New Developments in Employment & Labour Law - April 2014

April 3, 2014Employment and Labour Law Seminar

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What if your employee hits the newsWhat if your employee hits the news as a pot-smoking liar?

Presented By:yBettina Burgess and Katia Diab

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The Cry Heard Around the World

“I do not use crack cocaine noram I an addict of crack cocaineam I an addict of crack cocaine.As for a video, I can’t comment

id th t I’ ton a video that I’ve not seen ordoes not exist.”

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SUSPICION OF SUBSTANCE ABUSE:

What is the next step?

• Employers have a positive obligation to investigate if there are reasonable ggrounds to believe that an employee suffers from an addiction

• Employers may not terminate employment or otherwise discipline anemployment or otherwise discipline an employee on the basis of mere suspicion

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Investigation:

Confrontation

Step One: Confront the employee, and ask.

Admission• Admission

• I do use drugs/alcohol, but I do not have an addiction• Assess whether conduct warrants discipline• Assess whether conduct warrants discipline

• I do use drugs/alcohol, and I do have an addiction• Duty to accommodate is triggered upon confirmation of addictionDuty to accommodate is triggered upon confirmation of addiction

• Denial: further investigation may be warranted

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Investigation:

The Denial

• If an employee denies having a problem, your obligation may not end there

• If you have reason to believe that the employee is not being forthright, you have a duty to investigate further

• The types of investigation to consider are: • Drug and alcohol testingg g• Computer monitoring• Video surveillance• Physical searches of office, desk, lockers, clothing, bags, vehicles

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Investigation:

Incident Based Drug & Alcohol Testing

• Drug and alcohol testing is permitted where:

• Where the workplace is dangerous and there is reasonable cause to• Where the workplace is dangerous and there is reasonable cause to believe that the employee was impaired while on duty

• Where an employee was involved in a workplace accident orWhere an employee was involved in a workplace accident or incident

• Where an employee is returning to work after treatment for p y gsubstance addiction and the employee is subject to negotiated terms regarding random testing

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Investigation:

Random Drug & Alcohol Testing

• Random testing may be implemented in two circumstances whether the workplace is unionized or non-unionized:

• where there is evidence of general problem of abuse in the work place

• where an employee is subject to a negotiated return to work program

• Absent the above two conditions, in the unionized work place, random drug and alcohol testing must be negotiated and incorporated into the collective agreement

• In the non-unionized work place, random drug and alcohol testing is arguably permitted so long as the method of testing detects present impairment; this area of law is, however, still in a state of flux and may be subject to future challenge

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Investigation:Drug & Alcohol Testing Under Human Rights

• Drug and alcohol testing has been scrutinized under the Human Rights Code to determine whether such testing is discriminatory

• Complainants have argued that the tests are discriminatory on the basis of a “perceived” disability because it is assumed that if a person tests positive, he/she is addicted

• The Ontario HRC has found that so long as testing requirements are not applied universally and the results do not lead to automatic discipline rather than attempts to accommodate an addiction suchdiscipline, rather than attempts to accommodate an addiction, such testing and policies are not prima facie discriminatory

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Investigation:

Drug & Alcohol Testing Under Human Rights

• The Ontario HRC is generally in favour of drug and alcohol testing where: • The workplace or position is safety sensitive, including random alcohol

testing, particularly where the supervision of staff is minimal or non-existent, but only if the employer meets its duty to accommodate the needs of those who test positivewho test positive

• There is a legitimate interest in assessing whether an employee had consumed substances that may have contributed to an accident or an incident

• There is a legitimate interest in assessing whether an employee is suffering from a disability

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from a disability

Investigation:

Alcohol versus Drug Testing

• There is a distinction to be made between alcohol and drug testing

• It is generally accepted that alcohol testing using a breathalyser is reasonable• It is generally accepted that alcohol testing using a breathalyser is reasonable under permitted circumstances because it will measure present impairment in a minimally invasive manner

• The OHRC does not support testing that does not measure actual impairment and as such has never supported random drug testing for safety sensitive positions

• Drug testing is generally reserved for situations involving reasonable cause or post incident or to determine whether there is a pervasive problem among the work force

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Investigation:Computer Monitoring – Statutory Restrictions

• There is no privacy legislation prohibiting a provincially regulated employer in Ontario from monitoring employee computer use

• Provincially regulated employers operating in Alberta, British Columbia, Quebec,Provincially regulated employers operating in Alberta, British Columbia, Quebec, and soon Manitoba and federally regulated employers are subject to limitations under privacy legislation:

• at highest level must obtain consent which can be accomplished through policies and• at highest level must obtain consent which can be accomplished through policies and agreements up front

• may justify monitoring where have reasonable grounds to believe employee engaged in misconduct and there is no less privacy invasive means to achieve the result

• review only that which is necessary in order to achieve the result• review only that which is necessary in order to achieve the result• destroy anything that is not necessary and destroy all information collected as soon as it

is no longer necessary for the purpose it was collected

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Investigation:

Computer Monitoring in Unionized Workplace

• Employers with a unionized work force will be confined by the collective agreement

• Absent express terms regarding computer use in the collective agreement, employers will have to establish that:

• monitoring an employee’s computer as reasonable under the circumstances

• that the benefit gained outweighed the invasion of the employee’s privacy

• that there was no other less privacy invasive means to achieve the same end

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Investigation:

Computer Monitoring – Intrusion Upon Seclusion

• There is a new tort at common law in Ontario called “intrusion upon seclusion” which protects rights

• A claim for intrusion upon seclusion will be successful where:

• The intrusion was intentional• The intrusion was intentional

• The intrusion was undertaken without lawful justification

• A reasonable person would find the intrusion to be highly offensive causing distress• A reasonable person would find the intrusion to be highly offensive causing distress, humiliation or anguish

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Investigation:

Video Surveillance

• All of the same principles, restrictions, requirements apply to video surveillance as those identified for computer monitoring

• Video surveillance is viewed by all privacy commissions and labour boards as highly intrusive and usually to be used only as a last resort, particularly surreptitious video surveillanceparticularly surreptitious video surveillance

“A “feeling” on the part of management that something is not right should not provide a license to conduct surreptitious surveillance of employees while they are off duty and away from the work site. p p y y y yAn employer may certainly observe an employee at work and may pay particular attention to whether that employee is performing his job properly and safely. If the employer observes a real problem in job performance, the employer may respond appropriately. However off duty surveillance of an employee should not be conducted without clear and reasonable grounds.”

