Ontario Government Conducting Mining Industry Inspection Blitz

From October 2, 2017 to November 30, 2017, Ontario’s Ministry of Labour (“MOL”) will be conducting workplace inspection blitzes in mines and mining plants.

In recognition of the fact that October is Global Ergonomics Month, these blitzes will focus on workplace measures relating to musculoskeletal disorders (“MSDs”). However, inspectors will also be assessing the risk of slips, trips and/or falls in the workplace.

MSDs are injuries to one’s muscles, tendons, nerves or spinal discs that result from repetitive work, forceful exertions and prolonged periods of awkward or sustained posture. They are the most common cause of lost time at work in the mining sector.

As part of the blitzes, MOL inspectors will be:

  • Examining MSD hazards arising from manual material handling tasks and use of equipment that causes hand-arm vibration;
  • Checking that employers have completed risk assessments in respect of MSD hazards;
  • Reviewing joint health and safety committee minutes to see if MSD hazards have been addressed;
  • Ensuring that workers have been given adequate information regarding workplace MSD hazards;
  • Looking at workplace measures aimed at preventing slips, trips and falls.

In anticipation of the blitzes, mining industry employers should make sure that they have taken the steps outlined above. In addition, employers should review their accident experience in relation to MSDs and ensure that measures have been implemented to minimize MSD hazards in the workplace.

For more information, please refer to the following resources:

2017 – 2018 Mining Sector Inspection Blitzes

MOL Musculoskeletal Disorders Resource

Preventing Musculoskeletal Disorders (MSDs) in Mines

Preventing Slips, Trips and Falls in the Workplace

Written in collaboration with Samuel Keen, articling student.

French employment code reform: Focus on homeworking

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our first article on the new regulations regarding homeworking. We will detail in later articles other main changes introduced by the Reform.

Ordinance n°2017-1386 defines homeworking as “any type of working organization in which missions which could also be performed on the premises of the employer are carried out by an employee outside the premises, on a voluntary basis by using information and communication technologies”.

Under the new Ordinance, homeworking is no longer required to be effected on a regular basis. In other words, as of September 24th 2017, employees may homework from time to time without any condition of having to do so at a predetermined frequency. Homeworking on an irregular basis must nevertheless be formalized in writing before occurring (e.g. exchange of email)

In the event that employees perform homework on a regular basis, the homeworking terms and conditions must be set out in a collective agreement entered into at company level. If no agreement is obtained, the employer can implement a homeworking policy, but only after consultation with the works council and the health and safety committee.

Such collective agreement/policy must provide in particular for :

  • the conditions of homeworking implementation and of return to a “usual” performance of the employment agreement (i.e. without homeworking);
  • conditions under which the employee agrees on homeworking implementation;
  • modalities of working time monitoring and workload regulation;
  • determination of the time slots during with the employer can usually contact the homeworker.

In addition, the ordinance provides that costs directly resulting from the homeworking implementation (e.g. electronic set up) shall no longer be reimbursed by the employer to the employee. However the underlying collective agreement/policy may provide for the conditions of indemnification for the costs directly triggered by homeworking.

The ordinance has also confirmed several principles previously provided under the French employment code. In particular, employers who have recourse to homeworking must take into account that homeworkers benefit equally from any rights granted to other employees, for example regarding employee representation and continuous training. Finally the ordinance implements a new presumption of working accident in the event that homeworkers suffer from an accident which occurs at their usual place of work and during the usual working period.

Employment Tribunal Fees – Refund Scheme

The government announced the first stage of its employment tribunal fees refund scheme on 20 October 2017.

As set out in our previous post http://www.globalworkplaceinsider.com/2017/07/uk-employment-tribunal-fees-unlawful/  the Supreme Court in the UK handed down its judgement on 26 July 2017, holding that the introduction of fees in the Employment tribunals was unlawful.  As a result of that decision the Government must now seek to repay claimants who have paid fees.

The first stage of the phased implementation scheme means that up to around 1,000 people will be contacted individually and given the chance to complete applications. The opening phase of the refund scheme will last for around 4 weeks and the full reimbursement scheme will then open up.  The Government is also working with trade unions in relation to large multiple claims.

As well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.

Further details of the scheme, including details of how it can be accessed, will be made available when the scheme is rolled out fully. However, the Government has indicated that those who have paid Employment Tribunals fees, but have not been invited to take part in the initial stage, can pre-register an interest in applying when the full scheme is rolled out. We await full details of the scheme to see whether this pre-registration includes respondents who reimbursed fees to a claimant following a decision in the employment tribunal claim, or whether it is limited to claimants who will have to apply on the respondent’s behalf.

It is estimated that the cost of the tribunal fees refund, including interest, is approximately £33 million.

