Recent changes to the rules governing Ontario’s Small Claims Court have led to an increase in the monetary limit which the court can award from $10,000.00 to $25,000.00. This increase has meant that more cases will now be tried in the Small Claims Court system. In some ways, this can be viewed as good news as the Small Claims Court can often produce results within a much shorter period of time than the traditional court system.

One potential downside is that, as with any expedited system, the results can often be somewhat less predictable. This is not surprising, particularly given the large caseload and the wide range of matters which decision-makers must manage. This fact serves to emphasize the need for parties to be adequately prepared for the process. Good preparation is important not just for the actual trial, but throughout the entire process, including the Settlement Conference. This conference is a relatively casual, private meeting between the parties and/or their representatives, held before a judge or mediator. The meeting provides an opportunity for the parties to settle their dispute without proceeding to trial.

While these meetings are brief, a surprising number of cases manage to settle. It is therefore vital that, despite the casual nature, individuals come to these meetings as prepared as possible in order to present their case in a clear and cohesive manner, along with supporting law. Such an approach can help to influence the judge and/or mediator in your favour and to ultimately reach a favourable result without the need to extend the litigation process. Through adequate preparation, parties can therefore maximize the opportunity which the Small Claims Court presents to reach a quick and just result.

Sharaf Sultan

This week I gave a presentation on diversity issues to the Toronto City Summit Alliance DiverseCity Fellows. The program is focused on fostering the development of civic leaders within the Greater Toronto Area (GTA). A common question raised by the group during the presentation was how an organization can balance the challenge of fostering diversity while minimizing the risk of conflict within the workplace. Many individuals were particularly concerned with what appeared to be a growing trend of conflict within the workplace which appeared to be manifesting in various ways, not the least of which was a rise in human rights claims. The answer to this question is, in many ways, as complex as the problem itself. Employers can, with the right tools and through the utilization of a multi-pronged strategy, rise to this challenge.

Clear communication with employees, for example, can help to foster both tolerance and a sense of camaraderie among employees. Carefully drafted workplace policies which lay out acceptable workplace practices, including expectations of respect within the organization, can also help to promote a positive organizational culture. Employers should also strongly consider establishing well-designed procedures for managing conflict which may arise within the workplace, including incidences of alleged harassment and/or discrimination. A concerted effort should also be made to ensure that these policies are applied in a fair and consistent manner. Such a comprehensive approach can help to ensure that employees have confidence in both workplace practices and processes and promote an inclusive culture in which all employees feel a sense of ownership.

What should be the ultimate goal of promoting diversity in the workplace? A workforce that focuses not on differences between individuals but rather one that works in collaboration to produce the best results for the good of the organization.

Sharaf Sultan

In the wake of Bill 168 amendments to Ontario’s Occupational Health and Safety Act with respect to violence and harassment in the workplace, many of our national employer clients are realizing that there are varying levels of statutory obligations across the country and they are asking, “What should we do?” Ontario was the third province to enact these types of workplace violence and harassment statutory requirements, following Quebec and Saskatchewan.

Our advice to national employers is that although an employer’s statutory obligations with respect to workplace violence and harassment vary in complexity depending on the jurisdiction, now is a good time to adopt one national standard, and that standard should contain explicit protection against workplace violence and psychological harassment. This will mean that the standards are consistent across the organization. Moreover, as the type of protections we have seen included in Quebec, Saskatchewan and Ontario extend to other jurisdictions, organizations will already be prepared.

Implementing national change will ensure that workplace violence and harassment is addressed consistently across the country. It will also likely save time in the long run if policies, programs and training are developed, amended and/or implemented nationally, as opposed to province by province.

Hena Singh

Tiger Woods is returning to work this week to play in the Masters. His return to golf is predicted to bring an enormous boost to television ratings with everyone curious as to just what the reception will be like and how he will fare under the pressure.

There are certainly parallels to a traditional workplace, when employees return after a significantly difficult life event – perhaps the death of a loved one or a serious illness. Many employers access the advice of experts in such a case to help support the employee in his or her transition back to work.

However, the transition becomes that much more complex when the employee has been absent from work for reasons of which their co-workers are aware and which they may view negatively – such as a criminal investigation or charges, marital infidelity, or even a workplace dispute in which their co-workers have been involved. The good news is that these are rare occurrences, but the bad news is that they are a legal hornet’s nest. If the employer does not take proactive steps to ensure the employee’s safe return to work, the potential for the employee to be on the receiving end of ridicule and even workplace harassment is extremely high, leaving the employer exposed to potential legal liability.

