Current Issues in Employment Law - hrpa.ca · presented by Pamela Connolly. agenda •AODA: duties and deadlines •occupational health & safety: Bill 132 ... Bernardi Human Resource

Current Issues in Employment Law

September 14, 2016

presented by Pamela Connolly

agenda

• AODA: duties and deadlines

• occupational health & safety: Bill 132

• off duty conduct: criminal activities

• duty to accommodate: what is the status

of family status?

2

Accessibility for

Ontarians with

Disabilities Act

(AODA)

Bernardi Human Resource Law LLP | hrlawyers.ca

4

what is AODA?

goals:

• fair and equitable access to goods and

services

• improve opportunities for persons with

disabilities

• prevent barriers to access for persons with

disabilities

AODA applies to

• government, non-profit, private

organizations

• large employers (50+ employees)

• small employers (1-49 employees)

5

6

who is covered under AODA?

any organization that:

• sells or offers goods and services

• employs at least one employee

• offers accommodation

• owns, occupies or leases building

7

broader societal trends

• 1in 7 people in Ontario have a disability

• this number expected to rise in the next 20

years

• aging population

• issues with accessibility in provision of

goods and service

8

barriers to accessibility

• attitudes and stereotypes

• information, communication and

organizational barriers

• technology barriers

• physical barriers

9

types of disabilities

• physical conditions and injuries

• mental and learning disabilities

• diabetes, epilepsy, brain injury, paralysis

• blind, deaf, hearing impaired or speech

impediment

10

types of disabilities

• reliance on guide dog or wheelchair

• substance abuse and addiction

• allergies and environmental sensitivities

11

Integrated Accessibility Standards

IASRInformation &

Communications

Design of Public

SpacesTransportation

General

Standards

Employment

Standards

Customer Service

Standards

12

IAS requirements

• develop policies and procedures

• train staff on AODA and human rights

• file compliance reports with Ministry of

Economic Development, Employment and

Infrastructure

• does not diminish legal duties under

Human Rights Code

deadlines

compliance

• last deadline: January 1, 2016

• next deadline: January 1, 2017

reporting

• last deadline: December 31, 2014

• next deadline: December 31, 2017

13

last deadline: January 1, 2016

large organizations (50+ employees)

• Employment Standard

• Information and Communications

Standard: accessible format and

communications supports

small organizations (1-49 employees)

• Integrated Accessibility Standards: general

training

14

15

customer service standard

• prior deadline: January 1, 2012

• updated: July 1, 2016

• develop policies and procedures

• allow persons with disabilities to use

assistive devices

• be respectful in how you communicate

with person with disability

16

customer service standard

• permit use of service animals on premises

• permit support person on premises

• post notice of disruption in service

• establish accessible feedback process

• train staff on AODA obligations

• provide documents in accessible manner

upon request

17

feedback process

• have feedback process

• provided in accessible manner

• how are we doing as organization?

• can post on website, reception, door

18

tips for delivering good service

• do not assume disabled person is

incapable

• offer assistance if requested

• allow disabled person to participate in

determining best accommodation

next deadline: January 1, 2017

large organizations (50+ employees)

• Design of Public Spaces Standard

• address barriers to using public spaces

• obligations on developer, not necessarily

owner or leasor

• new construction or redevelopment only

19

design of public spaces standard

barrier free:

• recreational trails

• outdoor public use eating areas

• outdoor sidewalks and walkways

• outdoor children’s play spaces

• parking

• service counters

20

design of public spaces standard

• applies to organization with authority to

build or make alterations

• requirements:

• technical specifications

• public consultation

21

next deadline: January 1, 2017

small organizations (1-49 employees)

• Employment Standard

• deadline was January 1, 2016 for large

organizations

• Information and Communications Standard

22

23

employment standard requirements

• recruitment and hiring

• notify about availability of accommodation

• for employees

• provide policies on available supports

• provide accessible formats and

communication supports as needed

24


• written accommodation plans (*only large organizations)

• list of restrictions/barriers

• accommodation measures

• reassessment plan

• by-products of accommodation

• employee signature

25


• written return-to-work plans (*only large organizations)

• performance management and

advancement

• are documents, activities and services

accessible?

