I've made several posts in the last couple of months about the interpretations of Bill 168 that are starting to flow from the OLRB. The question: Now that an employer has to have a policy in place for dealing with reprisals, does the anti-reprisal clause in the Occupational Health and Safety Act cover reprisals suffered as a result of making a harassment complaint?
Here's a brief summary of the cases I've looked at so far:
Conforti v. Investia, September 23 2011 (my commentary here): Vice-Chair McLean holds that s.50 (the anti-reprisal clause) probably doesn't give the Board jurisdiction to hear matters arising from reprisals for harassment complaints, and only would apply to reprisals for an employee asking an employer to implement a harassment policy pursuant to its obligations. However, it isn't necessary to decide the point because the facts don't support reprisal allegations anyways.
Harper v. Ludlow, November 18 2011 (my commentary here): Vice-Chair Serena reviews the reasoning in Conforti and concludes that Vice-Chair McLean was absolutely right, and the Board has no jurisdiction over reprisals for harassment complaints.
Walters v. PPL, January 4 2012 (my commentary here): Vice-Chair Kelly notes the Conforti and Harper decisions, but declines to address the question of jurisdiction because he doesn't accept that there was reprisal anyways.
I was quite critical of the reasoning in Harper and Conforti, arguing that the amendments that Bill 168 made to the Occupational Health and Safety Act should inform our understanding of what constitutes a healthy and safe work environment, and that harassment should be seen as compromising health and safety. To apply the strict reading of the amendments as set out in those decisions would be to render the harassment provisions of Bill 168 essentially meaningless - form without substance. The employer would be obligated to implement a policy, but there would be no requirement for the employer to actually abide by its own policy. (Indeed, there would be no substantive requirements of the policy itself. Under that interpretation, an employer would comply with the legal requirements by implementing a policy that encourages harassment and creates a complaint mechanism that involves writing down the complaint on a piece of paper and immediately throwing the paper into the shredder.)
Upon reading Walters, however, I took Vice-Chair Kelly as saying that he doesn't necessarily consider the question closed, and that it is possible that, under the right facts, the Board might yet come to a conclusion which breaks from the reasoning in Conforti.
There are other decisions to look at, as well.
In Murphy v. Carpenters (December 23, 2011), the Respondent was seeking reconsideration of a decision not to dismiss the application for failing to disclose a prima facie case. The original decision was made after Conforti but before Harper, and dealt with a similar allegation of reprisal. The Respondent felt that the reasoning in Conforti (which the Respondent felt may not have come to the attention of the Vice-Chair, Caroline Rowan) and Harper should lead to a dismissal of this case.
Vice-Chair Rowan noted that she had reviewed Conforti prior to making the original decision, and so Harper didn't change anything. She distinguished this case on the facts: Murphy's allegations are that the employer did not have the required harassment policy and that he "sought management's assistance in dealing with his immediate supervisor's conduct", and that he was fired as a consequence. After being fired, he contacted the Ministry of Labour, and the employer was subsequently ordered to implement a harassment policy.
Vice-Chair Rowan isn't expressly saying that s.50 does protect employees in positions such as Murphy (provided that he can prove his allegations), but she is clearly saying that it might.
This debate clearly isn't closed.
Other cases on the topic include Stainton v. Springdale Country Manor, in which case Vice-Chair Ian Anderson noted that it is "far from clear" that complaining about harassment is protected by s.50 (referencing Conforti), but he ultimately decided the case on the basis that no actions were alleged of the employer which could have been considered reprisals under the Act anyways.
In three other cases, Vice-Chair Anderson has sought submissions from the parties as to whether or not applications should be dismissed on the basis of the reasoning in Conforti.
Consequences
The one thing that is very clear is that employers are obligated to implement harassment policies. Many employers are still not compliant, and it is important that they correct this as soon as possible. Murphy simply highlights that need: It's still too early to tell where the law will lie when the dust settles, but Murphy suggests that having a policy at the outset could make a critical difference if an employee comes back alleging reprisal.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Showing posts with label employment policies. Show all posts
Showing posts with label employment policies. Show all posts
Thursday, January 26, 2012
Friday, December 30, 2011
Manager fired for just cause after sleeping with administrative assistant
Romantic and/or sexual workplace relationships are nothing new, and they're difficult for employers to deal with, in part because they're so prolific. Employees spend an extremely large proportion of their waking hours in the workplace, and it's to be expected that many will develop strong emotions towards each other, whether in the nature of friendship, hatred, love, or lust.
A relationship can be quite benign when between two single people in different departments, and will have little impact on the employer, provided they remain discrete and professional in the workplace. However, when people who are emotionally involved must work closely together, or are in a reporting relationship, it is more concerning to the employer: It is more difficult for the employees involved to be discrete, and almost inevitable that others on the team will become aware of it. This can cause uncomfortable situations, perceptions of favouritism, and increases office politics and drama, and that's unpleasant enough...but what happens if they have a bad break-up? Suddenly, the employer is dealing with major conflict in the workplace.
There are also Human Rights Code concerns about intra-office flirtation. Unwelcome advances by a person in a position to confer a benefit on the other in the workplace are Code violations, and while that's ordinarily viewed as a supervisor/subordinate matter, it may also apply to peers not in a reporting relationship, in the "I can move your vacation request to the top of the manager's pile" sort of sense. (I'm not familiar with any cases concerning a strictly work-related benefit, where the person making the advance is in a position to make the other person's job easier, but that would be a trickier case.)
