Current Issues in Employment Law. September 14, 2016 presented by Pamela Connolly

Transcription

1 Current Issues in Employment Law September 14, 2016 presented by Pamela Connolly

2 agenda AODA: duties and deadlines occupational health & safety: Bill 132 off duty conduct: criminal activities duty to accommodate: what is the status of family status? 2

3 Accessibility for Ontarians with Disabilities Act (AODA) Bernardi Human Resource Law LLP hrlawyers.ca

4 what is AODA? goals: fair and equitable access to goods and services improve opportunities for persons with disabilities prevent barriers to access for persons with disabilities 4

5 AODA applies to government, non-profit, private organizations large employers (50+ employees) small employers (1-49 employees) 5

6 who is covered under AODA? any organization that: sells or offers goods and services employs at least one employee offers accommodation owns, occupies or leases building 6

7 broader societal trends 1in 7 people in Ontario have a disability this number expected to rise in the next 20 years aging population issues with accessibility in provision of goods and service 7

8 barriers to accessibility attitudes and stereotypes information, communication and organizational barriers technology barriers physical barriers 8

9 types of disabilities physical conditions and injuries mental and learning disabilities diabetes, epilepsy, brain injury, paralysis blind, deaf, hearing impaired or speech impediment 9

10 types of disabilities reliance on guide dog or wheelchair substance abuse and addiction allergies and environmental sensitivities 10

11 Integrated Accessibility Standards Employment Standards Customer Service Standards General Standards IASR Information & Communications Transportation Design of Public Spaces 11

12 IAS requirements develop policies and procedures train staff on AODA and human rights file compliance reports with Ministry of Economic Development, Employment and Infrastructure does not diminish legal duties under Human Rights Code 12

13 deadlines compliance last deadline: January 1, 2016 next deadline: January 1, 2017 reporting last deadline: December 31, 2014 next deadline: December 31,

14 last deadline: January 1, 2016 large organizations (50+ employees) Employment Standard Information and Communications Standard: accessible format and communications supports small organizations (1-49 employees) Integrated Accessibility Standards: general training 14

15 customer service standard prior deadline: January 1, 2012 updated: July 1, 2016 develop policies and procedures allow persons with disabilities to use assistive devices be respectful in how you communicate with person with disability 15

16 customer service standard permit use of service animals on premises permit support person on premises post notice of disruption in service establish accessible feedback process train staff on AODA obligations provide documents in accessible manner upon request 16

17 feedback process have feedback process provided in accessible manner how are we doing as organization? can post on website, reception, door 17

18 tips for delivering good service do not assume disabled person is incapable offer assistance if requested allow disabled person to participate in determining best accommodation 18

19 next deadline: January 1, 2017 large organizations (50+ employees) Design of Public Spaces Standard address barriers to using public spaces obligations on developer, not necessarily owner or leasor new construction or redevelopment only 19

20 design of public spaces standard barrier free: recreational trails outdoor public use eating areas outdoor sidewalks and walkways outdoor children s play spaces parking service counters 20

21 design of public spaces standard applies to organization with authority to build or make alterations requirements: technical specifications public consultation 21

22 next deadline: January 1, 2017 small organizations (1-49 employees) Employment Standard deadline was January 1, 2016 for large organizations Information and Communications Standard 22

23 employment standard requirements recruitment and hiring notify about availability of accommodation for employees provide policies on available supports provide accessible formats and communication supports as needed 23

24 employment standard requirements written accommodation plans (*only large organizations) list of restrictions/barriers accommodation measures reassessment plan by-products of accommodation employee signature 24

25 employment standard requirements written return-to-work plans (*only large organizations) performance management and advancement are documents, activities and services accessible? 25

26 employment standard requirements workplace emergency response information individualized designate assistance as required 26

27 information and communications standard for large employers, deadline was January 1, 2016 information should be provided in accessible manner to public information = text, audio, digital covers how information is provided, sent or received 27

