Employment & Labour Seminar Managing Employees in Crisis. Tuesday, November 12, 2013

Transcription

1 Employment & Labour Seminar Managing Employees in Crisis Tuesday, November 12, 2013

2 Managing Employees in Crisis Mental Health Anne-Marie Naccarato slide 2

3 Employee in Crisis Mental Health Centre for Addiction and Mental Health Statistics In a given year, one in five people in Ontario experiences a mental health or addiction problem Mental illness is the second leading cause of disability and premature death in Canada In a given week, at least 500,000 employed Canadians are unable to work due to mental health problems The economic burden of mental illness in Canada is estimated at $51 billion per year: health care costs, lost productivity, and reductions in health-related quality of life Nearly 4,000 Canadians die by suicide each year an average of 11 suicides a day slide 3

4 Employee in Crisis Mental Health Ontario Human Rights Code disability means a) Any degree of physical disability b) A condition of mental impairment or a developmental disability c) A learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language d) A mental disorder, or e) An injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997 slide 4

5 Employee in Crisis Mental Health The Ontario Human Rights Commission:... mental illnesses are characterized by alterations in thinking, mood or behaviour (or some combination thereof) associated with significant distress and impaired functioning over an extended period of time slide 5

6 Employee in Crisis Mental Health Refresher: Duty to Accommodate Two components: Substantive: the actual accommodation provided to an employee Procedural: the duty to inquire and assess the actual process you undertake to determine the appropriate accommodation on an individual or case-by-case basis A violation of either component is a violation of the Code slide 6

7 Employee in Crisis Mental Health Ontario Human Rights Code: factors in assessing duty to accommodate: Cost Outside sources of funding Health and safety requirements Courts also consider: Financial cost Disruption of a collective agreement Morale of other employees Interchangeability of work force and facilities Safety risks slide 7

8 Employee in Crisis Mental Health Lane v. ADGA Group Consultants Inc HRTO 34 Ten days after Lane was hired, he told his manager that he had bipolar disorder which required the following accommodation: slide 8 Monitoring for indicators that Lane might be having a manic episode Contacting his wife and/or doctor Allowing Lane time off work to avert a situation where he move from pre-manic state to a full blown episode Supervisor gave no assurances and said he would get back to him Lane became anxious about his request for accommodation and began to exhibit pre-manic symptoms

9 Employee in Crisis Mental Health Lane v. ADGA Group Consultants Inc HRTO 34 Lane s supervisor and manager called him to a meeting and terminated his employment The termination triggered a full blown mania Lane was hospitalized for 12 days and experienced a severe depression due to his inability to find work Lane s financial position deteriorated, he had to sell his house, and his marriage ended Lane filed a complaint alleging discrimination on the basis of mental disorder slide 9

10 Employee in Crisis Mental Health Lane v. ADGA Group Consultants Inc HRTO 34 Ontario Human Rights Tribunal ruled: Lane was terminated based on perceptions of his disability ADGA terminated without any assessment of Lane s condition and doing so was callous because ADGA did nothing to ensure that Lane reached his home safely and sought medical attention, knowing that Lane was in a premanic condition ADGA breached its procedural duty to accommodate which required those responsible to engage in a fuller exploration of the nature of bipolar disorder and to form a better prognosis of the likely impact of [Mr. Lane s] condition in the workplace slide 10

11 Employee in Crisis Mental Health Lane v. ADGA Group Consultants Inc HRTO 34 OHRT awarded: $35,000 for right to be free from discrimination $10,000 for reckless infliction of mental anguish $34, for loss of salary slide 11

12 Employee in Crisis Mental Health Lane v. ADGA Group Consultants Inc HRTO 34 Upheld by divisional court in 2008: ADGA terminated Lane when they knew he was in a premanic phase without any regard to the consequences, and did not take any steps to ensure that Lane was safe Particularly egregious because this was after Lane told ADGA about his disability and the steps to take if he were exhibiting pre-manic symptoms Lane's disability and his decision to reveal his disability made him vulnerable ADGA had a duty to act responsibly and in good faith and its actions had foreseeable tragic consequences to Lane slide 12

13 Employee in Crisis Mental Health Mackenzie v. Jace Holdings Ltd., 2012 BCHRT 376 Employee often exhibited mood swings and irritability. She was tearful in meetings she told her manager that she had depression She took a stress leave She never sought accommodation for depression, either before or after her leave Terminated after exhibiting the same behaviour when she returned from the leave slide 13

