Legal aspect of the workplace.pdf

Legal aspect of the workplace Test 1 Chapters 1-7 May 31, 2024 Chapter 1 Employment Law v. Labour Law The term 'employmen...

Legal aspect of the workplace Test 1 Chapters 1-7 May 31, 2024 Chapter 1 Employment Law v. Labour Law The term 'employment law' covers such topics as employment standards, pay equity, wrongful dismissal, human rights, unemployment insurance and workplace safety. The term 'labour law' covers such topics as collective bargaining, grievance procedures, strikes and lockouts, and other topics generally covered under labour relations legislation. This course addresses employment law issues that pertain to employers/employees in a non-unionized environment. The Constitution Act (1867) assigned different and exclusive powers to the different jurisdictions: Section 91 sets out the Federal powers. Employment insurance is a matter of federal jurisdiction. Section 92 sets out the Provincial powers. For the most part, employment legislation falls within the "local" jurisdiction of the provincial governments. Substantive Law v. Procedural Law: Substantive law refers to law that defines rights, duties and liabilities. They establish the rights an individual has in society, the limits on his or her conduct and the consequences of contraventions. Procedural law refers to the law governing the procedure to enforce rights, duties, and liabilities. They determine how the substantive laws will be enforced. Public Law v. Private Law: Public law describes all those areas of the law that relate to or regulate the relationship between persons and governments (all levels of government). Examples of public law are criminal law, tax law, constitutional law and administrative law (the regulations of government agencies). Private law concerns dealings between persons and involves the rules that govern our personal, social and business relationships. Private law includes contract law, tort law, corporate law and intellectual property law. Private laws are enforced by one person suing another in a civil action (also known as civil litigation or lawsuit). A single set of circumstances can have two sets of consequences, one involving private law and the other involving public law. Public law will include dealings with Ministry of Labour, (Occupational Health and Safety & Employment Standards), Workplace Safety and Insurance Board, Human Rights Commission, Pay Equity Commission and Employment Insurance Commission. The contractual relationship between employer and employee and actions for wrongful dismissal are matters of private law Civil Law Legal System v. Common Law Legal System: Civil Law Legal System Only the province of Quebec uses the civil law legal system which applies to private law in the province and is governed by the Quebec Civil Code. We also use the term “civil law” to refer to “private law”. When the term “civil law” is used to refer to a “legal system”, it is used in the context of a system of law where cases before the court are determined by the principles set out in the Civil Code. The civil code system is also used in all of continental Europe, South America and most of Africa. Although judges in Quebec can look to see how other judges have interpreted the Civil Code, they are not bound by those interpretations. Nor is a judge in a civil code legal system bound to apply a relevant provision of the code if to do so would produce an unjust outcome. Common Law Legal System The other 9 provinces, as well as the territories, are governed by the common law legal system. A common law system is one that bases its private law on judicial decisions that, if relevant and binding, must be applied to the case before the court. Common law is also known as “judge-made law” because rules that are formulated in judgements become binding precedents on lower courts in the same jurisdiction. The key principle in the common law system is that “like cases should be treated alike”. This means that judges should rule in a case before them in a manner consistent with the way judges have adjudicated on or dealt with similar matters in the past. Judges are only bound (meaning, they must) by rulings in similar cases if the judgement was passed by a higher court in the same jurisdiction. This is known as following precedent. Three Branches of Government: the legislative branch creates law in the form of statutes and regulations § the executive branch formulates and implements government policy and the law § the judicial branch adjudicates Administrative Law: Administrative law refers to the rules created and applied by the executive branch of government, the various boards, agencies, commissions, tribunals and individuals who exercise a governmental function. The power to make “regulations” is conferred to these various administrative bodies by statutes passed by the respective Parliament that has the jurisdiction to do so. Principles of Fundamental Justice: The rule of law refers to the principle that citizens are protected from the arbitrary actions of government. The principles of fundamental justice include: 1. The right to a fair hearing: An individual who is the subject of a decision by an administrative tribunal has must: Ø be notified that a decision is to be made Ø be given the opportunity to put his or her side forward (present arguments and supporting evidence) Ø receive disclosure of all evidence to be used against him or her Ø have the opportunity to cross-examine witnesses who present material testimony and to refute any written declarations 2. Heard by a decision-maker Ø The decision by the administrative tribunal must be made by the body/individuals hearing the evidence Ø It is permissible for the decision-maker to use staff to gather and summarize evidence but the decision must be made only by those who have heard all the evidence 3. Impartiality Ø The decision must be made impartially and in good faith Ø Decision-maker must be free of bias Sources of Employment Law: Statute law refers to laws (also called legislation, acts, or statutes) passed by the federal or provincial government How are statutes made? Both in Ontario and the federal government, a bill must pass three readings in the legislature to become a statute Public bills are of general application and are introduced