Employment & Human Rights Law In Canada : Canada Employment Human Rights Lawyer : Lisa Stam, Law Firm : Labour Law in Toronto, Ontario

The United Nations International Labour Organization (ILO) just held its annual conference in Geneva from June 1-18, 2010.  The purpose of the annual conference is to develop and monitor compliance with international labour standards. 

The ILO is a tripartite agency of the United Nations, comprised of employer, employee and government representatives.  They have been responsible for pushing forward numerous initiatives to improve workplace standards, develop international standards and raise awareness of workplace issues internationally.

HIV/AIDS in the Workplace

At this year's annual conference, the ILO focused on an international labour standard regarding HIV/AIDS in the workplace.  While the issue of HIV/AIDS in the workplace has been has been discussed in various forums over the years (e.g. the ILO and the Commission on HIV/AIDS and Governance in Africa in 2004) it was in 2007 when the ILO initiated a working group to develop an international standard. This reflects an increasingly obvious awareness that HIV/AIDS remains an issue that is dealt with in a broad range of approaches in workplaces around the globe. 

Final Text of Recommendation Passed by General Assembly

The final text of the new standard was passed by the General Assembly in a vote on June 16, 2010.  The standard is unique in that it is the first internationally sanctioned legal instrument aimed at strengthening the contribution of the world of work to universal access to HIV prevention treatment, care and support.

The new standard is in the form of a Recommendation and must be communicated to national parliaments and discussed in terms of how it will be implemented through national policies and legislation. 

This is a historic development for those suffering from HIV/AIDS and those affected by this pandemic.  Let's hope the international standard will be able to push forward a better understanding of the skills, talent and hard work that employees with HIV/AIDS can contribute to the workplace.

The head of the employment and labour group in my firm, Kevin Coon, served as the Canadian employer delegate and has been working on the international labour standard for a couple of years.  In a press release about the new standard, Kevin notes that two thirds of those living with HIV/AIDS participate in the workplace, which is why the development of the standard is critical to the ongoing support, awareness-raising and protection of those with HIV/AIDS.  You can check out his video interview on the ILO website as well.

Impact in Canada

While it remains to be seen how the new international standard will be applied at Canada, increasingly, Canadian courts and arbitrators are considering international labour standards in the interpretation of other national laws.

Good examples are the Supreme Court of Canada cases of Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia and Fraser v. Ontario (A.G.) (the latter of which was heard in December 2009 but for which a decision has not yet been released). Both cases consider the international labour standard of freedom of association in the context of rights set out in the Charter.

While the development of policies, standards and recommendations of the ILO may seem a world way, their impact on local law continues to grow.

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There is a lot of activity, spilled ink and worry about complying with Bill 168 out there.  For my own spilled ink, see my previous posts on the issue: 

• Bill 168 Assessments: Deadline is Just Around the Corner
• Bill 168: Ontario Workplace Violence & Harassment (summary of the Bill)

Also see the Ministry of Labour/OHSCO's resources at:

• What Employers Need to Know
• The Toolbox

The week alone I revised a couple of policies on workplace violence and harassment, spoke to 100 employers at an industry association meeting about how to comply by June 15 and conducted an assessment of workplace violence with a client. 

Yes, there is a lot to do, but, given that it is a Friday morning before a long weekend and I'm feeling particularly cheerful, I wanted to point out that it is not all doom & gloom.  A pattern I'm seeing emerging is the number of opportunities this new legislation is creating for employers:

