Malcolm MacKillop's Blog, page 13

The DSM-V: A Reference for Psychological Disorders

The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”), the latest edition of the “Bible” on psychological disorders, serves as the authoritative text when it comes to properly diagnosing psychological issues. Employers should familiarize themselves with the latest edition in order to ensure they are aware of newly added disorders, some of which may not be well known.

How Does this Impact Employers?

The addition of conditions in...

The Parameters of The Employment Standards Act

You answer your cellphone and the person on the other end has some shocking and scary news. The person on the other end is from your airline and informs you that the plane you just took had a passenger who may have been infected with Ebola. They suggest a voluntary quarantine at home. Is this a situation that your employer will be okay with?

Whether your employer allows you to stay at home as part of a voluntary quarantine may be governed by Ontario’s Employment Standards Act, 2000 (“ESA”). A...

Who Can Access Cell Phone Records?

With the ever increasing use of technology in the workplace, such as laptops, cell phones, and even smart watches, comes a number of concerns, including safety. The issue of whether an employer had the right to request an employee’s personal cell phone records after a serious accident was considered in Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Case No. 3900) (“CP Rail”). In that case, the Arbitrator found that the answer was yes.

Canadian Pacific Railway Company v...

The Overtime Tango

An employee’s entitlement to overtime pay can arise as a result of the employment contract collective agreement, policy, or by way of applicable employment standards legislation. Ontario’s Employment Standards Act, 2000 (“ESA”) sets out the minimum requirements with respect to overtime pay. With a few exceptions, the ESA requires that employers pay employees 1 ½ times their regular rate of pay for every hour worked in excess of 44 hours in a work week. However, an employment contract, collective agreement, or company policy may provide for a higher rate of overtime pay or a lower hourly threshold for entitlement to overtime pay.

Calculating Overtime

The rate of overtime will vary depending on how an employee is compensated (ex: hourly, salary, commission). If both parties agree, employees can also choose to take time off in lieu of overtime pay,  which must generally be taken within three months from the week the time was earned, or if the employee agrees, within 12 months of that time. Employees cannot waive their entitlement to overtime pay. However, employers may wish to avail themselves of the averaging provisions in the ESA, which may allow them to average an employee’s hours of work over a period of two or more consecutive weeks for the purpose of determining entitlement to overtime pay. This practice requires approval from the Ministry of Labour.

Maximum Hours of Work

In general, employees may not work more than 8 hours per day or 48 hours per week, unless there is an agreement between the employer and employee to work hours in excess of these prescribed limits and the employer has obtained Ministry of Labour approval.

Classes of Employees Exempt from Overtime Provisions of ESA

Most Ontario employers are subject to the ESA unless they fall under federal jurisdiction. However, Regulation 285/01 of the ESA outlines a number of exemptions to various parts of the ESA, including the overtime provisions. In accordance with Regulation 285/01, some classes of employees are not entitled to overtime. Employees not entitled to overtime pay include: various professionals (doctors, lawyers, etc.), firefighters, taxi drivers, ambulance drivers, and anyone acting in a managerial or supervisory role. Whether an employee is acting in a supervisory or managerial role will not be determined by the employee’s position title but by the nature of the work the employee actually performs. As a result, there may be some circumstances in which employees with the title of “manager” or “supervisor” will not fall within the exemption for overtime pay provided for in Regulation 285/01.

Clarification on Enforceability of Termination Clauses

The enforceability of termination clauses in employment contracts is always a hot-button issue in employment law disputes.

At common law, employees are entitled to reasonable notice, which is determined based on an assessment of a number of factors (age, length of service, character of employment, availability of similar employment). However, employers and employees can contract out of the common law by mutually agreeing on the amount of notice an employee will receive upon termination of th...

The Pros & Cons of Working From Home (Telecommuting)

Employers who are seeking to modernize their workforce may consider telecommuting or working from home as an option that adds flexibility to the workplace and has the potential to decrease operating costs. These types of arrangements can be beneficial for both employers and employees; however, before giving employees the green light to work from home, employers should carefully consider whether it is the right move for their workplace and, if so, should consider creating a telecommuting policy that addresses the unique issues that can arise with this increasingly popular working arrangement. Below are some key issues to consider when preparing a telecommuting policy:

1- Preliminary Eligibility

When creating a telecommuting policy, employers should consider whether there ought to be any preliminary eligibility criteria that employees must meet in order to telecommute. These might include: position types, performance levels, or home office specifications. Setting out objective eligibility requirements upfront can help avoid confusion later on.