 

Paid leave granted to an Italian university employee for pet care

An employee of an Italian university in Rome has successfully obtained a two-day paid leave of absence from work to care for his pet dog, which had undergone surgery and required special assistance for an additional day to recover. The Italian animal rights association, LAV, advised the employee on submitting his successful request to the university.

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Local doesn’t make the grade: The need to accommodate employees with anxiety when writing qualifying exams

John Betts, (the “Applicant”) was a carpenter and member of the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the “Union”). While the parties were not engaged in a traditional employer-employee relationship, the Applicant was protected from discrimination by the employment related sanctions of the Ontario Human Rights Code (the “Code”).

Like most regulated trades, carpenters undertake an apprenticeship program which consists of on-the-job and in school training. Upon completing the apprenticeship program the Ministry of Training Colleges and Universities administers a qualifying exam. Those who receive a passing grade on the qualifying exam will be issued with a Certificate of Qualification (“CoQ”).

At all material times, the Applicant was an apprentice carpenter. Having completed the requisite training, the Union encouraged the Applicant, and other eligible apprentices, to write the qualifying exam and obtain his CoQ. Specifically, the Union established a three month time frame for all eligible apprentices to obtain the CoQ. Those who failed the qualifying exam were mandated to challenge it every 15 days until they succeeded.

The Applicant made several attempts at the qualifying exam. After his third failed effort, he began to experience extreme anxiety and panic attacks. Between June 2010 and July 2012, the Applicant had failed the exam six times, and cancelled nine scheduled attempts. These issues came to a head when in October of 2012, the Union wrote to the Applicant and imposed a deadline by which he had to obtain his CoQ. In December of 2012, when the Applicant had failed to meet the Union’s deadline, the Union wrote to the Applicant’s employer to advise that he was no longer a member in good standing, and request that he be laid off until he was able to pass the qualifying exam and obtain his CoQ.

The main issue addressed by the Tribunal in this case was whether the Union’s actions in effecting the Applicant’s layoff constituted adverse impact discrimination. Specifically, the Tribunal questioned whether the objectively neutral deadline to obtain the CoQ had a negative impact on the Applicant due to his unique disability. Finding in favour of the Applicant, the Tribunal applied the definition of adverse effect discrimination established by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC):

It arises where an employer… adopts a rule or standard… which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.

The Applicant had no difficulty demonstrating a prima facie case of adverse impact discrimination. Simply put, the Applicant had a disability, and the neutral deadline imposed by the Union aggravated the Applicant’s disability and impaired his ability to succeed in his employment.

The next question facing the Tribunal was whether the Applicant was accommodated to the point of undue hardship. While the Applicant suffered from debilitating anxiety from June 2010 onwards, it was only in January of 2013 that the Applicant provided the Union with medical documentation linking his disability to his ability (or inability) to write the qualifying exam. Interestingly, the Tribunal held that the Applicant’s statement to the Union that he had “test taking anxiety” did not trigger the Union’s duty to inquire. In coming to this determination the Tribunal considered the Applicant’s ability to be forthcoming about his disability related needs. While the Tribunal acknowledged that some mental illneses, by their very nature, preclude forthrightness and disclosure – this was not one of those cases. For this reason, the Union’s actions would only be scrutinized from January 2013 onwards, when the Union was clearly and unequivocally advised of the Applicant’s disability and treatment program.

While the Tribunal admonished the Applicant for failing to provide medical documentation earlier in the process, it ultimately held that the Union failed in its duty to accommodate. From January 2013 onwards the Union had uncontroverted evidence of the Applicant’s disability and failed to re-consider the deadline for the Applicant to obtain his CoQ or the manner in which the qualifying exam was being administered. Further, the Union continued to pressure the Applicant to pass the exam and insisted that he obtain his CoQ as a condition for active employment.

While the Union was ordered to pay the Applicant special damages for injury to dignity, feelings, and self-respect, and amounts for lost wages, the Tribunal gave the Union a significant discount on account of the Applicant’s failure to disclose his disability related needs earlier than January 2013. Where the Applicant sought $20,000.00 in special damages, he was awarded only $8,000.00 and where the Applicant was on lay-off for 16 months, he was awarded lost wages for only eight months. As a further remedy, the Union was ordered to develop an anti-discrimination and accommodation policy.

Despite the unique challenges that arise when accommodating mental health issues, the duty to accommodate is never a one-way street. Whether an applicant is suffering from a physical or mental disability, the Tribunal will conduct a case by case analysis to determine whether and when an Applicant is capable of fulfilling his duty to disclose. While some forms of mental illness preclude disclosure, the mere existence of mental illness in and of itself will not diminish an applicant’s duty to raise their hand and, where they are capable, initiate the accommodation process. Here, the Applicant’s failure to discharge his duty to disclose significantly compromised his damages award.

