Archive for March, 2010

How are you preparing for Bill 168 — Ontario’s new workplace violence and harassment law?

By Stuart Rudner

As employers are well aware, Bill 168 — Ontario’s new workplace violence and harassment legislation —will come into force in June of this year. Unlike most new pieces of legislation impacting human resources, Bill 168 creates numerous obligations on the part of employers. In other words, it will not be wise for organizations to simply sit back and wait to see how things play out, or plan to respond if and when an issue arises. This piece of legislation requires action, and provides for penalties in the absence thereof.

Recent years have seen an increased focus on safety at work. Bill 168 takes the existing rules a step further by, among other things, addressing the potential for workplace violence. The impetus for this change was largely the Hotel Dieu case, in which a registered nurse in Windsor, Ont., was murdered by a colleague and former lover while carrying out her duties. A subsequent report identified no less than 16 risk factors that existed and numerous missed opportunities for intervention.

With this background, perhaps it’s not surprising Bill 168 requires that employers take steps in order to protect employees from, among other things, workplace violence. However, many are concerned about the requirements Bill 168 seems to impose, including the preparation of risk assessments, consideration of the potential for domestic violence, and the duty to disseminate personal information regarding those with a history of violent behaviour. It remains to be seen how some of these obligations will be reconciled with existing privacy laws.

Many employers I’ve spoken with are concerned about the lengths to which Bill 168 goes. In the hope of stimulating discussion, I invite readers to comment on Bill 168 in this blog. In particular, I would be interested in hearing whether people feel Bill 168 goes too far, or not far enough, in the protection of employees.

I would also welcome comments regarding the bill’s impact upon privacy laws, employee relations and employee morale. Finally, it would be interesting to hear how readers intend to comply with the various requirements of Bill 168.

What are your thoughts? What are you doing to prepare for Bill 168? Join the conversation by adding a comment.

 Stuart Rudner is a partner in Miller Thomson’s labour and employment group in Toronto. He can be reached at (416) 595-8672 or srudner@millerthomson.com.

Flip-flop firing: Questions raised by the Ford class-action lawsuit

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

Cutting jobs can be a tough undertaking for an employer and not just because it usually means it’s going through some shaky financial times.

There are plenty of obligations employers have to live up to under employment standards law, such as reasonable notice, temporary layoff rules and mass termination rules. Not to mention the human cost of telling people they’re out of a job and the potential effects on the HR and management people who have to do the telling.

Though it may be the most prudent measure at the time, cutting jobs comes at a cost because of these obligations. But what if the jobs are eliminated before anyone even starts working at them?

Ford Canada has been in the news recently because it was faced with this precise circumstance. In July 2008, the automaker was planning to add a third shift at its plant in Oakville, Ont. It offered jobs as assemblers to hundreds of people to fill that shift. However, a week before the shift’s planned start date of July 28, a downturn in sales caused the company to announce it would be postponing the start date. In early August, Ford proceeded to cancel the shift altogether and informed its prospective new employees there would be no assembler jobs after all.

A class action lawsuit against Ford filed by the out-of-luck job seekers was recently certified by an Ontario court and will go to trial, unless a settlement is reached. Though the people hadn’t technically started their jobs, many claimed they had already quit or given notice at their previous employers and couldn’t go back. This, they claimed, put Ford on the hook for wrongful dismissal as if they had already been working at the automaker.

This situation raises the question of when employment actually starts and what the employer’s obligations are in the hiring process. Is a job offer an official employment contract, whether anything has been signed or not? Does it matter whether the prospective employee has performed any actual work or not? How much should factors such as the prospective employee’s quitting of a previous job come into play?

In Ford’s case, the certification of the lawsuit appears to indicate the prospective employee’s case has legs. It remains to be seen whether the courts consider them to have become employees and what Ford’s obligations to them are.

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

Mind over matter in workers’ compensation

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

Mental stress and psychological problems are getting more recognition as legitimate reasons for taking time off work. Stress leave has become fairly common as employers recognize stress can be as debilitating as a physical injury for a worker and legal decision-makers acknowledge the rights of employees to take time to recover from it.

But what does this mean for workers’ compensation? An employee who gets physically hurt at work and either needs time to get better or can’t work because of the injury is compensated for the income loss through a workers’ compensation claim. But what if an employee is psychologically affected by something that happens at work? Should this be equally compensated as a physical injury? How should it be measured to determine if it warrants compensation? Can it even be measured?

There are provisions for mental injuries in many workers’ compensation regimes in Canada. For example, British Columbia’s workers’ compensation legislation and its board’s policy allow for compensation for mental stress if it was caused by “an acute reaction to a sudden and unexpected traumatic event” that was experienced or witnessed firsthand by an employee. The Ontario Workers’ Safety and Insurance Board’s Operational Policy Manual features an almost identical requirement for mental stress.

However, last year a worker challenged the B.C. requirements after his claim was rejected, claiming they were too restrictive and discriminated against mental injuries compared to physical injuries. The worker suffered from post-traumatic stress disorder and was unable to work, but the board and its appeals tribunal both denied his claim because they found he wasn’t directly involved in the incident that caused his stress and therefore didn’t meet the requirement of an acute traumatic event.

The B.C. Court of Appeal found this requirement was discriminatory because it set the bar higher than physical injury claims, which were evaluated on a case-specific basis. For physical injury claims, workers only had to prove it was work-related, while for mental stress claims, workers had to show a specific cause.

The requirements for issuing workers’ compensation for mental stress in various jurisdictions have likely been put in place at least in part because of the greater difficulty in proving genuine mental stress and differentiating it from normal work stress. Should claims for mental stress have a higher bar because they could be abused, or should workers be able to receive compensation just as easily as for an obvious physical injury?

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

The parade of misbehaving employers continues

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

There is no shortage of court rulings where employers have been nailed for treating employees poorly.

Sometimes it’s just the result of negligence and sometimes the employer’s conduct has an element of maliciousness. Everyone knows — or ought to know — when employees feel mistreated or discriminated against in our society, employers are probably going to face consequences, legal and possibly otherwise.

And yet, the parade of misbehavior by employers continues. Some cases just make you scratch your head and wonder: “How could the employer act this way? And did it really think it could get away with it?”

Here’s one recent example: A Toronto trucking firm was ordered to pay more than $30,000 to a dispatcher as compensation for the bigoted behavior of the company’s owner. Lynx Trucking employed several people of South Asian decent, including dispatcher Cheryl Khan.

Khan filed a human rights complaint, claiming racial discrimination by the company’s owner, Lynn Tompkins.

The Ontario Human Rights Tribunal heard Tompkins regularly made offensive racially-based insults and taunts towards Khan and other employees of South Asian background, including comments such as “stupid immigrant” and saying they were “ignorant.” Tompkins also made rude comments and expressed a desire for “good white people” when employees asked for the Hindu holiday Diwali off.

Human resources professionals know there are many legal protections in Canada for employees and employers can face serious penalties for mistreatment of employees — wrongful dismissal, constructive dismissal and bad-faith damages, Charter of Rights and Freedoms violations and employment standards violations are a few examples. Even if Lynx Trucking is a small employer without a dedicated HR department, any reasonable person would know Tompkins’ treatment of his employees was unacceptable, not just in the context of employment, but in normal society.

It would seem to be common sense that an employer which treated its employees in this manner would be called on it at some point. But the circumstances at Lynx Trucking show there are still employers out there who still don’t seem to get it.

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