For an employer to hire the spouse of an existing employee often doesn't create the same issues, when done carefully, because the employer defines the working relationship of the couple (instead of the couple defining themselves regardless of working relationship) and moreover there is less chance of a break-up (though you never know).
But the real issues occur where you have a clear power imbalance. When a manager engages in a relationship with a non-managerial employee, an employer should worry. This remains true, if less so, even where the employee is not a direct report of the manager. Concerns about favouritism are more severe at that level. If the manager crosses the line in terms of the above-noted Code concerns, the employer is likely directly liable for that.
Thus, even employers who don't feel that they need a nepotism policy (i.e. family members working together) should always have a good fraternization policy.
And there's good news for employers dealing with managers who violate fraternization policies, in the form of the recent case in Reichard v. Kuntz Electroplating Inc.
The Case
Mr. Reichard was a manager of Kuntz, having worked there since 1984, and at age 41 began an extramarital affair with Ms. Thompson, an administrative assistant who at the time was, to use the words of the trial judge, "not directly under Reichard". In 2005, Kuntz introduced a non-fraternization policy, as a mechanism to carry out its obligations to ensure that its workplace is free from sexual harassment. The policy is not reproduced in the decision, but it appears that it may not have an absolute prohibition on romantic relationships, but requires disclosure to the employer of any romantic relationships.
In 2006, on Reichard's suggestion, Thompson was transferred into his department over two other candidates, and he gave her "glowing" reviews. There was evidence of favouritism, making other subordinates uncomfortable, and Reichard routinely took extended lunches with Thompson.
Finally, in 2008, Reichard confided about his troubled personal life, including that he had fathered Thompson's infant son, in another employee, who reported it to the employer. Reichard then finally admitted the affair to the employer, and was suspended and told that he was on suspension and could not return until called by someone from the company. The employer's evidence was that they were leaning towards discipline short of dismissal, but then discovered that in the days following the suspension he returned twice to the office despite the suspension.
The employer then concluded that it was unable to trust Reichard as his position required, and so terminated him for just cause. The judge agreed with the decision, and dismissed Reichard's action. It all turns not so much on the relationship itself, but on his continued deception about the relationship, breaching the non-fraternization policy.
My Thoughts
The Court's reasoning is a little thin on a couple of points. Firstly, Reichard argued that the non-fraternization policy didn't apply to the relationship, because it pre-dated the implementation of the policy. I'm not sure this should hold much sway, but I'm not comfortable with the way the judge disposed of it, either, being because Reichard had simply denied the affair rather than asserting that the policy didn't apply to him.
If one assumes that there wasn't a free-standing obligation on Reichard to disclose the relationship upon request (which may not be the case) and that the policy either did not or could not apply to pre-existing relationships (albeit doubtful), then Reichard would have been entitled to conclude that the relationship was none of the employer's business, and that he had no obligation to disclose. To refute the applicability of the policy would have entailed telling the employer (at least impliedly) that the relationship predated the policy, which would in effect disclose the relationship and comply with the policy. Therefore, the judge's conclusion that the policy applied because he didn't refute it has the effect of saying that disclosure was necessary to preserve his entitlement to not disclose. Incoherent.
Next, I'm concerned with the absence of any indication as to why Reichard returned to the office while on suspension. If it was to talk to Thompson, then that's clearly aggravating. If it was for some other reason - say, picking up the heart medication he forgot - then maybe not so much.
Third, the details of the suspension are thin, as well. There's a line of case law suggesting that you can't discipline twice for the same offence (meaning that a suspension pending a final determination must be very carefully implemented, and it isn't clear that this happened in this case), and that, in the absence of contractual language to the contrary, an employer cannot suspend an employee unless just cause already exists.
The judge looked at everything in its totality and found that Reichard's misconduct was sufficient to justify termination, and that the return to the workplace was the straw that broke the camel's back, so to speak. But if you suppose that just cause wouldn't have existed without the returns to the workplace, it isn't clear that the employer was entitled to tell Reichard to stay away (without entirely repudiating the employment contract), which would obviously impact the extent to which his returns can be seen as misconduct.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
A relationship can be quite benign when between two single people in different departments, and will have little impact on the employer, provided they remain discrete and professional in the workplace. However, when people who are emotionally involved must work closely together, or are in a reporting relationship, it is more concerning to the employer: It is more difficult for the employees involved to be discrete, and almost inevitable that others on the team will become aware of it. This can cause uncomfortable situations, perceptions of favouritism, and increases office politics and drama, and that's unpleasant enough...but what happens if they have a bad break-up? Suddenly, the employer is dealing with major conflict in the workplace.
There are also Human Rights Code concerns about intra-office flirtation. Unwelcome advances by a person in a position to confer a benefit on the other in the workplace are Code violations, and while that's ordinarily viewed as a supervisor/subordinate matter, it may also apply to peers not in a reporting relationship, in the "I can move your vacation request to the top of the manager's pile" sort of sense. (I'm not familiar with any cases concerning a strictly work-related benefit, where the person making the advance is in a position to make the other person's job easier, but that would be a trickier case.)
For an employer to hire the spouse of an existing employee often doesn't create the same issues, when done carefully, because the employer defines the working relationship of the couple (instead of the couple defining themselves regardless of working relationship) and moreover there is less chance of a break-up (though you never know).
