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Articles on this Page
- 11/22/16--13:29: _And Now For Somethi...
- 11/30/16--08:42: _Fire Fairly: How Do...
- 12/06/16--07:34: _Hair Today, Gone To...
- 12/13/16--09:07: _And the envelope (o...
- 01/02/17--06:00: _Exciting News for 2017
- 01/06/17--11:51: _Everything Was Fine...
- 01/25/17--05:56: _It's #BellLetsTalk ...
- 02/06/17--10:17: _#DressLikeAWoman. O...
- 02/16/17--13:53: _Honoured to be amon...
- 02/26/17--15:02: _ONCA's Wood is Love...
- 03/27/17--20:03: _The New Baby Bump: ...
- 05/03/17--18:46: _If you can't say an...
- 05/22/17--05:58: _Cutting Your Losses...
- 06/19/17--11:15: _Chicken Soup for th...
- 08/03/17--11:47: _Idle Hands? You may...
- 08/21/17--19:06: _So, Can You Fire a ...
- 09/13/17--06:00: _Who Runs The World?...
- 10/10/17--17:30: _When 'At Will' Beco...
- 10/17/17--07:35: _Why #MeToo Needs To...
- 11/16/17--09:39: _Them, Too: Why Talk...
- 11/22/16--13:29: And Now For Something Completely Different...
- 12/06/16--07:34: Hair Today, Gone Tomorrow, Hired The Day After?
- Ancestry, colour, race
- Ethnic origin
- Place of origin
- Family status
- Marital status (including single status)
- Gender identity, gender expression
- Receipt of public assistance (in housing only)
- Record of offences (in employment only)
- Sex (including pregnancy and breastfeeding)
- Sexual orientation.
- 12/13/16--09:07: And the envelope (or e-mail) please...
- 01/02/17--06:00: Exciting News for 2017
- 01/06/17--11:51: Everything Was Fine Until...
- 01/25/17--05:56: It's #BellLetsTalk Day, So Let's Start Talking
- 02/06/17--10:17: #DressLikeAWoman. Or...you know...don't...
- 02/16/17--13:53: Honoured to be among The Lucky Few
- 02/26/17--15:02: ONCA's Wood is Lovely, Dark, and Deep
- 03/27/17--20:03: The New Baby Bump: What An Extended Maternity Leave Might Look Like
- 05/03/17--18:46: If you can't say anything nice...
- 05/22/17--05:58: Cutting Your Losses: How far do employees have to go to mitigate?
- 06/19/17--11:15: Chicken Soup for the Province
- 08/03/17--11:47: Idle Hands? You may have options after all
- 08/21/17--19:06: So, Can You Fire a Terrorist?
- 09/13/17--06:00: Who Runs The World? Well...
- 10/10/17--17:30: When 'At Will' Becomes 'We Won't'
- 10/17/17--07:35: Why #MeToo Needs To Be A Serious Wake-Up Call To Employers
As both a lawyer and a writer, I occasionally have the opportunity to write elsewhere, whether for a firm, a corporation, or in this case for the Ontario Bar Association.
I was honoured to be a guest of my articling principal and mentor, Eric Gossin, to the 2016 OBA Award of Excellence in Alternative Dispute Resolution earlier this month, and subsequently wrote up a short piece about the event for the OBA's digital newsletter.
You can read the article here, and bonus points if you get to my two-line "About The Author" at the end.
Photo courtesy of the Ontario Bar Association (pictured on the front page are the author, Mitchell Rose, and Miguel Mangalindan. Pictured in the Twitter photo above are Jon Fidler (L), and event chair Eric Gossin (R))
And Now For Something Completely Different...
Believe it or not, there is both a right way, and a wrong way, to fire somebody.
The right way does not mean that terminations are easy. In fact, they can be one of the hardest parts of any manager’s role. While firing a troublesome employee may make things easier on the business, any possible relief is still tempered by the fact that there is a person on the other end who’s likely just had the proverbial rug pulled out from under them.
I’ve spoken in previous posts about the legal definition of ‘just cause.’ Cause (as it’s often shortened to) does not just mean that an employer had any reason to fire an employee, and so they did so. Just cause, according to the law, is a high threshold reserved for exceptionally bad employee conduct (such as theft), which if proven may take the employer off the hook for paying out reasonable notice.
There are, of course, a few catches here. First, a 'cause case' is incredibly difficult to prove. While most employers may believe that they're terminating an employee for cause, their legal team may advise early on that the termination was not in fact for ‘just cause’ under the legal standard, and any legal claim of just cause may be abandoned quickly, which is not uncommon. Also, there is case law that says that unless the employee’s conduct was completely over the top, then the employer still owes them their legal minimum standards of termination pay and possibly severance pay under the Employment Standards Act, 2000 (“ESA”).
Author's Note: I specifically avoided using a photo of the President Elect on this one
So, what happens when you allege just cause even if there wasn’t any, bungle a workplace investigation, and then deny any legally-owing payments causing a former employee to have to sell his house? Well, let’s take a look at an example…
In the recent case of Morison v. Ergo-Industrial Seating Systems Inc., 2016 ONSC 6725, Tom Morison was a 58-year-old furniture salesman who had worked for the company for give or take 8 years (there was debate over whether he was an independent contractor for the first two). He was terminated in the Fall of 2012 via phone call, where he was offered 5 months’ notice, including one month of working notice (continuing to work for the employer in order to earn his notice pay). That’s where the trouble started.
Mr. Morison was awarded at trial reasonable notice for 12 months, which after deductions worked out to just under $100,000. Morison had also made a claim for aggravated damages, which are damages that stem from the actual manner of dismissal. In other words, there may be additional damages available for the hurt that was incurred because of the way someone was fired, but the Court held that was not the case here. The Court reasoned, “Here, the evidence of mental distress caused by the manner of dismissal cannot be dissociated from the usual anguish and stress resulting from having one’s employment terminated.”
Yet it’s Mr. Morison’s claim for punitive damages where things take an interesting turn. Punitive damages are exactly that – they’re intended to punish the employer for conduct that “is reprehensible, “malicious, oppressive and high-handed”, and “a marked departure from ordinary standards of decent behaviour.” It has to be a punishment, and it has to be for what the law calls ‘an independently actionable wrong,’ or something above and beyond just a wrongful termination. In this case, the Employer’s breach of their duty of good faith fit that bill.
In this particular case, the Employer did a whole host of things wrong. The telephone call terminating the employee did not comply with the ESA’s requirement to provide written notice. The employer refused to pay Mr. Morison his termination pay owing under the ESA until months after he was terminated, which put Mr. Morison in a position of financial hardship that required dipping into his savings and being forced to sell his house. Not only that, but the Employer knew he was struggling, and still did not oblige.
The Court found that the Employer was only arguing that they had cause to fire Mr. Morison as a course of strategy, in order to avoid making these payments. While they accused Mr. Morison of poor performance in his conduct, there was no evidence that there were any performance issues, nor that the Employer had investigated any perceived issues. Furthermore, the Employer withheld issuing Mr. Morison his Record of Employment (ROE) for two months after he was terminated, putting him in an even worse position. For all of these wrongdoings, Mr. Morison was awarded an additional $50,000 in punitive damages.
There are lessons from this case for both employers and employees. Terminations can be emotional for employers as well, whether it’s a beloved long-service employee who has committed a serious error, or a poor-performing employee who has put a business under great strain, it’s never an easy process for either side. That said, there are ways that an employer can get it right.
The most important, of course, is to consult an employment lawyer. An employment lawyer can help review the original employment contract to see what the employee had agreed to upon termination, and assess if that contract would survive a legal challenge. Additionally, employment lawyers are trained to help with termination planning, from drafting the letters to the employees to making sure any offer issued is fair, reasonable, and covers the employer’s legal requirements. A lawyer can also offer advice on logistics, such as how and when to deliver a termination letter, who should be present in the meeting, and the proper steps to take to send an employee home safely. Finally, as the case above demonstrates, an employment lawyer can help the employer determine if there really is ‘just cause’ to terminate the employee, or if terminating them without cause is the smarter way to go in the circumstances.
For employees, this case is a great lesson in not accepting poor treatment at face value. While most employees (those covered under the ESA) can be terminated at any time for any reason, the employer has to take certain steps in order for the termination to be lawful. Furthermore, Courts are not afraid to punish employers for poor behaviour, especially when it injures an employee’s chance of success going forward into a new position. An employment lawyer can help employees assess the fairness of a termination offer, and whether an employer is offering everything the employee should be entitled to under the circumstances. If not, an employment lawyer can help the employee pursue the appropriate legal remedy.
The bottom line is that employers may have the right to terminate employees, but they have to do it with some forethought, acting fairly and equitably in order to avoid serious legal consequences.
Fire Fairly: How Doing It Wrong Can Cost A Pretty Penny (to the tune of $50k)
You may have seen this one in the papers last week. The Toronto Star profiled Allan Stokell, who was applying to be a UPS driver after he had retired as a City of Toronto employee, but UPS policy required he shave the beard he’s worn for the past 50 years.
Stokell refused, claiming that he identifies as a ‘bearded person.’ He noted that all his male ancestors have proudly worn beards, and that he believes the beard to be a sort of ‘creed,’ or at the very least a mark of his identity.
In disallowing the beard, UPS pointed to their employee policies, including policies on appearance and grooming. Those policies clearly state that, save for religious or medical circumstances, employees are not allowed to maintain any facial hair. In other words, Stokell is more than welcome to work for UPS, but the beard would have to go.
If you have any doubts about who’s right on this one, the answer is actually fairly simple. UPS has crafted their employee policy exactly as the law says that they should, complete with all the necessary human rights considerations in place.
German philosopher Friedrich Engels with his rather impressive beard
As I’ve posted before, there are a series of enumerated (protected) grounds in the Ontario Human Rights Code (the “Code”) on which an employer cannot discriminate. They are:
For employers that fall under the federal regulations, the Canadian Human Rights Act, the protected grounds of discrimination are largely similar.
Hence the carve-out UPS has made for religious and medical accommodations. Not only does the employer have to consider the human rights of the individuals, but they actually have what is known as a ‘positive duty’ (or an obligation under the law) to protect those grounds to the point of reasonable hardship. In other words, they have to accommodate under those grounds and change their policies accordingly for individuals as much as they can within the parameters of the job.
This has of course lead to some interesting cases in recent decades as human rights law has expanded. In one noteworthy change from 2012, Khalsa Sikhs, who wear a ceremonial dagger called a kirpan, were permitted to wear their daggers into Ontario courts. There were conditions placed on the rules – the dagger must only be of a limited length, and the individual must identify that they are wearing the dagger and have it concealed in their wardrobe, but the point remains. While most individuals would never be allowed to bring a weapon of any sort into open court, Khalsa Sikhs are permitted to do under the Code as part of their religious observance.