by the Cabinet minister who is responsible for the relevant subject Private members’ bills may deal with public matters, but they are introduced by private members rather than Cabinet ministers Private bills cover non-public matters, such as changing corporate charters A bill becomes a statute once it receives Royal Assent Key Ontario employment statutes: Employment Standards Act, 2000 Human Rights Code Labour Relations Act, 1995 Occupational Health and Safety Act Workplace Safety and Insurance Act, 1997 Pay Equity Act Accessibility for Ontarians with Disabilities Act, 2005 (AODA) Charter of Rights & Freedoms The Privacy Act  Federal employment law is restricted by the Constitution Act, 1867 to industries of national importance Whether a company is federally or provincially incorporated does not determine whether it is provincially or federally regulated Federal employment statutes include: Canada Labour Code Canadian Human Rights Act Employment Equity Act Personal Information Protection and Electronic Documents Act (PIPEDA) Common law is the law that has developed from court decisions, or case law The common law operates on the basis of precedent, or decisions made by previous courts in similar circumstances The principle of stare decisis means that decisions made by higher courts are binding on lower courts in the same jurisdiction and in similar situations A decision is considered persuasive if it is from another jurisdiction or from a court of the same or lower level Cases may be distinguishable, meaning that the facts or elements of a case are so different that the principle of a previous decision should not apply Two branches of the common law that affect employment are contract law and tort law Contract law regulates contractual relationships, including the terms and conditions of non-union employment When bringing an action based on the breach of a contract, a plaintiff, meaning the party bringing the suit, generally seeks damages in the form of monetary compensation from the defendant Tort law is a branch of civil law (non-criminal law) that covers torts, or wrongs for which there is a civil remedy Torts may be deliberate or negligent Judicial Framework The court system in Canada is hierarchical, and under certain circumstances, parties may appeal a decision to a higher court Higher courts may overturn the decisions of lower courts when they have failed to follow precedent The Supreme Court of Canada is the final court of appeal, and its decisions bind all Canadian lower courts Provinces maintain lower courts as well as courts of special jurisdiction, which preside over matters such as small claims, family law, juvenile offences, traffic violations, and trials of less serious criminal offences Administrative tribunals make decisions in specialized areas, such as employment standards or discrimination ◦ In employment law, administrative tribunals such as the Ontario Labour Relations Board have primary jurisdiction over most matters  Appeals to courts of tribunal decisions are usually limited by statute in a provision called a privative clause ◦ Courts retain the jurisdiction to overturn tribunal decisions if a tribunal has exceeded its jurisdiction, showed bias, or denied natural justice An application for judicial review is a request to the court to review the decision of a tribunal Administrative agencies or commissions may be empowered to investigate complaints or make rulings Solicitor–client privilege refers to the right to have certain communications between lawyers and their clients kept confidential It enables individuals to seek legal advice without being concerned that confidential information may be disclosed to a third party ◦ The communication must be between a lawyer and client ◦ The communication must be connected to obtaining legal advice ◦ The communication must be confidential ◦ There must have been no waiver of confidentiality An independent contractor is a self-employed worker engaged by a principal to perform specific work The independent contractor–principal relationship may be challenged by an individual wishing to be considered an employee or by a government agency with an interest in collecting statutory premiums If an independent contractor is found to be an employee, both parties may be liable for statutory premiums or income tax Employers would have to pay outstanding statutory premiums, benefits (vacation and overtime pay), and outstanding income tax. An agent is someone who represents another person—the principal—in dealings with a third party ◦ Examples include real estate agents, travel agents, and insurance agents Agents are usually categorized as employees Chapter 2 Undue Hardship: What is it? Accommodation need not be provided if it causes undue or excessive hardship. However, some degree of hardship is acceptable. The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship: Cost Outside sources of funding, if any Health and safety requirements, if any. The Ontario Human Rights Code is considered remedial legislation, meaning that it exists to right a wrong rather than to punish an offender The Code currently prohibits discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability Key features of the Human Rights Code: It applies to both the private and public sector and to the conduct of individuals It prohibits discrimination in employment on 16 grounds, and it also prohibits sexual harassment as well as harassment based on other prohibited grounds of discrimination Intent to discriminate is not necessary, and the effect of an employer’s actions or rules will matter as much as intent It is not possible to contract out of the Code The Code provides for civil remedies, not criminal penalties If there is a conflict between the Code’s provisions and that of another statute, the Code prevails unless the other statute specifically states that it applies despite the Code The Code applies to every stage of the employment relationship, including recruitment The Code provides that everyone has the right to be free of discrimination in five areas of social activity: ◦ services, goods, and facilities ◦ accommodation (housing) ◦ contracts ◦ employment ◦ membership in vocational associations and trade unions Prohibited Grounds of Discrimination in Employment Race is