14 Employee in Crisis Mental Health Mackenzie v. Jace Holdings Ltd., 2012 BCHRT 376 BC Human Rights Tribunal ruled: slide 14 Employee did not seek accommodation for mental health issues Employer should have: Investigated to determine if behaviour could be explained by her mental health Investigated to determine what stress leave meant Employer had duty to inquire into whether her behaviour was related to mental health and whether she required accommodation While stress leave is a general term which could cover many conditions, it is likely that it involves some type of mental health condition

15 Employee in Crisis Mental Health Mackenzie v. Jace Holdings Ltd., 2012 BCHRT 376 BCHRT awarded: Lost wages: $17, Injury to dignity: $5,000 slide 15

16 Employee in Crisis Mental Health Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec Grievor missed 960 days of work in the last 7.5 years due to various physical and mental disabilities including depression and a personality disorder which caused many workplace conflicts Employer accommodated her over the years with light duties and gradual return to work programs At the time of termination, she had been absent for five straight months An independent psychiatric evaluation concluded that she would likely continue to have excessive absenteeism in the future her own physician recommended she stop working for an indefinite period slide 16

17 Employee in Crisis Mental Health Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec Supreme Court of Canada: Upheld the arbitration decision: employer could not accommodate without incurring undue hardship Test is undue hardship, not impossibility Purpose of accommodation is not to completely alter the employment contract, that being the employee s duty to perform work in exchange for remuneration Not discriminatory to terminate employment where, despite the employer s efforts to accommodate the employee, the employee will be unable to attend work regularly for the reasonably foreseeable future slide 17

18 Employee in Crisis Mental Health How to tell if the employee doesn t tell you? Pay attention to patterns or signs: increased absenteeism, decreased productivity, increased complaints of fatigue, poor performance without explanation, delusions, outbursts of anger, increased accidents, etc. Before meeting with the employee consider what resources the company has to offer: EAP, STD, modified work schedule, modified duties, change in supervisor, change in location, etc. Assess how the employee takes feedback in determining your approach. slide 18

19 Employee in Crisis Mental Health How to tell if the employee doesn t tell you? Ensure the employee understands that you are working with him or her. Do not pre-judge or stigmatize. Consider whether an expert opinion is needed. Recall that your entire accommodation process, not just final step, may be evaluated by a court. slide 19

20 Employee in Crisis Mental Health What can you ask for? Only what is necessary to meet your duty to accommodate Prognosis, not diagnosis Expected length of absence or restrictions Specific restrictions medically required Able to perform own job Triggers and signs to be on the lookout for Follow-up and seek out information if the employee fails to provide Consider whether expert opinion is needed slide 20

21 Managing Employees in Crisis Fighting in the Workplace Geoff Breen slide 21

22 Fighting In the Workplace A Too Common Phenomenon According Statistics Canada,17% of reported violent incidents occur in the workplace 33% of those incidents occur in the healthcare or social services sector 14% happen in accommodation or food services workplaces 11% in the education sector slide 22

23 Fighting In the Workplace A Too Common Phenomenon Physical assault has been found to be the most common type of violent workplace victimization One in five incidents result in injury to the victim Workplace violence also encompasses threats and bullying slide 23

24 The Occupational Health And Safety Act ( OHSA ) And Bill 168 Along with the Criminal Code, the OHSA is a major piece of legislation that applies to violence in the workplace Pursuant to the OHSA, all employers have a general duty to take every precaution reasonable in the circumstances to protect their workers Bill 168 was introduced in 2010 to create specific obligations on Ontario employers with respect to workplace violence, highlighting the importance of this issue slide 24

25 So Now, Workplace Fight? Just Fire The Aggressor Right? Well Punching a co-worker in the face Exchanging punches with a co-worker Lighting a co-worker on fire EACH THE SUBJECT OF CASES DECIDED POST BILL 168 IN WHICH EMPLOYERS WERE HELD NOT TO HAVE CAUSE FOR TERMINATION slide 25

26 Other Downsides To Workplace Fights Not Solved By Just Firing The Aggressor: The Obvious: Incalculable human costs and productivity losses 25% of victims of workplace violence found it more difficult to carry out their daily activities following the attack There could be employer liabilities: Administrative Penalties of up to $25,000 per contravention for an individual and up to $500,000 for corporations Civil liabilities for a failure to live up to obligations slide 26

27 In the end you want a system that prevents and mitigates violence while ensuring that aggressors are appropriately dealt with. How can this be accomplished? slide 27