So in this case, where there is no clear religious or medical reason for the Stokell’s facial hair, does his beard constitute a creed? Not currently, according to the Ontario Human Rights Commission, but that may change down the line. While the Code does not define ‘creed,’ the Ontario Human Rights Commission states “creed may also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview, and way of life.” It further suggests that creeds are such deeply held beliefs that they govern one’s conduct, and can address ultimate questions like that of human existence.
So while the definition of creed may be a broad one, it’s clear enough that Stokell’s beard, while perhaps a point of personal pride, does not answer overarching questions of human existence. 'I Beard, Therefore I Am' may make for a great hipster t-shirt, but as a legal claim it stands flimsy at best.
For employers, it is absolutely imperative to get these workplace policies right, and a costly exercise when they’re not. While discrimination may be a fine line in some cases, in others it is much clearer, and the Ontario Human Rights Tribunal has fairly broad powers, including stiff financial penalties, in order to remedy a situation. A reasonable legal bill to have an employment lawyer review your workplace policy is a small price to pay to avoid a much heftier bill at the Tribunal.
For employees, one of the strongest points of Ontario’s human rights system is its accessibility, as individuals no longer need a lawyer in order to file a human rights complaint. That said, a lawyer can always help to review a matter beforehand, and even draft a complaint to make sure the strongest issues are put forth before the Tribunal. A lawyer may not be necessary when it comes to a human rights complaint, but it’s usually a good idea.
The bottom line is that while discriminatory employment policies may be a common problem, they simply do not exist in every case.
*Note: The cover photo is that of Johann Strauss II, the late Austrian composer and "the Waltz King." Neither historical figure is in any way related to the piece; I just liked their whiskers
Hair Today, Gone Tomorrow, Hired The Day After?
As the end of 2016 draws closer, it can only mean three things: Winter is coming, a difficult year for many will finally be over, and it's time for the Clawbie nominations!
For those of you unfamiliar, the Clawbies (yes, they're a real thing) are the Canadian Law Blog Awards, which honour the best of Canadian Law Blogs as listed on lawblogs.ca I was honoured to be listed amongst this group back in the Fall, and even more honoured to be nominated for a Clawbie this year! In turn, I want to pay it forward to the blogs that have provided tremendous inspiration for my own work.
A depiction of the author's seasonal cheer (and excitement over the Clawbies)
The first, of course, is Labour Pains, written by Sean Bawden of Kelly Santini LLP in Ottawa. In a true mark of the digital era, I have never met Sean in person, but am continuously inspired by his work (as readers of both blogs would be quick to recognize). He is committed to educating both his colleagues on the public on key legal issues, and his viewpoint is so respected it's even made its way to the Supreme Court.
I also have to hand it to Employment & Human Rights Law in Canada, which is the brainchild of Lisa Stam of Koldorf Stam LLP. Lisa runs her firm largely in the digital space, and her blog is no exception. She's a master of making complicated concepts clear and simple, which is an invaluable tool to readers who may not have the legal background that some of the authors do.
Lastly, I throw my name behind Ontario Divorce, a family law blog from Russell Alexander Family Lawyers. When I was writing on family issues during my articles, this blog was an invaluable resource. Also, I'm not sure who designed the layout, but it remains one of the best I've ever encountered. Kudos.
Good luck to all of this year's Clawbie nominees!
And the envelope (or e-mail) please...
A new year is here, and with that comes some incredibly exciting news, both personally and for News From The Break Room.
The first is that, starting in January, I will begin my practice as an associate with Tailor Law.
Tailor Law is a small, full-service firm in Mississauga that provides legal services to clients throughout the GTA. I will be taking carriage of the firm's Labour and Employment practice, and am tremendously excited to grow the firm alongside some incredible counsel. Our new website and social media will be up and running in January, so more to come!
So what will this mean for News From The Break Room? Aside from the contact information at the end of each piece, News From The Break Room will continue with gusto! Not only that, but...
WE WON A CLAWBIE!!!
A few months back, I submitted the blog to www.lawblogs.ca, which is a compendium of some of the best Canadian law blogs. They also happen to do an award every year for the best law blogs in Canada, the Canadian Law Blog Awards, which are affectionately known as the Clawbies.
I was honoured to be nominated for a 2016 Clawbie by my colleagues and mentors Mitchell Rose and Sarah Charow, and today News From The Break Room won for Best New Blog!
I am truly humbled by this honour, and grateful for all volunteer editors, commenters, readers, cheerleaders, and everyone who has found some helpful information in these pages. Thank you all!
I cannot wait to see what 2017 has in store!
Exciting News for 2017
Most employment lawyers can probably finish this sentence even before their clients can.
The basic refrain from a large number of employees in challenge, when describing their troubles at work, is “everything was going fine until they brought in a new manager/supervisor/boss, and then…”
In these employees’ eyes, the introduction of a new superior is usually the catalyst for when their problems at work began, whether those problems are differential treatment, a strict implementation of the rules, a denial of past privileges, or anything along those lines.
The introduction of these new personnel is tricky, and worthy of some focus. While some of these issues may just be workplace headaches, others may in fact violate various elements of workplace legislation.
Change in Culture
In most of the more innocuous cases, a new supervisor can be seen as a real stick in the mud. They may be more formal than an employee is used to, or bring about rules that most employees thought had fallen by the wayside.
The lousy news for employees? That’s their job! New managers are often brought into an organization to improve employee performance, or eliminate wasteful spending that is hurting the company financially, and may even be jeopardizing their future going forward. A new manager may bring in austerity measures that frustrate employees, but they are usually doing so at the direction of the business owners, and not with any sort of malicious intent.
New supervisors may also implement stricter adherence to workplace policies that were previously relaxed at best. An employer is within their rights to make small changes to the business to improve the function of the corporation, much to the chagrin of employees who previously enjoyed a more casual atmosphere. While tighter restrictions on cell phone use or more professional dress on Fridays (just to name examples) may be frustrating, management is usually allowed to make these changes.
When It’s Not Okay
While some of these changes may be simple annoyances that do not rise to the level of illegality, other changes in managerial conduct are clearly prohibited.
Under Ontario's Occupational Health and Safety Act (“OHSA”), workplace harassment and bullying are strictly prohibited. OHSA defines workplace harassment as “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,” and workplace sexual harassment, which is also clearly prohibited.
So what does this mean on the ground? While small changes to the day-to-day workplace that impact all employees equally are likely okay, isolating a single employee and treating them in a harsh and deliberate manner may not be. There are formal mechanisms in place to address any performance issues, but these do not involve harassing an employee publicly, especially in front of their coworkers. Any discipline procedures should of course be carried out privately, and should follow any policies that are already in place.
The other major consideration for any new managers or supervisors when determining how to govern employees, specifically any individual employee, must be Ontario's Human Rights Code (the “Code”). The Code protects employees against discrimination on a number of grounds we have discussed previously, including age, race, sex, and disability, just to name a few.
In other words, a new manager cannot simply change an employee’s duties just because the employee is of advanced age, or pregnant, or is living with a disability and requires workplace accommodations. Employers must be mindful of the fact that installing any sort of new superior in the workplace does not change the employee’s human rights under the Code. Any sort of differential treatment of an employee that is based, or may appear to be based on any of the protected grounds under the Code, is prohibited at law, and can help build a strong case if the employee chooses to pursue legal action.
These requirements may seem straightforward, but they frequently get lost in the shuffle. In one recent case before the Ontario Human Rights Tribunal (the "Tribunal"), a pregnant restaurant employee was unable to work in the upstairs of the restaurants, so had made arrangements and obtained a medical note to continue her shifts in the downstairs bar area. However, after a change in management, the employee's accommodation plans were revoked by the employer, and the employee could no longer work the shifts.
The business' owner claimed before the Tribunal that they were unaware that the employee was pregnant and required accommodation. However, the Tribunal held that despite any individual manager knowing or not knowing the circumstances, it was the business itself (and not any one individual manager) that was responsible for accommodating the employee, and the business did not have a valid reason to change the accommodation plan. The Tribunal ordered that the employee be compensated for lost income, and receive an additional $15,000 for injury to dignity, feelings, and self-respect (a common category of damages at the Tribunal).
Making Things Better
While managers and supervisors need not worry about their changes being liked or welcomed by every employee, there are things that both sides can do to make any sort of transitional period easier.
For employers, it is worth remembering throughout any time of change that workplace morale can go a long way. While strict adherence to the rules may have its benefits, every workplace develops its own culture amongst employees that usually make the employees feel like they’re part of a larger team. Making swift and drastic changes to that culture may result in some dreadfully unhappy employees, and even negatively impact productivity.
Instead, an attitude of compromise can do wonders. While flagrant violations of workplace policies do not need to be tolerated, milder infractions in a changing landscape can be dealt with using a softer touch, in order to help employees adjust to a changing landscape. If any discipline is required, it should be done formally and privately, away from the prying eyes of coworkers. Lastly, of course, any systemic workplace changes made should not single out an individual employee, especially not on any of the grounds protected in the Code.
For employees, new management may unfortunately be a tough pill to swallow. Unwelcome changes to the to the tone of the workplace, especially if it means an end to carefree days, can be frustrating. However, the key is recognizing what changes are permissible and what changes may not be. If you feel a new manager is singling you out, or you are harassed or bullied beyond a simple change in the rules, an employment lawyer can help you assess the situation and decide how to proceed further.
One last note for employees – while employee awareness about ‘constructive dismissal’ has increased in recent years, it is important to remember that not every case of a changing workplace reaches the threshold of constructive dismissal. Constructive dismissal is a legal test measuring significant changes to an employee’s job description, and simple changes in day-to-day operations will likely not meet this threshold. If you are concerned, however, that you may have been constructively dismissed, an employment lawyer can help review your situation and provide further advice.
The bottom line is that while new managers or supervisors may cause some initial grumbling from employees, a little bit of understanding on both sides can go a long way.
Everything Was Fine Until...
A well-liked coworker announces they have just been diagnosed with cancer. They had been feeling unwell, and trying to work through the symptoms, but finally after much coaxing sought medical treatment.
Their prognosis is positive, but the news is still a blow to the whole team. The coworker says they will work when they can, but may be away for days or weeks on medical leave during treatment and recovery.
They are overwhelmed by the show of support from their coworkers, who make genuine, heartfelt gestures at every turn. They head into the darkest periods of their illness knowing that they are a valued part of a warm and caring team.