Well before the employee’s return, employers would be wise to review their workplace harassment policies and ensure that they are up-to-date and encompass situations which could occur upon the employee’s return to work. The policies should also clearly set out a process which employees can follow in the event that they encounter a problem at work. Reminding employees of the existence of the policy too close to the employee’s return may draw unwanted attention to the employee, but certainly the employee could be provided with a copy and assured upon his or her return that the employer strives to ensure that all employees in the workplace are able to work in a discrimination and harassment-free environment. Lastly, the employer would be wise to monitor the situation carefully for a period of time. Ensuring that certain key management and supervisory personnel are aware of the potential for problems, while monitoring the situation discretely is also wise, as is doing a regular check-in with the employee to ensure that the transition back to work has been smooth.

And for this week, many of us will have our eyes set on Augusta to see how Tiger’s co-workers respond to him when he returns to work.

Christine Thomlinson

Our firm recently won a human rights case for one of our employer clients. The human rights application was filed by a candidate for a position who claimed she was discriminated against in the hiring process. The case was an interesting one because when it started it left the question as to how we were going to prove that the candidate was not hired for reasons which were not discriminatory.

In this case, the employer did a tremendous job exercising “best practices” prior to the allegations being made, which made winning the case significantly easier. First, they created a very detailed job posting which specifically outlined the criteria of the job. Second, the candidate was asked specific questions on the job requirements. Third, they kept great notes of these discussions, and included the reasons why the individual did not meet the job requirements.

These steps were critical in assisting the Tribunal in understanding that the decision regarding this candidate was based on objective criteria and not discriminatory grounds.

The Human Rights Tribunal receives thousands of cases every year. In most of the cases, the respondents swear that they did not discriminate against the applicant. As you can imagine, it is an extraordinarily difficult task trying to figure out which respondents are being truthful and which aren’t. As a result, the process taken by respondents and the documentation that they have is very helpful in guiding the decision-maker to a decision which is favourable to an employer.

This approach is applicable not only to the hiring process but also the performance management process in general. We are often asked by employers “why would we performance manage an employee when we never terminate for cause?” Well, there are two answers to this question. First, there may be circumstances in which cause is alleged and without performance management, it will often not be proven. Second, documentation is not only helpful for justifying cause, but also for justifying terminations without cause. In a case where an employee is terminated without cause, there are times when the employee alleges that he/she was terminated because of discriminatory reasons. An employer is much more likely to defend such an allegation if they have done an objective review of the workplace and have excellent records of an employee’s poor performance which led to the termination, even if it was without cause.

We always tell our clients to keep good records, but this is a perfect example of why it is important.

James Heeney

Economic indicators are increasingly pointing to the beginning of the end of the so-called Great Recession. As economic growth gains traction, underlying long-term labour market trends are likely to increase in prominence.

One such trend is the much discussed, looming Baby Boomer retirement. This enormous withdrawal of workers will likely be a major influence in the direction of the labour market for at least the next two decades. For starters, the sheer number of retirees almost guarantees that Canadian labour force growth will slow dramatically. At the same time, immigration will account for the vast majority, if not all, of any further growth in the labour market. Simply put, the Canadian labour market will be shrinking and becoming more diverse at the same time.

These coming trends will be both significant and long-lasting. Employers will accordingly have to find effective ways to adapt. Otherwise, organizations could find it increasingly difficult to continue to both attract and retain talented employees. This is primarily because employers will no longer be able to rely on an abundant pool of talented workers from which to choose from. As a result, traditionally underemployed groups such as women and the disabled will become increasingly central to managing labour shortages.

So how do employers prepare for the coming changes? One way is for organizations to create and nurture cultures which are both open and inclusive. Employers should consider expanding beyond their traditional comfort zones in order to find the talented workers that can drive their business forward. Well-designed workplace policies can also assist as frameworks to guide workplace activity in a manner which contributes to an environment of tolerance. Such early initiatives can help significantly in ensuring that organizations have the most talented and adaptable workforces vis-à-vis their competitors.

Sharaf Sultan

…is where I was yesterday, returning from vacation. As I was flying, I had the opportunity to catch up on some films that I hadn’t seen, including the Academy Award nominated film, “Up in the Air”. For those of you not months behind in your film watching like me, you will know this is the movie starring George Clooney as a “terminator for hire”. His character is retained to fly to companies around the globe and, on behalf of these companies, to conduct their employee dismissals. The plot thickens when the decision is made to begin to offer this service remotely, dismissing employees over a video screen. Some of the most brilliant performances in the film are not from the Hollywood actors, but from the individuals who receive the news that their employment has come to an end.

