriate? Sexual harassment includes unwanted touching, but should there be some leeway if it involves a co-worker giving an unwanted hug with good intentions?

However, good intentions may not be a saving grace if it should have been obvious the actions would be unwelcome. Sometimes it’s just safe to recognize the boundaries in the workplace are a little different than outside it.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

By Jeffrey R. Smith

You may have heard about the recent kerfuffle over a tweet posted on a corporate Twitter account for Chrysler that consisted of a criticism of Detroit drivers and use of the f-word.

The Tweet reportedly read: “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to (expletive) drive.”

The tweet was quickly taken down and replaced with an apology, but what has really stirred things up is the fact the employee who posted it was fired. (The person who posted the tweet didn’t work for Chrysler, he was an employee at a social media agency hired by the automaker. Apparently, he thought he was posting it to his personal Twitter account, not the official Chrysler one.)

The firing took place in the United States, where employment laws are different from Canada, but the situation raises questions that should be considered by Canadian employers as well. Was the firing an overreaction? Or was it justified because the potential harm it could have done to the Chrysler brand and reputation?

In Canada, it’s very difficult to fire someone for cause. If this situation happened here, the employer would have to be ready to prove the tweet did enough harm to the employer’s reputation that its business would be seriously and negatively affected. Even if the employee had a history of misconduct, it’s unlikely this action could be part of a justification of dismissal without that proof.

But look at Chrysler’s perspective. It’s one of the most prominent corporations in North America, if not the world. It’s trying to get back on its feet after the recession and it’s important to the company to establish a trust with customers in order to get them to spend a good amount of their money on its vehicles. It’s currently running an ad campaign promoting Detroit and its workers, which has generated a positive response, according to Ed Garsten, Chrysler’s manager of electronic communications, in a blog post.

A negative message about Detroit and, showing road rage, could do damage to this campaign and potentially sabotage its efforts to get back in the public’s good graces. So maybe the judgment demonstrated by the employee in posting the message was extra poor in light of these circumstances? Would that be serious enough to warrant dismissal?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

When it comes to harassment complaints, never give an employee the brush-off — no matter how incredible the claim may be

By Jeffrey R. Smith

When it comes to harassment complaints by employees, there’s an important thing employers should keep in mind: Even if it seems ridiculous or the complaining employee lacks credibility, the complaint should be taken seriously. If not, an employer could find itself in trouble even if the complaint has no merit.

An Ontario accounting firm found this out when a bookkeeping contractor filed a complaint of sexual harassment that happened on a company retreat a month earlier. The contractor, who was considered an employee by the Ontario Human Rights Tribunal because she had an office at the firm’s headquarters and was listed as on its staff, went on the retreat in North Carolina in May 2008. After a night of drinking, she ended up in a hot tub with a male principal of the firm, a male client of the firm and a female intern. She admitted things got hot and heavy with the client, but they soon thought better of it as both were married.

However, when she got back home to Toronto, she confessed what happened to her husband. As she talked about it, she seemed to call up more memories of what happened and decided both men present had gone too far without her permission and she had been drugged. She made a complaint to the firm, but her story had a lot of inconsistencies, others who were there said nothing happened that wasn’t consensual and there was little reason to believe she was drugged.

She had also been in contact with the client after the retreat and had acted friendly and flirty, so she wasn’t taken very seriously when she later made the complaint. She also made other wild accusations — that she was videotaped, for example — that she later didn’t pursue. Her husband also got involved and behaved like a “loose cannon,” calling various people at the firm about the situation.

The human rights tribunal agreed there was little evidence to show sexual assault, harassment or drugging had happened on the retreat and the woman wasn’t very credible. However, the tribunal found the firm had a duty to investigate her complaint under the Ontario Human Rights Code and it breached the code by not doing so. The firm also lacked an official written policy on how it handled harassment complaints so the tribunal ordered it to fix the management team’s “complete lack of knowledge about their obligations under the code.”

So if an employee complains about serious misconduct that could constitute harassment, it doesn’t matter how believable the complaint is. Even if it’s obvious the complaint will amount to nothing, an employer who doesn’t take it seriously could still be breaching the employee’s human rights. It might seem like nothing to some, but it might be important to the person making the complaint.

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

Mental distress experienced by fired employees can be caused by different factors. How do you distinguish what warrants damages?