Except the coworker wasn’t diagnosed with cancer.
The coworker was diagnosed with depression.
So what changes in the above scenario?
The answer should be: nothing. But that’s rarely the case.
The coworker is still going to be going through treatment, and will continue to work when they can. But in most cases that warmth and support vanishes like a puff of smoke.
There’s another key difference. The coworker may still be seriously ill, and the prognosis may not be as positive long term. Yet in most cases they’ve never said a word about it in the workplace, despite the fact that almost half of Canadians say work is the most stressful part of their day.
The numbers are startling. According to the Mental Health Commission of Canada, on any given week more than 500,000 Canadians will miss work due to mental illness. That’s a city larger than London, Ontario, out of work, every week. That level of illness costs the Canadian economy billions of dollars every year.
We all know someone who has been through, or is going through, cancer. Reports from the Commission state the same is true about mental illness. At one time it was taboo to talk about cancer, in the workplace or elsewhere. So why is it still taboo to talk about mental illness?
On #BellLetsTalk day, an annual campaign to raise both funds and awareness about mental health, it seemed appropriate for News From The Break Room to dive head first into the conversation.
Mental health is, of course, as serious a medical issue as any visible illness. While the signs may be minimal from the outside, the symptoms can be devastating. Individuals with mental health issues are protected under Ontario’s Human Rights Code from any discrimination based on disability in their work, and of course need to be accommodated as such.
Additionally, changes in the past few years in the Occupational Health and Safety Act have shone a bright light on workplace bullying and harassment, a major contributor to mental health issues in the workplace, and made employers responsible for developing strictly enforced policies to prevent their workers from such treatment.
Aside from the legislative provisions in place, there are countless policy measures that both employers, and even employees can put in place to help improve workplace mental health. Here are a few simple examples that take minimal time or effort to implement.
For employers, a few simple considerations can go a long way:
Keep Job Roles Clear. A common cause of employee stress is confusion over the exact nature or scope of an employee’s role. Duties of course may change over time (and a well-drafted employment contract will allow for this flexibility), but continuous upheaval will only lead to stress, confusion, and ultimately poor performance and burnout. Keeping workplace responsibilities clear and organized may be a tall order, but can help eliminate some of the chaos that causes so much unnecessary stress.
Manage Employee Workloads. In a competitive market, employers are constantly driven to keep achieving more with less, including fewer expenses and even fewer resources. Yet overworking employees to the point of burnout will only lead to illness and disability in the workforce, and in the end helps no one. Finding ways to manage workflow wherever possible will help to alleviate that unnecessary stress, and will benefit the team mentality overall.
Create a Dispute Resolution Process. Workplaces can feel much like family environments, and families under one roof naturally lead to conflict. Conflicts, both small and large, will naturally arise from time to time between team members. Having a policy to deal with conflicts within the workplace in a calm and balanced manner will help settle smaller matters smoothly, and hopefully calm tensions before emotions run high and tempers run even higher.
For employees, there are also a few tips to follow that can help improve workplace mental health across the board:
Keep Your Eyes Open. If you see a close colleague suffering from added stress, or an unusual change in mood, try reaching out. They may not be comfortable discussing their challenges, or they may feel the need to do exactly that, but in either event taking that moment to reach out and connect can go a long way towards lifting suffering spirits.
Keep Your Ears Open. If a close colleague does approach you to talk, hear them out. They may not have another close friend or family member available to confide in, and simply the chance to be heard and the knowledge that they have a friend they can speak with can be a huge source of support. If you think your colleague may be in need of additional help, your workplace's HR department may be able to connect them with an Employee Assistance Program for further counseling. Additionally, individuals can phone 211 in Ontario to receive information on mental health resources free through Service Ontario.
If, however, your colleague is in a mental health crisis, or they have declared an intention to harm themselves or others, call 911 immediately.
Keep Talking. The first step to improving mental health across Canada is breaking down the stigma. The celebrities and familiar faces who have put their face on the #BellLetsTalk campaign seem brave and vulnerable in sharing their stories, and they are. Yet if we all keep talking, more faces and voices and stories will emerge while that vulnerability continues to erode.
The bottom line is that that coworker with cancer will hopefully get better, and will be truly grateful for all the warmth and support that surrounds them. The same goes for that colleague with mental illness. In the meantime, let’s keep talking about it.
It's #BellLetsTalk Day, So Let's Start Talking
The reports stemming from White House sources as of late are so disorienting, it has become difficult, and at times impossible thanks to the President’s own social media contributions, to separate fact from fiction.
However, political commentary aside, one recent report seemed a perfect fit for this blog. In a recent article on the website Axios (a byproduct of Politico), an unnamed source from the Trump campaign says there is an edict flowing from the President that the women who work for him should “dress like women.”
While the article also states that the President apparently also has a preference for his male staff wearing certain menswear designers, the source said that even women in the campaign who mostly knocked on doors “felt pressure to wear dresses to impress Trump.”
My personal estimation of the President's new vision of White House swimwear (photo c. 1908)
While the source and article are unconfirmed, the internet proceeded to have a field day, with social media a flurry of photos of female athletes, astronauts, law enforcement officials, laboratory researchers, military personnel and so on in order to prove that women cannot be defined or restricted in their manner of dress.
I will make no comment on US law, although from a human rights perspective alone the directive is at the very least questionable. In Ontario though, while such a policy would be uncommon today, it would also represent a clear violation of Ontario’s Human Rights Code (the “Code”).
Ontario’s Human Rights Commission (the “OHRC”) dealt specifically with this issue last Spring, at a time when Canadian news was rife with incidents of discriminatory workplace dress codes, most notably in the bar and restaurant industry.
In a policy position released at that time, the OHRC reminded employers that they could institute a dress code, so long as it did not run afoul of the Code or its discrimination provisions. As the OHRC states, “An employer should be prepared to prove that any sex-based differences in the dress code are legitimately linked to the requirements of the job. Where this cannot be shown, these dress codes will be discriminatory. “ In this fashion (pardon any pun), a policy such as above that required women to only wear dresses, while men had the additional option of wearing pants, would be discriminatory.
A proposed dress code such as the President’s would be contrary to the Code’s provisions on gender identity and gender expression as well. With recent additions in the last decade, gender identity and expression are now protected human rights grounds in employment in Ontario, and transgender individuals are allowed to express their lived gender identity. The federal government is working on enacting similar protections nationwide.
In other words, an employee who may be biologically male but who presents as female is allowed to, in the words above, ‘dress like a woman.’ Similarly, a biologically female employee who presents as male cannot, and must not, be required to wear exclusively clothing that represents their biological gender.
For some employers, this may admittedly be a learning curve. Transgender rights and issues have only recently come to the forefront, and many employers will be faced with these issues for the first time. However, the best protections are a neutral wardrobe policy that does not separate employees based on sex, gender, religion, disability, or any of the other grounds protected under the Code.
For employers, designing a customized policy that fits your business may take some adjustment, but the initiative can be seen as a preventative measure that may avoid future claims of human rights discrimination from your workplace. Contact us today for help bringing your office policies in line with the latest standards in human rights.
For employees, discrimination in the workplace is never acceptable. If your employer is unwilling to resolve a troublesome uniform policy, contact us today to learn more about how you can proceed legally to protect your human rights in the workplace.
The bottom line, well, this Twitter user dropped the proverbial mic better than I ever could
How to #DressLikeAWoman— Jenna (@jrmr126) February 3, 2017
Step 1: Be a woman
Step 2: Put on literally any article of clothing
congrats, you are now dressed like a woman
#DressLikeAWoman. Or...you know...don't...
Earlier this month, I was privileged to sit down with Aaron Parker, founder of The Lucky Few and host of The Lucky Few podcast.
Aaron is on a mission to support young professionals in meeting their career goals, whatever they may be. His weekly podcast interviews young professionals in a variety of industries from social work to non-profit development to travel to, well, you name it. When paired with his exceptional taste and keen eye for design, he's been able to produce a polished end product that's garnering an impressive following.
I had the great fortune to sit down with Aaron for episode number 12 and talk about employment law, this blog, and a few things young employers and young employees should know about the working world.
Have a listen, either on iTunes at https://goo.gl/llbIlQ or on SoundCloud below:>
Honoured to be among The Lucky Few
Employment contracts can be a tricky business. They can be beneficial both for employers and employees because they set out the terms of the employment relationship, and each party’s obligations to each other. Yet, like most contracts, their primary purpose is often to set out what happens when that contractual relationship ends.
At issue most often for employment lawyers is the language of the termination clause in these contracts. When crafted in a certain way, a termination clause can restrict an employee who is terminated without cause to only what they are owed under the relevant employment legislation, and nothing more. However, when these contracts are missing some crucial wording, a terminated employee can argue that they are not bound by the language in the contract, and can make a solid legal argument for a much longer notice period, or, simply put, more money.
Now that we have that out of the way, follow me as we go, for lack of a better pun, into the Woods.
The Wood in this case (Wood v. Deeley Imports Ltd., 2017 ONCA 158) is Julia Wood (“Wood”), who was a sales and event planner with Fred Deeley Imports (“Deeley”) for 8 years until her termination in 2015. When she was terminated, Deeley paid Wood her termination and severance pay that she was owed under the Employment Standards Act, 2000 (“ESA”), plus a lump sum equivalent to eight (8) extra weeks worth of pay.
Nonetheless, Wood brought a motion before the Court that her contract, or at least its termination clause, were unenforceable and so she should be entitled to a larger notice period. The Court said no, Wood’s contract was enforceable, and so she is not entitled to any more money. However, the Court additionally found that if her contract were found to be flawed, then she should the equivalent of 39 weeks' worth of pay. Wood appealed the decision.
A bit more background: For a termination (without cause) clause to be valid, it was previously thought that a termination clause needed to have three key elements in order to pass muster with the court. It needed to be in line with the ESA by specifically offering termination pay (or pay in lieu of notice), severance pay (even if severance pay under the ESA did not apply), and a continuation of benefits through the notice period. The employee is supposed to be ‘made whole’ during the notice period as if they had continued working, hence the continued benefits.
Yet some recent decisions have called all this into question. In an Ontario Court of Appeal decision from last year called Oudin, a termination clause that said nothing about some of these ‘required’ elements was deemed to be okay, leaving most employment lawyers scratching their heads. Even more confusing, that original clause was in French, so most lawyers were unable to understand the finer nuances of the contract's wording.
Thus employment lawyers have been awaiting the Wood decision with bated breath in the hopes that it would clarify once and for all what is required of a termination clause for it to hold up in court. Well….