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Investigation:Physical Searches• Absent police or state involvement conducting physical searches andAbsent police or state involvement, conducting physical searches and

seizing found evidence is not a violation of the Charter of Rights and Freedoms

• Where there are reasonable grounds to believe that an employee has drugs or alcohol at work, physical searches will likely be permitted

• The closer you get to an individual’s body, the more restricted the search becomes

S ’• Searching clothing on the person’s body is generally not permitted

• Consider contacting the police before conducting a search where drugs are suspected

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are suspected

ADDICTION VERSUS ABUSE

Duty to Accommodate

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Addiction Versus Abuse

Duty to Accommodate

• Employers may not automatically terminate the employment of an employee who uses drugs or alcohol

• Addiction to drugs or alcohol has long been accepted as i d di bilit th f t ti t ta recognized disability worthy of protection pursuant to

the Human Rights Code

• Conversely, casual use of drugs or alcohol is not afforded protection under the Human Rights Code

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Proving Addiction

• The burden lies on the employee to prove that he/she suffers from an addiction

• Employee will be required to tender the following idevidence:

• Medical – not based upon self-reportingp p g• Other witnesses who have observed pervasive substance abuse• Knowledge of substance abuse by other co-workers

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The Employee in Denial

“Yes, I have smoked crack cocaine, but do I? Am I anaddict? No. Have I tried it? Probably in one of my drunkenstupors, probably approximately about a year ago.”

“I’ t l h li If I h bl I’d b th fi t“I’m not an alcoholic. If I have a problem I’d…be the firstone to say I’m not fit to run the city.”

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Forced Testing

• If an employee refuses to admit to present impairment or a problem in the face of clear evidence, the employer

fmay do the following:

• Advise the employee to leave and to not return until he/she has undergone testingundergone testing

• Send the employee immediately to a facility for testing by cab or drive the employee yourselfThe absence ma be npaid if the test res lts are positi e if• The absence may be unpaid if the test results are positive; if negative, pay the employee for the day off from work

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Addiction

Duty to Accommodate

“I am taking accountability and receiving advice from people with expertise I amadvice from people with expertise. I am accepting responsibility for the challenges I face ”I face.

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Addiction

What is Your Duty to Accommodate?

• An employer must accommodate an addicted employee to the point of undue hardship

• There is no duty to allow an employee to come to work impaired

• An employer’s duty to accommodate includes:p y y

• Providing an employee with unpaid time off from work to seek treatment

• Returning the employee to his/her pre-disability position with or without furtherReturning the employee to his/her pre disability position with or without further accommodation, such as time off for appointments, coming in later to work

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Addiction

The Last Chance Agreement

“I said it would not happen again, and it has never happened again at the Airhas never happened again, at the Air Canada Centre.”

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Addiction

The Last Chance Agreement

• Last chance agreements are typical and recommended in a return to work scenario after a leave for treatment of an addiction

• Last chance agreements set out the following essential terms:

• The employee will be subject to random drug or alcohol testingp y j g g

• The employee’s refusal to submit to such testing will result in termination of employment for cause

• The return or positive test results will result in termination of employment for cause

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Off Duty Conduct

Is It Any Of Your Business?

“I’m getting punished for the Friday and Saturday nights when I’ve decided to have a few drinks. This is personal.”

“That was pure stupidity. I shouldn’t have got hammered down at the Danforth. If you’re going to have a couple of drinks you stay home, and that’s it. You don’t make a public spectacle of yourself.”

“I’ve never been under the influence of alcohol or drugs at a council meeting or any time in office”

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Off Duty Conduct

Is It Any Of Your Business?

• Employees will invariably defend themselves on the basis that the offending conduct occurred during non-working hours and is none of the employer’s businesshours and is none of the employer s business.

• What right does an employer have to discipline an employee when the conduct occurred on the employee’s own time?

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Off Duty Conduct

Duty of Loyalty and Good Faith

• Employees generally have a right to privacy in their personal lives away from the work place; however that right is not absolute or free from all limitation

• Employees owe their employers a duty of loyalty and good faith at all times

“It has long been the law that where a person has entered into the position of employee if he or she does anything incompatible with the due and faithful discharge of his or her duty to the employer, the latter has a right to dismiss the

f f femployee. If the employee does anything inconsistent with the faithful discharge of his duty, it is misconduct, which justifies immediate dismissal. It is sufficient if it is conduct which is prejudicial to or is likely to be prejudicial to the interests or reputation of the employer.”

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Off Duty Conduct

The Link

“I might have had some drinks and driven, that’s absolutely wrong. I’m not perfect. Maybe you are, but I’m not. I’m sure none of you have ever had a drink and gotten behindsure none of you have ever had a drink and gotten behind the wheel.”

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Off Duty Conduct

The Link

• Employees can be disciplined for a single incident of egregious off duty conduct where there is a link between the conduct and the work place

• The nexus between the off duty conduct and the work place will be established where:

• Harms or has the potential to harm the reputation of the employer and/or its employees

• Renders the employee unable to perform his/her duties• Is a serious breach of the Criminal Code• Is a serious breach of the Criminal Code• Place difficulty in the way the employer properly carries out its function of

efficiently managing its work and directing its workforce

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Off Duty Conduct

Reputational Harm

“Oh, and the last thing was that [Ms. X] says that I wanted to eat her [another word for cat]. I’ve never said that in my life to her I would never do that I’m happily married I’velife to her. I would never do that. I’m happily married. I’ve got more than enough to eat at home.”

“Women love money. You give them a couple thousand bucks and they’re happy”

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Off Duty Conduct

What is Reputational Harm?

• The general public who become aware of the conduct may lose faith that the employee can properly carry out his/her duties given the type of off duty conduct in which the employee engages

• The fact that an employer employs such an individual may result in loss of faith or trust by the public in the company

• how can a company employ someone who may not be able to carry out his/her duties?

• how can a company employ someone who lacks judgment or self-discipline, or has questionable moral values etc ?has questionable moral values, etc.?