26


• workplace emergency response

information

• individualized

• designate assistance as required

27

information and communications standard

• for large employers, deadline was January

1, 2016

• information should be provided in

accessible manner to public

• “information” = text, audio, digital

• covers how information is provided, sent or

received

28


• obligation triggered if person requests

alternate formats

• notify about accessible formats and

communication supports

• large print

• braille

• read aloud

• hand written notes

• formatted for electronic use

29


consider:

• how to notify about available formats

• who should receive requests

• process for consulting and responding

• timeliness

• cost cannot exceed non-accessible format

areas of concern for employers

• lack of knowledge

• not doing training and accommodation

plans

• enforcement

• government blitzes

• penalties

30

Occupational Health &

Safety: Bill 132


Bill 132

• came into effect on September 8, 2016

• changes employer obligations around

workplace harassment

32

Bill 132

Important changes:

• workplace sexual harassment

• clarifies what is not harassment

• duty to investigate

• policy requirements

33

workplace sexual harassment

“workplace sexual harassment”

a) engaging in a course of vexatious comment or conduct

against a worker in a workplace because of sex, sexual

orientation, gender identity, 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.

34

workplace sexual harassment

• significance of specific definition unclear

• focus on workplace sexual harassment as

a health and safety issue

35

what is not harassment

• “reasonable employer action relating to

the management and direction of

workers”

• excludes legitimate management activities

36

duty to investigate

employer shall ensure:

• investigation into “incidents and

complaints” of workplace harassment

• appropriate in the circumstances

37

duty to investigate

MOL inspector may:

• order an “impartial” person to investigate

and write a report

• possessing such knowledge, experience or

qualifications as are specified

• at employer’s expense

38

policy requirements

policy/program:

• must outline investigation procedure

• must include measures to report

harassment to someone other than

employer/supervisor if complaint against

employer/supervisor

39

policy requirements

outline investigation procedure:

• to whom to complain

• complaint forms

• employer discretion regarding investigator

and nature of investigation

• investigation steps(i.e. fact-finding,

interviews, review of evidence,

statements/notes)

• might include interviews with witnesses

40

policy requirements

outline investigation procedure:

• timing (i.e. best efforts to complete within

90 days but may take longer)

• report upon completion

41

policy requirements

report to someone other than employer or

supervisor:

• human resources

• any member of management

• senior leaders

• designated individual

42

policy requirements

confidentiality:

• information about an incident or complaint

of workplace harassment

• including identifying information about any

individuals involved

• will not be disclosed unless the disclosure is

necessary for the investigation or corrective

action, or is required by law

43

policy requirements

confidentiality:

• measures to protect confidentiality of the

process

• complaint and investigation strictly

confidential

• will not be disclosed unless necessary for the

investigation or corrective action, or

required by law

44

policy requirements

confidentiality:

• measures to protect confidentiality of the

process

• separate investigation file

• set expectation of confidentiality regarding

complaints and investigations

• separate, confidential interviews

45

policy requirements

inform parties in writing of outcome:

• how a worker who has allegedly

experienced workplace harassment and

the alleged harasser (if he or she is a worker

of the employer) will be informed of the

results of the investigation and of any

corrective action taken

46

policy requirements

inform parties of outcome:

• how to inform

X copy of report

written summary of the finding

• meet separately with complainant and

respondent

47

policy requirements

inform of corrective action imposed:

• entitled to know corrective action imposed

• balance between privacy and right to

know

• be general (i.e. suspension, transfer,

dismissal)

• do not disclose details

• emphasize confidentiality

48

implementing the policy

written program:

• develop and maintain a written program to

implement the workplace harassment

policy

• in consultation with any health and safety

committee or representative

49

program review and instruction

policy/procedure:

• program reviewed as often as necessary

but at least annually

• provide workers appropriate information

and instruction on content of policy and

program

50

investigation report

report:

• results of investigation and investigation

report do not have to be provided to the

occupational health and safety committee

51

have you?

• updated your policies and procedures

• trained designated individuals on how to

conduct a proper investigation

• trained managers/supervisors/leaders

• on harassment

• how to recognize incidents of harassment

• how to deal with incidents and complaints

• effective managerial skills

52

be prepared

• train all employees on the revised policy

and program

• create a positive, respectful workplace

53

off duty conduct:

criminal activities


• what happens when an employee is

charged with a crime?

• can the employer suspend or dismiss the

employee?

55

off-duty conduct

• how serious are the allegations?

• has the employee been found guilty?

• did the conduct occur at work?

• what effect does the charge/conviction

have on the employer’s business or public

image?