2.  Performance of Work

Work expectations should also be clearly set out in a telecommuting policy to avoid any uncertainty. For example, if an employee who works from home will still be required to work a specific shift with clear start and end times, that should be set out clearly in the policy. If there is flexibility on start/end times, that can be set out as well but employers may wish to reiterate the expected number of hours employees are required to work each day.

3. Insurance and Liability

To avoid any confusion, employers should consider addressing any insurance requirements. It may be worth setting out any specification for home insurance coverage, how theft or damage to company property will be handled, and responsibility for any injuries to third parties within the workspace.

4. Depeneant Care

Telecommuting arrangements can offer employees some flexibility in caring for dependents who require care during working hours for a short period of time, for example due to an acute illness or injury. However, employers should consider whether telecommuting arrangements are appropriate for employees who intend to care for dependents for an extended period of time.  Restrictions on providing dependent care while telecommuting can be included in the telecommuting policy. However, employers should consider the specific circumstances of employees, as some may require accommodation in accordance with the Human Rights Code.  

5 – Changes and Cancellations

A telecommuting policy should contemplate how and when a telecommuting arrangement can be cancelled or amended. Including a statement that any telecommuting arrangements can be cancelled or changed at any time reiterates that the arrangement is a benefit and not a right. It may also mitigate the risk that cancelling or changing a telecommuting arrangement will be viewed as making a fundamental change to the employment relationship.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

What Not to Wear: Employer’s Dress Code Policies

Dress codes or personal appearance policies are common in Canadian workplaces, particularly in client-facing or health and safety sensitive work environments. Dress code policies can touch on many different aspects of an employee’s appearance, including attire, the visibility of piercing and tattoos, and personal grooming habits. Whether an employer can legitimately enforce these policies will depend on a number of factors, one of which is whether the policy is discriminatory on religious, sexual or other grounds. Employers who intend to implement a dress code policy should consider whether the rules they intend to put in place are discriminatory.

The Statutory Framework

Employers cannot implement dress codes or personal appearance policies which discriminate based on one of the protected grounds outlined in the applicable human rights legislation – in Ontario, the Human Rights Code (“Code”). Even if the policy appears neutral, it may unintentionally impact a Code-protected group of individuals. For example, a policy that requires all men to be clean shaven could unintentionally discriminate against men who have facial hair for religious reasons. Many dress code policies include language that allows for exceptions to the general rules to accommodate for these types of needs.  Dress code policies that avoid discriminatory provisions or offer accommodations for protected employees are more likely to withstand judicial scrutiny.

Personal Grooming Rules

The Ontario Human Rights Tribunal (“HRTO”) recently commented on an employer’s “clean-shave” policy in Browne v Sudbury Integrated Nickel Operations (“Browne”). In Browne, the HRTO found that a “clean-shave” policy, which prohibited certain styles of facial hair, was not discriminatory based on sex or gender identity. This policy required employees who needed to wear respirator masks for specific duties to be clean shaven. The Tribunal held that having a beard or facial hair is a matter of personal style and is not a matter of sufficient social significance to warrant protection under the Code, absent any connection to another protected ground.

Sexualized and Gender Specific Dress Code Policies

Employers can often go amiss when implementing dress codes with sexualized or gender specific rules. For example, in McKenna vs. Local Heroes, Stittsville, the HRTO awarded a pregnant employee compensation for lost income and damages after her employer stopped scheduling her for shifts and gradually terminated her employment for refusing to wear a tight fitting uniform which the employer’s new dress code policy required her to wear. The Ontario Human Rights Commission recently published a policy position on sexualized and gender-specific dress codes, reiterating that dress code requirements that adversely impact employees based on sex violate human rights laws.

To Employers:

Employers can benefit from implementing dress code policies meant to uphold a certain workplace image and/or ensure the safety of employees, but should ensure that the policies implemented provide some flexibility where possible to avoid running afoul of the Code. If flexibility is not practical, then the policies should provide exceptions for Code protected grounds.  

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

What Employers Must Know About Searches in the Workplace

The circumstances in which an employer may consider conducting a search of an employee’s personal items (lockers, electronic devices, and other personal belongings) can arise quickly and will often need to be addressed urgently. As time is often of the essence in these types of situations, employers should take proactive steps to understand their rights and obligations in conducting searches of personal belongings to ensure they are able to properly conduct workplace searches in a manner that avoids potential liabilities.

Employer Rights to Conduct a Search

Employers have no absolute right to search an employee or their personal items. There must be a term or condition of employment, express or implied, allowing an employer to perform the search. However, an employer has an implied right to protect its property and implement reasonable rules and procedures, which by implication may include searches.