Interestingly, I heard somewhere that these were not exactly “performances”, as the individuals who played these roles had actually lost their jobs in the recession. Even though the film didn’t win the Oscar for Best Picture, the emotions portrayed by the dismissed employees were authentic and this certainly resonated for me as I watched the film.

I think that the film can serve as a reminder that, at the heart of every employee dismissal, there is an employee, an individual with responsibilities, aspirations, self-worth, with things they have attached to the job that are dashed when they hear that the job has come to an end. Employment lawyers can help with all of the legal mechanics around the termination process (what severance to provide, what benefits, whether to provide a letter of reference, what it should say, etc.), however, conducting the meeting itself, delivering the news and treating the employee with respect cannot be overlooked. I have seen many good severance packages go unnoticed by employees who feel crushed by the manner in which their dismissal meeting was handled.

Our economy may be recovering, but the need to terminate employees will always exist. We hope that there may be less of this over the years to come and, if so, it is all the more reason to do the ones that need to be done with care and compassion.

Christine Thomlinson

In the last two weeks we have seen a number of new clients who have been offered jobs and want our legal services to review the contracts.

Prior to the market crash in 2008 this was common, but after the fall of 2008, the number of these requests fell dramatically and has remained low.

The recent increase in the number of new contract reviews suggests that the market may be recovering and that hiring is starting to return. Unfortunately, we are also seeing a number of terminations, which remained high throughout February. This suggests that the marketplace may still be in transition.

While we start to move from recession to recovery, employers and employees should remain mindful that a good employment contract is often the best way to avoid disputes during the relationship and/or when it ends.

Certainly when someone is hired, we don’t want to talk about what would happen if things don’t work out. However, that approach only postpones what could be a litigious ending. Employers and employees should agree on what occurs on termination before that event occurs. This includes not only outlining what notice is owed to the employee if he/she is terminated, but also how much notice prior to resignation the employer needs should the employee choose to depart.

James Heeney

As Janice and I prepare for the Teleseminar on Bill 168 on April 8, 2010, I’ve come to realize that although the legislative amendments to the Occupational Health and Safety Act demonstrate the importance of addressing violence and harassment in the workplace, the amendments do not provide universal guidelines on how to do that.

As lawyers, we are tasked with guiding our clients to ensure compliance with legislative guidelines. Given that there is limited information in the legislation, employers must ensure that their workplace is properly evaluated and policies are properly crafted to address the needs and risks of the specific workplace. For example, it is becoming more and more apparent how company-specific risk assessments need to be. We must look at the physical features, social environments and policies and procedures which exist in each workplace to determine the best approach to conducting a risk assessment. In other words, there isn’t a set way to conduct a risk assessment.

The date that the amendments come into force is creeping up (June 15, 2010). If you haven’t yet begun to look at ensuring compliance in your workplace, the time to begin is now.

Hena Singh

I was speaking at the Ontario Bar Association’s Annual Institute 2010 program last week. The session was entitled “Navigating the International Assignment Maze” and I was asked to speak about employment law implications. Surprisingly, there are quite a few! Although we have heard less in the last few years about employees moving for work, as the recession passes, we will likely see a resurgence in the global demand for talent, and employees will once again be moving from office to office more routinely.

Some of the most significant issues which arise with the mobile workforce involve:
(a) confirming who the actual employer is, which can be unclear when an employee is moving between related companies;
(b) determining which law applies to the employment, depending on where the employee comes from and ultimately works; and
(c) establishing the specific law which will apply in the event of a dispute.

Some of these issues are less significant when employees move between offices in the same city, but you can imagine the complexity when they move between provinces or even between countries.

Certainty can be injected into the employment relationship by confirming the above in a written employment contract. The contract can also be very useful for preventing other disputes which often occur in the context of an employment transfer. The following are just some of the issues which arise:

• Does the employee have any obligation to accept a transfer?
• What is the employer’s obligation, if any, to assist with the necessary immigration documents?
• What expenses will the employer reimburse (associated with a move), and will these same expenses be reimbursed after the assignment ends?
• If the assignment ends, does the employee have a right to return to his/her former job and/or home base?
• Will any assistance be provided to the employee to assist with the tax implications of the new jurisdiction?
• Are any special terms of employment, like incentive plans, stock option agreements, restrictive covenants, enforceable in the employee’s new jurisdiction of employment?

As you can imagine, the legal issues which can arise in the context of an employment transfer can be very complex and difficult to resolve in the absence of a written agreement. As the economy begins to turn around, we encourage those employers looking to begin transferring employees to be mindful of the above-noted issues and to consider entering into written employment agreements before the transfer occurs.

Christine Thomlinson