But the real issues occur where you have a clear power imbalance. When a manager engages in a relationship with a non-managerial employee, an employer should worry. This remains true, if less so, even where the employee is not a direct report of the manager. Concerns about favouritism are more severe at that level. If the manager crosses the line in terms of the above-noted Code concerns, the employer is likely directly liable for that.
Thus, even employers who don't feel that they need a nepotism policy (i.e. family members working together) should always have a good fraternization policy.
And there's good news for employers dealing with managers who violate fraternization policies, in the form of the recent case in Reichard v. Kuntz Electroplating Inc.
The Case
Mr. Reichard was a manager of Kuntz, having worked there since 1984, and at age 41 began an extramarital affair with Ms. Thompson, an administrative assistant who at the time was, to use the words of the trial judge, "not directly under Reichard". In 2005, Kuntz introduced a non-fraternization policy, as a mechanism to carry out its obligations to ensure that its workplace is free from sexual harassment. The policy is not reproduced in the decision, but it appears that it may not have an absolute prohibition on romantic relationships, but requires disclosure to the employer of any romantic relationships.
8. The policy was not introduced for moral reasons. It was introduced to protect both employees of Kuntz and Kuntz. Kuntz has a vested interest in not having any of its employees harassed sexually or otherwise. It also wants to guard against any favouritism or perceived favouritism between employees. In particular, the reporting provision would allow Kuntz to make arrangements to eliminate or mitigate a conflict of interest if there was a romantic relationship between two employees.Under the policy, Reichard was required to disclose his ongoing romantic relationship with Ms. Thompson. There were many rumours about the relationship, and Reichard's superiors asked him about it on multiple occasions, and he denied it. (One has to wonder if these suspicions prompted the implementation of the policy in the first place.)
In 2006, on Reichard's suggestion, Thompson was transferred into his department over two other candidates, and he gave her "glowing" reviews. There was evidence of favouritism, making other subordinates uncomfortable, and Reichard routinely took extended lunches with Thompson.
Finally, in 2008, Reichard confided about his troubled personal life, including that he had fathered Thompson's infant son, in another employee, who reported it to the employer. Reichard then finally admitted the affair to the employer, and was suspended and told that he was on suspension and could not return until called by someone from the company. The employer's evidence was that they were leaning towards discipline short of dismissal, but then discovered that in the days following the suspension he returned twice to the office despite the suspension.
The employer then concluded that it was unable to trust Reichard as his position required, and so terminated him for just cause. The judge agreed with the decision, and dismissed Reichard's action. It all turns not so much on the relationship itself, but on his continued deception about the relationship, breaching the non-fraternization policy.
My Thoughts
The Court's reasoning is a little thin on a couple of points. Firstly, Reichard argued that the non-fraternization policy didn't apply to the relationship, because it pre-dated the implementation of the policy. I'm not sure this should hold much sway, but I'm not comfortable with the way the judge disposed of it, either, being because Reichard had simply denied the affair rather than asserting that the policy didn't apply to him.
If one assumes that there wasn't a free-standing obligation on Reichard to disclose the relationship upon request (which may not be the case) and that the policy either did not or could not apply to pre-existing relationships (albeit doubtful), then Reichard would have been entitled to conclude that the relationship was none of the employer's business, and that he had no obligation to disclose. To refute the applicability of the policy would have entailed telling the employer (at least impliedly) that the relationship predated the policy, which would in effect disclose the relationship and comply with the policy. Therefore, the judge's conclusion that the policy applied because he didn't refute it has the effect of saying that disclosure was necessary to preserve his entitlement to not disclose. Incoherent.
Next, I'm concerned with the absence of any indication as to why Reichard returned to the office while on suspension. If it was to talk to Thompson, then that's clearly aggravating. If it was for some other reason - say, picking up the heart medication he forgot - then maybe not so much.
Third, the details of the suspension are thin, as well. There's a line of case law suggesting that you can't discipline twice for the same offence (meaning that a suspension pending a final determination must be very carefully implemented, and it isn't clear that this happened in this case), and that, in the absence of contractual language to the contrary, an employer cannot suspend an employee unless just cause already exists.
The judge looked at everything in its totality and found that Reichard's misconduct was sufficient to justify termination, and that the return to the workplace was the straw that broke the camel's back, so to speak. But if you suppose that just cause wouldn't have existed without the returns to the workplace, it isn't clear that the employer was entitled to tell Reichard to stay away (without entirely repudiating the employment contract), which would obviously impact the extent to which his returns can be seen as misconduct.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, December 14, 2011
Layoffs in Non-Union Contexts
An unusual case came out from the Ontario Superior Court of Justice recently, McLean v. The Raywal Limited Partnership, where the core question, as the Court puts it, is "whether the plaintiff was laid off or dismissed".
This is strange, and rare, because the terminology of a "layoff" doesn't usually properly apply outside of union settings. Yes, people will often use the term "layoff" to describe a dismissal due to reasons of business restructuring, thinking that "fired" or "dismissed" implies that there was misconduct, but that's not really a fair distinction where there are no unions. People are fired for just cause, or not for cause.