28 information and communications standard obligation triggered if person requests alternate formats notify about accessible formats and communication supports large print braille read aloud hand written notes formatted for electronic use 28

29 information and communications standard consider: how to notify about available formats who should receive requests process for consulting and responding timeliness cost cannot exceed non-accessible format 29

30 areas of concern for employers lack of knowledge not doing training and accommodation plans enforcement government blitzes penalties 30

31 Occupational Health & Safety: Bill 132 Bernardi Human Resource Law LLP hrlawyers.ca

32 Bill 132 came into effect on September 8, 2016 changes employer obligations around workplace harassment 32

33 Bill 132 Important changes: workplace sexual harassment clarifies what is not harassment duty to investigate policy requirements 33

34 workplace sexual harassment workplace sexual harassment a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity, gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome. 34

35 workplace sexual harassment significance of specific definition unclear focus on workplace sexual harassment as a health and safety issue 35

36 what is not harassment reasonable employer action relating to the management and direction of workers excludes legitimate management activities 36

37 duty to investigate employer shall ensure: investigation into incidents and complaints of workplace harassment appropriate in the circumstances 37

38 duty to investigate MOL inspector may: order an impartial person to investigate and write a report possessing such knowledge, experience or qualifications as are specified at employer s expense 38

39 policy requirements policy/program: must outline investigation procedure must include measures to report harassment to someone other than employer/supervisor if complaint against employer/supervisor 39

40 policy requirements outline investigation procedure: to whom to complain complaint forms employer discretion regarding investigator and nature of investigation investigation steps(i.e. fact-finding, interviews, review of evidence, statements/notes) might include interviews with witnesses 40

41 policy requirements outline investigation procedure: timing (i.e. best efforts to complete within 90 days but may take longer) report upon completion 41

42 policy requirements report to someone other than employer or supervisor: human resources any member of management senior leaders designated individual 42

43 policy requirements confidentiality: information about an incident or complaint of workplace harassment including identifying information about any individuals involved will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or is required by law 43

44 policy requirements confidentiality: measures to protect confidentiality of the process complaint and investigation strictly confidential will not be disclosed unless necessary for the investigation or corrective action, or required by law 44

45 policy requirements confidentiality: measures to protect confidentiality of the process separate investigation file set expectation of confidentiality regarding complaints and investigations separate, confidential interviews 45

46 policy requirements inform parties in writing of outcome: how a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is a worker of the employer) will be informed of the results of the investigation and of any corrective action taken 46

47 policy requirements inform parties of outcome: how to inform X copy of report written summary of the finding meet separately with complainant and respondent 47

48 policy requirements inform of corrective action imposed: entitled to know corrective action imposed balance between privacy and right to know be general (i.e. suspension, transfer, dismissal) do not disclose details emphasize confidentiality 48

49 implementing the policy written program: develop and maintain a written program to implement the workplace harassment policy in consultation with any health and safety committee or representative 49

50 program review and instruction policy/procedure: program reviewed as often as necessary but at least annually provide workers appropriate information and instruction on content of policy and program 50

51 investigation report report: results of investigation and investigation report do not have to be provided to the occupational health and safety committee 51

52 have you? updated your policies and procedures trained designated individuals on how to conduct a proper investigation trained managers/supervisors/leaders on harassment how to recognize incidents of harassment how to deal with incidents and complaints effective managerial skills 52

53 be prepared train all employees on the revised policy and program create a positive, respectful workplace 53

54 off duty conduct: criminal activities Bernardi Human Resource Law LLP hrlawyers.ca

55 off-duty conduct what happens when an employee is charged with a crime? can the employer suspend or dismiss the employee? 55

56 some relevant questions how serious are the allegations? has the employee been found guilty? did the conduct occur at work? what effect does the charge/conviction have on the employer s business or public image? 56

57 discipline overview conduct must cause serious prejudice/injures reputation or legitimate business interests discipline must be fitting and proportional to the misconduct 57

