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WHAT’S NEW IN HUMAN RESOURCES LAW:BRANT HR NETWORK ANNUAL UPDATEJanuary 17, 2013

Presented by: Blair McCreadie, Partner, FMC Toronto

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Overview of Presentation

1. Health and Safety Update – Key Changes under Bill 160

2. Workplace Harassment Update – Bill 1683. Recent Cases on Termination Liability and

Contractual Termination Provisions4. An Expanded Right to Workplace Privacy?5. The Trilogy of Overtime Class Actions – and Early

Lessons Learned

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Health and Safety Update: Bill 160• A number of key changes under Bill 160 only became

law on April 1, 2012• Overview of key changes under Bill 160– MOL responsible for prevention of injuries and accidents– CPO authority to develop new training standards– New powers of JHSC to make recommendations– Increased protection through “Codes of Practice”– Expanded protection against reprisals– Expanded mandate of Offices of Worker and Employer

Adviser– MOL oversight over health & safety associations

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Key Changes Under Bill 160: New Training Requirements• Chief Prevention Officer has been given authority

under Bill 160 to establish standards for OHSA training programs, and to approve related programs

• MOL Expert Advisory Panel Report (i.e. the “Dean Report”) recommended:– Mandatory basic awareness training for all workers and, in

particular, for all new employees before being exposed to hazards

– Mandatory training for front-line supervisors– Mandatory safety training in high risk industries

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Key Changes Under Bill 160: New Training Requirements• Government has just announced that it will publish

regulation to make safety training mandatory in all workplaces covered by OHSA by January 1, 2014

• Any new employees must receive training “as soon as practicable”; supervisors within first week of commencing duties

• MOL will introduce an “equivalency guideline” so that employers may determine whether existing training will meet new mandatory requirements

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Key Changes Under Bill 160: New Training Requirements

• MOL has finalized general worker safety training materials, including employee workbook and employer guide

• Must be supplemented by additional training that is tailored to job or workplace

• Draft supervisory safety training materials have been released for consultation; not yet finalized

• MOL is mandating content for worker awareness and supervisor awareness training

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New Training Requirements – What You Must Do Before January 1, 2014

• Once MOL finalizes all materials, review existing worker and supervisor training to confirm all mandatory content is covered

• Identify gaps and determine how additional training will be provided (i.e. in-person, by webinar, etc.)

• Review existing records – can you prove that employees have already received training?

• Consider how the mandatory training programs will be documented and recorded in future

• If training is not documented, or cannot be established, MOL could issue orders (or lay charges)

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Key Changes Under Bill 160: JHSC Recommendations• Effective April 1, 2012, Bill 160 now gives either JHSC

Co-Chair the ability to make recommendations to employer or constructor, even if no consensus

• This triggers obligation to respond within 21 days, with timetable for implementation or reasons why recommendation not accepted

• This amendment was key change for trade unions• Possible impact is that employees may attempt to

“funnel” safety issues through employee JHSC Co-Chair to trigger formal employer response

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Key Changes Under Bill 160: Expanded Protection against Reprisals

• Prohibition on reprisals under section 50 of OHSA• Effective April 1, 2012, MOL inspectors may now

directly refer reprisal complaints to OLRB, if:– Worker has not had matter dealt with under a collective

agreement, or otherwise filed a complaint– Worker consents to the referral

• Through other procedural changes, OLRB has the power to expedite proceedings around resolution of reprisal complaints and referrals

• This may lead to increased reprisal complaints

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Key Changes: New Posting Requirements

• Dean Report recommended newhealth and safety poster to informworkers of health and safety rights

• Effective October 1, 2012, this poster must be posted in workplaceas explanatory material preparedby MOL (s. 25(1)(i), OHSA)

• Available on MOL website

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OHSA: Workplace Harassment Update

• Under OHSA, employer is required to prepare policy and program against workplace violence and harassment

• Policy and program must be posted, and provide “information and instruction” to employees

• Definition of workplace harassment– 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

– MOL also states that this definition is broad enough to include “psychological harassment” and “personal harassment”

• But note – Bill 168 does not expressly prohibit harassment, or provide complaint process

