Certain industries such as trucking or the oil fields have had a history of a male-dominated work force where the workplace culture may indeed have been a little rough. 

Two recent decisions highlight the requirement that all industries, regardless of a historical “culture”, must adhere to employment and human rights law.

On February 5, 2010, the Ontario Human Rights Tribunal released the decision of Khan v Lynx Trucking , awarding a former employee $25,000 plus lost wages for the racist comments she was forced to endure by the owner of the trucking company. At least one of the employer’s witnesses referred to the ‘rough and tumble world of trucking’, and most of the employer’s own witnesses noted that the owner would often swear and raise his voice. 

After months of dealing with racist comments and jokes, when the employee approached the employer to not speak to her in that manner, he responded that it was his “f***ing company”. That may be true, but owners must still comply with Ontario employment and human rights laws, which include refraining from discriminatory comments and conduct. 

In addition to the large damage award, the Tribunal ordered the company to retain an expert in human rights to assist in the development and implementation of a human rights and anti-harassment policy for the organization, and to implement human rights and anti-harassment training in the workplace. In other words, being the owner of the company did not exempt the respondent from the jurisdiction of the Tribunal.

Last August, the Alberta Court of Appeal faced a similar defence in the wrongful dismissal case of Poliquin v Devon Canada Corporation .

In that case, the oil fields company fired a manager in part for accessing internet pornographic and racist material and emails on the company computer, despite warnings not to do so. 

The court rejected the manager’s argument that because the company is in small-town northern Alberta in the heart of the oil patch, the industry atmosphere and culture was relaxed with respect to emails of “questionable content”. The court held that the employee’s conduct was not to be measured against the lowest common standards in an industry, but rather, to the reasonable standards to which the company requires compliance.

In that case, the company’s anti-discrimination policy addressed the problematic behaviour, and the company was able to point to it as a defence. The court upheld the company’s decision to dismiss the employee.

While all workplaces certainly have their own culture and history, that culture must evolve with Canadian law.

Both of these cases highlight the fact that workplace “culture” can no longer be an excuse for behaviour prohibited under the applicable human rights code. Up to date workplace policies remain an effective tool for companies to both deal with problematic behaviour and to defend themselves when facing discrimination complaints and law suits.

(*This piece was written for the Financial Post HRPA website.)

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.    

One of the more stark contrasts between Canadian and American law is the law around terminations of employment. This may be rooted in the fundamental difference between the American “at will” concept versus the Canadian contract-based employment relationship. In other words, unless a contract says otherwise, in the US, an employee is hired “at will” and can be terminated with little to no notice.

Any Canadian employer – and certainly any American employer with a branch in Canada – will tell you that termination of employment requires a careful look at the employment contract to determine the parameters in which the termination can occur. If the contract doesn’t survive a court’s scrutiny, in many situations, an employer is often looking at paying an employee 3-5 weeks per year of service if the termination is found to be wrongful.

What is not necessarily in the contract, however, is the Canadian requirement to terminate only in good faith and without public humiliation. In other words, even when terminating an employee, Canadians have to be nice about it.

There are a number of cases that have awarded additional damages to a terminated employee if the employer conducted the discharge in a publicly humiliating or unnecessarily cruel manner. Terminations should be in person and the employee is entitled to know the grounds for dismissal.

A recent example is the case of Soost v Merrill Lynch Canada Inc in which an Alberta court awarded the terminated employee damages for wrongful dismissal. Not only was the employer found to have not had grounds for termination, but the court held that ” the Defendant’s actions in purporting to dismiss Soost for cause were both unfair and insensitive.”

For more details on the facts of the case, Christina Catenacci has done a great summary entitled, The importance of notice and manner of dismissal over on the First Reference Blog.

The bottom line is that Canadian employers always need to proceed slowly, with caution and with a hefty paper trail to back up the reasons for the termination. Now, in light of the damages award in Soost, there is even more financial incentive to be decent about it. It could get expensive otherwise.

Update: The Alberta Court of Appeal reduced the plaintiff’s damages award from $2.2 million to $600,000, doing away with the bad faith damages aspect of the lower courts award. Read the decision here and my post about it here.

 

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.

Should an employer friend his or her employees on Facebook? Connect on LinkedIn, follow on Twitter or read an employee’s blog? There is no consensus and employers continue to grapple with the role of social media in the workplace – and the role employers should take within these vehicles of communication. 

The more difficult question is not whether to friend, follow or read, but whether an employer can then rely on that information as evidence when hiring, disciplining or firing an employee. Does social media produce reliable legal evidence?

In the British Columbia Court of Appeal case, Bishop v. Minichiello, released last week, the court upheld the lower court decision that ordered production of metadata from a plaintiff’s computer regarding his usage of Facebook. The court required the plaintiff to forward a copy of his computer hard drive to a neutral third party who would compile data on the narrow issue of the amount of time the plaintiff was spending on Facebook from 11pm to 5am. This was directly relevant to the plaintiff’s personal injury claim and to alleged fatigue during the day. The court permitted the forensic computer search on narrow grounds. While not an employment law case, the case does speak to how a court would rely on Facebook evidence.

Recent employment specific examples in the case law include:

  • Making disparaging comments about the company or the boss online: this is usually valid grounds for some sort of discipline, particularly if a fundamental breach of trust results from particularly nasty comments.
  •  Discovering unfavourable information online about a potential candidate and choosing not to hire him or her: this has human rights violation written all over it if the decision to not hire can be connected to the candidate’s age, disability, pregnancy, or any other ground protected by the Human Rights Code.
  • Firing someone because of comments posted on someone else’s Facebook Wall: talk about six degrees of hearsay separation! (Alberta Distillers Ltd. v. United Food and Commercial Workers, Local 1118 (Whiteside Grievance) [2009] A.G.A.A. No. 46)
  • Firing an employee because of information on their Facebook page if the employee claims the entire Facebook page is a fake page created by his ex-girlfriend: questions arise of proving the evidence found in Facebook.
  •  Whether a Status Update on Facebook could violate the confidentiality terms of a settlement agreement: apparently not, if the status is vague enough.

While American employers tend to have more leeway with disciplining employees for information gathered online, Canadian employers must continue to be cautious of the human rights regimes, privacy laws and employment law culture that afford employees more protection of their personal information than our neighbours to the south.

This week, I had an interesting question from a client: is an employer required to apply for the Work-Share Program? 

This program was introduced by the federal government last winter and it allows employees who are put on a temporary lay-off to apply for EI while still working at least 60% of their regular hours.  It is a product of the tough times businesses have faced in the 2008-2009 recession.

While the program is an obvious a benefit to employees, for some employers, the paperwork, the requirements to lay out the recovery plan and the negotiation with employees to get consent can be a lot of extra work for what may amount to a relatively short temporary lay-off.

While there may not be any express legal requirement to apply, the costs of employee morale and the potential loss of skilled labour may be too high.  For many, it is a useful program to keep everyone happy while we ride out this recession.

Useful information on the program:

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.

Man using a hand held mobile phone 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?