not defined in the Code but is closely related to colour and ethnic origin Colour refers to skin colour. Ancestry refers to family descent and is closely related to place of origin, meaning a person’s country or region of birth  Ethnic origin refers mainly to culture, and it is not limited to recent immigrants—it can apply to third- or fourth-generation Canadians Citizenship includes status as a landed immigrant, refugee, or temporary resident Creed refers to a person’s religion or faith, or lack thereof, and the courts have left open the possibility that it could refer to a system of political opinion Sex refers to discrimination based on sex (male or female), including pregnancy and breastfeeding in public areas Sexual orientation refers to a person’s sexuality (e.g., lesbian, gay, bisexual, heterosexual) Gender identity refers to a person’s intrinsic sense of self, especially their sense of self as male or female, both, neither, or falling somewhere along the gender spectrum Gender expression refers to how a person publicly represents their gender, including through their behaviour, appearance, or dress Age applies to persons 18 years or older Record of offences refers to provincial offences or pardoned federal offences Marital status includes persons who are married, single, widowed, divorced, separated, or living in a common law relationship This also includes the identity of a complainant’s spouse Family status is defined in the Code as “the status of being in a parent and child relationship”; this includes adopted children, stepchildren, and foster children Disability includes physical and psychiatric disabilities, substance abuse, perceived disabilities, and disabilities for which benefits have been claimed or received under the workers’ compensation system This does not require an employer to hire a person whose disability would prevent them from performing essential job duties Association refers to protection from discrimination on the basis of association with persons who are part of a protected group Discrimination Not Covered by the Code Language, although it may be an element of discrimination on the basis of race, colour, ethnic origin, place of origin, or ancestry Physical appearance, unless it touches on a prohibited ground Political opinion, although the 2012 case of Al-Dandachi v SNC-Lavalin Inc has opened the door to a possible broadening of the interpretation of political opinion as an element of creed Exemptions: Where Discrimination Is Allowed Special Service Organizations ◦ These include religious, philanthropic, educational, fraternal, or social organizations that primarily serve people of a protected ground ◦ Special service organizations may give employment preference to members of that protected ground when the preference is a reasonable and bona fide requirement for the position ◦ Special service organizations may not operate for private profit to take advantage of this exception  Bona Fide Occupational Qualifications ◦ If a position genuinely requires discrimination on the basis of a protected ground, and if accommodation would be an undue hardship, employers may be permitted to discriminate (provide examples where this may apply) Nepotism Policies ◦ Employers may discriminate for or against the spouses, children, or parents of employees with no accommodation requirement Why? Medical or Personal Attendants ◦ When employing a person engaged in home medical or personal care, an employer may discriminate on the basis of any protected ground with no accommodation requirement Why? Special (Affirmative Action) Programs ◦ Employers may prefer members of disadvantaged groups as part of a program to help them achieve equal opportunity ◦ The Human Rights Commission may review these programs to ensure that they are operated in good faith Recruitment, Selection, and Hiring The Code protects job applicants as well as employees The Code is infringed even if a discriminatory ground is only one of several reasons for an employment decision, including declining to employ a person Employers should ensure that they set out a position’s essential duties, since only they may be used in deciding whether a person is capable of performing the job This is where JOB DESCRIPTIONS are extremely important to this process Employers have a duty to accommodate unless it would cause undue hardship, which must be proved on a balance of probabilities Employment agencies must also refrain from discrimination and from acting on requests from employers to discriminate based on protected grounds Employers may not make hiring requests that contravene the Code Since advertising through word of mouth may perpetuate the status quo in a way that discriminates against protected classes, employers should broadly advertise positions Advertisements should not contain qualifications that exclude members of protected groups, nor should they contain material that indirectly excludes protected groups The Code prohibits questions on applications that directly or indirectly classify candidates by prohibited grounds (married, single, children, nationality) At interviews, employers are given more latitude to ask questions, but they may only include questions that touch on a prohibited ground if they relate to a BFOR or fall under an exemption Employers should keep the Code in mind when scheduling interviews, developing a standard set of questions, and composing the interview team Interviewers should not ask questions that relate to protected grounds unless the answer could legally form the basis of a hiring decision  Questions relating to protected classes should be left until after a conditional offer of employment has been made Pre-employment medical or fitness exams should take place only after a conditional offer of employment has been made Because substance dependencies are considered forms of disability, pre-employment alcohol and drug testing may be discriminatory Employers should be prepared to accommodate candidates who test positive Tests that measure job-related skills are acceptable but should take care to avoid discriminatory requirements Hiring Processes An employer should aim for a fair process that focuses on each candidate’s ability to perform the essential job duties. A best practice is to have a multi-person panel