28 Lessons From Recent Arbitration And Court Decisions: Bill 168 can be tool for employers Outlines your duties and underlines the societal concern and seriousness of workplace violence in support of a wrongful dismissal defence BUT, Bill 168 can t sit in the background; the employer must do more than pay lip service to Bill 168. slide 28

29 3 Steps To Dealing With Fights In The Workplace Be prepared; take preventative measures and set expectations Know what to do when a fight happens Take corrective action and be consistent slide 29

30 1. Be Prepared; Take Preventative Measures And Set Expectations Put in place a strict anti-violence policy: Define of what constitutes workplace violence and indicate that workplace violence will not be tolerated Provide that every incident of workplace violence must be immediately reported Provide clear reporting procedures: Who do employees contact? How? A statement that infringement of the policy will give rise to disciplinary measures, up to and including termination of employment FOR JUST CAUSE See for additional resources slide 30

31 1. Be Prepared; Take Preventative Measures And Set Expectations The Anti-Violence policy must be in writing Every employee must receive a copy of the policy Obtain an acknowledgement from each employee that the policy has been received and reviewed Post the policy in conspicuous places throughout the workplace Review the policy on an annual basis Have one policy Review old policies and ensure that inconsistent statements are removed slide 31

32 1. Be Prepared; Take Preventative Measures And Set Expectations Implement the Policy Provide employee training on the purpose, importance and consequences Designate a Joint Health and Safety Committee or Representative Set Procedures for Workplace Investigations Identify and Minimize Risks slide 32

33 2. Know What To Do When A Fight Happens Assess the Situation: Has the danger dissipated? Must the area be quarantined/ Is an evacuation required? How will this be accomplished? Can intervention occur without undue risk? Should 911 be contacted? Police, EMS or Fire? What other reporting is required? slide 33

34 2. Know What To Do When A Fight Happens Carry out an investigation: Interview parties involved Interview witnesses Always have at least two employer representatives in the room. If there is a union involved, a union representative has the right to be present as well Work with authorities if appropriate Produce a written report slide 34

35 3. Take Corrective Action And Be Consistent Consistency in process and treatment, not outcome as an employer, put yourself in a position to justify the decisions made slide 35

36 3. Take Corrective Action And Be Consistent Assess: slide 36 Is the aggressor remorseful/has the aggressor apologized? How long has the aggressor been with the employer? What is the aggressor s history? What is the seriousness of the incident? Was the aggressor provoked? Was the act premeditated or in the moment? How have similar incidents been addressed in the past?

37 3. Take Corrective Action And Be Consistent What corrective action is necessary? For the aggressor: Termination for Cause? Mandatory completion of anger management Written warning/last chance warning? Termination without cause? slide 37

38 3. Take Corrective Action And Be Consistent What corrective action is necessary? For the victim: Leave of absence? Counselling? Accommodation modified work schedule, relocation, etc.? slide 38

39 3. Take Corrective Action And Be Consistent What corrective action is necessary? For the workplace: Refresher training? Counselling? Workplace mediation? What can be improved? slide 39

40 Managing Employees in Crisis Domestic Violence and Your Workplace: What Employers Need to Know Laurie Jessome slide 40

41 Overview Purpose: To discuss the evolving challenges presented by domestic violence perpetrated by and against your employees Provide a positive and proactive approach to managing risk & educating your managers and human resources team about your company s obligations Open a dialogue about creative strategies for dealing with this unique and troubling issue slide 41

42 Sources of Employer Obligations Contract of employment Employee handbook and policy manual Occupational Health & Safety Act, R.S.O 1990, Chapter O.1 slide 42

43 Contract of Employment Implied obligation to provide a workplace that is free from violence and harassment Implied obligation of good faith, particularly at the time of termination of employment Must be candid, reasonable, honest and forthright with employee and must not implement terminations at a time or in a manner that will cause foreseeable harm cannot be unduly insensitive (Honda Canada Inc. v. Keays, [2008] S.C.J. No. 40. slide 43

44 Employee Handbook Many handbooks contain specific procedures for reporting and responding to threats of violence or other employee misconduct Employers will be bound by their own promises to their employees slide 44

45 Occupational Health & Safety Act ( OHSA ) General OHSA duties regarding workplace violence: slide 45 Policy regarding workplace harassment & violence Program to implement the policies Workplace violence risk assessment Duty to notify workers of risk of potential violence in the workplace

46 OHSA Deals specifically with domestic violence : 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 (emphasis added) slide 46

47 OHSA The Act does not define what constitutes domestic violence Ministry of Labour has indicated that it identifies domestic violence in the workplace where, A person who has a personal relationship with a worker such as a spouse or former spouse, former intimate partner or family member causes physical harm, or attempts to or threatens to physically harm a worker at work slide 47