At law, the best way of seeing the distinction between a layoff and a dismissal is that a layoff contemplates the recall of the employee. And, in fact, the Employment Standards Act, 2000 has provisions dealing with temporary layoffs of limited durations, but that doesn't mean that they're available in every employment situation. The employer needs to reserve the right in an employment contract. As the judge put it in McLean, "In the absence of a contractual basis for layoff, the device of layoff does not exist at common law and any purported layoff will be, in fact, a dismissal."
In this case, in 1998 Natalie McLean was hired by Raywal. Raywal had an employee handbook which included layoff provisions, but it was not integrated into her written offer of employment. It was not referred to in the offer of employment, nor was she required to acknowledge in writing that it formed part of her contract.
I've talked about this before, usually in context of termination provisions: Even if she received the handbook the day after accepting the offer of employment and read it and signed it, there would be a 'consideration' problem. She wouldn't be contractually bound to it unless there's something of value passing in exchange for her agreeing to it. (Other policies in an employee handbook are trickier - an employer has some rights to change the conditions of the work environment. Hours of work, absenteeism and discipline policies, dress codes and decorum, use of office equipment...these are all things that the employer will be entitled to amend, within certain limits, unilaterally and on a regular basis. The employee never really has a choice but to comply with these directions, and won't often be successful in arguing constructive dismissal on such bases. But something permitting the employer to send the employee home without pay...that goes to the heart of the employment contract, and is not something that the employer will really be entitled to implement unilaterally.)
This case is a little more complicated than a simple consideration case, though, because McLean was laterally transferred to a different position in 2008, at which point she did sign a new contract which integrated the employee handbook.
In October 2010, McLean was told that she was being laid off, and given a recall date of June 27, 2011. In late May, she was recalled, but she did not return to work.
So the question becomes whether or not the 2008 contract amendment was valid. The judge found that there was no "obvious or certain improvement in compensation or terms of employment", and therefore no consideration. (The employer argued that the provision of benefits through the layoff period was an improvement to her compensation package, but the judge understandably rejected that. It would be a hard sell that saying "If we send you home temporarily, we'll leave your benefits in place" is a plus to somebody who is entitled not to be sent home.)
Therefore, McLean was dismissed and was entitled to pay in lieu of notice. The judge found that no failure to mitigate was established, including by McLean not accepting an offer made on the eve of mediation in the litigation process, and awarded ten months' pay in lieu of notice.
My Thoughts
The decision largely makes sense to me, but I'm a little bit perplexed on the mitigation point. It doesn't make clear when the litigation was commenced nor when, exactly, the offer on the eve of mediation was made, but while I can certainly understand the judge's reasoning dealing with the offer on the eve of mediation, I cannot understand how (or if) the judge dealt with the mitigation consequences of the original recall date or the notice of recall.
Given how the law of mitigation has developed, particularly after the Evans v. Teamsters case from the Supreme Court of Canada, failure to return following a recall notice, in most cases, would probably be considered a failure to mitigate.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
This is strange, and rare, because the terminology of a "layoff" doesn't usually properly apply outside of union settings. Yes, people will often use the term "layoff" to describe a dismissal due to reasons of business restructuring, thinking that "fired" or "dismissed" implies that there was misconduct, but that's not really a fair distinction where there are no unions. People are fired for just cause, or not for cause.
At law, the best way of seeing the distinction between a layoff and a dismissal is that a layoff contemplates the recall of the employee. And, in fact, the Employment Standards Act, 2000 has provisions dealing with temporary layoffs of limited durations, but that doesn't mean that they're available in every employment situation. The employer needs to reserve the right in an employment contract. As the judge put it in McLean, "In the absence of a contractual basis for layoff, the device of layoff does not exist at common law and any purported layoff will be, in fact, a dismissal."
In this case, in 1998 Natalie McLean was hired by Raywal. Raywal had an employee handbook which included layoff provisions, but it was not integrated into her written offer of employment. It was not referred to in the offer of employment, nor was she required to acknowledge in writing that it formed part of her contract.
I've talked about this before, usually in context of termination provisions: Even if she received the handbook the day after accepting the offer of employment and read it and signed it, there would be a 'consideration' problem. She wouldn't be contractually bound to it unless there's something of value passing in exchange for her agreeing to it. (Other policies in an employee handbook are trickier - an employer has some rights to change the conditions of the work environment. Hours of work, absenteeism and discipline policies, dress codes and decorum, use of office equipment...these are all things that the employer will be entitled to amend, within certain limits, unilaterally and on a regular basis. The employee never really has a choice but to comply with these directions, and won't often be successful in arguing constructive dismissal on such bases. But something permitting the employer to send the employee home without pay...that goes to the heart of the employment contract, and is not something that the employer will really be entitled to implement unilaterally.)
This case is a little more complicated than a simple consideration case, though, because McLean was laterally transferred to a different position in 2008, at which point she did sign a new contract which integrated the employee handbook.
In October 2010, McLean was told that she was being laid off, and given a recall date of June 27, 2011. In late May, she was recalled, but she did not return to work.
So the question becomes whether or not the 2008 contract amendment was valid. The judge found that there was no "obvious or certain improvement in compensation or terms of employment", and therefore no consideration. (The employer argued that the provision of benefits through the layoff period was an improvement to her compensation package, but the judge understandably rejected that. It would be a hard sell that saying "If we send you home temporarily, we'll leave your benefits in place" is a plus to somebody who is entitled not to be sent home.)