conduct formal interviews. Ideally, the interview panel should reflect the diversity available in the organization. They should develop set questions in advance, and ask all applicants the same questions. The questions should be based on the job’s essential duties and bona fide requirements. Before interviews start, create an answer guide showing the desired answers and a marking scheme. Then, each member of the interview panel can record and score each candidate’s answers against this guide. This kind of approach will help employers avoid making decisions based on subjective considerations such as whether the person exhibits “confidence” or is viewed as “suitable.” Employers who rely on these kinds of subjective assessments are vulnerable to claims of discrimination, Without objective criteria, an employer will have trouble explaining why some candidates were or were not qualified for the job if a human rights complaint is filed. Written tests that applicants are asked to complete during a hiring process. The tests given to all applicants should be identical and scoring should be done based on an objective marking scheme determined before answers are graded. Any written test should also be based on the job’s essential duties and bona fide requirements. For both interviews and written tests, the process should be the same for all candidates and determined in advance, subject to accommodation needs Interviews How far an applicant goes in a hiring process should not depend on informal assessments by individual interviewers. Staffing decisions based on informal processes are much more likely to lead to subconsciously biased decision-making. Interview Questions MUST comply with the CODE Chapter 3 Areas of Common Law Liability Employers should take steps to avoid liability by: ◦ ensuring that all information given at the pre-employment stage is accurate and complete ◦ ensuring that interviewers are candid about the job and answer any questions that the applicant may have ◦ preparing a written employment contract setting out the terms of employment Employers will not be found to be liable when a candidate’s reliance on an employer’s information is unreasonable or when the only damage suffered is mere inconvenience Employees’ are assumed to understand that employers’ predictions about future events are not statements of fact Employers are liable for most representations made by recruitment firms, possibly including promises of salary increase ◦ The contract with a recruitment firm should clearly specify the position, compensation, and career potential for the job, and it should restrict the firm to providing only that information to candidates However, recruitment firms may be liable if their negligence in conducting a search, such as failing to conduct proper reference checks, leads to employer damage Inducement occurs when an employee is lured from a position through aggressive recruiting or inflated promises ◦ Inducement followed by dismissal may lead to larger damages A tort is simply a civil wrong. There are three general types of torts that may cause injury to another person. In civil law, torts are grounds for lawsuits to compensate a grieving party for any damages or injuries suffered. The tort of inducing breach of contract occurs where a third party induces the breach of an existing contract between two other parties—such as where a new employer offers a position to an individual who it knows must break an employment contract to accept the new position The new employer may be liable to the former employer if the latter can prove that 1. It had a valid and enforceable contract with the employee 2. The new employer knew of the existence of the contract 3. The new employer intended to procure a breach of this contract 4. As a result of the breach, the former employee suffered damages Negligent hiring, including failing to verify the information provided by a candidate, may open the employer up to liability if an employee later causes foreseeable harm to a third party The more that a job exposes others to the risk of harm, such as a daycare employee who is in a position of trust, the stronger an employer’s duty to investigate will be Asking for references is a common and recommended practice  ◦ If an applicant’s current employer is to be contacted, the applicant’s specific consent should be obtained Employers should keep written records of the details of all steps taken when investigating candidates Employees may be full-time or part-time, and they may be permanent, contract (fixed- term), casual, or agency (temps) In Ontario, in most cases, employment statutes do not distinguish between different types of employees ◦ However, temporary employees are not generally entitled to termination notice or pay in lieu of notice ◦ Both full-time and part-time employees are entitled to statutory benefits and protections, although the amount may reflect the hours worked ◦ To be eligible for benefits under the EI system, an employee must have worked a number of qualifying hours in insurable employment Chapter 4 Written Employment Contracts Offer, acceptance, and consideration are the three basic elements that are necessary to create a contract ◦ Consideration refers to something given or promised in exchange, such as wages A written employment contract is not always required, and as long as it has the basic elements of a contract, an oral agreement will be binding, however, there are significant issues with this. What are they? ◦ Exceptions: A fixed-term contract for a period that exceeds one year must be written, and an offer stating that employment is conditional on the execution of a written contract requires a written contract Written contracts may reduce liability for employers and employees and foster mutual understanding ◦ The parties can come to a common understanding of the terms and conditions of a contract, reducing the risk of a later dispute or action ◦ Both parties have an incentive to reach a mutually satisfactory agreement, and contentious issues may be more easily resolved ◦ If a dispute or an action arises later, a clear record of the terms and conditions of employment exists Implied terms are terms that courts will deem part of an oral or written contract despite their absence ◦ The court considers what