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OHSA: What is Workplace Harassment?• Amodeo v. Craiglee Nursing Home (2012):

– Supervisor shouted at employee; employee fired after complaining that supervisor told her to work harder and extra hours

• Vey v. Keep-Rite Refrigeration (2012):– Co-worker called employee a “stupid f------ proby”; employee

complains to supervisor, and is subsequently fired

• Culp v. Blue Line Transportation (2012):– Supervisor was rude, unfair and unflattering in performance review

• Conforti v. Investia Financial Services (2011):– Two compliance employees emailed Conforti to direct him to comply

with company policy; Conforti complained and was fired

• Perron v. Ontario Native Womens’ Association (2011):– Bullied by supervisor; supervisor threatened to “hunt down whoever

was responsible” after finding mess in office kitchen

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OHSA: What is Workplace Harassment?

• None of the examples found to be workplace harassment• OLRB in Amodeo and Craiglee Nursing Home:

“The workplace harassment provisions do not normally apply to conduct of a manager that falls within his or her normal work function, even if in the course of carrying out that function the worker suffers unpleasant consequences. ….The worst that can be said of what happened is that Ms. Heinz made a blunt, unflattering assessment of the applicant’s performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.”

• Workplace harassment is not – conduct of manager that falls within job function; non-vexatious actions; and most “one time events”

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OHSA - Workplace Harassment

• Because Bill 168 does not actually prohibit harassment in the workplace, OLRB will not hear complaint that:– “I was harassed”– “I was fired/disciplined, etc. for complaining to my employer about

harassment”– “My employer did not comply with its harassment policy”

• Key is to have fair investigation process• Your policy should allow for early dismissal, or discretion not

to investigate, if allegation is clearly not workplace harassment• But note, if harassment relates to a protected ground under

the Human Rights Code, the employee can complain to HRTO

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Update on Termination Liability

• Is 24 Months Still the “Rough Upper Limit” at Common Law?– Abrahim et al. v. Sliwin et al. (Ontario SCJ, 2012)

•Court rejected “rule of thumb” approach of one month per year, but also ruled that a rough cap of 24 months on reasonable notice awards is not appropriate

•Also questioned whether any maximum cap is appropriate

– Hussain v. Suzuki Canada Ltd. (Ontario SCJ, 2011)•Court awarded 26 months’ of notice to a 65-year old

employee with 36 years service

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Update on Termination Liability

• Release? What release?– Rubin v. Home Depot Canada Inc. (Ontario SCJ, 2012)

• Rubin, who is 63 years old, is terminated after 19.75 years• At termination meeting, employer offers 28 weeks in order to

exceed ESA obligations (by 0.25 weeks)• Although given one week to sign back, Rubin signs the release

at termination meeting• Rubin later claims he made a mistake• Court ultimately awarded 12 months – held that the notice

period was “grossly inadequate” and “sufficiently divergent from community standards that it ought to be set aside”

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Contractual Termination Clauses

• The Importance of Giving Proper Consideration…– Fasullo v. Investments Hardware Ltd. (Ontario SCJ, 2012)

• Fasullo and employer verbally agree on terms of employment• Two days after Fasullo starts work, he signs a contract limiting

his entitlement upon termination to ESA minimum• Signs two subsequent amendments in later years, each of

which refers back to his original offer of employment• Terminated approximately 4 years after starting work• Employer relies on contractual termination provision; Fasullo

relies on oral terms of employment• Court determines that contract is void for lack of

consideration (and this is not cured by subsequent amendments), then awards 3.9 months of reasonable notice

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Contractual Termination Clauses

• The “Wright” Way to Draft a Termination Provision– Wright v. Young and Rubicam Group (Ontario SCJ, 2011)

• Wright hired as an executive, and signs a contract that provides up to 34 weeks of pay, depending on service

• Fired after 5 years, given 13 weeks as required by contract and benefits for statutory notice period

• Wright brings motion for summary judgment• Court voids the termination provision, because it is silent

about treatment of benefits during notice period; the termination provision should clearly set out benefits entitlement in addition to notice/severance

• Irrelevant that Wright did receive benefits for ESA notice

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Contractual Termination Clauses

• Termination Clauses and the Duty to Mitigate– Bowes v. Goss Power Products Ltd. – Ont. C.A., 2012

• Bowes signs contract that provides him with 6 months notice or pay in lieu if terminated within first four years

• Bowes is terminated, but finds a job 2 weeks later• Employer takes position that he is only entitled to ESA notice,

because he has fully mitigated• Court disagrees; awards Bowes damages of 6 months• If you wish to rely on mitigation, notwithstanding a

contractual provision that provides for fixed amount of pay in lieu of notice, then include express confirmation in agreement

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An Expanded Right to Privacy in the Workplace?