Therefore, McLean was dismissed and was entitled to pay in lieu of notice. The judge found that no failure to mitigate was established, including by McLean not accepting an offer made on the eve of mediation in the litigation process, and awarded ten months' pay in lieu of notice.
My Thoughts
The decision largely makes sense to me, but I'm a little bit perplexed on the mitigation point. It doesn't make clear when the litigation was commenced nor when, exactly, the offer on the eve of mediation was made, but while I can certainly understand the judge's reasoning dealing with the offer on the eve of mediation, I cannot understand how (or if) the judge dealt with the mitigation consequences of the original recall date or the notice of recall.
Given how the law of mitigation has developed, particularly after the Evans v. Teamsters case from the Supreme Court of Canada, failure to return following a recall notice, in most cases, would probably be considered a failure to mitigate.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, November 24, 2011
Bill 168 - Reprisals Update
Many of my entries seem to be very timely. On November 18th, 2011, I made an entry about the OLRB's decision in Conforti v. Investia Financial Services Inc., in which the Board suggested that the anti-reprisal clause in the Occupational Health and Safety Act may not apply to reprisals against employees who make complaints under the harassment policies which the Act requires employers to implement, since Bill 168 became law last year.
The Harper v. Ludlow Technical Products Canada Ltd. case was decided on November 18th, as well, in which Vice-Chair Susan Serena dealt with the question head on. Nearly her entire reasons are an excerpt from Conforti, and she concluded:
the Board does not have the jurisdiction under either section 50 or Part 111.0.1 of the OHSA over a complaint that alleges the company did not comply with its workplace harassment policy and/or the applicant was subjected to a reprisal after she filed a workplace harassment complaint
That being decided, let's look at some of the finer points of the interpretation. In the excerpt from Conforti, we find the Board concluding that the Act does not require an employer to keep the workplace free of harassment, nor does it require any particular response to harassment complaints. The Act only requires the implementation of a policy regarding harassment, and a program explaining to workers how to make complaints of harassment and detailing how the employer will respond. Only the absence of the policy and program would constitute a violation of the Act, so only an employee complaining about the complete absence of a policy gets protection by the anti-reprisal provisions. Complaining about deficiencies in the policy does not get protection against reprisals, because the Act doesn't have minimum requirements for the contents of the policy. Complaining about how the employer responded to the policy doesn't get protection against reprisals, because the Act doesn't dictate how the employer has to respond. And even a complaint under the policy does not get anti-reprisal protection, because the language of the anti-reprisal provision deals with employees seeking enforcement of the Act, and the absence of a statutory requirement that employers actually address harassment means that complaining about harassment isn't seeking enforcement of the Act.
One can understand why the OLRB would not want to get caught up in assessing the merits of a policy, whether or not an employer has complied with its policy, nor whether or not the employer's response amounts to 'reprisal'. Let's face it, 'harassment' is a pretty amorphous concept, even as defined in the Act, and there would be large numbers of cases with large grey areas if the Board suddenly opened up its doors to anyone who felt harassed. Even on the anti-reprisal side, it's easy to see a huge number of fights over whether or not an action was 'harassment' or 'reasonable discipline', and then whether or not the subsequent termination was a reprisal for a harassment complaint or the response to additional disciplinary conduct. (Not all discipline leads to termination, but most 'for cause' terminations follow a series of disciplinary events. If there's a fight over whether not an earlier one is 'harassment', then we get into an anti-reprisal fight too.)
But when the OLRB is framing this as a jurisdictional limitation, it is speaking in absolutes. If the Act doesn't set any standards and doesn't give them jurisdiction to even inquire into such cases, then the inevitable conclusion is that it doesn't matter how obviously defective or inappropriate a harassment policy is, or how ridiculous an employer's response is to a complaint under the policy - so long as there is a policy, the employer is in compliance.
Here's an argument from absurdity: Imagine that I am an employer, and I implement a harassment policy saying that I encourage harassment to toughen up everyone in the workplace. The program says that people who feel that they are victims of harassment should suck it up, but if they really want to complain about it, they can come to me with the complaint and I will interrogate them thoroughly about it and ensure that they are put on the most menial duties imaginable for a period of time to be determined. And in practical terms, I decide I'll fire anyone who complains about harassment.
On the OLRB's strict reading of the harassment language, my obligations are to "prepare a policy with respect to workplace harassment" (check), and to implement a program to implement the policy which includes "measures and procedures for workers to report incidents of workplace harassment" (check) and "set out how the employer will investigate..." (check) "...and deal with incidents and complaints of workplace harassment" (check). According to the OLRB, all my obligations are satisfied, and they can't do anything about my patently absurd policy. Even if an employee comes to me and tells me in good faith that they don't think that the policy is good enough, I can fire them for that too under the OLRB's interpretation.
There are countless problems with this approach. The first and most obvious is that it completely defeats the purpose of the harassment provisions in Bill 168. The second is that, while you might think that the words "with respect to workplace harassment" are pretty broad, the plain language of the provisions in their totality makes it clear that there are additional obligations. The program has to set out "how the employer will investigate and deal with incidents and complaints of workplace harassment." If I have to create a program saying how I will do something, it doesn't make sense to suggest that I don't actually have to do it. So implied in that obligation is an obligation to "investigate" and to "deal with" harassment complaints. And it is patently absurd to think that these obligations are completely devoid of some contents, at least to the extent that the investigation should be one that is carried out in good faith and that "deal with" requires a good faith attempt to resolve the issues.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Tuesday, October 18, 2011
Is Your Workplace in Compliance with Bill 168?