By Jeffrey R. Smith

When an employee is fired, it’s usually a stressful situation. It’s often not just a loss of income, but also a loss of identity to certain extent. Courts have recognized work is part of people’s identity and how they see themselves, and having this come to an end can be emotionally traumatic.

However, courts have also recognized there is a difference between the emotional and mental stress that can be expected to arise from being fired and that caused if an employer is particularly mean about it. Wrongfully dismissed employees can win larger damage awards for stress or suffering caused by bad-faith behaviour by the employer, but not normal stress that comes from dismissal or any other type of pain and suffering that comes from separate issues. But how do you make that distinction?

Snow plows brush snow off the tarmac at Pearson International airport in Toronto on Feb. 2, 2011. A recent course case involving the Greater Toronto Airports Authority raises questions about the type of conduct that warrants additional damages in terminations. (Photo: Mike Cassese/Reuters)

There have been cases where employees have claimed damages for mental stress caused by an employer’s behaviour in the course of dismissal, but have been denied because the court or arbitrator found the suffering was normal for someone who was fired. But there was an interesting Ontario case where damages for both physical pain and suffering from a wrongful dismissal were originally awarded and then set aside.

An employee with the Greater Toronto Airports Authority (GTAA) was fired in 2004 for abusing sick leave after a knee operation. The GTAA put her under surveillance and felt she was better than she let on. The employee won several years’ salary in a wrongful dismissal suit, as well as $50,000 for mental distress she suffered because the GTAA didn’t seek out proper medical evidence and didn’t have a legitimate reason for firing her. The employee’s distress was aggravated by the fact the firing caused her to require psychotherapy, which she had to take instead of physiotherapy for her knee. As a result, her knee took longer to heal.

However, the Ontario Division Court set aside the mental distress damages. It agreed the GTAA caused the employee mental distress, but not enough to warrant $50,000 in damages. Part of the employee’s suffering was caused by her knee injury, not the employer’s actions and the arbitrator should have distinguished between them, said the court. The employee might be entitled to some mental distress damages, but not for all of her suffering.

So if an employer acts in bad faith during dismissal, there is obviously potential for bad-faith damages. But where is the line if the employee is emotionally, mentally or physically affected? What if the employee in the above situation had her knee pain aggravated because of her mental state from the GTAA’s conduct?

Everyone is different and some people get more stressed than others in bad situations. If someone’s reaction to a dismissal is more extreme than normal, does that person deserve more? What if her reaction leads to physical maladies? Conversely, if someone is strong and unemotional and can shrug off a bad dismissal situation, does she deserve less in damages?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Advance preparation a wise strategy when new legislation is coming down the pipe

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

HR departments have to deal with many things to ensure organizations run as smoothly as possible. It’s a balancing act between the organization’s bottom line, employee engagement and compliance with employment and labour law.

This keeps everybody busy and could make it easy to put something on the backburner if it’s not imminent, like new legislation that might be coming into effect down the line. But failure to pay attention could leave an employer unprepared and in trouble when the time to comply comes around.

The province of Ontario, for example, has developed new legislation that will significantly affect businesses when it comes into force next year. The Accessibility for Ontarians with Disabilities Act (AODA) is intended to remove barriers keeping people with disabilities from fully participating in society and will require business to make adjustments to their physical premises and implement specific training for employees.

It will come into effect in various stages over the next few years, but the first stage, dealing with customer service, comes into force on Jan. 1, 2012, for private-sector firms. That may seem like some time away, but for those businesses affected — those operating in Ontario and those outside of Ontario who serve Ontarians — who don’t start preparing soon, it will be upon them pretty quickly.

Once AODA is in force, business will have to comply and if they haven’t made advance preparations for it, they will end up scrambling. So while it may be difficult for affected businesses to find the priority to ramp up preparations for compliance with the AODA right now, failure to do so might come back to haunt them.

Past experience shows businesses can get caught unprepared when new compliance requirements come into force. Ontario’s new workplace violence legislation, known as Bill 168, came into force last June, but many employers still aren’t compliant despite the fact there was plenty of advance notice. This could lead to fines and investigations of those employers until they’re found to be compliant.

The buzz is other jurisdictions in Canada are looking at implementing legislation similar to AODA. Manitoba, for one, has already gotten the ball rolling. HR people are usually the key to getting businesses and their staff in line with legislation like AODA, so it’s crucial for them to get the ball rolling on compliance before it’s too late.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

The health and safety of employees is an important consideration for employers — and it’s a win-win that benefits both workers and the employer.