Here was the termination clause in Wood’s contract:
[The Company] is entitled to terminate your employment at any time without cause by providing you with 2 weeks’ notice of termination or pay in lieu thereof for each completed or partial year of employment with the Company. If the Company terminates your employment without cause, the Company shall not be obliged to make any payments to you other than those provided for in this paragraph, except for any amounts which may be due and remaining unpaid at the time of termination of your employment. The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000. [Emphasis added.]
This clause does a few things right. It says that Wood would be paid notice pay and severance pay if she was terminated without notice in accordance with the ESA. That part is crucial, as the ESA sets the minimum standards, and while parties can contract to pay more than the ESA anything that pays less is technically illegal.
However, the Court ruled the clause invalid because of one key word missing: benefits. Employers are not legally required to pay employees benefits, BUT if the employee is regularly paid benefits, then the ESA guarantees the employee those benefits must continue through the notice period.
When she was terminated, Wood was actually paid more than she was owed under the ESA, so that was never at issue. Yet the Court held that Wood's employment contract failed not just because it was silent on benefits, but because it also claimed that “the Company shall not be obliged to make any payments to you other than those provided for in this paragraph.”
Think this sounds complicated? You’re not alone. In a 2005 case called Roden, the Court of Appeal upheld a termination clause that did not mention benefits. Yet even while it was silent on the issue of benefits, it did not have 'all inclusive' language similar to the clause above. In this case, because it didn’t mention benefits but also said that’s all that she would get if she was terminated, it then violated the ESA.
So, as the great Taylor Swift would ask, are we out of the Woods?
Frankly, it’s difficult to tell at this point. As with any major court decision that makes new law (usually from the Court of Appeal or the Supreme Court), lawyers will watch for how future judges interpret the decision and apply it to a variety of future scenarios.
We know for sure that an employment contract cannot violate the ESA, and so it must offer everything mandated under the ESA in order to meet the minimum legal requirements. How it presents that offer though is apparently open for interpretation. Previously, most lawyers would have assumed that a clause that did not explicitly mention all the elements would not have been considered valid. Now, based on this decision and the recent one in Oudin, it’s fair to say that all bets are off.
For employers, the main lesson is the age-old: don’t try this at home! If these cases make anything obvious, it’s that employment contracts are incredibly intricate, and have to be uniquely tailored for that particular employment relationship. Grabbing a template off the web will almost certainly not include the language necessary for the contract to hold up if challenged in court. Additionally, as the law changes with some frequency, these contracts should be reviewed regularly to make sure the language is up to date with the latest standards.
On the other hand, this case puts many employees’ battles ‘in the clear’ (sorry, Taylor). The honest truth is that many employment contracts are either based off of poorly worded templates that may not apply to that particular employment relationship or jurisdiction, or contain dated language and have not been revisited since the employee started working. Just because a contract was good in the 1980s or 1990s, it does not mean that same contract will hold up today. For employees under a poorly-worded or out-dated contract who are terminated, cases like these are another powerful tool in the arsenal.
Whether you’re an employer trying to draft a strong contract, or an employee trying to get out of a weak one, I’m happy to help. Contact me today to set up a consultation.
ONCA's Wood is Lovely, Dark, and Deep
For some parents who take parental leave, a year may feel like an awfully long time. While parenthood and newborn bonding can be a life-changing experience, raising an infant is not without numerous stresses, and the workplace can actually become an escape from domestic pressures.
So when the 2017 Federal Budget announced the option for an 18-month parental leave, public reactions were mixed. The plan can be extremely beneficial for parents who desire staying at home longer, but may place a tremendous strain on employers facing a difficult staffing challenge.
Let’s unpack first of all what ‘maternity’ leave is, how it works, and what the new move could mean for employers, employees, and everyone in between.
How It Works
For starters, there is no such thing as ‘maternity leave,’ at least not under Ontario’s Employment Standards Act, 2000 (“ESA”). The ESA divides leave for new parents into two different categories: pregnancy leave, and parental leave.
If an employee becomes pregnant more than 13 weeks after she began working for her employer, then she is entitled to 17 weeks’ of leave any time within the 17 weeks prior to her due date, or commencing on the date that the baby is born. She should give the employer two weeks’ notice (obviously impossible in some situations, babies can be unpredictable like that), and may be requested to provide a doctor’s note. If the employee suffers any complications, notice may be provided on the date leave began, and the employer may request medical documentation. Pregnancy leave ends after 17 weeks, or the employee must provide four weeks’ written notice if they are not returning.
The other two-thirds of the leave are deemed to be parental leave, which can be taken by either parent, and also applies to families who have a child come into their custody. Again, the employee must be with the employer for 13 weeks prior to the leave, and it must start within the first 52 weeks of the child’s life or time with the family. Leave should be given two weeks early where possible, and notice if an employee intends not to return should be provided four weeks in advance.
During these leaves, employees are eligible to collect Employment Insurance (“EI”) benefits, which are broken down into maternity and parental benefits. There are certain criteria to be eligible to collect these benefits, but a primary requirement is that the employer has been making deductions for EI contributions, as independent contractors are not eligible to collect EI benefits.
The calculation formulas are intricate, but most new parents eligible for EI are able to recoup up to 55% of their previous salary, up to a maximum of $543 per week.
Yes, that’s right, $543 per week. For anyone who’s ever raised a child (and in full disclosure I have not), that money goes fast!
However, some parents are more fortunate in that their employers help alleviate the burden. According to Statistics Canada, roughly one in five new mothers has an employer that ‘tops up’ their benefits, leaving them with a comparable salary during their time away, for at least a period of their absence. These rates are higher in public sector employees and in Quebec, but they do not apply to the majority of new parents in Canada, who are left to make due with EI benefits and any additional household income.
With the new Federal budget, the Trudeau government has come through on its campaign proposal to extend parental leave by an extra six months, to 18 months’ rather than the previous twelve.
But, of course, there’s a catch. While the federal government may make an 18-month leave an option, they will not be providing any additional funding into the program. In other words, should anyone take the 18-month option, the maximum earnings per week would be reduced from $543 per week down to $362, or 33 per cent of potential earnings rather than the previous 55.
The Federal government suggests that the change offers families more flexibility, which may allow parents to take different periods of time off, or to create a more unique scheduling arrangement based on their family circumstances that allows a parent to spend more time at home with their new child.
Yet at only $362 per week, is that even feasible?
Parental leave has never been easy for employers. While it is an integral part of the Canadian social fabric and a deeply protected right for new parents, the practical reality can be challenging for employers to work around. Employers must accommodate the employee's absence, whether finding another individual to fulfill the role on a contract, or re-assigning work duties for a time, while protecting the employee’s position for their awaited return.
This is not an easy feat. Employees who take leave are entitled to return to the same position upon their return, or one of equivalent salary and status. However workplaces can change dramatically during the course of a year, and business can ebb and flow, placing strain on the employer both via a key employees’ absence, followed by the timing of their eventual return.
On the plus side, some experts have argued that one year is simply too short a time to adequately train and accommodate a new contract employee into an existing role, and by the time they do get into ‘the swing of things,’ their contract is near its end and their predecessor is due to return. Alternatively, a longer absence may make it easier to lure a high-skilled employee into a more stable contract role, and may make the training period less detrimental to the flow of the business.
That said, the potential challenges to an 18-month leave are numerous. A protracted leave means a returning employee will likely require re-training, and there will be a more prolonged adjustment period to reintegrate the returning employee back into their role. Furthermore, for families who wish to have children close in age (as is of course their right), a series of consecutive 18-month leaves can make an employee’s position difficult to sustain. Lastly, while a larger business may be able to top up salary for several months, an 18-month top up is both impractical, and frankly unlikely from most employers.
Naturally, a business may change to the point where holding the spot is simply unsustainable. If an employer must terminate an employee while on leave, or shortly thereafter, they would be wise to do so properly, so as to minimize any potential claims of constructive dismissal, or discrimination on the basis of sex, gender, or family status.
For employees, the new option of an 18-month leave comes with both its benefits and its drawbacks.
For employees who wish to take more time off and felt one year was not enough, the extension may just provide an ideal solution. The extended option may also make it easier for both parents to take a leave that’s divided between them, potentially allowing infants and toddlers more bonding time with fathers who may otherwise be regularly absent for work.
Yet aside from the most financially comfortable, $362 per week is barely enough to sustain an individual, let alone two or more. Thus, the extended leave is almost a fallacy, and at best impractical. Critics have argued that the extension benefits only wealthy parents who do not rely on the income that would be lost due to the leave.
There is also criticism that the leave places women at a severe disadvantage by removing them from the workforce for an extended period of time, making it less likely that they will return to work with the same earning potential as they had before. While parents on leave are entitled to return to the same salary, there are naturally lost opportunities during a prolonged absence that cannot easily be replaced.
For both employers and employees, pregnancy and parental leave can be based around something truly wonderful, but they are not without their challenges on either end. For employers seeking advice on how to best structure their workforce around an employee taking leave, or for employees who feel their rights were not adequately protected while away, I would be glad to speak more about your issue. Contact me today to set up a consultation and we can discuss how our firm may be able to help.
The bottom line is that 18 months sounds like an awfully long time, and it truly is…although most new parents would argue that it goes by in a flash!
The New Baby Bump: What An Extended Maternity Leave Might Look Like
In a famous 1996 episode of Seinfeld, Elaine Benes sneaks a peek at her medical records and notices that she’s been noted as a ‘difficult patient’ for a minor incident that happened several years before. In an effort to find a new doctor, she learns that her medical history travels to her new physician, and the bad reference follows her wherever she goes. Kramer makes a bungled attempt attempting to retrieve the chart by playing a Belgian physician, and is not only removed from the clinic, but creates a bad reference of his own.
The irony of the story is that in attempting to prove that she was not a ‘difficult patient,’ Elaine becomes exactly what she feared being labeled as.
What happens then when a negative job reference is, unfortunately, true?
In the recent decision of Papp v. Stokes, Adam Papp had worked as an economist for Stokes Economic Consulting until he was terminated almost three years later due to staffing issues. While there was debate over the circumstances of the termination, Papp was terminated without cause, proceeded to collect EI, and sought new employment. He had asked the owner of the company, Dr. Stokes, if he could use his name as a job reference, and Dr. Stokes replied “That is okay.”
Some months later, Dr. Stokes was telephoned for a job reference. Papp was informed that he was top of the list for a position, and the employer was proceeding to check his references. That’s when the trouble started.