terms the parties would likely have agreed on had they put their minds to the issue Employers should customize contracts to specific employees rather than using a single standard contract Key terms of a contract include the names of the parties, the starting date, the job title and description, the duration, the compensation, and the termination clause For less skilled positions, a letter containing key terms and the employer’s policy manual may be sufficient Contracts may include any terms that are not prohibited by law, although employers should word them carefully to avoid liability Job Description ◦ In the absence of contractual language that allows the employer to modify responsibilities, the employee is entitled to refuse to perform duties that fall outside the original agreement Remuneration ◦ It is not necessary to provide for future pay increases in the contract ◦ There are many variables here, funding, policies, union contracts ◦ When to pay overtime, shift premium, hours of work. Term ◦ Contracts are considered indefinite unless they specify a fixed period of time or particular task ◦ A fixed-term contract eliminates the employer’s obligation to provide reasonable notice of termination, since that is built into the contract ◦ Address any renewable periods Termination ◦ Termination clauses must meet or exceed statutory requirements ◦ Clear, unambiguous language is required to rebut the common law presumption that an employee is entitled to reasonable notice ◦ Remember, a person can not contract out of ESA. Probationary Period ◦ Employers who want to implement probationary periods must specifically include them in employment contracts ◦ Probationary periods longer than three months still require statutory notice of termination or pay in lieu of notice ◦ Can probationary periods be more than 3 months? Relocation ◦ A relocation clause is important to include in the contract if the employer wishes to retain the option of moving an employee Benefits ◦ Employment contracts can provide details of benefit entitlements ◦ Entitlements can include such things as medical and dental benefits, vacation, and use of company car, laptop computer, or phone ◦ Some benefit entitlements may not come into effect until several months after work begins; if this is the case, these details should be written into the contract so that the employee is aware of the delay ◦ Contracts may also specify how benefit entitlements will be handled in the event of dismissal or resignation Restrictive Covenants ◦ Non-disclosure clauses prevent former employees from using and disclosing confidential information relating to the employer  ◦ Non-solicitation clauses prevent former employees from soliciting the employer’s customers, clients, and in some cases employees ◦ Non-competition clauses prevent former employees from competing with the employer, usually within a defined geographic area for a specific period of time ◦ Because non-solicitation and non-competition clauses affect a former employee’s ability to make a living, courts will examine them carefully to ensure that they are reasonable Ownership of Intellectual Property ◦ An ownership clause typically provides that intellectual property developed or invented by an employee during the normal course of employment belongs to the employer Choice of Law ◦ A choice of law clause specifies which jurisdiction’s laws will govern the contract Corporate Policies ◦ Employment contracts should specifically refer to the employer’s policy manual and stipulate that the employee has read it and agrees to be governed by the policies within Entire Agreement Clause ◦ An entire agreement clause states that the signed contract constitutes the entire agreement between the parties ◦ This is intended to ensure that in the case of a dispute, the court will not consider what might have been said in prior negotiations Inducement ◦ If an employee was arguably induced to leave secure employment, the contract should expressly state how that employment will affect benefits and termination notice Independent Legal Advice ◦ This clause states that the employee has had the opportunity to seek independent legal advice before signing the contract Severability Clause ◦ The severability clause provides that if a court invalidates part of the employment contract, it will not affect the validity of the remainder of the agreement Golden Parachute ◦ Golden parachutes provide for substantial economic compensation in the event that an executive’s employment is terminated under certain specified circumstances, such as a change in ownership ◦ This permits the executive to act in the interests of the employer during the transitional period without being distracted by its effect on her personally Enforceability and Interpretation of Written Contracts The existence of a written agreement does not necessarily mean that it, or its individual terms, will be enforceable Agreements without consideration are not enforceable  Because employers may be seen as having greater bargaining power than prospective employees, courts may find that a term is unconscionable, meaning unreasonably one- sided ◦ To avoid a potential finding of unconscionability, employers should ensure that: ◦ Contracts are reasonably balanced between the interests of both parties ◦ The candidate has a copy of the contract and time to obtain legal advice ◦ A provision is included stating the above ◦ The candidate’s attention is drawn particularly to key terms such as non- competition, non-solicitation, and termination notice clauses When drafting contracts, employers should keep the following tips in mind: ◦ Use clear, straightforward language ◦ Be fair when negotiating terms ◦ Give the other party time to read, understand, and seek independent legal advice about the contract before signing it ◦ Meet or exceed the minimum statutory standards ◦ Bring critical terms to the other party’s attention ◦ Provide additional consideration if the employer wants a new term included in the contract after it is signed or after employment begins ◦ Customize contracts rather than using a standard form Validity an employment contract’s validity is not determined solely by the written or oral consensus of both parties. For the contract to be valid and enforceable, it must meet some