Failure to Implement Workplace Harassment and Violence Policies can be Costly for Employers

Recent enforcement action under Ontario’s Occupational Health and Safety Act (“OHSA”) serves as a stark reminder of an employer’s obligation to implement workplace harassment and violence policies and programs in the workplace.  A security company (the “Company”) was recently fined $70,000.00 for non-compliance with orders issued under OHSA.

After receiving information about a workplace injury in 2014, the Ministry of Labour conducted an inspection and discovered several instances of non-compliance with OHSA’s provisions in respect of workplace harassment and violence.  The inspector issued the Company with ten orders, which required the Company to assess risks, develop policies, and implement programs aimed at preventing workplace violence and harassment and to provide employees with corresponding training. Despite these orders, when another inspection was completed several months later, it was found that the employer had not complied with seven of the ten orders.

Upon conducting an ex party hearing, a Justice of the Peace convicted the Company of seven instances of non-compliance and fined the Company $10,000.00 for each count, totalling $70,000.00.  The court also imposed a 25 percent victim surcharge in accordance with the Provincial Offences Act.

This case highlights how important it is for employers to understand their responsibilities in addressing workplace violence and harassment. This includes obligations to create and implement policies in respect of violence and harassment and to develop measures and procedures for addressing complaints and conducting investigations.  Employers should assess their policies accordingly as failure to comply can have costly consequences.

What is the latest on employees’ rights in the event of redundancy in France?

Dismissing an employee due to economic difficulties is extremely delicate in France. A law dated 8th August 2016 has specified the definition of the economic grounds for dismissals, providing that economic difficulties are, in particular, characterized by a significant evolution of an indicator such as a significant drop of turnover, a significant drop in purchase orders, operating losses, worsening of cash flow or gross operating profit or any other elements which can evidence such economic difficulties.

Case law imposes a very strong obligation on employers before envisaging any redundancy and the main applicable principles regarding employees’ individual rights have not been subject to any major changes, in spite of the numerous courts decisions and the multiple laws passed over the last few years. To summarize briefly:

  • Employers are required to establish objective criteria as set forth in relevant legislation or by the applicable collective bargaining agreement and apply them to each category of affected positions for the purpose of determining which employees will be subject to the dismissal procedure. The French Supreme Court has recently held that when applying the selection criteria, the companies need to take into account all relevant criteria, and no criterion may be neutralized;
  • Employers are required to consider re-deploying any potentially redundant employees elsewhere in the company and the group. The redundancy can only be notified after the employer has studied all the redeployment possibilities within the company and the group;
  • The employees dismissed on economic grounds are also entitled to several benefits and indemnities related to the termination of their employment contract (notice period, severance payment, paid holidays indemnity etc);
  •  Moreover, employees also benefit, depending on the company’s / group’s headcount, from a personalised redeployment leave financed by the State or from a redeployment leave financed by their employer, the goal of which is to support the employees in order to help them find another job or retrain;
  •  Also, a re-hiring priority is applicable during a period of one year following the expiry of the employment contract: if the employee so requests, the employer is required to offer the employee any position available in the company following the economic dismissal compatible with the employee’s qualifications.

Employees who are dismissed in the context of a collective redundancy procedure generally also benefit from additional rights (indemnities, assistance from outplacement agencies, etc.) resulting from the employer’s obligation to implement a job saving scheme (“plan de sauvegarde de l’emploi”), when the termination of at least 10 employees is contemplated in a company employing at least 50 employees. Such scheme should be negotiated with union representatives or decided unilaterally, and is subject to approval by the labor authorities. The purpose of a job saving scheme is to avoid or limit the effects of any dismissals.

“Facially unacceptable” – An inexcusable ground for discrimination

This article was written by Purnel Gangiah,  a Candidate Attorney at Norton Rose Fulbright South Africa

The mere fact that an employer considers an employee to be disabled does not necessarily mean that the employee is in fact disabled and cannot fulfill its normal duties at work.

In Smith v Kit Kat Group (Pty) Ltd. (2017) 38 ILJ 483 (LC), the employee attempted suicide which resulted in him being severely injured and disfigured. On his return to work, his employer informed him that he was not “facially acceptable” and that his presence at work would remind the other employees of the unfortunate event.

The employer required him to lodge a disability claim, which he refused to do. The employer did not formally dismiss him, but merely persisted with the stance that he could not resume work. The employer expressed the view that he was incapable of fulfilling his duties in full.

The employee referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and launched a claim for damages against his employer in the Labour Court based on unfair discrimination in terms of the Employment Equity Act, 1998 (the EEA). The EEA defines disabled people as “people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment”.  The EEA prohibits the discrimination against an employee on a number of grounds, including disability.

The Labour Court found that the employee’s disfigurement and his speech impairment was a disability as defined in the EEA. However, the employee should have been allowed to resume his normal duties.  If he was indeed unable to perform his normal duties, the employer should have followed an incapacity process.  There would have been no hardship suffered by the employer if the employee had returned to work and proven that he was fit to fulfill his duties.

The court found that the employee had been unfairly discriminated against and awarded him 24 months remuneration and further compensation equal to 6 months remuneration for the damages suffered as a result of the unfair discrimination.