But different types and sizes of employers can find some aspects of employee health and safety difficult to maintain and, if a recent Ontario court decision is any indication, it’s not going to get any easier.

Last month, the Ontario Court of Appeal released a decision that could impact small employers that use independent contractors who work off-site. The decision related to a company that distributes materials like sand and gravel to various customers. The company itself employed only 11 people and most of its distribution work was contracted out to independent truck drivers who owned and operated their own vehicles.

Since the company had such a small number of employees in its office, it was able to look after its employees’ health and safety issues directly without the formality of a joint health and safety committee (JHSC). The Ontario Occupational Health and Safety Act only required JHSCs for employers with 20 or more employees.

However, after an accident that seriously injured an independent truck driver while he was working for the company, the Ontario Ministry of Labour found the independent truck drivers — of which the company used between 30 and 140 at any one time — should be considered employees for the purposes of the JHSC requirement. After the case went through a couple of levels of appeals, the Ontario Court of Appeal agreed with the ministry.

On the surface, it seems like this decision could be a positive for safety — the independent contractors would be involved in the company’s health and safety committee and its initiatives.

But it could lead to logistical nightmares for the company and other similar employers. Independent contractors come and go and often, as in this case, their jobs take them to various locations away from the office. Is it too much to ask an employer to maintain a JHSC when many of the representatives work outside of the office and only actually work for the company on an irregular basis?

There likely would be an additional administrative burden on a company which may not be able to handle it. The company in this case had only 11 employees in its office, but was expected to organize a committee for as many as 150-plus people.

In its decision, the Ontario Court of Appeal acknowledged it would be difficult to maintain a JHSC when members are independent contractors who are on their own schedules and usually off-site. It seemed to shrug this off by pointing to the fact the company in this case had already done so after the initial ministry order. However, it may not be so doable for other companies in similar circumstances.

It’s reasonable for businesses to advise contractors doing work for them on proper health and safety practices and to take reasonable measures to ensure the safety of the work being assigned to those contractors. But is it practical to include them on committees and be involved in making company policies? How much of a burden should companies have to take on for the health and safety of independent contractors and how much of it should be the contractors’ responsibility?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Over the course of the long winter, Canadians get their fair share of big storms with bad conditions for travelling. When the weather forecasters warn of a big winter storm with snow, freezing rain and other various forms of punishment, it’s common for workers to wonder if they’ll get a “snow day” — if the weather’s that bad, then perhaps organizations will be forced to shut down operations for the day.

The decision to close and tell employees to stay home in inclement weather rests with the employer, which has to weigh the disadvantages of losing a day’s work against forcing workers to trudge through a long, slow commute in slippery conditions.

But how far does this responsibility go, both morally and legally?

A man walks down the middle of Portland street during a blizzard in downtown Dartmouth, N.S. When conditions are poor, should employers shut down for the day? (Photo: Paul Darrow/Reuters)

A winter storm can create conditions that are very dangerous to drive in — slippery roads, poor visibility, cold weather — as well as many potential delays. If these conditions are really bad, should the employer be obliged to close its office and keep its employees safe at home?

Employers have a legal duty to protect employees from harm in the workplace and this includes work-related functions outside the normal workplace. Could this duty extend to the commute in dangerous conditions? Would there (or should there) be liability if the employer stayed open in severe conditions and an employee who couldn’t afford to take the day off was hurt or killed in an accident caused by the conditions? What if police and weather forecasters had warned people to stay home unless absolutely necessary, as sometimes happens?

On one hand, severe weather is a fact of life in winter in Canada and one could argue we just have to adapt and get on with things. But, on the other hand, one could say that fact of life should mean we have to accept some days will not be good for travelling and employers should plan for a few days every winter to have the office closed when a severe storm sweeps in.

In the end, that could end up saving frustration, employee disenchantment and maybe even lives.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

When an employee is guilty of misconduct at work, the employer is generally required to address the situation through a process of progressive discipline. It’s important for the employer to not be too hasty in implementing the most severe form of discipline — dismissal — too soon.

Numerous wrongful dismissal decisions have demonstrated, in Canadian employment law, that it can be very difficult to fire someone for cause. Unless an employee’s conduct is very serious — which is open to interpretation — dismissal for cause can’t happen without a process of progressive discipline that gives the employee an opportunity to mend her ways.