basic conditions. At the most fundamental level: 1. there must have been an offer and acceptance of the contract 2. the contract and its terms must not be unconscionable or illegal 3. there must be “consideration” (some benefit for each of the parties) for entering into the contract Chapter 5 What Constitutes Discrimination? While discrimination is not defined in the Code, courts have recognized it as both intentional acts of exclusion and hidden or unintentional acts ◦ Section 11 of the Code recognizes constructive discrimination, also called adverse impact discrimination Three Part Test: ◦ The employer must demonstrate that a rational connection exists between the purpose for which the standard was introduced and the objective requirements of the job ◦ The employer must demonstrate that the standard was adopted in an honest and good-faith belief that it was necessary for the performance of the job ◦ The employer must establish that the standard was reasonably necessary to accomplish that legitimate work-related purpose Harassment The Ontario Human Rights Code sets out the employer’s duty to provide a working environment that is free from harassment and discrimination ◦ Employers must deal effectively and efficiently with any allegation of harassment of which it is, or should be, aware Harassment is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome” ◦ While harassment is most often a pattern of behaviour (a “course of conduct”), a single incident may constitute harassment if it is extremely offensive The standard for determining whether harassment has occurred is objective: Would a reasonable person think that the comment or conduct is inappropriate? A “poisoned work environment” refers to a workplace that feels hostile because of insulting or degrading comments or actions related to a prohibited ground of discrimination Employers are obligated to monitor, prevent, and respond promptly to harassment that could poison the workplace Sexual harassment is a course of vexatious comment or conduct (based on sex, sexual orientation, gender identity, or gender expression) that is known or ought reasonably to be known to be unwelcome ◦ Sexual harassment detrimentally affects the work environment or leads to adverse job-related consequences for the victim ◦ As with harassment in general, sexual harassment is often a course of conduct, but a single serious incident can constitute harassment If a complainant initiates or willingly participates in sexual banter, co-workers cannot reasonably be expected to know that it is harassment unless they are told Sexual solicitation refers to sexual advances made by a person in a position to confer, grant, or deny a benefit or advancement To protect employees from harassing behaviour, an employer should devise, communicate, and enforce a policy against harassment that: ◦ Indicates the employer’s commitment to eliminating harassment in the workplace ◦ Defines workplace and sexual harassment ◦ Includes awareness programs to underline the policy’s importance ◦ Describes the process by which complaints are brought to the employer’s attention and investigated, and describes the penalties and consequences ◦ Advises employees to inform harassers that their behaviour is unwelcome, or to inform their supervisor of the harassment Elements of an effective anti-harassment policy (cont’d): ◦ Requires supervisors to deal promptly with allegations of harassment ◦ Treats complaints confidentially ◦ Ensures that employees will not face reprisals for making a genuine harassment complaint ◦ Requires a prompt and thorough investigation by an impartial person who is knowledgeable in human rights law An employer’s anti-harassment policy should be circulated to all employees and posted in a prominent spot in the workplace. Staff should also be trained on the policy and procedures and sign off on it annually. When investigating a harassment complaint, employers should: ◦ Investigate in a timely manner ◦ Ensure that the investigator is unbiased and properly trained ◦ Give the accused a chance to adequately respond ◦ Follow the set policies and procedures ◦ Ensure that witnesses are interviewed separately ◦ Ask non-leading questions ◦ Interview third-party witnesses ◦ Document the investigation ◦ Keep an open mind ◦ Consider the entire context Employee Benefit Plan The Ontario Human Rights Code provides that an employee who is excluded because of a disability from a benefit, pension, or group insurance contract is entitled to compensation from the employer Employees who are absent from work because of a disability are entitled to receive the same benefits that would be paid to employees who are not working for other reasons Employers may be vicariously liable for the discriminatory acts of their agents and employees in the workplace Employers are directly liable for the actions of management However, an employer may avoid liability for harassment by non-managerial employees if it can show that it was diligent in preventing and responding to harassment Clients or customers are not liable under the Code, but an employer may be liable if it knew of, or had control over, the situation, could have done something to prevent or stop the behaviour, and failed to act Human Rights Applications The role of the Ontario Human Rights Commission is to advocate for human rights and promote public understanding of, and compliance with, human rights requirements The Ontario Human Rights Tribunal receives applications (formerly “complaints”) and has broad procedural and substantive powers to investigate The Human Rights Legal Support Centre provides free legal advice and assistance to people making a human rights application Employers who receive an application should immediately develop a thorough response Human rights issues that arise from a collective agreement are normally heard by an arbitrator under the grievance process rather than by the tribunal The tribunal may defer an application if the same subject matter is being dealt with in another proceeding, such as labour arbitration  The tribunal has broad remedial powers and may order monetary compensation, non- monetary restitution, or performance of anything that the tribunal feels ought to be done Monetary compensation, which may be unlimited, can be ordered