• Kelly v. Linamar: termination upheld where employee charged with possession of child pornography

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p p g p y

Off Duty Conduct

Proving Reputational Harm

• Employer’s do not have to establish that they are losing business as a result of the conduct

• It is generally accepted that empirical evidence i.e. numerical data or opinion polls, is not required

“Alth h h t it f t i d t hi h i“Although each case turns upon its own facts, misconduct, which is inconsistent with the fulfillment of the express or implied conditions of service, will justify dismissal. Actual harm need not be shown. Apprehended harm will suffice ”Apprehended harm will suffice.

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Off Duty Conduct

Just Cause?

“There’s a lot of people who have done what I’ve done.”

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Off Duty Conduct

Just Cause?

• The analysis undertaken for off duty conduct, even where it is criminal, is the same as any other type of conduct, with perhaps, a little greater scrutiny:

• Is the conduct criminal?

• Is it an indictable offence (more serious) or summary conviction (less serious)?( ) y ( )

• What was the sentence imposed?

• Was there actual or potential harm to person or property?p p p p y

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Off Duty Conduct

Just Cause?• Is this the first time?

• Does the person have an otherwise clean work record?

• Is this a long service employee?

• Is this person in a position where modelling appropriate behaviour is critical?

• Is the conduct related to the business?

• How likely is it that the conduct will become public knowledge?

• How likely is it that if the public discovered the facts, it would harm the reputation of the company or its employees?

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Off Duty Conduct

Duty to Investigate?

“These allegations are 100 per cent lies.”

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Off Duty Conduct

Duty to Investigate?

There is no legal req irement for an emplo er to cond ct an• There is no legal requirement for an employer to conduct an investigation prior to terminating an employee for cause

• However, the courts have made clear that an employer’s decision to terminate for cause must be based upon all of the relevant facts and considerations

• There are numerous decisions where employers have been criticizedThere are numerous decisions where employers have been criticized by the courts for failing to:

• confront the employee and give him the opportunity to offer an explanation;• failing to consider all of the evidence, particularly that which exculpates the

employee;• failing to consider sincere expressions of remorse• failing to acknowledge that the behaviour is likely not to be repeated and using the

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termination as a deterrent to other employees

Employer’s Prophylactic

• POLICIES POLICIES POLICIES!!!!!• POLICIES, POLICIES, POLICIES!!!!!

Draft them publicize them enforce• Draft them, publicize them, enforce them

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Policies: Why Bother?

• Policies are the first piece of evidence referred to in any off duty conduct cases

• Employers who lack appropriate policies have a significantly di i i h d h f f ll d f di t i ti fdiminished chance of successfully defending a termination for cause

• Common sense cannot be assumed or relied upon by the employer

• If it is important to your employer, spell it out

• Policies should be used as an educational tool to explain the type ofPolicies should be used as an educational tool to explain the type of conduct that is expected and what the consequences will be if conduct deviates from expectations

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Thank YouThank You

The image cannot be displayed. Your computer may not have enough memory to open the image, or the image may have been corrupted. Restart your computer, and then open the file again. If the red x still appears, you may have to delete the image and then insert it again. The image cannot be displayed. Your computer may not have enough memory to open the image, or the image may have been corrupted. Restart your computer, and then open the file again. If the red x still appears, you may have to delete the image and then insert it again.

N B i L B N K i Di bName: Bettina L. Burgess Name: Katia DiabTel: 519-569-4557 Tel: 519-575-7534Email: [email protected] Email: [email protected]

TWITTER: @cdn_employer

41Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Beijing Moscow London

Immigration Update: Employer g p p yCompliance and Changes to Canada’s Temporary ForeignCanada s Temporary Foreign

Worker Program

Presented By:yBill MacGregor

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Introduction• Focus of today is on compliance and what employers need to

know to avoid problems

• Trends:• Greater onus put on employers and their decision-makers

• Increased penalties and consequences for failure to comply

• Reasons for trends

• Failure to follow rules will detrimentally affect businesses that employ foreign workers, or move personnel across borders

• e.g. Entry refusals; red flags on travelers; company reputation at border tarnished etc.

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Penalties and ConsequencesUnder IRPA:

• S124 - violation if you employ a foreign worker withoutS124 violation if you employ a foreign worker without proper authorization

• Deemed knowledge of violation unless you can show due diligence was used to determine whether TFW was authorizedwas used to determine whether TFW was authorized

• S126/127 – violation where anyone directly/indirectly misrepresents or omits to provide a material fact that “could induce an error” applying IRPA

• Penalties include fines up to $100,000 and jail time

• Employers found to be non-compliant face 2 year ban from being able to use TFWP

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Crossing Borders for Business Purposes

• Key Question – Does the activity require a work permit?

• If not may enter as a business visitor• If not, may enter as a business visitor

• Common fallacies:• Short visit = no work permit needed• Short visit = no work permit needed

• No direct pay in foreign country = no work permit needed

• Professional services contracts = no work permit needed

• What matters is the purpose of entry / activity

• If a work permit is needed, then must identify a category p y g ythat fits the person and the purpose of entry

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Crossing Borders: Common Issues / Pitfalls

• Regional sales territories across U.S/Canada border

M ith N th A i ibiliti• Managers with North American responsibilities• “Do you have hiring/firing or disciplinary power” over personnel?

• Is there a degree of operational management being done?• Is there a degree of operational management being done?