• Conversations about improving workplace health and safety:  Obviously everyone benefits from a safer workplace.  Addressing risks of both violence and harassment may raise issues that are bubbling under the surface, clear up long-standing issues, or at least lessen future incidents. For employers, fewer incidents of workplace violence and harassment means fewer resources, time and money spent on these issues, and a decreased risk of liability, all of which are good for the bottom line of the company.
• Raise awareness:  The training and the revised and/or newly introduced policies on workplace violence and harassment are opportunities to educate your employees about the issues.  If done well, it can both clarify what is not harassment (e.g. not every unkind word amounts to harassment) and identify what is workplace violence (e.g. certain "horseplay" or practical jokes that cross the line)
• Educate on domestic violence:  This issue raises the most questions and concerns, which means people are actively turning their mind to it.  While I don't believe employers should become the watchdog of their employees' private life - and very few are qualified to actively counsel on this issue - as of June 15, there will be an express legal duty to not turn a blind eye to the issue when it exposes any employees to the risk of physical injury in the workplace.  This is an opportunity to gather resources and become aware of the telephone numbers, websites and booklets you could provide to an employee you suspect is suffering from domestic issue.  As a start:
  • Assaulted Women's 24-Hour Helpline: 1-866-863-0511
  • Domestic Violence Doesn't Stop When you Go to Work:  How to get Help or Support a Colleague who may Need Help
  • Shelternet at 416-642-5463
  • The Ministry of Labour -OHSCO Guide and Toolbox mentioned above
• Assess the physical attributes of the workplace:  In the course of the mandatory assessment, employers have the opportunity to revisit the basic physical attributes of their workplace: lighting, parking lot obstacles that may increase risks, battery life on panic buttons, general access to the building by strangers, family members and service providers, whether isolated areas should have a phone installed, etc. 
• Engage your employees:  Employers need employee "buy-in" to make the entire exercise successful.  Employers need the information from employees if any trouble is brewing on the floor, and employees need to understand that it is equally their responsibility to relay information about risks of violence and harassment in the workplace.   Safety issues often impact women more than men, so this is also an opportunity to strengthen the voice of women in your workplace and provide them with a vehicle to raise concerns about workplace safety.
• Engage your union reps:  Many union reps will welcome the opportunity to work with management on identifying and dealing with workplace violence and harassment.  Often your union rep is the front-line gatekeeper that has to decide whether a complaint from a union member actually falls within "harassment" or "violence".  If they are wrong and choose not to file a grievance, they may face a Duty to Fairly Represent complaint from their members.  The conversations, training, assessment and updating of policies all assist the union and management to clarify what various expectations are and what are the general parametres of the legislation.  While we are unlikely to see any overall decrease in grievances on the issue, hopefully these conversations can help eliminate some of the more frivolous complaints not contemplated by the legislation or the parties.
• Engage high risk individual employees:  Several employers have told me that they will use the training as an opportunity to address specific issues already at play in their workplace.  For example, if you have two employees engaging in excessive flirting, and one of those employees has a spouse with a particular temper, after the training you can pull them each aside separately and point out how they fall squarely within the concerns raised by the domestic violence provisions of the Bill, and how your employer duties require you to pro-actively address the situation.  Similarly, during the training, you can identify certain types of behaviour that may violate the new provisions and put your employees on notice that the workplace will be actively dealing with these issues (e.g. "horseplay", excessive practical jokes or teasing, etc).

If you have experienced other positive results from working on your Bill 168 compliance plan, I'd love to hear from you. 

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Last Friday, in Fulawka v Bank of Nova Scotia, an Ontario court certified a class action claiming overtime pay to 5,000 sales staff  who worked in retail branches of the Bank of Nova Scotia ("Scotiabank") from the year 2000 to the present. 

An overtime class action for CIBC bank employees failed last year, making this Scotiabank certification an important development in the overtime class action case law.  (Michael Fitzgibbons wrote about the CIBC case last June in his blog, Thoughts from a Management Lawyer, and Jim Middlemiss of the Financial Post wrote about the two cases last Friday and this morning.)

In the Scotiabank case, Justice Strathy held that there was an evidentiary basis of "systemic wrongs" which justified the certification of the class of employees claiming outstanding overtime:

"[4] I have concluded that there is an evidentiary basis in this case of systemic wrongs that give rise to common issues, the resolution of which could advance the claim of every Class Member.  The systemic wrongs flow from a policy that failed to reflect the realities of the workplace because it put the onus on the employee to obtain prior approval for overtime rather than requiring the employer to ensure that employees were paid for overtime that they were permitted or required to work.  The systemic wrongs included the failure of Scotiabank to establish a system-wide procedure to record overtime, making it all the more difficult for employees to obtain fair compensation for their overtime work.  To this extent, my conclusions differ from those of Lax J. in Fresco v Canadian Imperial Bank of Commerce, [2009] OJ No. 2531 ("Fresco"), who declined to certify a claim for overtime by employees of the CIBC.  Unlike the case in Fresco, there is evidence in this case that the failure to pay overtime occurred because of the policy, not independent of the policy.  There is also evidence that the failure to pay overtime was attributable to systemic conditions, as opposed to purely individual circumstances."

While this decision is not a finding on the final merits of overtime entitlement, the certification of a class action is a tremendous hurdle for the parties to have passed.  The certification process is simply a motion before the courts, but a motion involving months of preparation, days of hearing and boxes and boxes of material.

Typically, a successful certification signals to the parties that the case has some legal legs to stand on.  This tends to be a motivation for the parties to enter into serious settlement negotiations, a reason why we see far more certification decisions than final actual class action decisions. 

While the next steps may be an appeal of the certification (which is the case in the CIBC case), we will have to wait to see what Scotiabank will do. 

Either way, employers throughout Canada will want to take a close look at their overtime policies to ensure that there are no "systemic wrongs" in their workplace that may lead to outstanding overtime entitlements.  Fighting a class action is an expensive legal proposition for both employers and employees.

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Just in time for Valentine's Day, Toronto city councillor Adam Giambrone made a statement to the media  last night that he has had "intimate relations" with women other than his spouse throughout most of 2009. 

While at 32 years old, the politician may be excused for the lapse in judgment, given his former bid to run for Mayor of Toronto, the jury is out whether public opinion will be quite so forgiving.

In my view, the interesting issue is not so much whether he had affairs, but rather, the extent to which the news will have a negative affect on his credibility and ability to assume the role of leadership and responsibility of running a large city.  In fact, he has stepped down from his candidacy within a day of the news.