The Court reproduced the interviewer’s notes from her telephone conversation with Dr. Stokes. The notes outlined that Papp had a “performance and attitude [SIC] issue” and that he “has a chip,” and does not get along well with his coworkers. When asked, Dr. Stokes indicated that they would not have hired Papp again. Papp then was informed that he lost the job due to the negative reference.
Papp sued for wrongful dismissal, but also claimed $500,000 for defamation, $200,000 for punitive, exemplary, and aggravated damages (usually only awarded in the most extreme circumstances), and an additional $30,000 for mental suffering.
The problem is – all evidence pointed to Dr. Stokes comments being…well…accurate. Papp’s former co-workers testified that while Papp was good at his job technically, he was difficult to work with, and that he was argumentative and a rather abrasive personality. Papp had actually asked another co-worker for a reference, who did not respond because he felt he could not give a positive one. Papp was never formally disciplined for his conduct; but by all accounts he wasn’t a great colleague.
Before Dr. Stokes gave the reference, he had spoken with Papp’s former colleagues (after agreeing to provide a reference), who told him of Papp’s strong technical abilities but poor performance in the workplace. Dr. Stokes had not given a reference in a long time, and was expecting to have a conversation about Papp’s work abilities, not his performance style. He denied some of the notes that the interviewer had taken, but moreover he denied that he had any intention to give Papp a bad reference, or to harm his job prospects.
For a defamation claim to succeed, the claim must meet three criteria: the words must lower the plaintiff’s reputation in the eyes of a reasonable person, the words have to refer to the plaintiff, and they have to be published or communicated to a third party. There is no requirement that the defendant intended to do harm, or was even careless. The three criteria must be plainly met, and in this case the Court found that yes, Dr. Stokes reference was defamatory.
However, there are two defences that can be used against a defamation claim. One is justification, which is that what was said was true. The other is privilege, which can apply to reference letters in a form of “qualified privilege,” which can be defeated if it’s proven that the defendant acted with malice. In other words, if the reference was intentionally spiteful, a defence saying it was privileged content may not hold up.
In this case though, the Court found that, on a balance of probabilities, what Dr. Stokes told the interviewer was substantially true. While Papp tried to have the testimony of the witnesses overturned because of their close ties to Dr. Stokes (it was largely a family business), the Court found that the witnesses were credible, and that Papp was essentially a lousy team player. Dr. Stokes had not acted maliciously, and genuinely believed what he told the interviewer to be true. While the employer owed Papp some money for reasonable notice, the other claims were denied.
This case is an interesting one. It is, of course, rare that a former employee would promote a reference without first knowing, or at least assuming, that the reference would be a positive one. Papp likely assumed that he would be in good hands with a reference from Dr. Stokes, and unfortunately it turned out to be a costly mistake.
For employers, references can be tricky. Some months ago I wrote in a previous blog about when letters should be given and what an employer’s responsibility may be in this situation. While those ‘tombstone’ letters can be incredibly frustrating for employees, they may be the safer route to go in situations where a full reference would otherwise paint a negative picture. A referee who stays tight-lipped can often paint just as full a picture with what they’re not saying. Alternatively, if a former employee was so terrible that a new employer deserves fair warning, employers would be wise to seek legal advice before saying anything defamatory in a reference check.
For employees, it is obviously beneficial to have a sense of what a referee will say ahead of time. The employee above was obviously caught completely unaware by the negative reference; otherwise he would not have put such an opportunity at risk. A written reference may be a more comfortable way to go, and may help ensure that verbal references are in line with the tone of the letter. For terminated employees, we fight for a positive letter of reference in a form that the employee is agreeable to, and a guarantee that any verbal references will be equally as positive. It may seem like a small token, but these references can go a long way towards getting a new job, or, in this case, towards losing one.
If you are an employer trying to figure out how to handle a termination, or an employee seeking a reference letter as part of your termination package, we can help. Contact us today to set up a free consultation.
The bottom line is that it never pays to be a difficult patient, and if you are one, know that it may well follow you on your chart.
If you can't say anything nice...
Employment, like most things in life, is a two-way street. Throughout the working relationship, employers and employees each have rights and responsibilities to make work run smoothly. Employees are responsible, broadly speaking, for doing the work, and employers are responsible, again broadly, for looking after their employees.
Those rights and responsibilities do not necessarily stop just because an employee has been terminated. In most cases (save for some specific examples), an employer is responsible for paying a terminated employee ‘reasonable notice’ upon their termination. Reasonable notice is defined by an employee’s contract, but can also be defined by other factors including their age, length of service, the nature of the work they performed, and their ability to find similar new employment. When employment lawyers agree to represent terminated employees, we’re often fighting to improve this reasonable notice period, or, in plain language, whatever the employer owes the employee.
Hang on, I’m going somewhere with this, I promise.
What most employees don’t know is that they may also have a duty in this process. When an employee is terminated, they also have a responsibility, which is to go and look for new work.
It’s called mitigation. In most areas of law, if you have suffered some sort of financial loss, you have a duty to minimize your total losses where possible. In the employment context, that means that a terminated employee is, most often, responsible for finding another job.
Like anything else in law, this is not always the case. If a terminated employee accepts a severance package that is presented to them, many offer some form of lump sump compensation, or some other compensatory setup that will provide the employee some financial cushion. However, that cushion is usually a limited amount, and when the money does run out, new work is required anyway. Similarly, while employment insurance (if eligible) is available, it too is only designed to support an individual while they continue their search.
Yet for my clients, if we are going to work together to fight for a longer notice period, I inform them that their primary responsibility is to look for work. While we’re ideally aiming to negotiate a settlement that has no bearing on whether they find a job or not, they do have to look, and it may become a key part of negotiations, especially if things move into the world of litigation.
So, just how far does a terminated employee have to go to mitigate their losses? Well, it’s more important than you may think.
In the recent Superior Court decision of Benjamin v. Cascades Canada ULC, 2017 ONSC 2583, a labourer with 28 years’ experience was terminated when his Scarborough factory stopped production. The employee decided after his termination to go to welding school for six months, since he felt he was at the ‘bottom of the food chain,’ and needed to improve his skills.
When he sued his former employer for 24 months’ pay in lieu of notice, his employer claimed that he was not entitled to any extra damages (on top of what he was owed under the Employment Standards Act) because he failed to adequately mitigate. They claimed that the employee was presented with three comparable alternative jobs with the company in nearby locations, all of which he turned down to go back to school. Consequently, he should get nothing extra.
The Court agreed.
The law comes from a 1975 case called Michaels v. Red Deer College, 1975 CanLii 15, which is still in use today. As this case explained: “The two key issues to be considered under the Michaels test: are (i) whether the terminated employee (i) “exercise[d] proper industry” to consider comparable employment and (ii) if the terminated employee had done so, whether he or she “could have procured” the employment.”
The Employee claimed that he had looked at the other positions with the company but that they were below his previous salary, so he was not interested. The Employer said the positions were right around the same range, leading the Court to conclude that he either did not look hard enough at them, or did not look at all. The Court followed previous similar cases that ruled that an employee who purposely decides not to look for comparable work has failed to mitigate their damages. As a result, his entire case was dismissed.
This case is an interesting one to say the least. It involved a long-service employee, who under different circumstances may have had a reasonable chance at a much longer notice period due to his age and length of service. However, termination damages are effectively a two-way street, and when an employee does not hold up their end of the bargain, it can fall apart like a house of cards.
It is important to note, though, what this case really says. In my own view, the employee’s decision to go back to school should be lauded. After nearly three decades as a labourer, with no clear change of plans in sight, he seized the opportunity to further his education and enhance his skills, which ordinarily would be commendable. However, from an employer’s perspective, the employer should not be held financially responsible for his choice, especially when he made that decision while failing to meet his legal duty. There’s nothing that says that he can’t go back to school – the employer just shouldn’t be forced to pay for it.
For employers, this case highlights the importance of mitigation. Many employment lawyers ask about a former employee’s efforts to look for new work, and if the employee is not making reasonable efforts then it can obviously impact an employee’s settlement. However, most ‘termination packages,’ especially for older employees who are less likely to procure new work, will result in a lump-sum payout that is offered regardless of the employee’s efforts to mitigate. Employers will often remind employees that these offers can be tremendously beneficial based on the challenges involved in mitigation, and this case proves exactly that. Your employment lawyer will work with you to assess a former employee’s mitigation efforts and how they may play into any negotiations.
For employees, understanding your responsibilities upon termination is key. Yes, you are usually entitled to reasonable notice upon termination. Yes, your employment contract is usually not worded in a way that limits you to the ESA. Yes, you may be eligible to more money than an employer has offered you in a ‘termination package’. HOWEVER, your duty to mitigate your losses and make reasonable efforts to look for a new position is equally as important. Your employment lawyer will explain to you what this duty entails, how to document your search properly, and what you need to know moving forward as you work to settle any disputes.
If you’re an employee who’s been terminated, take a bit to let it sink in, then contact me and we’ll set up a consultation to see how I can help. If you’re an employer, please contact me BEFORE you issue that termination so that we can work together to put out a fire before it starts.
The bottom line is that employment law, like most things in life is a two-way street, and if you don’t watch where you’re going then it’s far too easy to walk right into a brick wall.
Cutting Your Losses: How far do employees have to go to mitigate?
Years ago, the restaurant chain Jack Astors had their servers wear outfits with funny one-liners on them, including one that read “I used up all my sick days so I called in dead.”
While it was always worth a chuckle, it also likely struck a note of truth with more than a few patrons.
In recent weeks the Province of Ontario has announced plans for a major overhaul in employment law that would create a seismic shift in the Province’s workplaces. While the plans for an increased minimum wage caught the most uproar, there were other proposed changes that deserved their own fanfare.
For example, under the proposed legislation if you are absent from work for less than 10 days due to illness, then you will no longer need a doctor’s note.
Say goodbye to these...
Under the proposed change, employees would be entitled to 10 personal emergency days per year, at least two of which must be paid. However, if they miss less than 10 days, due to the common cold or flu for example, they will not have to drag themselves out of bed to obtain a doctor’s note in order to return to work.
In outlining the policy, Ontario’s Minister of Labour Kevin Flynn called doctor’s notes a “waste of resources,” as patients forced to attend a doctor’s office for a cold they can easily treat at home instead produce overcrowded, germ-infested waiting rooms.
Health Minister Eric Hoskins highlighted the fact that sick notes are usually a matter of standard course between doctor and patient, as the doctor will usually trust that the patient has a cold and is being honest about their condition. Unless a patient is in serious distress, most doctors would likely not bother with expensive and invasive testing to diagnose a common cold.