for losses arising from the human rights infringement, including compensation for injury to dignity, feelings, and self-respect Non-monetary restitution may include changes to an employer’s policies, writing an apology to an applicant, or reinstatement of an employee Courts may also award human rights remedies for civil claims in which human rights issues are involved, such as a wrongful dismissal suit that alleges discrimination Occupational Health and Safety Act aims to protect workers from violence and harassment. The Bill outlines stiff penalties for all employers in Ontario who fail to meet their new responsibilities and duties under the law. A workplace harassment investigation appropriate in the circumstances should: Be undertaken promptly. It would be reasonable to complete the investigation as soon as possible within 90 days or less unless there are compelling reasons why a longer investigation is needed (e.g. there are multiple witnesses, a key witness is unavailable due to illness, etc.). Be objective. The person conducting the investigation should not be involved in the incident and should not be under the direct control of the alleged harasser. Maintain confidentiality. Information about the incident or complaint, including information about the people involved, should not be disclosed unless the disclosure is necessary to protect workers or is needed to investigate the incident or complaint, take corrective action and/or is otherwise required by law. Be thorough. Reasonable efforts should be made to interview the worker who allegedly was harassed, the alleged harasser(s) and any witnesses, as appropriate in the circumstances. When interviewing, ask specific questions about the incident or complaint. For example, what did the person see, hear or experience. Take detailed interview notes, and make sure that relevant documents from the worker, alleged harasser, witnesses and the employer are collected and reviewed. Steps in Conducting a Workplace Investigation Step 1 Decide whether to investigate. Before you put on your detective's hat, take some time to decide whether you really need an investigation. In a few situations -- for example, if all employees agree on what happened or the problem appears to be minor -- you may reasonably decide that a full- blown investigation is unnecessary. Usually, however, it's best to err on the side of conducting an investigation. Step 2 Take immediate action, if necessary. You might have to act right away -- even before you begin your investigation -- if a situation is volatile or could otherwise cause immediate harm to your business. If an employee is accused of sexually assaulting a coworker, stealing valuable trade secrets, or bringing a weapon to work, you'll probably want to suspend the accused employee temporarily -- with pay -- while you look into the matter. But be careful not to prejudge the situation or lead the accused employee to believe that you've already made up your mind. Step 3 Choose an investigator. You'll want an investigator who is experienced and/or trained in investigation techniques, is impartial and perceived as impartial by the employees involved, and is capable of acting -- and, if necessary, testifying in court -- professionally about the situation. Step 4 Plan the investigation. Take some time up front to organize your thoughts. Gather any information you already have about the problem -- such as an employee complaint, a supervisor's report, written warnings, or materials that are part of the problem (such as X-rated emails or threatening letters). Using this information as your guide, think about what you'll need to find out to decide what happened. Whom will you interview and what will you ask? Are there additional documents that employees or supervisors might have? Is there anyone who witnessed important events -- or should have? Step 5 Conduct interviews. The goal of every investigation is to gather information -- and the most basic way to do that is by asking people questions. Most investigations involve at least two interviews: one of the employee accused of wrongdoing, and another of the employee who complained or was the victim. Sometimes, you will also want to interview witnesses -- others who may have seen or heard something important. When you interview people, try to elicit as much information as possible by asking open-ended questions. Step 6 Gather documents and other evidence. Almost every investigation will rely to some extent on documents -- personnel files, email messages, company policies, correspondence, and so on. And some investigations will require you to gather other types of evidence, such as drugs, a weapon, photographs, or stolen items. Step 7 Evaluate the evidence. The most challenging part of many investigations -- especially if witnesses disagree or contradict each other -- is figuring out what actually happened. There are some proven methods of deciding where the truth lies -- methods all of us use in our everyday lives to get to the bottom of things. You'll want to consider, for example, whose story makes the most sense, whose demeanor was more convincing, and who (if anyone) has a motive to  deceive you. And in some situations, you may just have to throw up your hands and acknowledge that you don't have enough information to decide what really happened. Step 8 Take action. Once you decide what happened, you'll have to figure out what to do about it. If you conclude that serious wrongdoing occurred, you will have to take disciplinary action quickly to avoid legal liability for that employee's behavior and to protect your company and other workers from harm. In deciding how to handle these situations, you should consider a number of factors, including how serious the actions were and how you have handled similar problems in the past. Step 9 Document the investigation. Once your investigation is complete, you should write an investigation report that explains what you did and why. This will not only give the company some protection from lawsuits relating to the investigation, but will also provide a written record in case of future misconduct by the same employee(s). Among other things, your report should explain how and when the problem came to the company's attention, what interviews you conducted, what