• How is employee portrayed on the web?• Officers know how to use Google and Linked-in• Officers know how to use Google and Linked-in

• Public announcements regarding position may suggest FW is already working

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Crossing Borders: Common Issues / Pitfalls

• What are personnel traveling with?• business card content• tools or equipment• computers / PDAs

• What are personnel traveling without?• What are personnel traveling without?• Supporting documentation• Best practice – support letters for business

travelers

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Crossing Borders: Pitfalls – Criminal Inadmissibility

Canada Entry:• DUI/DWI conviction of any sort = inadmissibley

• U.S. pardons may not be recognized

• Temporary Resident Permits = possible solution

U.S. Entry:• Crimes of Moral Turpitude / zero tolerance for any drug conviction

• Canadian pardons not recognized

• Only solution is a U.S. waiver, which takes months to obtain

Lessons: Must find out if there are convictions; consider employment contract terms regarding ability to travel if a bona fide job requirement

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fide job requirement

LMOs: New Rules as of July 31, 2013

• Labour Market Opinions (LMOs) - basis for many Canadian work permitsp

• July 31, 2013: new LMO rules introduced• Advertising requirements increased – content and placementg q p

• Outsourcing questions

• Employer declarations in application form more onerous

• Consequences• Timelines have increased

• Incumbents – special issues

• Concern about public disclosure of salary / key position openings

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New Regulatory Regime as of January 1

• To “detect and deter employer non-compliance”

N IRPA R l ti i t d d J 1 2014• New IRPA Regulations introduced January 1, 2014

• Significant changes to RegulationsM t t t i t t l (b th f• Many more statutory requirements put on employers (both for LMO and LMO exempt work permit situations)

• Revisions to substantially the same test

• Length of compliance period increased from 2 to 6 years (but not retroactive)

Broad po ers of inspection granted to CIC and Ser ice Canada• Broad powers of inspection granted to CIC and Service Canada officers

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New Regulations – New Employer Conditions

For all TFW Situations (LMO based or LMO exempt):• Must comply with laws regulating employment and recruitingMust comply with laws regulating employment and recruiting

• Must provide each TFW with “same occupation”, and wages and working conditions which are “substantially the same – but not less favourable than” the TFW’s offer of employmentfavourable than” the TFW’s offer of employment

• Must make “reasonable efforts” to provide a workplace free from abuse

• During the “period 6 years beginning on the first day of employment for which the work permit is issued”, must (1) be able to show any information provided to get LMO/WP was accurate AND (2) retain any p g ( ) ydocument that relates to IRPA compliance.• Failure to comply is only justified if employer “made all reasonable efforts”

to complyp y

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New Regulations – New Employer Conditions / LMOs

For LMO based work permits, there are further conditions in addition to the ones on the last slideconditions in addition to the ones on the last slide• Must be able to demonstrate factors used to

grant LMO have been metgrant LMO have been met• e.g. If employer says jobs will be created,

need to demonstrate actual new jobsneed to demonstrate actual new jobs• Must retain documentation to demonstrate

that the factors have been met for the 6 yearthat the factors have been met for the 6 year look back period

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New Regulations – Inspections

Very broad inspection powers granted:May occur without a warrant at any place where TFW• May occur without a warrant at any place where TFW works or did work

• May demand any documents or access to computerMay demand any documents or access to computer systems

• Triggered randomly or where there is a concern (so gg y (complaint from employee may trigger)

• Can occur anytime up to 6 years from first date of employment of TFW

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New Rules – Effect on LMO Applications

• Further changes as of January 1, 2014, in addition to new rules introduced on July 31, 2013y

• New forms for LMO applications• Declaration section expanded

• Required to review wage annually to ensure prevailing wage being paid; must adjust it up if necessary

S ti d t i d ( k )• Some new supporting documents required (e.g. workers comp)

• Non-compliance risk has increased, therefore must be very careful in preparing formsvery careful in preparing forms• e.g. Changes of employment terms; factors cited to support the

LMO request; danger of allowing others to prepare form

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Best Practices for Compliance

Clients need to adopt best practices and internal policiesR iti t l t i t• Recruiting protocols to ensure consistency

• Review of LMO application content and Work Permit Support lettersletters

• Document retention relating to TFWs and recruiting – will need to be maintained for 6 years from first date of employment of TFWTFW

• Changing TFWs employment terms – need protocol in place

M i TFW t t t t ibl t• Moving TFWs to permanent status as soon as possible to “narrow” compliance requirement window

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Future/Recent Immigration Developments

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Conclusion

• Companies engaging TFWs need to be aware of trend of increasing compliance requirements and negativeincreasing compliance requirements and negative consequences of non-compliance

• Companies and their managers may face exposure for p g y pnon-compliance

• Companies must be able to demonstrate ongoing li h h TFW h d LMO LMOcompliance, whether TFWs are here under LMO or LMO

exempt WPs

• Proactive approach to crossing borders hiring foreign• Proactive approach to crossing borders, hiring foreign workers and implementing strong internal systems and policies is critical

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Thank YouThank YouThe image cannot be displayed. Your computer may not have enough memory to open the image, or the image may have been corrupted. Restart your computer, and then open the file again. If the red x still appears, you may have to delete the image and then insert it again.

Name William R. MacGregorTel: 519-575-7528Email: [email protected]



Unleashing Your Inner SherlockUnleashing Your Inner Sherlock Holmes: Conducting Effective

W k l I ti tiWorkplace Investigations

Presented By:P A Neena Gupta and John IllingworthP.A. Neena Gupta and John Illingworth

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Why do you have to investigate?

• Human Rights CodeC l i t f h t/di i i ti• Complaints of harassment/discrimination

• Complaints of Reprisal

• Termination or Discipline based on Misconduct• Occupational Health and Safety Act

• Violence/harassment

• Fatality/Critical Injury/Accident/Explosion/Firey j y p

• Occupational Illness

• Workplace Safety and Insurance ActWorkplace Safety and Insurance Act

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When do you need to investigate?

• Human Rights CodeI ti ti t i d h th i• Investigation triggered when there is an allegation of conduct that, if believed, could constitute:constitute:

• Discrimination• HarassmentHarassment• Reprisal

• Failure to investigate is an independent breach g pof the Code, even if there is no actual breach of the Code

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Common law duty to investigate

• When considering termination for causeWhen considering termination for cause or misconductF il t i ti t• Failure to investigate can expose employer to additional damages

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Punitive damages

• Downham v. County of Lennox & AddingtonDownham v. County of Lennox & Addington• Downham a Salvation Army minister

A i ti i t d d hil l d f• Assisting a convicted pedophile released from jail

• Accused of trying to get preferential access to social housing for pedophile

• Terminated

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Punitive Damage

• No one interviewed DownhamNo one interviewed Downham• No one advised Downham of the information on

which County was relyingwhich County was relying• Relied on distorted and false information

$• Generous notice and $100,000 for punitive conduct

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Dishonest investigation

• Pate v. Township of Cavendish-Galway and HarveyHarvey

• Pate had been 10-year Building Officer• Accused of dishonesty• Township found to be guilty of malicious

prosecution (deliberately withholding exculpatory evidence)

• $75,000 in aggravated damages and $450,000 in punitive damages

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Occupational Health & Safety

• Fatality or Critical Injurys 51(1): Where a person is killed or critically injured from anys. 51(1): Where a person is killed or critically injured from any

cause at a workplace, the constructor, if any, and theemployer shall notify an inspector, and the committee, healthand safety representative and trade union if anyand safety representative and trade union, if any,immediately of the occurrence by telephone or other directmeans and the employer shall, within forty-eight hours afterthe occurrence, send to a Director a written report of the, pcircumstances of the occurrence containing such informationand particulars as the regulations prescribe.