Employers must avoid labelling an employee as disabled and unfit to perform normal duties, simply because the employee’s condition or appearance falls within the definition of disability. Whist it is conceivable that there will be certain situations that an employee’s facial appearance and speech impairment may result in him not being able to fulfill his duties, an employer cannot assume as much.  Where an employee’s disability is impacting on its normal duties, employers must follow the required incapacity process.

Ontario Human Rights Tribunal: Subjective belief can trump facts

Chodha v. 1352866, 2016 HRTO 1241 demonstrates that human rights tribunals will consider an employer’s bona fide subjective belief in deciding whether the employer has provided a reasonable explanation for apparently discriminatory conduct. Indeed, the employer’s belief may take precedence over factual circumstances, as they did in this case.

The case involved the termination of an employee for allegedly falsifying medical evidence in support of a claim for workers’ compensation.  The applicant (“Chodha”) worked as an assembler. He injured his back while at work and consequently visited his physician. The employer terminated Chodha’s employment because his doctor’s note was dated several months prior to the date of Chodha’s injury. The employer terminated Chodha for his apparent dishonesty regarding the medical evidence of his injury. However, the Tribunal found that Chodha had not in fact, falsified the medical note. Rather, the note was incorrectly dated.

Chodha argued, among other things, that the respondent terminated Chodha’s employment because he had a back disability that limited his ability to work, and because he had claimed benefits under the Workplace Safety and Insurance Act (“WSIA”). He argued the respondent’s action constituted discrimination due to disability contrary to section 5 of Ontario’s Human Rights Code.

The Tribunal found that the employer sincerely believed that the date on the note was evidence that Chodha was attempting to substantiate a work-related injury and absence from work with a fraudulent note. The employer’s belief provided a non-discriminatory explanation for the termination of his employment. Therefore, the Tribunal found that the employer did not discriminate against Chodha by terminating his employment due to disability or due to claimed benefits under the WSIA.

Written with the assistance of Melanie Simon, articling student.

Deeds of release may be set aside if they are brought about as a consequence of unlawful discrimination

The Federal Circuit Court of Australia (FCCA) has found that the Court has the power under s46PO(4) of the Australian Human Right Commission Act 1986 (Cth) (AHRC Act) to set aside a deed of release, where the deed comes into existence as a consequence of unlawful discrimination.[1]

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Upon Further Review… Minister of Labour Announces Major Review of Alberta’s Employment and Labour Laws

On March 13, 2017, the Alberta government announced that they would be proceeding with a review of Alberta’s workplace laws, including the Labour Relations Code and the Employment Standards Code. In a public mandate letter addressed to Arbitrator Andrew C.L. Sims, Q.C., the Minister of Labour identified a number of specific considerations that will form part of the review of the Labour Relations Code.

The Alberta government also opened up a survey concerning select topics within the Employment Standards Code. The survey can be accessed at: https://extranet.gov.ab.ca/opinio6/s?s=ESCreview

We have been expecting for some time that the Alberta government would take steps to enhance the rights and protections for organized labour in Alberta in an effort to increase union density in the province. The choice of these specific topics certainly points towards potential reforms that will increase union density in Alberta.

The Alberta government has already:

  • enacted a broader right to strike coupled with essential services provisions in response to the Supreme Court of Canada’s decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4;
  • passed Bill 6, which extended the right to unionize to farm workers and also extended worker’s compensation and occupational health and safety legislation to them; and
  • conducted consultations on the labour relations of post-secondary faculty who are governed by the Post-secondary Learning Act, SA 2003, c P-19.5.

At this point, it is uncertain what changes the government will introduce. The items in the mandate letter are broad enough that many specific changes remain within the government’s contemplation at this time. We will be monitoring developments in this process closely and we invite you to speak with one of our employment and labour specialists regarding any or all of these topics.

 

Written with the assistance of Tyler R. Raymond, student-at-law.

 

The necessity of adopting a sensitive consultation process in the event of redundancy

This post was contributed by Jahan Meeran, Trainee Solicitor, Norton Rose Fulbright LLP, London

A recent decision of the Employment Appeal Tribunal (EAT) illustrates the pitfalls of not adopting a sensitive consultation process in the event of redundancy..

In the case, the claimant had been employed by the property management division of his employer for over 40 years. Following a strategic review, the company decided to reduce the number of director roles. On 6 January 2014, the claimant was put on garden leave and placed into a redundancy pool comprising only himself. On 8 January a letter was sent to the claimant addressing him with the wrong name (“Paul” instead of “Peter”). Via further correspondence in January 2014 he was later provided with a list of alternative vacancies and suggestions. In a final consultation meeting on 13 February he was confirmed redundant. He was then sent a dismissal letter on 14 February which had the wrong termination date in it. The claimant believed that the redundancy process was a sham and that the company had a policy of dismissing employees at around age 60 and brought a claim for unfair dismissal.

The employment tribunal found that the consultation was insensitive but that the claimant had not been unfairly dismissed.

