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T ORONTO S ARNIA S AULT S TE . M ARIE

T ORONTO S ARNIA S AULT S TE . M ARIE. EMPLOYMENT AND LABOUR LAW UPDATE Genevi è ve Deban é Mathews Dinsdale & Clark LLP. AGENDA:. T ORONTO S ARNIA S AULT S TE . M ARIE. Changes to the OHSA and recent cases Update at the Human Rights Tribunal Changes to the ESA

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T ORONTO S ARNIA S AULT S TE . M ARIE

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  1. TORONTO SARNIA SAULT STE. MARIE EMPLOYMENT AND LABOUR LAW UPDATE Geneviève DebanéMathews Dinsdale & Clark LLP

  2. AGENDA: TORONTO SARNIA SAULT STE. MARIE • Changes to the OHSA and recent cases • Update at the Human Rights Tribunal • Changes to the ESA • Recent Employment Law Cases • Recent Arbitration Cases

  3. OHSA: Bill 168 -The Latest Legislative Response TORONTO SARNIA SAULT STE. MARIE • protection from machines but not from people • the current status of Bill 168 Royal Assent – December 15, 2009 EFFECTIVE:June 15, 2010

  4. Bill 168 - TORONTO SARNIA SAULT STE. MARIE • “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

  5. Bill 168 - The Policies, Risk Assessments And Programs Required TORONTO SARNIA SAULT STE. MARIE • policies on • work place violence and on • work place harassment • policy reviews • policy requirements • risk assessments • the program of implementation

  6. Bill 168 - The Policies Required TORONTO SARNIA SAULT STE. MARIE • 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

  7. Bill 168 - Programs to Implement the Policies TORONTO SARNIA SAULT STE. MARIE • 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

  8. Bill 168 - Risk Assessments TORONTO SARNIA SAULT STE. MARIE • 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

  9. Bill 168 - Domestic Violence TORONTO SARNIA SAULT STE. MARIE • 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.

  10. Bill 168 - A History of Violence TORONTO SARNIA SAULT STE. MARIE • 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

  11. Blue Mountain Resorts TORONTO SARNIA SAULT STE. MARIE • 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

  12. TORONTO SARNIA SAULT STE. MARIE Human Rights UpdateThe New Human Rights Tribunal

  13. 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 in effect January 12, 2010 Where are we now? TORONTO SARNIA SAULT STE. MARIE

  14. Overview of the Changes to the Human Rights Code Commission is no longer the “gate keeper” Limited screening of Applications Implications? TORONTO SARNIA SAULT STE. MARIE 1. Direct Access to the Judicial Process

  15. 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 TORONTO SARNIA SAULT STE. MARIE

  16. 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?  TORONTO SARNIA SAULT STE. MARIE

  17. 4. Issues of Concurrent Jurisdiction potential forums for Human Rights complaints: Human Rights Tribunal grievance arbitration under collective agreement court TORONTO SARNIA SAULT STE. MARIE Section 45.1 of the Code ̶ Asiamah v. Olymel S.E.C. (2009)Section 34(11) of the Code ̶ Baghdasserians v. 674469 Ontario (2008) ̶ Lloyd v. Novopharm Ltd. (2009)

  18. 5. Extended Timeframe for Filing Complaints from 6 months to one year TORONTO SARNIA SAULT STE. MARIE 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?

  19. expanded remedial authority since Bill 107 Tribunal may: 8. Tribunal’s Remedial Authority TORONTO SARNIA SAULT STE. MARIE • 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 • issue an order for restitution other than monetary compensation • issue an order to do anything that in the opinion of the Tribunal, the party ought to do to promote compliance with the Code

  20. provision previously giving the Tribunal the jurisdiction to award costs to Respondents is repealed Successful Applicant can get costs 9. Tribunal Can No Longer Award Costs TORONTO SARNIA SAULT STE. MARIE

  21. Changes to the ESA TORONTO SARNIA SAULT STE. MARIE

  22. Bill 139: Temporary Employees TORONTO SARNIA SAULT STE. MARIE • “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

  23. Key Definitions in the Amendments TORONTO SARNIA SAULT STE. MARIE • “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))

  24. Key Definitions in the Amendments TORONTO SARNIA SAULT STE. MARIE • “Temporary Help Agency” means an employer that employs persons for the purpose of assigning them to perform work on a temporary basis for clients of the employer (s. 74(1)) • Excludes Agencies suppling employees re Long-Term Care Act until October 1, 2012

  25. Changes to the ESA: Bill 139 TORONTO SARNIA SAULT STE. MARIE • 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

  26. Key Features of the New Legislation TORONTO SARNIA SAULT STE. MARIE • 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

  27. Key Features of the New Legislation TORONTO SARNIA SAULT STE. MARIE • 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

  28. Key Features of the New Legislation TORONTO SARNIA SAULT STE. MARIE • Act clarifies assignment employees’ entitlement to public holiday pay as well as how termination and severance rights apply to assignment employees

  29. Key Features of the New Legislation TORONTO SARNIA SAULT STE. MARIE • Amendments confirm the Agency is the employer of the assignment employee, not the client they are assigned to (s. 74(3))

  30. Information Requirements - Agency TORONTO SARNIA SAULT STE. MARIE • 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

  31. Employment Continuity TORONTO SARNIA SAULT STE. MARIE • 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

  32. Deemed Termination TORONTO SARNIA SAULT STE. MARIE • 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

  33. Deemed Termination TORONTO SARNIA SAULT STE. MARIE • 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

  34. Public Pay Holiday TORONTO SARNIA SAULT STE. MARIE • 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

  35. Recent Employment Law Cases TORONTO SARNIA SAULT STE. MARIE

  36. Employment Law Cases Update TORONTO SARNIA SAULT STE. MARIE 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. “

  37. Employment Law Cases Update TORONTO SARNIA SAULT STE. MARIE • Colwell v. Cornerstone • Office Manager was constructively dismissed when her supervisor videotaped her without her knowledge • No other damages awarded since tort of invasion of privacy is still novel • McNevan v. AmeriCredit Corp.

  38. Employment Law Cases Update TORONTO SARNIA SAULT STE. MARIE • 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.

  39. Recent Labour Law Cases TORONTO SARNIA SAULT STE. MARIE

  40. Labour Law Update TORONTO SARNIA SAULT STE. MARIE • 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, • (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, • (v) the employer recalls the employee within the time approved by the Director, or • (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

  41. Labour Law Cases TORONTO SARNIA SAULT STE. MARIE • (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. • The Arbitrator found that there is no requirement to continue benefits in unionized setting if there are recall rights.

  42. Labour Law Update TORONTO SARNIA SAULT STE. MARIE • County of Simcoe • Divisional Court reverses decision of Arbitrator who found that a paramedic could be in an attend only position • “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.”

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