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Notice of Accident – Non-Critical

s. 52. (1) If a person is disabled from performing his or her usual work or requires medical attention because of an accident,work or requires medical attention because of an accident, explosion, fire or incident of workplace violence at a workplace, but no person dies or is critically injured because of that occurrence, the employer shall, within four days of the occurrence, give written notice of the occurrence containing the prescribed information and particulars to the following:

1. The committee, the health and safety representative and the1. The committee, the health and safety representative and the trade union, if any.

2. The Director, if an inspector requires notification of the Director.

Contents of the Accident ReportEach applicable Regulation (Industrial, Construction, etc.) has its own requirements. Generally, a report must include:

d dd f h d h l• name and address of the constructor and the employer;

• the nature and the circumstances of the occurrence and of the bodily injury sustained;

f• description of the machinery or equipment involved;

• the time and place of the occurrence;

• name and address of the person who was killed or critically injured;

• names and addresses of witnesses

• name and address of the attending physician.

• steps taken to prevent recurrencesteps taken to prevent recurrence

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WSIA Reporting

Reporting an injury under the Workplace Safety and Insurance Acts. 21. (1) An employer shall notify the Board within three dayss. 21. (1) An employer shall notify the Board within three daysafter learning of an accident to a worker employed by him, her orit if the accident necessitates health care or results in the workernot being able to earn full wages.g g

(2) The notice must be on a form approved by the Board and theemployer shall give the Board such other information as theBoard may require from time to time in connection with theBoard may require from time to time in connection with theaccident.

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Internal Investigation and Reporting

Overview:Overview:• Things to consider in preparing

i ti ti tinvestigation reports• Who should investigate?• What should the investigation consist of?

• Pitfalls and Traps in preparing Reports• Pitfalls and Traps in preparing Reports• Privilege

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Who should investigate?

FAIR, QUALIFIED, THOROUGH AND COMPETENT, Q ,• Should never be person who reports to someone who is

closely involved (Complainant, Respondent, Witness)

• Qualified (subject matter expertise, training)

• Available (tight timelines)( g )

• Can write and present comprehensively

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HALLMARKS OF A GOOD INVESTIGATION

• Clear what is being investigatedg g

• Consider warning as to importance of confidentiality

• Witnesses interviewed, statements drafted and ,confirmed by the witnesses (signed statements the best)

• Follow-up questions asked

• Comprehensive

• No one feels railroaded

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A NOTE ON EVIDENCE

• PRESERVE EVIDENCEPRESERVE EVIDENCE• Accident site

• Damaged equipmentDamaged equipment

• Electronic evidence (may require IT expert/imaging technology)

• Cell phones, email, hard drives, GPS, telephone records

• Documents

P l fil i t d t• Personnel file, receipts, correspondence, notes

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IS THERE A RIGHT TO REPRESENTATION?

• In unionized settings union memberIn unionized settings, union member likely to have right to union rep;I i i d tti ti d t• In non-unionized settings, parties do not have right to representation, but often

itt dpermitted• Employer does not have to pay for p y p y

representation

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Preparing the Report

• Audience – who is going to read this?

• Now, who else is going to read this?

• Are the objectives of the reader the same as those of the th ?author?

• What is the expertise of the reader?

• What is the author’s expertise? Are they qualified to speak toWhat is the author s expertise? Are they qualified to speak to certain aspects of the report?

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Preparing the Report

• Consider circulating drafts or parts of report setting g p p gout parties’ version of events

• Weigh the Evidence

• Fair treatment of conflicting evidence or alternate theories

• Tone

• Writing on the “Why”

• Try asking why five times

76

Privilege

• Just because lawyer investigated does not mean that the report is privilegedmean that the report is privileged

• Issue: what is the purpose or reason for report?report?

• Fact-finding or Legal Advice• Contemplation of Litigation Privilege

• Solicitor Client PrivilegeE t bli hi d i t i i i il• Establishing and maintaining privilege

• Circulation

• R. v. Bruce Power Inc.

77

Privilege

R. v. Bruce Power Inc. (2009 ONCA)• Investigation report was privileged, but

came into possession of the prosecutor• Investigation report contained items that

“could well be used to the disadvantage and prejudice of the defendants”

• Court questioned potential effect on witness testimony and prosecutor’s strategy

78

Privilege

R. v. Bruce Power Inc. (ONCA)R. v. Bruce Power Inc. (ONCA)• “When the Crown comes into possession of a

defence document that is protected bydefence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. p j pThe presumption, however, is rebuttable.”

• In this case, the evidence did not rebut the ,presumption and the charges were stayed

79

Pitfalls and Traps

• Hindsight• Solutions that are now so obvious the event should have been• Solutions that are now so obvious, the event should have been

predictable

• Leads to misinterpretation and invalid weighting of evidence

• However, hindsight can be a useful tool in learning from an event

• Outcome Bias• Judging a decision based on its outcome, rather than the quality of

the decision in the circumstances it was made.

80

Pitfalls and Traps

• Dismissing or ignoring inconvenient information and assumptionsinformation and assumptions

• Not considering reliability of evidence or iti ti f tmitigating factors

• Selective referencing of evidence ll t dcollected

• Forming opinions or conclusions outside of expertise

• Sharing draft reports prematurely

81

QUESTIONS?QUESTIONS?