The EAT disagreed. It found that the consultation process was perfunctory and insensitive and therefore, absent any further findings or information, it cannot have been reasonable. The unfair dismissal claim was therefore remitted to another employment tribunal.

The case demonstrates that the redundancy process must be handled in a sensitive manner. Communications should be carefully drafted and the decision to place ‘at risk’ employees on garden leave should not be taken lightly.

 

Ontario Ministry of Labour Clarifies the Definition of a Critical Injury

In January of 2017 the Ontario Ministry of Labour issued a clarifying statement on the definition of a Critical Injury under Regulation 834 of the Occupational Health and Safety Act.  This clarification will be of interest for all employers facing a potentially reportable injury in the workplace.  While not binding, it illustrates what the Ministry of Labour will consider appropriate practices for Ontario Employers in reporting of workplace injuries.

Any Critical Injury in the workplace triggers the following obligations:

  • The employer and/or constructor (if any) must immediately notify a Ministry of Labour inspector, the joint health and safety committee (or health and safety representative) and the union
  • Employer must send a written report of the circumstances of the occurrence to a Director of the Ministry within 48 hours
  • The scene where the injury occurred must not be altered in any way without the permission of an inspector which generally results in no further work being done in that area until the inspector releases the scene

Regulation 834 of the Occupational Health and Safety Act defines Critical injury as follows:

“critically injured” means an injury of a serious nature that,

(a) places life in jeopardy,

(b) produces unconsciousness,

(c) results in substantial loss of blood,

(d) involves the fracture of a leg or arm but not a finger or toe,

(e) involves the amputation of a leg, arm, hand or foot but not a finger or toe,

(f) consists of burns to a major portion of the body, or

(g) causes the loss of sight in an eye.

Under a strict reading of the above definition the fracture or amputation of a finger or toe is not a critical injury.

The Ministry of Labour’s clarifying statement, however, makes clear that the Ministry will also view the fracture or amputation of more than one finger or more than one toe to be a Critical Injury for the purposes of the legislation if it is an injury of a serious nature as a critical injury.

The clarifying statement is not a legal amendment of the Occupational Health and Safety Act or its Regulation 834. Nor is it an interpretation of that legislation by a Court that would have binding effect. However, it is a guideline that will inform the judgment of the Ministry of Labour, its Inspectors and Prosecutors.   Employers should expect that inspectors will treat this broader scope of workplace injuries as critical injuries. This means that where such injuries occur, the accident scene should be secured, the injury reported and a written report should be sent to the Ministry of Labour like a Critical Injury – to avoid negative scrutiny by the Ministry of Labour. The Ministry will likely issue orders and failure-to-report charges if the employer does not follow its clarifying statement and its expanded view of injuries considered critical.

When an employer hides another employer

Dual employment is a sensitive subject in French employment law as it enables employees to raise claims against a different employer from that with which the employment contract was signed.

The matrix-type organisation of groups of companies, which has become the rule, can have adverse consequences if employees have the feeling that they are employed by the group as a whole and not by the company to which they are bound under their employment contract).

As long as the economic situation of the employer is flourishing, the risks are remote. However, issues generally arise when the French member company of the group which actually employs the employee shuts down its operations and effects redundancies.

In such circumstances, employees may not benefit from the financial resources available within the group and are tempted to demonstrate that the parent company was also their employer, in order to base a claim that the parent company should be ordered to assume and support the obligations of the subsidiary.

This concept originated approximately 6 years ago and since that time, French employment courts have for the most part accepted such legal recognition. However, they have recently changed their position and a shift in the courts’ decisions can be observed beginning in 2014, leaning toward a restrictive stance of dual employment, the courts considering that dual employment would require a showing of an unusual level of interference of the parent company in the economic and social management of its subsidiary. This interference must go beyond the necessary coordination of economic actions between companies belonging to the same group and the economic domination which can transpire from the usual relationship between a parent company and its subsidiaries.

As an example, in a decision dated 6 July 2016, the Supreme Court decided that a dual employment situation did indeed exist due to a link exceeding the usual cooperation between a subsidiary and its parent company.

In this case, the Supreme Court observed that (i) in the context of reorganization, a certain number of employees of the parent company’s central services (IT, HR and accounting employees) were transferred to another entity of the group, (ii) the recruiting of employees was centralized and the subsidiary company had no power of recruitment, and (iii) the contractual, administrative and financial issues were handled by another company of the group.

French case law regarding dual employment is still changing, and against all odds, a Court of Appeal recently opened a new door to employees, holding that in certain circumstances, even where dual employment cannot be characterized, employees could still bring a tort action in court against the parent company to obtain damages.

Uncertainties regarding dual employment therefore still exist, and extreme control by parent companies over their French subsidiaries is therefore to be avoided.

Genuine Redundancy and Redeployment – Job Swapping Reasonable in All the Circumstances?

In the recent case of Skinner et al v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574 the Full Bench found that an employer breached its obligation to explore redeployment options under s.389(2) of the Fair Work Act 2009 after making 7 of its employees redundant without properly considering job swaps and voluntary redundancies with other employees.  These 7 employees who had previously had their unfair dismissal applications dismissed, consequently had their applications remitted for re-hearing.

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