At the same time, unions and employers are reminded of their broad duty to inquire. The duty reaches far beyond the obvious measures. It is incumbent upon unions and employers to learn about the multi-faceted nature of mental illness and provide individualized accommodations. In the instant case, the Tribunal held that the Union ought to have contacted the Applicant’s doctors and obtained more information on his restrictions. The Union’s failure to adequately educate itself on the Applicant’s disability related needs lead to its failure on both the procedural and substantive duty to accommodate.

In order to be successful in the duty to accommodate and achieve full integration in the workplace, employees, unions, and employers must openly communicate and work together to create a supportive environment. This is essential in all accommodation cases, and particularly in the ongoing fight to remove the stigma from mental illness.

Written in collaboration with Justine Smith, articling student.

Warning to CEOs to do more to comply with safety laws

Dealing with employees and contractors comes with risk and compliance with the many commercial and employment laws – including health and safety – can be burdensome. While accidents in the workplace are often not completely avoidable, employers need to show they have done enough to avoid them.

The Occupational Health & Safety Act, 1993, and its Regulations (OHSA), requires an employer to create and maintain, as far as is reasonably practicable, a workplace that is safe and without risk to the health of employees. Business risks are determined by a health and safety risk assessment. Where there is risk of harm, employees must be informed of these dangers and ways to avoid them. The onus falls on the employer to show that the workplace is safe or that reasonable steps are in place to mitigate risk of harm.

OHSA-compliance is the responsibility of the person tasked with the overall management and control of the business (such as, the CEO). The consequences of non-compliance far outweigh the time and effort to comply. Common consequences are the total or part closure of the business, and a fine. In the event of a serious injury or fatality, imprisonment with a criminal record is possible.

To take the safety of workers seriously, employers need to perform a risk assessment and inform employees of the risks in the workplace. It is imperative that employees are trained on safe work practices and where appropriate, should be disciplined in the event of a breach of safety procedures. This will assist in promoting a culture of safety and compliance with work procedures.

Complacency and human error are often the primary culprits for workplace injuries. Employers should consider the visibility and placement of hazard warning signs, the practicality of voluminous procedure documents, the common language of the workforce and whether contractors or temporary labour are briefed on workplace safety. Considering these factors may avoid an injury.

Compliance with OHSA is monitored by the Department of Labour (DoL). In the event of an injury, employers must be in a position to respond to the DoL to show they complied with safety standards in order to avoid a possible shut-down. It is recommended that safety procedures be implemented, acknowledged by employees and compliance monitored. Injuries on duty disrupt the workplace in addition to the potential consequences.

It is in an employers’ interest to ensure compliance with OHSA and to regularly review this compliance to ensure that reasonable measures are implemented to identify, avoid or mitigate the risk of harm occurring in operations. Failing which, there may be an expensive lesson to learn from DoL.

This article was written by Raoul Kissun, Senior Associate, Norton Rose Fulbright South Africa Inc

Beware of repudiating the employment contract of an employee who intends to jump ship and join your competitor

Your employee resigns to join your arch rival. You’re not worried because you know you have ‘water tight’ post-employment restraints in the contract of employment. But, if in reacting to the employee’s untimely resignation, you breach the contract and this breach amounts to a repudiation of the contract, then your restraints will be unenforceable. This is why it is very important to ensure your actions, including placing an employee on ‘garden leave’ or taking their mobile phone, are consistent with your rights under the contract.

The recent case of Grace Worldwide (Australia) Pty Limited v Steve Alves [2017] NSWSC 1296 is an example of where the employer got it right.

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Proposed amendments to the Ontario Human Rights Code include new prohibited grounds of discrimination

On October 4, 2017 Bill 164, The Human Rights Code Amendment Act, 2017 was introduced into the Ontario Legislative Assembly and passed First Reading the same day. If enacted, it would expand the prohibited grounds of discrimination in the Ontario Human Rights Code (the “Code”) to include immigration status; genetic characteristics; police records; and social conditions.  These new grounds would be in addition to the prohibited grounds already covered in the Code, with one notable exception, as explained below.

Bill 164 is a private member’s bill brought by Nathalie Des Rosiers, Liberal MPP for Ottawa – Vanier.  She stated that she introduced it to ensure that the Code “counters new forms of discrimination that some Ontarians face” and empowers the Human Rights Commission “to ensure a more equal society, free of all forms of discrimination.”