56

some relevant questions

• conduct must cause serious

prejudice/injures reputation or legitimate

business interests

• discipline must be fitting and proportional

to the misconduct

57

discipline overview

• detrimentally affects employer’s

reputation

• causes employee to not fulfill obligations

• causes other employees to refuse to work

with individual

• adversely affects employer from

managing

58

considerations justifying discipline

• warnings

• suspension pending outcome

• termination for cause

59

possible discipline

1. does employee presence cause

reasonably serious or immediate risk to

legitimate concerns of employer?

2. is nature of charge potentially harmful to

company reputation, product, other

employees, customers?

3. did company investigate criminal charge

to assess risk of continued employment?

60

discipline analysis

4. can risk be mitigated?

5. continued onus during suspensions to

consider possibility of reinstatement

61

discipline analysis

• refusal to cooperate may be

insubordination

• cannot knowingly damage business

interests through silence

• deliberate deception not okay

62

right to silence

• employee charged with two counts of

sexual assault against minors

• arrested at work

• refused to provide details except that

unrelated to work

• terminated for cause before conviction

63

Merritt v. Tigercat industries

• wrongful dismissal claim

• decision:

• no cause for termination

• position relevant – labourer not

management

• no independent investigation by employer

• no evidence of actual damage to

reputation

64

Merritt v. Tigercat Industries

• employee charged with assault

• employee position: School Based Safety

Monitor

• assault victim was parent of TDSB student

• employee suspended then terminated for

cause before being withdrawn in

exchange for peace bond

• grievance

65

TDSB v. CUPE, Local 4400

decision:

• just cause for suspension

• incident fundamentally inconsistent with

employee’s work obligations

• no cause for termination

• no discipline history

• intoxication a mitigating factor

• no publicity no damage to reputation

• incident unrelated to TDSB

66

TDSB v. CUPE, Local 4400

• employee arrested and charged with

possession of child pornography

• Linamar active in community and

children’s programs


• pled guilty with 3 month conditional

sentence

67

Kelly v. Linamar Corp.

• wrongful dismissal action

• continued employment would cause

damage to reputation

• adverse impact to management

responsibilities

• termination for cause upheld

68

Kelly v. Linamar Corp.

YOU BE THE JUDGE!

69

duty to

accommodate:

what is the status

of family status?


family status

• “status of being in a parent and child

relationship”

• covers:

• fact of being parent or child

• caregiving role between parents and

children

• caregiving role between adult children and

aging/ailing parents

71

considerations

• work is designed around traditional notions

of family and caregiving

• workplace culture can create barriers

based on family status

72

considerations

• issue is often one of flexibility

• can look at supports available to the

employee

• more critical the need, greater the duty

73

possible accommodation needs

• child or elder care

• taking care of sick family member

• attending school or court

• mourning death of family member

• divorce or child custody matters

• infertility treatment

• pregnancy related illness

• breastfeeding

74

test: family status accommodation

1. child under the claimant’s care

2. legal responsibility vs. personal choice

3. despite reasonable efforts, no alternatives

4. impact on obligation more than trivial or

insubstantial

75

break times and time off

• bathroom or breastfeeding breaks

• lateness for fertility treatments

• absence for divorce/custody hearing

76

flexible work schedule

• straight shifts

• part-time work

• job sharing

• compressed work week

• working from home

• no overtime

77

ESA leaves

• Family Medical Leave

• Personal Emergency Leave

• Critically-Ill Childcare Leave

• Crime-Related Child Death or

Disappearance Leave

78

Patridge v. Botany Dental Corp.

• demotion following maternity leave

• employee objected and hours changed to

evenings

• evening work interfered with childcare

arrangements


• wrongful dismissal/discrimination claim

79

Patridge v. Botany Dental Corp.

• employer argued employee did not prove

alternative childcare not available

• possible daycare pickups canvassed – not

sustainable

• employer did not meet duty to

accommodate

• evening work not BFOR

80

Wing v. Niagara Falls Hydro Holding Corp.

• municipal councillor required to attend 4-6

board meetings per year

• received honorarium for being on board

• meetings started at 3:30pm or 4:00pm

• resolution passed that removal from board

if miss two consecutive meetings

• councillor could not attend because had

to pick up daughter from school

81

Wing v. Niagara Falls Hydro Holding Corp.

• HRTO found case engaged personal

choice

• councillor had not made reasonable

efforts to find solution

• after school program

• spouse

• had found childcare in other instances

82

YOU BE THE JUDGE!

83

questions

Current Issues in

Employment Law

Documents

Current Issues in Employment Law - hrpa.ca · presented by Pamela Connolly. agenda •AODA: duties and deadlines •occupational health & safety: Bill 132 ... Bernardi Human Resource