Transcript Document
T ORONTO S ARNIA S AULT S TE . M ARIE
EMPLOYMENT AND LABOUR LAW UPDATE Genevi ève Debané Mathews Dinsdale & Clark LLP
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AGENDA:
• Changes to the OHSA and recent cases • Update at the Human Rights Tribunal • Changes to the ESA • Recent Employment Law Cases • Recent Arbitration Cases
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OHSA: Bill 168 The Latest Legislative Response
• protection from machines but not from people • the current status of Bill 168 Royal Assent – December 15, 2009
EFFECTIVE: June 15, 2010
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Bill 168 -
• •
“workplace harassment”
means 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
“workplace violence”
means: – (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, – (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, – (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker
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Bill 168 - The Policies, Risk Assessments And Programs Required
• policies on – work place violence and on – work place harassment • policy reviews • policy requirements • risk assessments • the program of implementation
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Bill 168 - The Policies Required
• Develop policies on: – (1) workplace violence & – (2) workplace harassment • Must be reviewed at least annually • Must be in written form and posted in workplace, unless: – 5 or fewer regular employees
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Bill 168 Programs to Implement the Policies
• Required to include, at a minimum, measures and procedures for: – (a) controlling the risks of workplace violence or harassment – (b) summoning immediate assistance – (c) reporting incidents – (d) investigating incidents or complaints
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Bill 168 Risk Assessments
• • • • Employer required to assess the risks of workplace violence that may arise from: – Nature of workplace – Type of work – Conditions of work Assessment should consider: – Circumstances common to similar workplaces – Circumstances specific to the workplace Must advise health and safety committee (or workers) of results Re-assess as required
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Bill 168 Domestic Violence
• Section 32.0.4 reads as follows: – “If an employer becomes aware,
or ought reasonably to be aware
, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take
every precaution reasonable in the circumstances
for the protection of the worker.
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Bill 168 A History of Violence
• Employer and supervisors are under a duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if, – (a) the worker can be expected to encounter that person in the course of his or her work; and – (b) the risk of workplace violence is likely to expose the worker to physical injury • But… no employer or supervisor shall disclose more personal information than is
reasonably necessary
to protect workers
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Blue Mountain Resorts
• Labour Board decision regarding whether an employer has to report a critical injury of a non worker • S.51 (1) is not limited to worker but persons • Requirement to report may apply to critical injuries affecting all persons
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Human Rights Update The New Human Rights Tribunal
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The Human Rights Tribunal – One Year Later
• April 26, 2006 – Bill 107 introduced • December 20, 2006 – Bill 107 receives Royal Assent • June 30, 2008 / December 30, 2008 – Major changes to the
Human Rights Code
effect in • January 12, 2010 – Where are we now?
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Overview of the Changes to the Human
Rights Code
1. Direct Access to the Judicial Process
• Commission is no longer the “gate keeper” • Limited screening of Applications • Implications?
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2. New Role for Commission
• Commission takes on broader public watchdog role – e.g. inquiry into assaults against Asian Canadian anglers • Can commence complaints or join with complainants before the Tribunal
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3. Creation of Human Rights Legal Support Centre
• Designed to provide advice and assistance • Free legal advice and, in some cases, representation • Caters to complainants • Implications?
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4. Issues of Concurrent Jurisdiction
• potential forums for Human Rights complaints: – Human Rights Tribunal – grievance arbitration under collective agreement – court
Section 45.1 of the Code ̶
Asiamah v. Olymel S.E.C.
(2009)
Section 34(11) of the Code ̶
Baghdasserians v. 674469 Ontario
̶ Lloyd v. Novopharm Ltd. (2009) (2008)
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5. Extended Timeframe for Filing Complaints
• from 6 months to one year
6. More Comprehensive Responses Required
• under the old system, respondents filed two responses (one with the Commission and a second, more comprehensive response if referred to Tribunal) • now, just one opportunity to respond
7. Earlier Hearing Dates
• goal of reducing backlog characteristic of old system • Implications?
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8.
Tribunal’s Remedial Authority
• expanded remedial authority since Bill 107 • Tribunal may: i. award money for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect ̵ $10,000 cap for injury to dignity removed ii. issue an order for restitution other than monetary compensation iii. issue an order to do anything that in the opinion of the Tribunal, the party ought to do to promote compliance with the Code
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9. Tribunal Can No Longer Award Costs
• provision previously giving the Tribunal the jurisdiction to award costs to Respondents is repealed • Successful Applicant can get costs
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Changes to the ESA
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Bill 139: Temporary Employees
• “
Assignment Employee
” means an employee employed by a temporary help agency for the purpose of being assigned to work on a temporary basis for clients of the agency (s. 74(1)) • Will apply to all assignment employees regardless of hire date
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Key Definitions in the Amendments
• “
Client
”, in relation to a temporary help agency, means a person or entity that enters into an arrangement with the agency under which the agency agrees to assign or attempts to assign one or more of its Assignment Employees to perform work for the person or entity on a temporary basis (s. 74(1))
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Key Definitions in the Amendments
• “
Temporary Help Agency”
employer (s. 74(1)) means an employer that employs persons for the purpose of assigning them to perform work on a temporary basis for clients of the • Excludes Agencies suppling employees re Long-Term Care Act until October 1, 2012
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Changes to the ESA: Bill 139
• Prohibits temporary help agencies from restricting a client from providing a permanent position to the employee • Prohibits charging the client a “temporary to permanent” fee if an employee is hired permanently if it occurs after 6 months • Prohibits agencies from restricting a client from providing references to an assignment employee
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Key Features of the New Legislation
• Prohibits charging a fee to a person for becoming an assignment employee, for receiving assistance in finding work or for assistance preparing resumes • Agency is required to provide to their assignment employees, in writing, the agency’s name and contact information
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Key Features of the New Legislation
• Agency is required to provide an information sheet prepared by the Director of Employment Standards which describes the employee ’s rights under the
E.S.A.