82

Thank YouThank You

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Headlines in Labour andHealth & Safety

Presented By:John Illingworth, Rob Salisbury and

Jordan M. Smith

84

Mandatory Health & Safety Training

• Under the new Occupational Health and Safety Awareness and Training regulation of the OHSA (Occupational Health and Safety Act) which comes(Occupational Health and Safety Act), which comes into force on July 1, 2014, all employers in Ontario must ensure that their workers and supervisors complete a basic health and safety awareness training program.

85

Rising Fines For OHSA Convictions

• Vale Canada Limited: Large mining company plead guilty to three charges, with total fines equalling $1,050,000 after two employees fatally injured at a mining site in Sudbury.

• R. v. Metron Construction: Fined $750,000 under the CriminalR. v. Metron Construction: Fined $750,000 under the Criminal Code; director fined $90,0000 under the OHSA.

• Unitec Inc. and 629728 Ontario Limited: a Sarnia area plastics company fined $410 000 after a worker critically injured (struckcompany fined $410,000 after a worker critically injured (struck by a compact plastic bale being ejected from a baling machine).

• Belanger Construction Inc.: company fined $290,000 and di t fi d $10 000 ft k ff d i h d d ldirector fined $10,000 after worker suffered serious head and leg injuries after fall from a cement pier while dismantling a guardrail system.

86

R. v. Shultz (aka Assault by Excavator) ( y )

J.R. Contracting Property Services

• Company fined $75,000 and Supervisor Jailed for p y $ , p45 days

• Worker Permanently Injured in Fall

• Regulatory Modernization Act – allows the court to consider previous convictions under other regulatory Acts when determining the appropriate sentence for aActs when determining the appropriate sentence for a violation of the OHSA

88

Hydro One Networks Inc. v. Thisdelle(aka Truck is a Workplace)( p )

89

Mitchell v. First Canada ULC (aka Scooter Parking Lot Fall)( g )

90

Bill 168 Update• Harassment Complaints and Reprisal Applications to the OLRB

• Ljuboja v. Aim Group Inc.: complaints regarding workplace j j p p g g pharassment are subject to the reprisal provisions of the OHSA.

• “the focus of the Board’s inquiry will almost never be upon the underlying allegations of harassment In the usual case the onlyunderlying allegations of harassment….In the usual case, the only inquiry that the Board will make into the underlying allegations of harassment is whether the employer terminated, or otherwise penalized, the worker for having filed the harassment complaint.”penalized, the worker for having filed the harassment complaint.

• Reverse Onus provisions apply: “the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) [i e terminate because the employeecontrary to subsection (1) [i.e. terminate because the employee made a harassment complaint] lies upon the employer or the person acting on behalf of the employer.”

91

Labour Update – Workplace Violence

• CEP, Local 1178 v. Hood Packaging Corporation (Doug Scott Grievance): 24 year employee, Chief Steward with one disciplinary warning on his record terminated for threatening to stab another employee. Refused to admit he made the threat, let apologize for it.

• Arbitrator balanced the grievor’s long service against the severity of the conduct. Reinstated the employee, but without pay. The sixteen (16) month period between the date of termination and the date of reinstatement treated as a disciplinary suspension. This is one of the lengthier disciplinary suspensions in reported casessuspensions in reported cases.

• Changing landscape: “shop talk” no longer a valid defence. Threats of violence are a form of violence and merit significant disciplinary responses.

92

Labour Update Continued

• In the Report of the Ontario Human Rights Review 2012, Andrew Pinto recommended that the Human Rights Tribunal of Ontario “reconsider its current approach to general damages awards in cases where discrimination is proven. The monetary

f th d h ld b i ifi tl i d ” Trange of these awards should be significantly increased.” Two arbitration awards, albeit from out of province, show this trend may be occurring:

• $125,000 in The City of Calgary and CUPE, Local 38

• $75,000 in Kelly v. University of British Columbia

93

Labour Update

• Bernard v. Canada (Attorney General), 2014 SCC 13 (released February 7 2014): unions are entitled to(released February 7, 2014): unions are entitled to collect personal home contact information for bargaining unit members from employers – even for employees who don’t join the union

• Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers Local 401:United Food and Commercial Workers, Local 401: Union filming people crossing the picket line, posted their pictures online. SCC upheld their right to do so.

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Name: Robert E. SalisburyTel: 519-575-7520Email: [email protected]

95

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Top Legal DevelopmentsThe Good, the Bad and the (Really) Ugly

Presented By:Ch i A d P A N G t dChris Andree, P.A. Neena Gupta and

R. Ross Wells

96

CONFIDENTIALITY CLAUSESCONFIDENTIALITY CLAUSES …ARE THEY WORTH THE PAPER THEY

ARE WRITTEN ON?ARE WRITTEN ON?

97

Confidentiality Clauses

Last month, Patrick Snay, the former headLast month, Patrick Snay, the former head of Gulliver Preparatory School, Miami, settled an age discrimination case. His d h b d F b k “Mdaughter bragged on Facebook, “Mama and Papa Snay won the case against Gulliver Gulliver is now officially paying forGulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” She had 1,200 Facebook followers, , ,including friends still at Gulliver!

98

Confidentiality Clauses

The deal hadn’t closed and so GulliverThe deal hadn t closed and so Gulliver Schools chose not to pay the settlement funds. The agreement had the usual “ k f“cannot speak to anyone except for attorneys and professional advisors.” The Florida District Court of Appeal found thatFlorida District Court of Appeal found that Snay’s conduct violated the confidentiality clause and held that Gulliver did not have to pay the settlement.

99

What would happen in Canada?

• Jan Wong is an award-winning author who had g gpreviously worked with The Globe and Mail. In her 2012 autobiography, Wong indicated that she suffered from depression and that in 2008she suffered from depression and that in 2008, her previous employer “caved” and paid her “a big pile of money to go away.”

• Was that a breach? What, if any, was the remedy?remedy?

100

What would happen in Canada?

• The Globe and Mail sued for every centThe Globe and Mail sued for every cent paid to her and a labour arbitrator ruled that Wong had to pay The Globe and g p yMail everything back!

• The decision was very carefully drafted to avoid mentioning how much money g yinvolved

101

Restrictive Covenants

In corporate transactions, buyers oftenIn corporate transactions, buyers often want to ensure that sellers don’t undermine the value of the deal by ycompeting. Although restrictive covenants in a business transaction are

thcommon, there was an uncommon amount of litigation involving them in Canada this yearCanada this year.