What does this mean for employers and employees? Private members’ bills do not always make it through the legislative process.  However, if the proposed amendments in Bill 164 were eventually enacted, all employees would be guaranteed equal treatment in employment without discrimination and free from workplace harassment based not only on the existing grounds, but also on their immigration status, genetic characteristics, police records and social conditions.

The right to equal treatment without discrimination because of “genetic characteristics” would include equal treatment where a person refuses to undergo a genetic test, disclose the test’s results, or authorize the disclosure of the test’s results.

The new ground of “social conditions” is defined broadly to mean social or economic disadvantage from (a) employment status; (b) source or level of income; (c) housing status, including homelessness; (d) level of education, or “any other circumstance similar to those mentioned in clauses (a), (b), (c) and (d).  Ontario would not be the first Canadian jurisdiction to recognize social condition as a protected ground, however. Human rights legislation in Manitoba, New Brunswick, Quebec, Newfoundland and Labrador, and Northwest Territories all recognize social condition or social origin.

Bill 164 also defines “police records” expansively, to include charges and convictions, with or without a record suspension, and any police records including those of a person’s contact with police. This new ground would replace the present “record of offences” in the Code, which is more narrowly interpreted.

“Immigration status” is simply defined as status according to Canadian immigration law and would supplement the current protected ground of “citizenship”.

We will continue to monitor and report on the progress of Bill 164.  Stay tuned.

Written in collaboration with Justine Smith, articling student.

Working Notice Not Appropriate for Medical Leaves of Absence

In McLeod v. 1274458 Ontario Inc. (“McLeod”), the Ontario Superior Court confirmed that working notice is not appropriate when an employee is on an unpaid leave of absence for medical reasons.

Generally, providing working notice allows employers to avoid having to provide pay in lieu of notice. Instead, employees are given advance notice of their termination and they are expected to work until their termination date.

In this case, the Plaintiff employee (the “Employee”) was involved in a non-work related car accident and he was placed on an unpaid medical leave of absence. While the Employee was on leave, on January 31, 2016, the Employer sent a notice to the Employee advising him that its retail business would shut down on July 31, 2016 and that his employment would be terminated on that same date. The Employer also advised the Employee that the period between the date of the notification and the date of the shutdown would be considered working notice. Although the Employee returned to work on July 27, 2016 (4 days before the Employer permanently shut its doors), the Employer did not pay the Employee’s salary during the balance of the notice period because he was on an unpaid leave of absence.

Shortly after the termination, the Employee filed a wrongful dismissal suit, claiming that he was entitled to pay in lieu of notice. The Employee moved for summary judgment and Justice Hood granted the motion, holding that providing working notice to an employee on a medical leave of absence is not an acceptable substitute for pay in lieu of notice. Justice Hood held that for working notice to be valid, the employee must actually be capable of working. Justice Hood relied upon a previous Supreme Court decision (Sylvester v. British Columbia) where it was explicitly found that the fact that an employee could not work was irrelevant to the assessment of damages. Damages are based on the premise that an employee would have worked during the notice period.

In so holding, Justice Hood rejected the Employer’s argument that the plaintiff should not have been awarded damages for the period between January 31, 2016 , when notice was given, and July 27, 2016, when he returned to work on a limited basis. The Employer relied on the Ontario Court of Appeal’s decision in Egan v. Alcatel Canada Inc. (“Egan”). The Court in Egan disrupted established jurisprudence by finding that working notice provided during an employee’s medical leave of absence was an acceptable substitute for pay in lieu of notice.

Justice Hood was not convinced by the Employer’s arguments and he distinguished Egan from the case before him. Specifically, Justice Hood held that the employee in Egan was only denied pay in lieu of notice because she received disability payments during the working notice period and pay in lieu of notice would have resulted in overpayment. The Employee received no such payments and Justice Hood held that Egan was therefore not applicable. Interestingly, Justice Hood also raised the question of whether Egan is a correct decision “in that it appears not to follow Sylvester” although he held that the question was not relevant to the case before him.

Overall, this case serves as a valuable reminder to employers that working notice should only be given to employees who are actually capable of working throughout the notice period. When terminating the employment of an employee on a medical leave of absence, appropriate pay in lieu of notice should be provided.

Written in collaboration with Samuel Keen, articling student.

Do you provide or use labour hire services? Important changes are coming for labour hire in Queensland and other jurisdictions

Do you provide or use labour hire services?  Important changes are coming for labour hire in Queensland and other jurisdictions

A labour hire licensing scheme will commence in Queensland, and it is expected that other states will follow suit.

The Labour Hire Licensing Act 2017 (Act) was passed by the Queensland Parliament on 7 September 2017 and will commence on a date to be fixed by proclamation.  The intended purpose of the Act is to protect workers in labour hire arrangements from exploitation.  It is expected the scheme will commence in 2018.

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