• Agency is required to provide information on wages, benefits, hours of work and the pay schedule associated with the work and a description of the work to be performed
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Key Features of the New Legislation
• Act clarifies assignment employees’ entitlement to public holiday pay as well as how termination and severance rights apply to assignment employees
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Key Features of the New Legislation
• Amendments confirm the Agency is the employer of the assignment employee, not the client they are assigned to (s. 74(3))
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Information Requirements - Agency
• Certain information regarding the agency must now be provided to the employees (including current employees), – The legal name of the agency, as well as any operating or business name of the agency if differing from the legal name – Contact information for the agency, including address, telephone number and one or more contact names
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Employment Continuity
• An employee’s employment continues from the date of hire, through periods of assignment, including any periods when not assigned to a client until their employment ends
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Deemed Termination
• An agency lays off an employee if not assigned (s. 74.11) • ESA provides a “temporary lay-off” can not exceed 13 weeks in any 20 week period or 35 weeks in a 52 week period if benefits continue during the lay-off
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Deemed Termination
• Some weeks may be excluded if the employee, – Is not able to work – Is not available for work – Refuses an offer that would not constitute constructive dismissal – Is subject to disciplinary suspension – Is not assigned because of a strike or lock-out occurring at the agency
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Public Pay Holiday
• Agency employees are now entitled to public holiday pay if they were employed by the agency and worked the 20 days preceding the holiday, regardless of whether they were on “lay-off” at the time of the public holiday
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Recent Employment Law Cases
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Employment Law Cases Update
Evans v. Teamsters Union, the Supreme Court of Canada states: “I note that the nature of this inquiry increases the likelihood that individuals who are dismissed as a result of a change to their position (motivated, for example, by legitimate business needs rather than by concerns about performance) will be required to mitigate by returning to the same employer more often than those employees who are terminated for some other reason. This is not, however, because these individuals have been constructively dismissed rather than wrongfully dismissed, but rather because the circumstances surrounding the termination of their contract may be far less personal than when dismissal relates more directly to the individuals themselves.
“
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Employment Law Cases Update
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Colwell v. Cornerstone
Office Manager was constructively dismissed when her supervisor videotaped her without her knowledge
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No other damages awarded since tort of invasion of privacy is still novel
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McNevan v. AmeriCredit Corp.
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Employment Law Cases Update
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McNevan v. AmeriCredit Corp.
The Ontario Court of Appeal found that the following conduct did not warrant any additional damages.
1.
the employer had not warned the Plaintiff about his lack of management skills; 2.
the employer failed to provide a reference letter; 3.
the employer failed to assist the Plaintiff in finding alternate employment; 4.
the Employer ’s original offer required the Employee to sign a release for any amounts paid in excess of the Employment Standards Act, 2000 (the “ESA”); 5.
the Company delayed in paying the Plaintiff his vacation pay, issuing his T4; and record of employment.
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Recent Labour Law Cases
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Labour Law Update
• • • •
Johnson Control Inc.
For the purpose of clause (1) (c), a temporary lay-off is, (a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks; (b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,
– –
(i) the employee continues to receive substantial payments from the employer, (ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
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(iii) the employee receives supplementary unemployment benefits, (iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
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(v) the employer recalls the employee within the time approved by the Director, or
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(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or
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Labour Law Cases
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(c) in the case of an employee represented by a trade union, a lay-off longer than a lay off described in clause (b) where the employer recalls the employee within the time set out in an agreement between the employer and the trade union.
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The Arbitrator found that there is no requirement to continue benefits in unionized setting if there are recall rights.
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Labour Law Update
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County of Simcoe
Divisional Court reverses decision of Arbitrator who found that a paramedic could be in an attend only position
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“An essential element of the job of a paramedic is to transport patients as quickly as possible. It was accepted by the arbitrator and admitted before us that there will be delays if a paramedic is unable to drive. Extending human rights protections to situations that will result in placing the lives of others at risk flies in the face of logic:. The arbitrator’s decision is not defensible on either the facts or the law.”