102

Payette v. Guay Inc.

Payette and his partner controlled several crane l b i Th ld h i b i Grental businesses. They sold their business to Guay

Inc. in October 2004. They agreed to non-competition clauses for five years from the Closing Date or five years from the date last employed byDate or five years from the date last employed by purchasing company in Quebec. Payette terminated without cause and with a package in August 2009. Guay Inc works predominantly in MontrealGuay Inc. works predominantly in Montreal.

Payette finds a job with competitor. Is clause f bl ?enforceable?

103


• Employee argued that:Employee argued that:• geographic area too broad (should have

been Montreal and not Quebec)been Montreal and not Quebec)• 5 years too long• beyond term of initial employment

agreement of five years• generally unfair because imbalance

between the parties

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• Guay Inc. paid $26 million, largely for “good will.”y p g y g• Transaction would not have occurred, but for

restrictive covenant• Burden of proof on employee in a commercial

context to show clause was unreasonable • Argument that clause geographically too broad or too• Argument that clause geographically too broad or too

long given no weight because:• Parties were relatively equal• Payette acknowledged reasonableness in writing

105


• SCC appeared to take a very commercial no-pp ynonsense view

• A marked distinction to Ontario Court of Appeal in Martin v ConCreate USL LLP (January 2013)Martin v. ConCreate USL LLP (January 2013)

• Although Quebec-based case, SCC cited many common-law cases

• Sends strong signal in favour of restrictive covenants in commercial transactions.

• Note: true non-solicit does not require territory

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HUMAN RIGHTS CASES DOMINATED IN 2013-2014

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Is Perception Reality?

Yohann Johnston, a black man, worked at GM for ½ d i i I A7½ years as a production supervisor. In August

2005, he took a medical leave of absence, claiming that the disability was due to race discrimination he faced at work He became responsible for GMSfaced at work. He became responsible for GMS (Global Manufacturing Systems) training, which was unpopular with the union. One employee, Markov, refused to train with Johnson because Johnson hadrefused to train with Johnson because Johnson had laughed at a comment that Markov perceived had been insensitive to Markov’s brother’s murder many years prior. The murderer may have been black.years prior. The murderer may have been black. Markov was white.

108


Markov avoided training by resigning the position h i d i i l h h GM d lkthat required training, although GM ready to walk

him out if he had refused to take the training with Johnson. Johnson accepted the negotiated resolution A second employee Ted Hayes hadresolution. A second employee, Ted Hayes, had also refused to train with Johnson, indicating that all he had to do was claim he was prejudiced like the last guy Hayes’ conduct was investigated and helast guy. Hayes conduct was investigated and he apologized to Johnson. In all, GM investigated 4 concerns expressed by Johnson about racism involving Markov/Hayes.involving Markov/Hayes.

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• Markov goes out on disability leave for 2 years; very k i t t di lweak or non-existent medicals;

• Agrees to return only if he can avoid certain employees;• Offered position in other plants and on different shifts;• Offered position in other plants and on different shifts;• No response and GM treats it as a resignation;• Johnson sues based on constructive dismissal/poisonedJohnson sues based on constructive dismissal/poisoned

work environment• Who wins?

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• At trial, court found GM’s conduct “bullying”;• Markov’s excuse for not attending GMS training

was “racially-based” and his excuses a “cover up”GM did not conduct a serious or comprehensive• GM did not conduct a serious or comprehensive investigation;

• There was a poisoned work environmentp• Finds constructive dismissal • Damages awarded of almost $160,000• BAD DECISION

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• Court of Appeal found that there was “palpable and idi ” i h i l j d ’ fi di f foverriding error” in the trial judge’s finding of facts

• Markov’s “personal dislike” a much more plausible reason for Markov’s refusal to train with Johnsonreason for Markov s refusal to train with Johnson

• Johnson’s belief as to racism was based on perception

• constructive dismissal/toxic environment has to be “reasonable” to an objective bystander

112

Is Perception Reality?• Court of Appeal reviews decision and sets

trial decision aside:“Moreover, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient t t h til i t l bl k i t ito create a hostile or intolerable work environment is persistent or repeated.” “Constructive dismissal” is an “objective” standard and requires proof of “substantial change ”requires proof of “substantial change.

• GOOD DECISION THAT WILL HELP EMPLOYERS

113

Fair v. Hamilton-Wentworth School Board

• Sharon Fair started work with the schoolSharon Fair started work with the school board on October 24, 1988

• Became Supervisor Regulated• Became Supervisor, Regulated Substances, Asbestos in September 1994

t STD d LTD i ll 2001 GAAD• went on STD and LTD in all 2001 - GAAD• April 3, 2004 - assessed capable of gainful

employment

114

Fair v. Hamilton-Wentworth (“Really Ugly”)

Independent medical evaluation states:Independent medical evaluation states:Specifically, Ms. Fair would not be able to function in a job which entailedfunction in a job which entailed responsibility for health and safety issues, nor any duties which would leave her atnor any duties which would leave her at risk for personal liability. Outside of these limitations, Ms. Fair is otherwise capable , pof gainful employment….

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• By law, any supervisor has personalBy law, any supervisor has personal liability for health and safety

• School Board (correctly) states allSchool Board (correctly) states all supervisory positions have health & safety issues

• School Board did not seek clarification regarding whether supervisory role in less stressful position possible

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• School Board did not make genuineSchool Board did not make genuine effort to accommodate

h ld h d i i i• should have made inquiries• should have considered roles other than

b t lasbestos removal

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• Remedies:• Damages for lost wages for 10 years• Reinstatement to approriate position• Retraining at school board expense for up to 6

months• Adjusted seniority and pensionAdjusted seniority and pension• Lost benefits• Interest• Estimated cost well over $500,000

118

Lessons Learned!