Even if an employer is found to have an implied right to conduct a search, there is still a risk of liability for an employer if the search was carried out in bad faith, or in an arbitrary or discriminatory manner. To avoid liability resulting from improperly conducted searches, some employers may find it helpful to implement a formal policy on workplace searches that not only expressly allows the employer to conduct searches but also outlines how the searches will be conducted. This would create clearer parameters for searches in the workplace.

Employee Rights Engaged During a Search

Depending on the circumstances, employees have a number of different legal rights that may be engaged during a search in the workplace. For example, if an employer uncovers evidence during a search and mistakenly accuses a particular employee of a crime (ex: possession of illegal substances, theft, etc.), the employer may be liable to the employee for damages for malicious prosecution if the employee is charged as a result. Workplace searches could also engage an employee’s Charter rights with respect to search and seizure if there are police or other government officials involved in the search. Moreover, if an employer uncovers sensitive personal information during a search (ex: financial or health records, a personal diary, information with respect to sexual orientation, etc.) then it may be found liable for the privacy tort of “intrusion upon seclusion”.

Finally, if an employer dismisses an employee as a result of a workplace search,  it may face punitive or aggravated damage awards for its conduct of the search. Given the risks associated with conducting a search, employers should attempt to secure an employee’s consent when conducting a search.  If an employee is unwilling to cooperate or consent, employers must act reasonably and with clear justification for their actions.

Conducting the Search

In determining whether a search was a violation of a collective agreement or otherwise breached an employee’s privacy rights, labour arbitrators will generally consider:

a) whether the employer established adequate cause to justify the search, including whether the employer exhausted alternative options; and

b) whether reasonable steps were taken to inform employees of the search and to conduct the search in a systemic and non-discriminatory manner.

When conducting a search, employers should provide employees with notice of the search and allow them to attend the search where practicable. As a general rule, employers should never search or touch an employee’s person but instead ask them to empty any pockets or remove jackets if necessary. In addition, employers should avoid conducting searches in indiscreet or public areas.

Searching Electronic Devices

In R. v. Cole, the Supreme Court of Canada (“SCC”) indicated that even if the employer issued and actively owns an electronic device, an employee may still have a reasonable expectation of privacy in that device. The SCC found that an employer’s policies, practices, and customs are relevant to determining whether an employee had a reasonable expectation of privacy with respect to their electronic device and that a workplace’s operational realities could diminish any reasonable expectation of privacy in the electronic device in certain circumstances. The clearer an employer’s policies are, the more useful this factor will be in supporting the reasonableness of a search.

In any case, employers should narrow the scope of the places, items, or devices searched to only what is deemed necessary to protect their legitimate interests.

Employers Requesting Medical Information

Employers, employees, and unions each have a role to play in the accommodation process. Employers must explore the possible forms of accommodation, unions can help facilitate the accommodation process, and employees need to give their employers enough information to support their accommodation claim. 

In the context of requests for accommodation in the workplace due to disability, employees are often resistant to sharing confidential medical information with their employers and will often cite privacy concerns as the main reason for withholding this information. While this situation will raise questions for employers on how to proceed, an Ontario labour arbitration decision, Complex Services  Inc. (c.o.b. Casino Niagara) v. O.P.S.E.U., Local 278 (CAB Grievance), 217 LAC (4th) 1, (“Complex Services”) provided some much needed guidance on how to address these types of situations.

Complex Services – The Facts

In Complex Services, the employee had been on a medical leave due to a physical disability. When she returned to work, she claimed her return to work plan required specific accommodations that her employer did not provide. She alleged that she had a mental disability that required accommodation. This was the first time the employer was made aware of any mental disability. The employee refused her employer’s request to provide medical documentation to support her claim, arguing that the duty to accommodate did not require her to release her confidential medical information. The employer refused to allow her to return until she delivered medical documentation to support her new accommodation claim.

The employee then gave her employer two pieces of documentation: one was a note that confirmed she had seen a registered psychologist, the other was a list of the accommodations she required. The employer felt that this information was insufficient and requested more medical documentation to support her accommodation requests. The employee refused and the employer filed a grievance against the union and the employee for failing to fulfill their obligations with respect to the duty to accommodate. The union filed a grievance on behalf of the employee on the grounds of discrimination and harassment in response.

In finding in favour of the employer, the arbitrator in Complex Services answered three questions outlined below.

1. Can an employer ask to see confidential medical information without violating privacy?

The arbitrator held that employees have an obligation to provide sufficient information, including otherwise confidential medical information, to establish a need for accommodation.