evidence you considered, what conclusions you reached, and what you did about the problem. Step 10 Follow up. The last step is to follow up with your employees to make sure that you've solved the problem that led to the investigation. Has the misconduct stopped? Has the wrongdoer met any requirements imposed as a result of the investigation -- for example, to complete a training course on sexual harassment? If the investigation revealed any systemic workplace problems (such as widespread confusion about company policy or lack of training on issues like workplace diversity or proper techniques for dealing with customers), some training might be in order. Workplace violence means: the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker; an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. Workplace harassment means: engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; or workplace sexual harassment. Workplace sexual harassment means:  engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome. Domestic Violence Employers who are aware, or ought reasonably to be aware, that domestic violence may occur in the workplace must take every precaution reasonable in the circumstances to protect a worker at risk of physical injury. Communication Employers and supervisors must provide information to a worker about a risk of workplace violence from a person with a history of violent behaviour if the worker can expect to encounter that person in the course of work, and if the worker may be at risk of physical injury. Personal information may be disclosed, but only what is reasonably necessary to protect the worker from physical injury. Fulfilling the Duty to Accommodate Guidelines for employers handling accommodation requests: ◦ Have one process for responding to all requests for accommodation ◦ Do not be dismissive of any request, even if it seems unusual ◦ Maintain communication with the employee throughout the process ◦ Require appropriate information, including medical documentation if applicable, that speaks directly to the employee’s ability to do the job ◦ Do research and educate yourself; do not make assumptions ◦ Assess whether there is a legitimate need for accommodation ◦ Consider options for accommodation where there is a legitimate need ◦ Document all considerations and assessments, as well as the employee’s responses ◦ Clearly explain to the employee—and be prepared to show why it is the case—if you determine that you cannot accommodate them without undue hardship ◦ Maintain confidentiality throughout the process ◦ Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time ◦ Document the process, follow up in writing to all parties involved Marijuana for Medical Use ◦ Where marijuana is medically authorized to treat a medical condition, an employer has a duty to accommodate its use unless doing so would constitute undue hardship  ◦ However, an employer does not have to permit an employee to smoke marijuana while on the job, work while impaired, or expose other workers to second-hand smoke (think about the use of THC, similar to alcohol) ◦ Accommodation may include allowing smoking in a designated smoking area during scheduled breaks, a modified work schedule, or a leave of absence during the period of treatment, if relevant ◦ Where safety is a concern, reassignment to a non-safety-sensitive position is another alternative Suggested questions for employers to ask employees who wish to discuss medical marijuana use: ◦ Is its use medically authorized? ◦ If so, when and how often do they need to take the product? ◦ Will they be taking it at work? ◦ In what form will they take it? ◦ Where will they take it? ◦ How long do they anticipate needing to take it? ◦ What are the side effects and restrictions when using, and how long do they last? ◦ Legalization of marijuana for recreational use With the legalization of marijuana use for recreational purposes, employers need to review their drug and alcohol use policies to ensure that prohibitions of marijuana use are not based on illegality On the job drug and alcohol testing Because substance abuse is viewed as a disability, employers have traditionally been limited in their ability to administer workplace drug and alcohol tests In Irving, the Supreme Court found that mandatory random breath tests for alcohol could only be justified if an employer can demonstrate that the workplace is inherently dangerous and there are enhanced safety risks in the workplace ◦ Selective drug or alcohol testing may be carried out when an employee has been involved in a workplace accident or when there is reasonable suspicion of impairment ◦ Testing may also be carried out as part of an agreed rehabilitation program for an employee with a substance abuse problem A drug and alcohol testing policy should do the following: ◦ Include a compelling justification for testing (safety) ◦ Include an explanation of how and when testing will be done as well as measures to protect employee privacy ◦ Reference both illicit and prescription medication ◦ Include accommodation measures ◦ Encourage employees to proactively self-disclose substance abuse issues ◦ Provide a process for employees to ask for and obtain treatment, and provide a procedure for accommodation, follow-up, and return to work ◦ Clearly indicate the consequences of failure to self-identify  ◦ Maintain confidentiality ◦ Ensure all employees are regularly trained on the policy and acknowledge this in writing Compliance Reporting ◦ Organizations with 20 or more employees must report on their compliance every three years ◦ This includes confirming that they have trained all their employees and volunteers on the AODA and the Ontario Human Rights Code as it pertains to persons with disabilities, that their employment practices are accessible, and that information is available in accessible formats and with communication supports on request ◦ Organizations with fewer than 20 employees are not required to file OADA compliance reports ◦ All private and non-profit organizations with 50 or more employees and all public sector organizations are required to make all Internet websites and web content conform with Web Content Accessibility Guidelines (WCAG) 2.0 level AA (excluding live captioning and audio description) by January 1, 2021