• Document all discussions regarding g gaccommodation

• Be pro-active in considering all options• Seek clarification in writing• Be willing to waive regular rules re: job g g j

competition• Remember: adequate accommodation,

t l ’ f d d tinot employee’s preferred accommodation

119

Wilson v. Solis Mexican Foods

• Wilson terminated after 16 months of employmenty

• had satisfactory performance reviews

• shortly afterwards, advises of back problems

• refused graduated return to work

• refused to consider combination of standing/sitting/walking d tiduties

• Company divests its “New Orleans Pizza” division and restructures Wilson outes uc u es so ou

• Court finds restructuring pretextual

120

Wilson v. Solis Mexican Foods

• Court grants 3 months for wrongful dismissalCourt grants 3 months for wrongful dismissal• Court awards $20,000 for human rights breach• First court order under Human Rights Code• First court order under Human Rights Code• Modest damage award

Gi t t lik l t b• Given recent cases, courts likely to become more aggressive as well

121

Kelly v. University of British Columbia

• Dr. Carl Kelly has ADHD and a non-verbalDr. Carl Kelly has ADHD and a non verbal learning disorder (NVLD)

• had problems with memory, learninghad problems with memory, learning information (especially when not organized), needed templates, checklists and “recipes” to function properly

• psychiatrist made numerous recommendations

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How much accommodation is enough?

• Couldn’t retain information relayed only oncey y• Missing social cues• Couldn’t align priorities or multi-tasking

Deterioration of performance hen nder time stress• Deterioration of performance when under time stress• Even with 5 months in 2 month rotation, couldn’t meet

requirements• Could practice in some types of practices, but cannot

“meet requirements of licensing standards for family medicine”

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How much accommodation is enough?

• UBC decided that Kelly unlikely to meetUBC decided that Kelly unlikely to meet requirements of family medicine

• Should UBC change its program so that Kelly could manage family medicine evenKelly could manage family medicine, even though he couldn’t manage verbal information stress complex orinformation, stress, complex or disorganized information?

124

BCHRT Ruling• UBC did not do enough

• UBC required to pay Dr Kelly:• UBC required to pay Dr. Kelly:

• loss of wages, $385,194

• $75,000 for injury to dignity, feelings and self-respect

• miscellaneous expenses

• interest

BAD DECISION -- UNDER APPEAL!

125

Family Accommodation

• Fiona Johnstone full-time as a BorderFiona Johnstone full time as a Border Services Officer as did her husband;

• After her second child childcare difficultAfter her second child, childcare difficult• Johnstone could work part-time, but wanted

full timefull-time• Did family status accommodation include

accommodating childcare responsibilities?accommodating childcare responsibilities?

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• Johnstone provided evidence that regulated childcare limited (7:00 am to 6:00 pm weekdays)(7:00 am to 6:00 pm, weekdays)

• others had been accommodated (illness, religion)

• CBSA refused to let Ms. Johnstone work more than 10 hours/day (safety, fatigue)

• CBSA: if Ms. Johnstone was accommodated for childcareresponsibilities, management would be inundated with suchresponsibilities, management would be inundated with suchrequests, costs would be prohibitive and it would bedestructive to Pearson operations.

127


• CBSA had not implemented accommodation policyy

• CBSA had given management “nominal” understanding of human rights and provided no management traininghuman rights and provided no management training

• Family status accommodation requires accommodation ofchildcare obligationsg

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• Not every family obligation, but must be any y g ,obligation of “substance”

• Employee “must have tried to reconcile familyobligations with work obligations”

• rejects imposition of a “serious interference”testtest

129

S C t f C d i dSupreme Court of Canada reviews drug testing in the unionized workplace –

i !again!

130

Random drug testing in unionized setting

• Irving Pulp takes the position that itsIrving Pulp takes the position that its management rights allow random drug testing g

• Operates a Kraft paper mill in St. John, NBI tit t d d t ti• Institutes random drug testing

• Policy also provides “for cause” and “post incident” testing (not challenged)

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• Dangerous work environmentDangerous work environment• 8 incidents of alcohol impairment over

1515 years• No accidents, incidents or near misses

relating to alcohol• Unclear evidence as to the deterrent• Unclear evidence as to the deterrent

effect of random drug testing

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• Random drug testing can be negotiated inRandom drug testing can be negotiated in the collective agreement

• Individualized testing permitted where• Individualized testing permitted where individuals have drug or alcohol problem If l id f l h l bl i• If real evidence for alcohol problem in workplace, court might have taken different approachdifferent approach

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OLRB takes strong stance against unpaidOLRB takes strong stance against unpaid internships!

134

Unpaid Internship - OLRB

• Brar sought employment from ComputerBrar sought employment from Computer Window, a company run by the Sandhu family

• Company Window frequently used high school and college co-op students

• Told Brar he could work as an unpaid co-op student

• Brar is a qualifed software engineer

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• Company kept no records of Brar’s hours p y pworked or start/end date

• Brar claimed 88.5 hours • Brar installed software, answered the

telephone and instructed clients how to build computersbuild computers

• No evidence of what training providedTh f B h ld h b id• Therefore, Brar should have been paid

136


• Exemption for interns requiresp q• training similar to a “vocational school”• for the benefit of the trainee• trainer obtains little or no benefit from individual’s

activity• cannot displace employeescannot displace employees• intern does not get a right to employment as a

result of the intership• intern knows its unpaid from the start

137


• Company should have kept records of • training provided• skills learned by traineey• hours worked

start/end date• start/end date• curriculum

• Company (and its directors) liable for wagesg

138

Wrongful dismissal & pension benefits

• IBM had a defined benefit plan p• Terminated long-standing employee,

Waterman• Waterman gets significant pension plans

he wouldn’t have received, but for terminationtermination

• Does Waterman get to “double-dip” -- get both reasonable notice and pension?both reasonable notice and pension?

139

Wrongful dismissal & pension benefits

• Waterman earned his pension planWaterman earned his pension plan• had right to reasonable notice• to avoid issue, make clear in employment

agreement• Court ducked the issue whether employee

gets to “double dip” where employee contributes to a disability benefit plan

140

Thank YouThank You

Name: Christopher M. Andree Name: P.A. Neena GuptaTel: 519-575-7505 Tel: 519-575-7501Email: [email protected] Email: [email protected]

N R R W llName: R. Ross Wells Tel: 519-575-7513 Email: [email protected]

141

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New Developments in Employment & Labour Law - April 2014

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Transcript of New Developments in Employment & Labour Law - April 2014