Companies are forced to deal with this all the time.  What happens when one of your senior people starts behaving inappropriately at the staff party?  When rumours start to fly about an affair with a junior person in the organization?  Or when two people approach you, as owner, to declare that their mature romantic relationship will not impact their workplace professional relationship?

The courts zero in on consent - if a senior executive is romantically involved with a junior employee, is the employee really fully consenting?  Or is he or she just worried about job security? 

Unless your workplace policy says otherwise, it is likely fairly benign for employees to engage in relationships with people at the same level, at least in the short-term while they are each at the same level.  The cases are clear, however, that relationships crossing supervisory roles are a problem.

In the 2009 Ontario case Cavaliere v Corvex Manufacturing, the plaintiff sued the company for wrongful dismissal.  He had worked his way up the company to a senior management position.  After a warning about sexual relationships with one employee, the plaintiff engaged in a relationship with another employee.  When that employee's husband found out, he went straight to the owner.  The owner - and the court - found that the pattern of behaviour was sufficient grounds for dismissal.

The plaintiff insisted that the relationships were consensual and relied on a 1995 case that found consensual relationships in the workplace were not grounds for dismissal.  He argued that if the relationships were consensual, his dismissal was wrongful and he was entitled to damages for pay in lieu of notice. 

The court in Cavaliere, however, held that in 2009, the achievable expectation for an harassment free workplace required a look at all of the facts, which included:

• the company had already warned him in writing to cease the behaviour;
• he was in a position of senior management; 
• the last relationship was with a particularly vulnerable junior subordinate; and
• the plaintiff just "didn't get it" that the behaviour in the circumstances was inappropriate.

These were all reasons to uphold the termination and deny him any termination pay.

Those in leadership roles will bear a greater onus to guard against romantic relationships with subordinates.  While many Canadians still agree that the state (or the courts or the company) has no place in its citizens' bedroom, for leaders and senior folks in your organization, that may not be quite so true.    

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On December 9, 2009, Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009 passed third reading in the Ontario legislature.  This new law will amend the Occupational Health and Safety Act by introducing new duties on employers with respect to workplace violence and workplace harassment.  It is anticipated that this bill will be proclaimed shortly, and is scheduled to come into effect six months after that.

Companies therefore have until summer 2010 to fall into compliance with the new law. 

In a nutshell, the bill requires employers to be far more assertive when dealing with workplace violence and harassment.  General information can be found in these government backgrounders:  Protecting People at Work and New Protections.

Highlights of the bill include the following requirements:

• Develop and implement a policy that specifically deals with workplace violence and harassment
• Develop a program to inform employees about the policy and to implement that policy on an on-going basis
• Take reasonable precautions to protect workers from domestic violence that occurs in the workplace
• Conduct workplace assessments on the risks of workplace violence, and to report back to the health and safety committee or representative, or if neither exist, directly to the employees
• Identify risks of workplace violence from a person with a history of violent behaviour and determine what information should be disclosed to protect the safety of workers and
• Allow workers will have the right to refuse to work if they believe that they are at risk of workplace violence.

The bill introduces some novel legal obligations, and I will provide updates on any interesting initiatives and guidelines that I come across over the next couple of months.

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What do your workplace policies say about using a cell phone while driving?  For companies with a sales staff, delivery drivers, and couriers for example, there may be a large number of employees on the road every day. 

Who pays for traffic tickets when the employee is stopped by police? 

Last month, the Ontario government passed Bill 118, a law amending the Highway Traffic Act, banning cell phones, blackberries and other hand-held wireless communication devises while driving.

Needless to say, bluetooth sales are on the rise.  You can still talk on your cellphone, but it must be handsfree.

While there has been a grace period before the police begin enforcing the new law, on February 1, 2010, police will begin issuing tickets.

If an employee is acting in the course of duty, an employer is vicariously liable for his or her actions.  If an employee is calling into the office on a hand-held cell phone while driving between client appointments, for example, would the employer be responsible for paying for the ticket?  Or worse, if the employee is at fault in a car accident because of talking on the hand-held cell phone, who is liable?

To avoid the disputes about liability and/or who pays for traffic tickets, employers may want to think about revising workplace policies to reflect the new law.  You should expressly forbid employees from using any hand-held devices and indicate directly in the policy that employees are expected to comply with the law.  That way, expectations are clarified between the parties, and should an employee get ticketed for chatting on the phone while driving - whether work related or not - an employer can then point to the workplace policy that prohibited the conduct in the first place. 

Perhaps as importantly, you may want to refrain from speaking to your employees by telephone when they are driving, particularly if the company is choosing not to upgrade company cell phones to handsfree technology.  Besides the obvious contribution to unsafe driving, by expecting them to talk to you on the phone while driving, you are essentially condoning the use of hand-held cell phones while driving, making it more difficult to rely on the policy should you need to.

While employers in general remain vicariously liable for the conduct of employees during the course of work, illegal behaviour on the part of an employee that has been expressly addressed in a workplace policy may assist with mitigating the employer's liability.

What steps have you already taken to deal with this?  Have many of you found that your existing policies already cover this new law?  Are companies simply upgrading company cell phones to make the devices handsfree? 

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