To examine the news further, and in a tribute to Sergio Leone, here's a look at the good, the bad, and the ugly:
For employees, the news is almost universally acclaimed. There are few things more irksome or uncomfortable than dragging oneself out of bed during an already irritating illness, only to hear a doctor reiterate what the patient already knew.
There is also a significant public health consideration at play. Individuals who assume themselves to be contagious will be able to stay home and recover, rather than expose those ‘germ-infested waiting rooms’ to even more contaminants. Additionally, medical practitioners will be able to devote more time to individuals who need more complex or urgent care, rather than wasting their time with frivolous notes.
The new policy is, of course, largely based on trust. It is inherent within the framework that an employer trusts employees not to abuse the new allowance. That said, the traditional employer-employee relationship is already largely based on trust, and this additional freedom is much like any others that are part of the day-to-day working environment.
If employers are truly concerned, they can set up unique discipline policies within the framework of the law that allow penalties for any misuse or abuse of sick leave. Dishonesty and fraud are serious violations of that trusting employment relationship, and dealing with them quickly and thoroughly can help minimize any negative impacts on the larger workplace.
The change in the law will also need to bring about a change in employers’ traditional thinking. For many human resources professionals, a sick note was not just a matter of course, but it was seen as outside confirmation that an individual would be well enough to return to work after a certain period of time, and thus unlikely to infect the rest of the office. Without these sick notes however, employers will again be relying on that trust relationship, not just that employees are not abusing the process but also that they are will only be returning to work when they are no longer contagious.
The ugliest part of this policy is really the colds and flus themselves. Both Liberal and Conservative MPPs seem to agree that the change is a positive one, and will help sick Ontarians get better without forcing them into work and thereby contaminating their co-workers.
For employers, the main lesson here is to document everything! While the policy change gives employees the benefit of the doubt, record keeping will be helpful in preventing abuses and issuing any necessary discipline, if required. The new rules impute an added level of trust into the employer-employee relationship, which will hopefully serve to benefit most workplaces.
For employees, stay home if you’re sick! That is the ultimate moral of the story. If you are seriously unwell it is always advisable to seek medical attention. However, for a simple cold or light flu, the best advice is to rest and stay hydrated, and not to stress about a few missed days of work in the meantime.
The bottom line is that the Ontario government is telling employees to stay home and get well if they’re sick. Perhaps this may be just the first step towards provincially-mandated chicken soup…
Chicken Soup for the Province
If you thought your relationship with work was complicated while you were employed, it can be far more so after you’ve been wrongfully dismissed.
Stay with me, because it gets a little tricky, but I promise to try and keep it simple.
If you are terminated from your job, your employer has a legal duty to provide you with ‘reasonable notice,’ which is usually money given as pay in lieu of reasonable notice. While that money can be tremendously beneficial after losing a job, it’s not legally meant to be a windfall. That money is only intended to support you and help keep you on your feet until you find new work.
Conversely, your duty is to look for that work. Your former employer is not meant to be your keeper for life – far from it! Whether the time period is negotiated between the parties or handed down by a court, it determines the time period that the former employer is financially responsible for. That time period, of course, can be affected by several factors, such as finding new work quickly. The law is in place so that if you do find new work soon after, you should not then be able to ‘double dip’ when it comes to salary.
What happens, though, if your wrongful termination battle drags on? EI may not be sufficient, or even available, and due to personal circumstances many individuals are forced to take whatever work they can find for the time being. When you do finally settle your matter, should the small amount of earnings you collected in the interim be held against you?
In a landmark ruling from May, the Court of Appeal said 'No.'
Esther Brake was an all-star McDonald’s employee for over 25 years, and a manager in Ottawa-area restaurants since 2004. Her performance for the majority of her career was excellent, until her employer moved her to a struggling location in 2011, and set unrealistic and arbitrary standards for her to turn the performance around. When she was unable to, she was offered a demotion, and when she refused to accept the circumstances she sued for wrongful dismissal.
Ms. Brake was successful at trial, with the court essentially finding that she had been set up to fail. She was awarded 20 months’ pay in lieu of notice, which totalled just over $100,000 dollars, which covered not only her salary but also her health benefits, car allowance, and cell phone expenses.
The employer (PJ-M2R Restaurant Inc., a franchisee of McDonald’s) appealed, arguing not only that Ms. Brake was not constructively dismissed, but that she failed her duty to mitigate (look for new work) when she did not accept the demotion, and that there were issues with her mitigation that followed. The timing here is crucial to note. Esther Brake was fired in 2012, and began her legal proceedings shortly thereafter. Her matter was not heard by the trial court until four years later, and the Court of Appeal roughly four and a half years after she lost her job. Keep that in mind as you read ahead.
The Court of Appeal agreed that the trial judge’s findings were correct, and Brake was constructively dismissed, with 20 months being the appropriate notice period in the circumstances.
When it came down to the issue of Brake’s side income, the trial judge had found that Ms. Brake had also worked as a cashier at Sobey’s, and for a short period at Tim Hortons after her termination. While she applied for jobs broadly, she was unable to find another management position, and her efforts to start her own business were unsuccessful. Eventually she accepted a position as a cashier at Home Depot, which paid significantly less than she had earned as a restaurant manager.
On appeal, the Court ruled that, “there is no magic formula that an employee must follow when making reasonable efforts to obtain other employment.” Furthermore, “A terminated employee is entitled to consider her own long-term interests, so she will not fail to mitigate merely because she chooses to take some career risks that might not minimize the compensation that her former employer will owe to her.” Ms. Brake chose not to apply for any restaurant management positions, and the Court ruled that that was fine. In other words, while a terminated employee does have to look for work, they’re still allowed to have some say in the process.
The trial judge found no reason to interfere with that income or to hold it against her 20-month award. In the end, the Court of Appeal agreed with that as well. The Court noted with clarity than any income Ms. Brake earned after her termination was minimal, and her roles were significantly beneath the one she held prior.
First, the Court ruled, based on previous decisions, that Brake’s earnings from EI were “not received in mitigation of loss” and should not reduce the end result. The Court said so plain as day: " In my view, the law is clear: EI benefits are not to be deducted from damages awarded for wrongful dismissal."
The Court then broke down her Brake’s 20 months into two distinct time periods – the statutory notice period, or the money she was owed at law under the Employment Standards Act (presumably 34 weeks based on her tenure), and the balance of the notice period, or the other approximately 12 months remaining. For the statutory notice period, the Court ruled again that, at law, Brake was entitled to payment for that 34 weeks, and as such no other income should be deducted from it.
For the remaining time, however, the Court chose to reference case law dating all the way back to 1943! In essence, the cases have ruled that if an employment contract is not exclusive, which is to say that an employee is permitted to work in two places at once (as Brake was), and an employee is terminated from their first employer, the income earned in their other position is completely unrelated. So when Ms. Brake informed the restaurant owner that she needed to work at Sobey’s as well, and he replied “do whatever you want to do,” that created a distinct separation between her income streams, and protected one from effectively being deducted against the other in this scenario.
The distinction may seem technical, but it’s a huge one on the ground. Previously, most employment lawyers believed that as soon as their client found another job, the clock essentially started running backwards. However, the Court said that while that is still true if the person finds new work with a comparable salary and responsibilities, however positions that are not comparable in salary or responsibility then they are free to turn it down, or income earned from it may not be held against a damages award from the former employer.
For employers, the lessons here are numerous. While a wrongful termination can be inherently costly for an employer, there may be some relief provided the employee finds other work and effectively mitigates their damages in a short amount of time. However, if the Court now makes it more difficult to subtract new income from any damages, employers may see little relief.
Furthermore, the Court here drew the key distinction that the employer sanctioned Ms. Brake’s alternative employment. Not only was their conduct in her termination costly in the first place, but permitting her to openly take outside employment wound up creating an additional, unforeseen expense. An employment lawyer can help you draft proper, up-to-date employment contracts that structure your employment relationships in a way that best protects your business interests.
For employees, this case opens the door to a whole new approach to wrongful termination. It is no longer automatic that any income earned during a notice period will instantly be deducted from a settlement or award. While terminated employees are still responsible for mitigating their losses and looking for new work, they will no longer be burdened with worry that even modest income will be strictly held against them. It is always wise for terminated employees to review a termination package with an employment lawyer to assess whether or not they are getting the best deal under the circumstances.
The bottom line is that while employers and employees both have responsibilities in this process, employees should not be afraid that working to feed their families will harm them substantially in the long run.
Idle Hands? You may have options after all
Throughout the terrible events in Charlottesville, one of the recurring themes on social media has actually surprised me at how often it gets re-posted. It appears that a number of the protesters in Charlottesville spouting hateful, white nationalist ideology subsequently lost their jobs because of their attendance.
While the specific details are unclear, it is most likely that the individuals were fired just for attending, and the subsequent shame their public identification brought on their employers.
The question is – could that happen here? Or, as it’s posed above, could you fire a terrorist?
The answer is not as simple as you would expect, but let’s break it down as we go.
Terrorist is, of course, a loaded term, one which I have used here as an umbrella to encapsulate neo-Nazis and the like. The first major breakdown we must make though is that there is a major difference between someone who espouses an unpleasant ideology, and someone who does hateful things. While both may colloquially be seen as terrorists, thoughts versus actions make a tremendous difference when it comes to termination.
Diversity of thought and opinion is one of the hallmarks of democracy, and while we may not agree one iota with our co-worker in the next cubicle, an individual’s political thoughts and beliefs are rarely, if ever, enough to get them fired. Granted, the divisive American political climate has called even that into question, but let’s run with it as a guiding principle for now.
However, let’s say in the event of a situation similar to Charlottesville, where your employees showed up at a rally and were publicly visible espousing hateful and disgusting ideology – could you terminate them for their off-duty conduct?
Again, there are some key factors here to consider. The first key one that jumps to mind is whether or not the individual is a member of a union. That is, of course, not to say that union members automatically get a ‘free pass’ at reprehensible behaviour – far from it! However, if the employee is terminated for what they feel is representing their true beliefs, and they are part of a union, it is more than likely that the union will file a grievance against the termination.
Yet, what if the employee, like 70% of employees in Ontario, does not belong to a union, and their employer learns that they spent their weekend participating in some truly loathsome politics?
Again, the answer is complicated. Yes, employees have in the past been terminated for off-duty conduct. Remember that an employee can be terminated for any reason at any time without cause, so long as they receive the proper notice, which is usually paid out in cash. Terminations with cause though, where the individual is owed nothing at law, have a much higher legal threshold and thus are much harder to uphold. While it is almost always possible to terminate an employee without cause, terminating an employee with cause for their political beliefs, or even their political actions, may be an uphill battle.