• R. v. Cole (S.C.C., 2012)– Personal information found on school board-issued laptop computer– Court ruled that employees have a reasonable expectation of privacy

over the contents of their computer where personal use is permitted or reasonably expected

• Jones v. Tsige (Ontario C.A., 2012)– Court of Appeal recognized tort of “intrusion upon seclusion” which

may provide remedy where individual has had their privacy intentionally violated, even where there is no economic loss or disclosure of information

– Three elements: (1) intrusion must be intentional or reckless; (2) defendant must have deliberately invaded privacy without lawful justification; (3) reasonable person must regard invasion as causing distress, anguish or humiliation

– Must be significant, i.e. financial or health records, sexual practices or orientation, employment, diary or private correspondence

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An Expanded Right to Privacy in the Workplace?

• Review and update computer use policy• Clearly limit an employee’s expectation of privacy and set out

what will constitute acceptable use, including the extent to which employees can use their employer-supplied electronic devices for personal purposes

• Include clear language that employer has right to monitor and control content on its IT systems, email servers

• Set out purposes for which employer may access information (i.e. investigation, audit, analyze performance, etc.)

• Remind employees that personal or sensitive communications should not be sent or received using employer’s network or devices

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The Trilogy of Overtime Class Actions• CIBC - June 2007 - $600M class action lawsuit filed on behalf

of 31,000 customer service employees working in over 1,000 retail branches

• Bank of Nova Scotia – December 2007 - $350M class action lawsuit filed on behalf of 5,000 front-line staff (personal banking officer, senior personal banking officer, financial advisor and account manager small business)

• CN Railway – March 2008 - $300M class action lawsuit filed on behalf of 1,500 current and former front-line supervisors who allege that they were misclassified to avoid triggering overtime pay

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The Trilogy of Overtime Class Actions• Decisions in all three cases released on June 26, 2012• Ont. C.A. was only dealing with threshold issue on class action; no

decision has been made with respect to overtime liability• Ont. C.A. certified the overtime class actions against CIBC and Bank

of Nova Scotia by finding sufficient commonality among the members of proposed class

• But, overtime class action dismissed against CN Railway because each claim could only be resolved by considering individual circumstances of class members

• Two distinct theories of overtime liability: CIBC/Bank of Nova Scotia vs. CN Railway

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Early Lessons Learned from Overtime Class Actions

• Set Clear Guidelines for Overtime Approval– Overtime policy should include clear written guidelines on

how to seek prior authorization for overtime– Do not state that unauthorized overtime will not be paid– Review policy and related forms to ensure that they

clearly provide mechanism for an employee to seek approval after the fact where warranted

– Also include mechanism for individual assessment in other emergency or unforeseen circumstances

– Note: while an employer cannot refuse to pay overtime worked because it was “not authorized”, you can impose discipline for failing to comply with policy

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Early Lessons Learned from Overtime Class Actions

• Train your Managers and Supervisors– Overtime liability will be triggered where an employer

requires or permits work to be done– Ensure that managers set clear expectations around

checking and responding to email after hours or working remotely on evenings/weekends

– This type of “off the clock” work is a potential area of overtime liability

– An employee cannot waive or contract out of overtime entitlements, even if they agree

– Avoid informal arrangements to provide increased compensation, or bonuses, for additional hours worked

Want Updates?

Check out FMC Law Blogs for HR Professionals…

Occupational Health & Safety:www.occupationalhealthandsafetylaw.com

Human Resources Law:www.employmentandlabour.com

Questions?

Blair McCreadie(416) 863-4532E-mail: blair.mccreadie@fmc-law.com