In June 2010, amendments to Ontario's Occupational Health and Safety Act became effective, requiring most employers to implement policies and programs dealing with harassment in the workplace and violence in the workplace. It was big news in the HR field and employment law field at the time, and most large employers amended their policy manual to bring themselves into compliance. Yet many workplaces did not.
Many employers don't make much use of policies. I strongly recommend the implementation of a good policy manual for just about any workplace - and I can assist in the development of such - but one of the striking aspects of Bill 168 is that it made certain policies legally mandatory. Not just a good idea.
Especially in light of the mandatory requirement, there are a lot of risks associated with not having them. First, it's a quasi-criminal offence: An employer can be charged for breaching the Occupational Health and Safety Act. When injuries occur due to such breaches, fines typically run upwards of five digits, and it isn't at all uncommon to see fines in excess of $100,000. Earlier this year, Metro Ontario was fined $350,000 (plus, as always, a 25% victims surcharge) after a young worker was killed at a Mississauga store.
Even beyond those liabilities, however, there's the additional risk that liability could be incurred in respect of employees. If an employee is the victim of harassment or violence in the workplace, it will be much easier for an employee to make out a case for constructive dismissal, possibly seeking aggravated damages in addition to all else, if the employer has neglected its statutory obligation to provide a recourse mechanism.
On the flip side, while this hasn't worked its way through into the jurisprudence yet, I expect that it will be much harder than before for an employee to make out a constructive dismissal case on the basis of harassment where they haven't taken advantage of recourse made available to them in a properly-implemented policy.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Many employers don't make much use of policies. I strongly recommend the implementation of a good policy manual for just about any workplace - and I can assist in the development of such - but one of the striking aspects of Bill 168 is that it made certain policies legally mandatory. Not just a good idea.
Especially in light of the mandatory requirement, there are a lot of risks associated with not having them. First, it's a quasi-criminal offence: An employer can be charged for breaching the Occupational Health and Safety Act. When injuries occur due to such breaches, fines typically run upwards of five digits, and it isn't at all uncommon to see fines in excess of $100,000. Earlier this year, Metro Ontario was fined $350,000 (plus, as always, a 25% victims surcharge) after a young worker was killed at a Mississauga store.
Even beyond those liabilities, however, there's the additional risk that liability could be incurred in respect of employees. If an employee is the victim of harassment or violence in the workplace, it will be much easier for an employee to make out a case for constructive dismissal, possibly seeking aggravated damages in addition to all else, if the employer has neglected its statutory obligation to provide a recourse mechanism.
On the flip side, while this hasn't worked its way through into the jurisprudence yet, I expect that it will be much harder than before for an employee to make out a constructive dismissal case on the basis of harassment where they haven't taken advantage of recourse made available to them in a properly-implemented policy.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Sunday, September 25, 2011
Withholding Unearned Vacation from an Employee's Final Pay
This topic recently came up in a discussion group I'm part of on LinkedIn, and I thought it deserved some attention on this blog. Essentially, the question is this: If your employee takes unearned paid vacation then quits before earning it, can you withhold the pay from his final pay cheque?
The answer is, in true lawyer's form, a firm "Maybe".
It happens often enough, sometimes because an employer just wants to be generous, but more often where employees are permitted to take vacation in the year in which it is earned. Suppose I earn three weeks of vacation per calendar year, and am expected to take it in the year earned: Unless my last week of the calendar year is a vacation week (which would unduly restrict the scheduling freedom of both the employee and employer), it's inevitable that some of my vacation will be pre-taken.
So supposing I took all three weeks of vacation in the first part of the year, and quit at the end of August...I've received three weeks of vacation pay, but only earned two weeks, so I've gotten a week's pay out of my employer that I'm not entitled to. Of course, my last pay will usually contain a week or two (or more) worth of wages, so my employer can just take what I'm owed out of that, right?
Usually, the Ontario Labour Relations Board is really finicky about employers withholding sums owing out of money owed. There are certain circumstances in which it is permitted. But outside of those specific circumstances, it is not. So there have been cases in which the employer has suspected an employee of theft, fraud, or damaging employer property, and fired the employee, withholding any wages due as partial compensation for the damages the employer has suffered. The employee goes to the Ministry of Labour, and the Ministry then tells the employer something to the effect of, "As far as payment for wages earned goes, we don't care if he walked away with a full cash register; you still have to pay him the money. If you want to sue him separately, that's your own business." And the OLRB will come to the same conclusion.
Withholding an overpayment of vacation pay is different, however, because vacation pay is *also* a form of wages. In essence, cutting my vacation overpayment from my last pay is like saying, "Oh, we've already paid you that portion of your last pay." And the OLRB will frequently accept that.
But not always. There's a line of cases in which the employer never suggested that overpayments of vacation pay would be recovered until after the employee made a complaint to the Ministry regarding other unpaid amounts - essentially making an ex post facto assertion that their obligations were satisfied or offset by those vacation overpayments. The OLRB rejected the employer's asserted entitlement to withhold the overpayment in these cases, and there's a certain logic to it. When the relationship was working well, the employer was perfectly happy to let the employee take a couple of extra vacation days in a year without feeling the need to conduct a reconciliation of it. It's the same underlying logic as a discretionary bonus - you give the employee more than they're entitled to because you're happy with the job they're doing, and you want them to be happy to stay in the job. Then, down the road, the relationship breaks down, and the employer goes back and says, "Oh, you remember all those perks I gave you? I want you to compensate me for them now." It seems wrong.