58 considerations justifying discipline detrimentally affects employer s reputation causes employee to not fulfill obligations causes other employees to refuse to work with individual adversely affects employer from managing 58

59 possible discipline warnings suspension pending outcome termination for cause 59

60 discipline analysis 1. does employee presence cause reasonably serious or immediate risk to legitimate concerns of employer? 2. is nature of charge potentially harmful to company reputation, product, other employees, customers? 3. did company investigate criminal charge to assess risk of continued employment? 60

61 discipline analysis 4. can risk be mitigated? 5. continued onus during suspensions to consider possibility of reinstatement 61

62 right to silence refusal to cooperate may be insubordination cannot knowingly damage business interests through silence deliberate deception not okay 62

63 Merritt v. Tigercat industries employee charged with two counts of sexual assault against minors arrested at work refused to provide details except that unrelated to work terminated for cause before conviction 63

64 Merritt v. Tigercat Industries wrongful dismissal claim decision: no cause for termination position relevant labourer not management no independent investigation by employer no evidence of actual damage to reputation 64

65 TDSB v. CUPE, Local 4400 employee charged with assault employee position: School Based Safety Monitor assault victim was parent of TDSB student employee suspended then terminated for cause before being withdrawn in exchange for peace bond grievance 65

66 TDSB v. CUPE, Local 4400 decision: just cause for suspension incident fundamentally inconsistent with employee s work obligations no cause for termination no discipline history intoxication a mitigating factor no publicity no damage to reputation incident unrelated to TDSB 66

67 Kelly v. Linamar Corp. employee arrested and charged with possession of child pornography Linamar active in community and children s programs termination for cause pled guilty with 3 month conditional sentence 67

68 Kelly v. Linamar Corp. wrongful dismissal action continued employment would cause damage to reputation adverse impact to management responsibilities termination for cause upheld 68

69 YOU BE THE JUDGE! 69

70 duty to accommodate: what is the status of family status? Bernardi Human Resource Law LLP hrlawyers.ca

71 family status status of being in a parent and child relationship covers: fact of being parent or child caregiving role between parents and children caregiving role between adult children and aging/ailing parents 71

72 considerations work is designed around traditional notions of family and caregiving workplace culture can create barriers based on family status 72

73 considerations issue is often one of flexibility can look at supports available to the employee more critical the need, greater the duty 73

74 possible accommodation needs child or elder care taking care of sick family member attending school or court mourning death of family member divorce or child custody matters infertility treatment pregnancy related illness breastfeeding 74

75 test: family status accommodation 1. child under the claimant s care 2. legal responsibility vs. personal choice 3. despite reasonable efforts, no alternatives 4. impact on obligation more than trivial or insubstantial 75

76 break times and time off bathroom or breastfeeding breaks lateness for fertility treatments absence for divorce/custody hearing 76

77 flexible work schedule straight shifts part-time work job sharing compressed work week working from home no overtime 77

78 ESA leaves Family Medical Leave Personal Emergency Leave Critically-Ill Childcare Leave Crime-Related Child Death or Disappearance Leave 78

79 Patridge v. Botany Dental Corp. demotion following maternity leave employee objected and hours changed to evenings evening work interfered with childcare arrangements termination for cause wrongful dismissal/discrimination claim 79

80 Patridge v. Botany Dental Corp. employer argued employee did not prove alternative childcare not available possible daycare pickups canvassed not sustainable employer did not meet duty to accommodate evening work not BFOR 80

81 Wing v. Niagara Falls Hydro Holding Corp. municipal councillor required to attend 4-6 board meetings per year received honorarium for being on board meetings started at 3:30pm or 4:00pm resolution passed that removal from board if miss two consecutive meetings councillor could not attend because had to pick up daughter from school 81

82 Wing v. Niagara Falls Hydro Holding Corp. HRTO found case engaged personal choice councillor had not made reasonable efforts to find solution after school program spouse had found childcare in other instances 82

83 YOU BE THE JUDGE! 83

84 questions Current Issues in Employment Law