48 OHSA Keep in mind that OHSA protects workers, not just employees Includes independent contractors, temporary staffing agency employees and employees of third party service providers Be mindful of the fact that place of work is broadly interpreted not just the building but the area in which the employee is currently working slide 48

49 Brief Summary of Obligations Have policies and a program Conduct a workplace violence assessment Where you are aware of potential domestic violence affecting the workplace, take every precaution reasonable to protect the affected worker If you are terminating an employee who is experiencing domestic violence, be sensitive to the impact of the termination on his or her personal circumstances slide 49

50 How Do These Duties Impact Employers? Two basic situations: Employee/worker is the perpetrator of domestic violence Employee/worker is the victim of domestic violence slide 50

51 Employee/Worker as Perpetrator Duties to coworkers Provide them with a safe workplace Notify them if they are required to work with someone who presents a risk of violence Duties to the accused employee Protect private and personal information Implement disciplinary action, if any, in a manner that is fair, reasonable and proportionate to the offence Duty of good faith and fair dealing slide 51

52 Employee/Worker as Perpetrator Can you impose disciplinary action? Can you terminate the relationship? For cause? Centres de la Jeunesse & de la Famille Batshaw v. S.C.F.P. (1996 CarswellQue 3122) suggests No Be mindful of the duty of good faith and consider the impact of the termination on the employee s well-being employees are exceptionally vulnerable when charged with an offence and may not be able to mitigate their damages (BMO Nesbitt Burns v. Clark 2008 ONCA 668) slide 52

53 Employee as Victim Duty to employee Provide support and refer to community resources Consider concurrent disability/mental health issues Suggest additional safety measures Buddy system Additional lighting Changed hours of work New phone number/ Provide security/reception desk with picture of alleged abuser slide 53

54 Employee as Victim Duty to coworkers? Has the victim taken appropriate steps to secure his or her own safety? Has the victim engaged police? Community resources? Are they cooperating with your efforts to secure the workplace? Has the abuser threatened to attend at the workplace? Assess risk of harm to other employees Consider notifying them of potential threat slide 54

55 Employee as Victim What if the employee who is being victimized refuses to engage with your safety protocols? OHSA imposes obligations on both employers AND workers Employers have an active obligation to address domestic violence issues employee does not have the power to tell the employer to take no further action if the employer has reason to believe that the abuser may engage in violence at the workplace Disciplinary action for failing to adhere to reasonable safety protocols? slide 55

56 Employee as Victim Termination of employment for repeated failure to engage in safety protocols? Human Rights Code issue termination discriminatory on the basis of family status? Sex? Reprisal claim under OHSA? Section 50(1) Common law claim for notice of termination and breach of duty of good faith and fair dealing? Non-legal risk: will termination be a trigger for the abuser? Seek expert advice and reach out to community and security resources for support slide 56

57 Worst Case Scenarios Victim and abuser in the same workplace Must consider notifying coworkers Develop specific emergency protocols Engage non-legal supports such a mediator or Employee Assistance Program Consult experts regarding triggers for additional or enhanced violence Termination of one or both? Difficulty of complying with the terms of any peace bonds slide 57

58 Worst Case Scenarios Abuser has made clear and specific threats to attend at work and cause harm to their spouse/partner/family member or to coworkers slide 58 Get an expert involved Contact police Remove the victim from the workplace Advise co-workers of the specific nature of the threat

59 Worst Case Scenarios Actual incident of domestic violence at work Notify police and emergency personnel Consider OHSA obligations (death or serious incident) Consider Workplace Safety and Insurance Act, 1997 obligations notice of any injury at the workplace Engage Employee Assistance Program to provide support and assistance to survivors and witnesses Conduct a refreshed workplace violence assessment and, if necessary, implement new protocols or practices slide 59

60 Cassels Brock & Blackwell LLP Suite 2100, Scotia Plaza 40 King Street West Toronto, ON Canada M5H 3C2 Suite 2200, HSBC Building 885 West Georgia Street Vancouver, BC Canada V6C 3E8 Tel: Fax: Tel: Fax: Managing Employees in Crisis CASSELS BROCK & BLACKWELL LLP. ALL RIGHTS RESERVED. This document and the information in it is for illustration only and does not constitute legal advice. The information is subject to changes in the law and the interpretation thereof. This document is not a substitute for legal or other professional advice. Users should consult legal counsel for advice regarding the matters discussed herein.