There's an easy way around this, however. Keep track of vacation entitlements on a regular basis. Maintain a good vacation policy that asserts that overpayments must be reconciled, and will be deducted from the employee's final pay if the employee leaves before earning the vacation taken, and have the employee agree to that policy. When an employee requests vacation time that isn't already earned, make sure that, if you approve the request, the approval contains a reminder of the policy, that if they leave before earning the vacation pay they'll be responsible for the overpayment and it will be deducted from their wages.
I've heard HR and bookkeeping professionals say that this sort of policy is *necessary* to recover an overpayment - i.e. it's inappropriate to withhold an overpayment unless you have such a written policy in place or told the employee in writing that it would be the consequence. That's not strictly true. It probably arises from the Carlisle case, in which the employee was entitled not to have a deduction for vacation pay that she overtook *right before her effective resignation*, and the OLRB justified the "harsh" result by pointing out that the employer could have avoided the situation through proper use of a policy. (Or by refusing the vacation she had requested after putting in her two weeks notice.)
However, I would opine that the current state of the law is set out more concisely by Brown Bear Day Care case, in which there was an 'understanding' of pre-taking vacation, once discussed in a staff meeting but never reduced to writing. The Board summarized the existing case law on the point and came to the following conclusion:
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The answer is, in true lawyer's form, a firm "Maybe".
It happens often enough, sometimes because an employer just wants to be generous, but more often where employees are permitted to take vacation in the year in which it is earned. Suppose I earn three weeks of vacation per calendar year, and am expected to take it in the year earned: Unless my last week of the calendar year is a vacation week (which would unduly restrict the scheduling freedom of both the employee and employer), it's inevitable that some of my vacation will be pre-taken.
So supposing I took all three weeks of vacation in the first part of the year, and quit at the end of August...I've received three weeks of vacation pay, but only earned two weeks, so I've gotten a week's pay out of my employer that I'm not entitled to. Of course, my last pay will usually contain a week or two (or more) worth of wages, so my employer can just take what I'm owed out of that, right?
Usually, the Ontario Labour Relations Board is really finicky about employers withholding sums owing out of money owed. There are certain circumstances in which it is permitted. But outside of those specific circumstances, it is not. So there have been cases in which the employer has suspected an employee of theft, fraud, or damaging employer property, and fired the employee, withholding any wages due as partial compensation for the damages the employer has suffered. The employee goes to the Ministry of Labour, and the Ministry then tells the employer something to the effect of, "As far as payment for wages earned goes, we don't care if he walked away with a full cash register; you still have to pay him the money. If you want to sue him separately, that's your own business." And the OLRB will come to the same conclusion.
Withholding an overpayment of vacation pay is different, however, because vacation pay is *also* a form of wages. In essence, cutting my vacation overpayment from my last pay is like saying, "Oh, we've already paid you that portion of your last pay." And the OLRB will frequently accept that.
But not always. There's a line of cases in which the employer never suggested that overpayments of vacation pay would be recovered until after the employee made a complaint to the Ministry regarding other unpaid amounts - essentially making an ex post facto assertion that their obligations were satisfied or offset by those vacation overpayments. The OLRB rejected the employer's asserted entitlement to withhold the overpayment in these cases, and there's a certain logic to it. When the relationship was working well, the employer was perfectly happy to let the employee take a couple of extra vacation days in a year without feeling the need to conduct a reconciliation of it. It's the same underlying logic as a discretionary bonus - you give the employee more than they're entitled to because you're happy with the job they're doing, and you want them to be happy to stay in the job. Then, down the road, the relationship breaks down, and the employer goes back and says, "Oh, you remember all those perks I gave you? I want you to compensate me for them now." It seems wrong.
There's an easy way around this, however. Keep track of vacation entitlements on a regular basis. Maintain a good vacation policy that asserts that overpayments must be reconciled, and will be deducted from the employee's final pay if the employee leaves before earning the vacation taken, and have the employee agree to that policy. When an employee requests vacation time that isn't already earned, make sure that, if you approve the request, the approval contains a reminder of the policy, that if they leave before earning the vacation pay they'll be responsible for the overpayment and it will be deducted from their wages.
I've heard HR and bookkeeping professionals say that this sort of policy is *necessary* to recover an overpayment - i.e. it's inappropriate to withhold an overpayment unless you have such a written policy in place or told the employee in writing that it would be the consequence. That's not strictly true. It probably arises from the Carlisle case, in which the employee was entitled not to have a deduction for vacation pay that she overtook *right before her effective resignation*, and the OLRB justified the "harsh" result by pointing out that the employer could have avoided the situation through proper use of a policy. (Or by refusing the vacation she had requested after putting in her two weeks notice.)