2. What kind of medical information can an employer ask for?

The arbitrator set out a useful list of medical information that employers are entitled to ask for as part of the accommodation process:

the nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness);
Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the timeframe for same);
The restrictions or limitations that flow from the disability (i.e. a detailed synopsis of what the employee can and cannot do in relation to the duties and responsibilities of her normal job duties, and possible alternative solutions);
The basis for the medical conclusions (i.e. the nature of the illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect); and
The treatment, including medication (and possible side effects) which may impact on the employee’s ability to perform her job, or interact with management, other employees, or customers.

 

3. What can an employer do if an employee refuses to provide medical information?

The arbitrator found that it was reasonable for the employer to seek an independent review of the limited medical documentation the employee provided to support her alleged mental illness and the accommodations requested. Moreover, the arbitrator noted that it was unreasonable for the employee to refuse to permit her medical information to be used for that limited purpose. The arbitrator accepted that employees may have a right to keep medical information confidential. However, the arbitrator noted that if an employee exercises that right in a way that thwarts an employer’s efforts to comply with its duty to accommodate, then the employee must accept the consequences for doing so. Such consequences might include: loss of disability benefits, refusal to return to work, or termination of employment.

Fired for Incompetence

Every employer has that one employee who can not adequately perform their job duties. Whether that person is a salesman who consistently fails to meet quotas, an employee who continuously receives negative performance reviews, or an editor who misses typos; such incompetence can hinder a business’ efficiency. In these situations, there are proper steps that can be taken to terminate a person for just cause due to their incompetence.

Parent v. Spielo Manufacturing Inc., 2013 NBQB 394 (“Parent”)

The 2013 case Parent, provides an excellent example of an employer taking the “proper steps” to terminate based on incompetence.  In this case, the employee, Mrs. Parent, was a Quality Tester for five years with the Company. In 2009, Mrs. Parent took an unpaid leave from work. When she returned over a year later, it was apparent that she could not competently perform the required job duties.

Upon returning to work, Mrs. Parent scored poorly on her performance review and was given a 3 month performance improvement plan. Mrs. Parent did not meet the goals of the plan and was given multiple written notices to that effect.

On June 21, 2011, Mrs. Parent was given a written warning which stated;

As a result of the above issued, I feel that I must now emphasize in writing how important it is for you to understand and address these issues. This is not something I do lightly or without a considerable amount of thought.

Immediate improvement is required and you will be expected to maintain the improvement in the above-mentioned areas, or you will be subject to further corrective action, including possible termination of employment. During the next 60 days we will meet once a month to discuss your progress related to these issues. You will maintain a daily activity log that will be emailed to me at the end of each work week (Friday’s at 5:00 pm).

Once again, on August 24, 2011, Mrs. Parent was given written notice of her poor performance. The notice emphasized a need for improvement and that failure to do so could result in disciplinary action. At the end of the year she did another performance review. Mrs. Parent was notified of her poor score and was then informed that she was being dismissed, effectively immediately, for incompetence.

The Court in Parent, concluded that Mrs. Parent’s employer tried their best to accommodate Mrs. Parent’s situation and upheld the dismissal on the basis of incompetence. This is particularly interesting considering Mrs. Parent’s reason for taking leave in 2009. The leave was due to the birth of her child who had serious health issues. She returned to work as a single parent who had to make multiple hospital visits a week for her child. Notwithstanding these circumstances, the Court still upheld the dismissal for cause and found Mrs. Parent was not entitled to a reasonable notice period or payment in lieu of notice.

Key Takeaway’s From Parent

Just Cause. Proving just cause on the basis of incompetence is no different than establishing just cause for any other ground. In this case, the employer proved on a balance of probabilities that there was just cause for termination.
Degree of Incompetence. The employer must go beyond proving displeasure with the employee’s performance. “Incompetence” means that the employee is incapable of performing the job, or, that the employee is possibly capable of doing so, but consistently failing to meet a reasonable standard of performance. Here, the employer proved the latter.
Communication With Employee. In Parent, the employer clearly made known to the employee the requisite standards it wanted its employees to meet during the numerous performance reviews, and written warnings it gave to Mrs. Parent. The employer was also made clear to Mrs. Parent what she was failing to do and, importantly, documented all performance issues in writing.
Incapable of Growing. Employers must give the employee a reasonable amount of time to improve their poor performance before determining if they are incapable of performing their job duties. What a reasonable amount of time is will depend on the circumstances in each case.
Warning of Dismissal. There must be a clear and unambiguous warning that the employee’s job is in peril and that he or she will, not may, have their employment terminated if their performance does not improve. The employer should ensure that it does not condone the incompetent behaviour.
Any employer can terminate an incompetent employee. In some situations, this might mean they have to be willing to pay. However, Parent proves that, if the proper process is followed a just cause argument on the basis of substandard performance and/or incompetence can be made successfully.