A Toronto Transit Commission (TTC) streetcar sits in a garage. The TTC has come under fire recently after drivers were filmed texting on cellphones while driving, raising the question of the appropriate penalty for violating workplace safety provisions. (Photo: Mike Cassese/Reuters)

But how can an employer determine what constitutes misconduct serious enough to constitute just cause for dismissal? Court files are littered with cases where an employer was certain an employee’s actions or behaviour were so bad firing was the only solution, only to find that wasn’t the case. Should being a threat to the safety of the workplace be an automatic cause for dismissal?

There’s been some controversy in Toronto after three different bus drivers were filmed texting or talking on their cellphones while driving buses in the same week. Similar circumstances happened last year when a bus driver in Portland, Oregon, was spotted browsing an ereader while driving his bus and another in Birmingham, England, was actually reading a paperback book behind the wheel.

These situations were causes of concern because it represented a threat to public safety and the drivers were in a position where their employers, as well as the general public, had to trust them to act safely. But are they just cause for dismissal without previous discipline?

Progessive discipline involves a series of escalating actions with each instance of misconduct, often starting with an oral or written warning through suspensions and finally dismissal. The key concept is that employees must be aware their misconduct is unacceptable and be given an opportunity to remedy it. However, if the misconduct is bad enough that it might harm the employer, irreparably damage the employment relationship or cause a safety risk to others, an employer might be able to skip right to dismissal. As with every case, it depends on the individual facts.

Of course, things are different in a unionized environment and the disciplinary process is usually set out in a collective agreement. In the situations outlined above, the bus drivers would each be members of a transit union, so they are unlikely to be fired unless they already have a history of serious misconduct. But maybe there should be exceptions when it comes to safety risks.

In all the cases, the drivers were not fully prepared to react if a person, car or bicycle swerved in front of them. Serious injury or death was a possible outcome of their actions. In any workplace, if an employee’s actions cause a real risk like that and a reasonable person should be aware of the consequences of those actions, should dismissal be an option for the employer?

Can it be expected to keep the employee on and trust the employee will not do it again, even though common sense should have prevented the misconduct in the first place?

Update: Both the Toronto Star and Toronto Sun reported on Feb. 1 that the three TTC drivers were being fired for their misconduct. Both the TTC and the union declined to comment as the disciplinary process was still ongoing. TTC policy has prohibited texting while driving for years and the practice has been illegal in Ontario since October 2009.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

In wrongful dismissal cases, without extenuating circumstances such as bad faith, the trend is for decision-makers is to award damages in relation to real losses suffered by the employee, such as pay and the time it takes to find new employment.

In other types of employment-related cases where employers are ordered to pay employees, such as human rights complaints, the idea is for the damages to compensate for other types of losses like mental distress and loss of dignity.

Privacy Commissioner Jennifer Stoddart recently indicated she was thinking about seeking some new powers for her office, such as the power to make orders, issue penalties and name organizations found in violation of the Personal Information Protection and Electronic Documents Act (PIPEDA). (Photo: Chris Wattie/Reuters)

However, in privacy cases, usually adjudicators have less power to make these types of awards. Often, at least at the provincial level, a decision ends with the employer ordered to stop violating privacy legislation and educate its workforce on privacy protection.

The federal privacy commissioner doesn’t even have order-making power. But if the current federal commissioner, Jennifer Stoddart, has her way, she might soon.

Stoddart recently indicated in a public lecture she was thinking about seeking some new powers for her office, such as the power to make orders, issue penalties and name organizations found in violation of the Personal Information Protection and Electronic Documents Act (PIPEDA). This could raise significant concerns for employers covered by the federal privacy legislation.

Employers collect and store personal information on employees, so they must be aware of the importance of protecting that information. Indeed, a careless or malicious violation of that right to privacy maybe should warrant some sort of sanction. But should privacy adjudicators have the same kind of authority courts and arbitrators have in levying punishment to the employer or compensation to the employee?

In a lot of cases where personal employee information is disclosed, the disclosure was inadvertent or the employer simply wasn’t aware which information it could or couldn’t disclose. While that doesn’t excuse it, sometimes there isn’t much harm done, so ordering the employer to stop what it’s doing — something the employer usually does as soon as the complaint is filed — and ensure its staff are up to speed on their privacy responsibilities seems like an appropriate solution.

If a privacy violation is serious enough to cause real losses to an employee, shouldn’t the matter go before a court or arbitrator instead?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.