However, I would opine that the current state of the law is set out more concisely by Brown Bear Day Care case, in which there was an 'understanding' of pre-taking vacation, once discussed in a staff meeting but never reduced to writing. The Board summarized the existing case law on the point and came to the following conclusion:
The circumstances before me most closely resemble the situation in MenuPalace. On the evidence before me, Hollander (and all other employees) were made aware well before Hollander’s employment ended that there would be an annual reconciliation of vacation days taken and vacation days earned. It cannot be said that she was lulled into thinking that the overpayment would not be recovered, which is a consideration that seems to have affected the decisions in Modern Niagara and Hillis, and which also finds currency in the comment in MenuPalace that the reconciliation of the overpayment must occur “within a reasonable time”. I find that the Employer here was permitted recover the overpayment it had made to Hollander, and did not require her written authorization to do so. On the basis of the same reasoning, it was also permitted to recover the overpayment it had made to Hollander in respect of paid sick leave, and did not require her authorization to do so.
*****
This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, September 15, 2011
Web 2.0 in the Workplace: Facebook@Work
When is it appropriate for an employee to use Facebook on their computer at work? Or other personal web resources, such as Twitter, personal email, etc.?
Employers can and should implement policies for appropriate use of computers in the workplace, which can and should provide a clear answer to this. But which of the following is the best policy?
(A) Whenever the employee wants?
(B) Whenever the employee has 'down time'?
(C) Whenever the employee is on an officially sanctioned break?
(D) Never, except as may be directly required for the performance of their job duties?
As a common practice, many employers tolerate such usage on the basis of "C" or even "B". But for a number of reasons, employers should stick with "D". It's easy for an employee to forget that the computer is not, in most cases, the employee's own property, but it is a tool belonging to the employer which is supplied to the employee to accomplish his or her work goals, so the employer is technically within its rights to insist that it only be used for work purposes, and in fact there are problems that can arise from not doing so.
One might ignore the legal issues which could hypothetically arise from too much informal generousity to employees - CRA attention to non-cash benefits or employee claims that a perk constituted a part of their compensation package - because these are likely to be quite trivial in this context, but it is harder to ignore the potential threat to IT security posed by too much casual computer use. The technical aspects aren't my expertise - talk to your IT professional about this - but while my understanding is that facebook and hotmail themselves are reasonably benign, they can easily link to websites which are more malicious. Careless use - or use by people who aren't web-savvy - of these resources can easily lead to computer viruses or other malware that could compromise your security and the privacy of your network.
Not only are your files proprietary, but as most computer networks have some client information on them, they aren't all yours to share. If your network is compromised and your clients' personal information is hacked, you may be liable in the event that you have not taken all reasonable precautions to prevent this. If it turns out that the security breach was a consequence of your receptionist, with your blessing, surfing facebook and inadvertently clicking a malicious link, then that's a problem for you. Not only are you potentially liable to third parties, but employee discipline in such a context would be inappropriate: If you have communicated to employees - expressly or impliedly - that it is acceptable to be surfing the net in such a manner on work computers, then you can hardly blame them for having done so.
Here's the other catch: Having a good policy isn't enough. You need to actually enforce the policy. If it comes to your attention that a certain employee or group of employees isn't adhering to the policy, then you need to implement a program of progressive discipline. It's all well and good to say "Our policy prohibits this", but if managers turn a blind eye to such conduct, the employer can be said to have "condoned" the conduct nonetheless.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Employers can and should implement policies for appropriate use of computers in the workplace, which can and should provide a clear answer to this. But which of the following is the best policy?
(A) Whenever the employee wants?
(B) Whenever the employee has 'down time'?
(C) Whenever the employee is on an officially sanctioned break?
(D) Never, except as may be directly required for the performance of their job duties?
As a common practice, many employers tolerate such usage on the basis of "C" or even "B". But for a number of reasons, employers should stick with "D". It's easy for an employee to forget that the computer is not, in most cases, the employee's own property, but it is a tool belonging to the employer which is supplied to the employee to accomplish his or her work goals, so the employer is technically within its rights to insist that it only be used for work purposes, and in fact there are problems that can arise from not doing so.
One might ignore the legal issues which could hypothetically arise from too much informal generousity to employees - CRA attention to non-cash benefits or employee claims that a perk constituted a part of their compensation package - because these are likely to be quite trivial in this context, but it is harder to ignore the potential threat to IT security posed by too much casual computer use. The technical aspects aren't my expertise - talk to your IT professional about this - but while my understanding is that facebook and hotmail themselves are reasonably benign, they can easily link to websites which are more malicious. Careless use - or use by people who aren't web-savvy - of these resources can easily lead to computer viruses or other malware that could compromise your security and the privacy of your network.
Not only are your files proprietary, but as most computer networks have some client information on them, they aren't all yours to share. If your network is compromised and your clients' personal information is hacked, you may be liable in the event that you have not taken all reasonable precautions to prevent this. If it turns out that the security breach was a consequence of your receptionist, with your blessing, surfing facebook and inadvertently clicking a malicious link, then that's a problem for you. Not only are you potentially liable to third parties, but employee discipline in such a context would be inappropriate: If you have communicated to employees - expressly or impliedly - that it is acceptable to be surfing the net in such a manner on work computers, then you can hardly blame them for having done so.
Here's the other catch: Having a good policy isn't enough. You need to actually enforce the policy. If it comes to your attention that a certain employee or group of employees isn't adhering to the policy, then you need to implement a program of progressive discipline. It's all well and good to say "Our policy prohibits this", but if managers turn a blind eye to such conduct, the employer can be said to have "condoned" the conduct nonetheless.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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