The specific circumstances of the incident will also make a difference depending on the level of connection between the incident and the workplace. For example, an employee who appears in news footage doing something morally reprehensible while foolishly wearing a work uniform will most likely be dealt with differently than an individual whose actions are, at least on a surface view, not connected to their employer.
That said, there might be some interesting exceptions. Under Ontario’s Human Rights Code, an individual cannot be discriminated against in employment based on their creed. While the Code contains no clear definition of ‘creed,’ it is broadly interpreted as an individual’s deeply held belief system. In other words, there may be grounds, however far-fetched it may seem, for an individual to claim an ultra-nationalist belief system as their creed. If they were to be terminated based on said creed, well, there may potentially be a claim for a human rights violation.
There are other legal concerns that employers should also be aware of. Under Ontario’s Occupational Health and Safety Act, employers broadly speaking have a duty to keep their employees safe at work, and a duty to investigate any incidents or reports of harassment. Thus if an individual’s actions are creating a safety risk, or if they are creating a harassment situation within the workplace, then the employer is responsible for taking appropriate measures.
For employers, the situation is obviously a complex one, and no two cases are the same. An individual’s actions must be assessed carefully, and employers would be wise not to act rashly, or based purely on an emotional response. It is worth noting that U.S. employment law is very different, and it is not as simple or straightforward dismissing employees here. An employment lawyer can help you make these decisions properly and with forethought, while focusing on the best interests of your business.
For employees, social media has completely blurred the line between our personal and professional lives. To assume that your employer will never catch wind of your activities outside the office is both naïve and irresponsible. While your employer may not be able to control what you think in your own head, they will certainly be monitoring your actions, and may take action themselves if it impacts their business or their other employees. That said, if you do feel that you have been discriminated against based on your politics, an employment lawyer can help assess your situation and determine what your options may be.
The bottom line is that while hate is never okay, losing a job because of your beliefs is not as straightforward as you might think.
So, Can You Fire a Terrorist?
Canada is indisputably one of the most multicultural countries in the world. Toronto alone, based on some recent projects, has pockets of its population whose heritage represents every other country on Earth. Walking down the streets in a large, or even a smaller Canadian city, it is not uncommon to hear a multitude of tongues spoken in rapid conversation, signifying just how diverse this land has become.
But what about in the workplace? When is it okay to speak another language, and when is it not?
Late last month, a McDonald’s restaurant franchise in Yellowknife wound up in hot water after a manager posted an English-only workplace policy in response to ‘customer concerns.’ The owner of the franchise quickly reversed the policy after blowback, noting that it was insensitive, and how his restaurant welcomes everyone.
The policy did not mince words. According to CBC news, it originally stated that "This is to be mindful of people who have no idea what your [sic] talking about and will reduce uncomfortability [sic] around other crew." The policy advised workers wishing to speak in their own language to ‘do so in the lobby,’ and that failure to abide by the new rules would result in stiff discipline, including potential dismissal.
Yellowknife occupies a particularly interesting position when it comes to linguistics. Aside from English and French, Northwest Territories is home to 11 official Indigenous languages, with others still spoken commonly by a number of the Yellowknife’s ethnic populations.
So, what does the law say about all of this?
Human Rights 101
Under both Federal and provincial human rights legislation, language is not (at least in most provinces) a specifically protected ground where discrimination is strictly prohibited. Quebec, of course, has multiple regulations around language, and other provinces have some protections as well. In Ontario, though (where this blog is primarily focused), language is not amongst the Human Rights Code's protected (or enumerated) grounds.
However, these laws do protect a number of grounds in which language is inherent, such as race, ancestry, and place of origin. In other words, employees who are harassed, singled out, or excluded simply because they speak another language may have strong grounds for making a human rights complaint.
In order to demand that fluency in any language is required, the employer must prove that fluency is what employment lawyers call a BFOR, or a ‘bona fide occupational requirement.’ To have a BFOR, the job requirement must be imperative to the nature of the work, to the point where the employee would be unable to fulfill the role without meeting this threshold.
This is not an easy test to meet. In other human rights scenarios, such as employees with a disability, the employer is required to accommodate an employee ‘to a degree of undue hardship,’ unless the employer can prove that the accommodation cannot be met because of a BFOR. For example, an employee with physical limitations may not be able to fulfill a job that requires heavy lifting if that heavy lifting is integral to the role and cannot be accommodated.
So where does language fit the bill? Discrimination based on one’s spoken language, even if subtle or not related to a specific individual, may still be considered discrimination based on race, place of origin, ethnicity, or any of the other protected grounds. A poorly handled situation may rise to the level of harassment, or even potentially create a ‘poisoned work environment’ for which an employer is liable to face stiff penalties.
That said, an employer most often does not have to demand that their employees be perfectly fluent in English. An employer must though ensure that their employees understand and follow health and safety regulations, and are able to keep themselves and their co-workers safe. If crucial communication between employees about safety measures needs to take place in English, then a level of English proficiency may well be considered a BFOR. In these instances, an English-only policy may survive the careful scrutiny of a human rights tribunal if challenged.
Not only is diversity one of Canada’s strongest assets, but it can be just as strong for a business as well. The ability to attract and serve customers in the language with which they are most comfortable can be a strong way to build long-lasting client relationships. Many businesses will advertise that they are proud to offer their services in other languages, and most often do so without repercussions.
As for the rhetoric about irritating other customers in the aforementioned scenario, this needs to be dealt with very carefully. Employers are allowed to set rules and policies about client engagement and interaction, and can create a model for employees to follow. For some customers, it may be uncomfortable to feel ‘left out’ of a foreign-language conversation between employees, particularly if the conversation is interpreted as mocking, or hostile.
That said, these scenarios are usually better handled by rules about client and team engagement versus blanket linguistic bans. An employer is free to discipline an employee for treating clients in a mocking or hostile tone to matter what the language, however structuring a policy based on behaviour will raise fewer concerns about discrimination while achieving the same result.
For employers, English-only policies, are rarely advisable unless they are absolutely (and objectively) necessary for your business. It is always better to be lauded for diversity in one’s organization than chastised and even penalized for a lack thereof. If client engagement or unnecessary chatter in any language is a problem with your workforce, an employment lawyer can help you create workplace policies that address these issues while avoiding unintentional accusations of discrimination.
For employees, it may seem like a fine line in some situations, but it does not have to be complicated. If the employee can fulfill the legal requirements of the job (think safety, etc.) then proficiency in English may not actually be required. However, being harassed or bullied over one’s accent, or difficulty with sentence structure for example are instances of discrimination for which there are legal remedies. An employment lawyer can help analyze your specific situation, and determine the best way to proceed accordingly.
The bottom line is that the next time Chris Tucker asks you if you understand the words that are coming out of his mouth, you should feel comfortable answering him honestly.
Who Runs The World? Well...
As Homer Simpson once sadly put it best, “I’m a white male, ages 18 to 49, everyone listens to me.”
While said in jest, the quote belies a sad note of truth. Despite tremendous advances in human rights for all individuals, it is naive and ill-founded to deny the systemic barriers that women, persons of colour, visible minorities and LGBT individuals have historically faced, and continue to face in the workplace.
Yet is another thing entirely when those systemic barriers are not only enacted, but buoyed by the very government elected to protect these same individuals.
In recent months, the Trump administration has taken frightening new measures to undo previously-enacted protections for society’s most vulnerable employees. While Canadian employment law is far from perfect, there is a stark contrast between our two systems that is well worth noting in times such as these.
It is crucial to note that U.S. employment law is very different, and I am far from an expert on the topic. The United States has, since its inception, been the land of opportunity for countless people seeking a better life, and will continue to be so for years to come. That is part of the reason why these changes are so deeply upsetting to so many, as they run contrary to the very foundation of the country.
To frame the conversation properly, the majority of U.S. states are considered ‘at-will’ states, which means that employment is offered solely at the will of the employer, and can be revoked at any time. The majority of wrongful termination lawsuits in the United States involve allegations of discrimination, as that is often the only defence an individual has when alleging that they were treated unfairly.
This, however, makes the revocation of any federally-enacted employee protections that much more concerning. Earlier this month, US Attorney General Jeff Sessions announced in a memorandum that the government was reinterpreting the 1964 Civil Rights Act so that it only covers discrimination between “men and women,” effectively removing protections that had been read in under the previous administration for transgender employees.
LGBT populations are not the only group to feel the weight of Trump’s might. Most recently, the Department of Health and Human Services has declared that employers may be able to withhold employees’ birth control coverage under the Affordable Care Act if the employer has a moral or religious objection to contraception. While the administration claims that at most 120,000 women will be impacted, it is incomprehensible to imagine how that small a figure may be accurate.
The move is just the latest in a series of federal policy reversals. In September, lawyers for the Trump administration argued in Court that the Civil Rights Act does not apply to protections for gay and lesbian employees in the workplace, as LGBT issues were not on the drafters’ radar over 50 years ago. While LGBT workplace protections in the US vary state by state, the Federal position as a guidepost is one that should not go unnoticed.
There are other, more technical changes occurring under Trump’s administration as well. Significant technical changes to US labour laws are making changes to overtime provisions, unionized workplace relationships, and the involvement of legal counsel in a workplace. This is, of course, not even through a full first year of the Trump administration. With potentially 7 more years of Trump's administration to follow, it is truly difficult to fathom what changes are still to come.
The basic human rights violations may be the most punishing. While the United States operates on a structurally different human rights platform, the rolling back of previous workplace protections signals a sea change in the government’s priorities, and grants employers freedoms to discriminate not only against their potential client base, but also against their own longstanding employees.
North of the border, human rights law is predicated on not treating an individual differently simply based on who they are. Employees in Ontario, whether they are provincially or federally regulated (depending on their job duties and industry of work), are protected from discrimination against a wide list of grounds including their age, race, sex, religion, gender identity, gender expression, and disability just to name a few. While this list expands as time and social consciousness evolve, this evolution is what allows more and more Canadians to feel safe and secure in their employment. They may be terminated for other reasons, but it will not be because of who they are as a person.
Moreover, not only are employees’ human rights protected at law, but employers have a legal duty to accommodate employees under these protected grounds to a point of ‘unreasonable hardship.’ While previous posts deal with this in greater detail, in short it means accommodating employees who require some adaptation to their work schedule, environment etc., even if it becomes a nuisance for the employer. Employers have been hit with severe financial penalties for failing to make the most basic of accommodations (see Setting Things Right)
Of course Canada is not perfect, and neither are Canadian employers. Employment lawyers regularly assist employees who have been mistreated at the hands of their employers in ways that simply should not have happened. However, the legal protections these employees are entitled to mean that a mistreated employee does not have to suffer in silence. These laws are in place to shield employees from such mistreatment, and when necessary can serve as a sword if it does occur.
For employers, a thorough knowledge of their duties under the human rights laws is invaluable. The old adage really does ring true – an ounce of prevention is worth a pound of cure. Well-crafted human rights policies, and training to ensure management and staff are up to speed, are crucial for keeping your business in top form. Not only do they help protect employees and make them feel supported, but they can potentially help save a fortune in staving off future legal actions. Written by an untrained hand, these policies may not be effective in protecting your business. Any employer would be wise to consult professional advice in order to draft customized solutions for your business.
For employees, knowing your rights at work can be equally invaluable. No employee deserves to be denied employment, mistreated, or terminated simply because of who they are. Canadians are incredibly fortunate to be protected by such stringent human rights safeguards. For employees, if you feel that your rights are being violated in the workplace, there are many options available. An employment lawyer would be happy to consult with you in order to assess the situation and explain your legal options. There are also numerous free online official resources which, while they cannot provide advice, may help outline and explain your rights and how they are protected.
The bottom line is simple – while America has long been the ‘land of opportunity,’ Canada has long served as a model for human rights, and boasts protections for which we can all be truly grateful.
When 'At Will' Becomes 'We Won't'
In the wake of the latest revelations of sexual abuse out of Hollywood, social media has been flooded with men and women revealing their history with sexual abuse and harassment with a simple hashtag: #metoo.
Confessing a history of abuse is an act of bravery, and as many posts have clarified, just because an individual does not share in the posting does not mean they have not experienced similar mistreatment.
Other individuals have been open in sharing their stories publicly, and it should come as no surprise that a large number of these incidents occurred in the workplace. Whether it was from a leering co-worker, a supervisor who pushed boundaries, or a boss making inappropriate comments (or far more egregious), the stories are countless.
While disconcerting in their own right, these stories also need to serve as a wake-up call for employers. In September, 2016, Ontario's Occupational Health and Safety Act was amended to include "workplace sexual harassment" in the definition of workplace harassment, and to hold employers responsible for resolving these issues.
As of September 8, 2016, OHSA's definition of 'workplace harassment' was expanded to include 'workplace sexual harassment,' which is defined as follows:
(a) 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
(b) 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; (“harcèlement sexuel au travail”)
While workplace sexual harassment may instantly conjure up the image of a physical act, it can also include comments, jokes, gestures, or other such conduct which is clearly unwelcome in the workplace.
However, the definition also states "A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment." In other words, not everything can instantly be considered harassment, especially if it is a reasonable action taken by management in order to run the business.
The provisions include strict guidelines for employers in terms of how they must deal with incidents of harassment. Employers are required to work with the company's health and safety representative or committee (depending on the number of employees) to develop an 'action plan' of sorts that includes reporting measures for how incidents will be reported, a procedure for how incidents will be investigated and dealt with, a system for keeping sensitive information confidential unless otherwise required, a strategy for notifying parties of the results of the investigation, and any other prescribed elements.
Employers are responsible for ensuring that thorough investigations take place, and that the parties are informed in writing of the results and any resulting disciplinary measures or other actions that will take place. While these investigations can be done internally, there are highly skilled third-party investigators that specialize in dealing with these sensitive issues in a thorough and professional manner. If the matter goes to a Ministry inspector, the inspector can order an investigation by a qualified, impartial third party investigator to take place at the employer's expense.
So, what does this mean for both employers and employees?
For employers, it is imperative that any incidents of sexual harassment in the workplace be given a thorough and fair investigation. Employers can be penalized severely at courts and tribunals for letting reports or incidents of sexual harassment fall through the cracks without a proper investigation or any resolution. Employers are responsible in Ontario for keeping their employees safe at work, and this includes a workplace free from both harassment and discrimination based on sex, gender, sexual identity or sexual orientation.
For employees, there are strict legal protections in Ontario to prevent these sorts of incidents, but sadly that does not mean that they do not occur on a regular basis. While speaking up about these incidents is incredibly difficult, know that you are protected at law both from said behaviours, and from being punished for reporting any incidents.
While employers can conduct investigations internally if the proper tools are in place, it may be a best practice to bring in an impartial, third-party investigator with expertise in this field. While the added expense may feel unnecessary, a thorough investigation can be instrumental in getting to the bottom of a problem, and solving any systemic issues before problems re-occur.
If employees have experienced sexual harassment on the job and your employer is unwilling to address the issue, there are resources available for taking action. An employment lawyer for example can help you understand potential courses of action, and assess the best way to resolve the issue while protecting your interests.
The bottom line is that sexual harassment is NEVER okay, especially at work, and yet it's more prominent than most of us would even fathom. For employers who see their employees posting "#metoo" on their social media, know that it may have happened on your watch without you knowing it, and the time to take action is now.
Why #MeToo Needs To Be A Serious Wake-Up Call To Employers
Last month, News From The Break Room covered the #metoo social media campaign, where people from all walks were bravely coming forward with their histories of sexual harassment, frequently from within the workplace.
While other ‘social activism’ campaigns often fail to elicit a concrete societal shift, #metoo may have broken the mould.
The lid is off when it comes to coming forward about sexual harassment, and here’s why:
Photo Credit: Timothy Hale
The public support for individuals coming forward with their stories has been, while perhaps not universal, at the very least widespread. This is in part due to an increased awareness of the reasons individuals may wait for months, years, or even decades before publicly sharing their stories.
While every story is different, as is every individual, shame is a frequently a motivating factor in repressing one’s own truth. The perpetrators are frequently in positions of power, especially within a workplace setting, and victims are intentionally made to feel powerless and small. Frequently this shame is accompanied by fear that the victim’s story will not be believed. The perpetrator is again usually a superior, and victims are often afraid they will be miscast as having ulterior motives, or simply untruthful. While incidents are difficult to corroborate, an overwhelming majority of complainants are truthful, and their stories must be treated with the most serious and thorough concern.
In the United States, as seen with the litany of Bill Cosby’s accusers in the last several years, a statute of limitations frequently prevents an accused from facing justice within the legal system. This is not the case within Ontario. Under the Limitations Act, 2002, there is no limitation period for “a proceeding based on a sexual assault.” This means that accusers need not worry that their abusers will be incapable of facing justice simply because of a legal technicality.
As victim awareness increases, so too does awareness among employers of the importance of taking incidents seriously. Most notably in recent incidents, when the accused is a prominent name, employers are taking extraordinary measures to distance themselves swiftly lest their reputation be equally tainted.
At the height of his career Kevin Spacey was a two-time Academy Award winner and respected actor, but now his career has nosedived in light of a recent wave of sexual assault allegations. Not only has Netflix terminated his role in House of Cards, but director Ridley Scott has worked hastily to edit out and replace Spacey from his latest film before its release. After his recent allegations (and subsequent admission of guilt), comedian Louis CK has been fired from numerous networks that produced and supported his comedy and his productions. While the employer’s moves may seem extreme, networks and producers are well aware of the criticism that would befall them if they appeared to offer Spacey or CK any financial support. The allegations around Spacey and other celebrities continue as of the time of publication.
While these are large-scale employers, and their actions may not be appropriate in most cases, the speed with which they respond to these incidents is particularly noteworthy. Save for these incidents, HBO and Netflix would readily boast about their involvement with CK and Spacey. Yet in a short turn they have become industry pariahs whose names will likely be forever tarnished.
However, while networks and producers may have moved quickly to prevent reputational damage, it may not have been quick enough. After Spacey’s dismissal from House of Cards, for example, a number of accusers came forward accusing him of misdeeds on that very set. London's famed Old Vic theatre has just been hit with numerous allegations of sexual assault against Spacey, it's former artistic director from 2004-2015. It is unclear whether Neflix or the Old Vic were aware of these allegations, yet if they had known anything prior to taking action, they would have been complicit in their failure to take the allegations seriously.
It’s Not Just Men
While the majority of perpetrators in these incidents are men in position of power, this is not always the case.
Take, for example, former Thinx CEO Miki Agrawal. Agrawal, whose former company makes a feminine hygiene underwear, had previously boasted about flaunting taboos and breaking boundaries in the workplace. While she may have flaunted her conduct with alacrity, a human rights complaint brought by Thinx’s former head of public relations earlier this year shows that Agrawal’s actions went far beyond the pale.
In short, Agrawal bragged openly and in vivid detail in the workplace about her sexual exploits, including FaceTime-ing into meetings in the nude, and openly expressing her sexual desire for her own employees. Furthermore, Agrawal was accused of groping female employees, and encouraging them to expose themselves in public. Other former Thinx employees alleged Agrawal’s misconduct went beyond the realm of sexual harassment into ageism, sexism, and other inappropriate workplace behaviours.
While the prime culprits may be male, they are not exclusively so, and even a purportedly female-centred workplace climate such as Thinx is not immune to such misconduct.
How To Protect Yourself (and Your Business)
For employees, the most important takeaway is that both the law and the public are on your side. Ontario’s 2016 legislation takes strict measures to make employers responsible for employees’ safety at work when it comes to sexual harassment. Earlier this month, the Federal government introduced similar legislation to amend the Canada Labour Code with protections against workplace harassment in federally-regulated workplaces. When passed, the law would implement protections in industries such as banking, telecommunications, transportation, and even parliament itself.
While these celebrity incidents seem noteworthy, sexual harassment is prevalent in so many workplaces that it can almost feel commonplace. It never should. The openness of the conversation lately has only started to remove the unfortunate shame and stigma that often haunts victims of workplace harassment. Employees need to know that they are protected, and that their employer is listening and taking the issues seriously.
For employers, responding to and preventing sexual harassment needs to become a top priority. The past weeks have proven that this issue will not go quietly, and will remain a priority for a long time to come. Whether they are aware of active harassment or not, the responsibility is on employers’ shoulders to prevent it.
Employers are not helpless. There are numerous steps that employers can take to protect their employees, and also their businesses moving forward. Maintaining up-to-date policies, along with thorough training and monitoring systems, are key to preventing future incidents. For employers to fully safeguard their business, employees need to know that they are also being kept safe in the workplace.
While sexual harassment sadly may not be going anywhere, neither is speaking up about it. Employers, employees, and everyone in between need to stay vigilant. The bottom line is that if you see something, say something - you're helping someone by doing so.
Them, Too: Why Talking About Sexual Harassment Isn't Going Away Quietly