Many employers have struggled to promote diversity within the workplace, particularly within the upper ranks of an organization. I am currently taking part in a program which I believe is an excellent model for those organizations seeking to maximize the opportunity which diversity presents. It is called the DiverseCity Fellows program, a one-year, action-oriented program aimed at developing leadership skills among a group of approximately 25 chosen professionals of diverse backgrounds across the GTA. The program includes a range of workshops on leadership development, diversity, and civic awareness. The group of Fellows is just as diverse as the GTA itself. One particular aim of the project is to facilitate the exchange of ideas between individuals of varying backgrounds. The ultimate aim of the program is to create a pool of talented potential leaders of diverse backgrounds who are ready to take on various roles.

The program provides a useful template for other organizations that are contemplating how to stimulate creativity and foster a pool of talented leaders. The DiverseCity Fellows program demonstrates that it is possible to pursue diversity and excellence in performance at the same time. The ultimate aim of any such program should be not only to hire individuals from diverse backgrounds, but more importantly to ensure that their skills and unique perspectives are effectively utilized. Through such an approach, employers can better realize the substantial returns that come with an investment in diversity.

Sharaf Sultan

An interesting case crossed my desk this week. It is Whiteman v. Eastern Lift Truck Inc. 183 A.C.W.S. (3d) 87. The case was recently decided by Mr. Justice Ray of the Superior Court of Justice.

What jumped out at me was how efficiently the plaintiff and his counsel made use of the procedural tools available to get a good result with minimal expense. Counsel for the defendant also deserves kudos as he agreed with the suggestion to deal with the case in this fashion.

The plaintiff was a forklift mechanic who earned $58,000 a year. He had worked for the employer for six years. No cause was alleged. The issue to be determined was the length of notice to which he was entitled, as well as whether the termination violated the Human Rights Code of Ontario.

Rather than wade through examinations for discovery and a trial, which would have made little economic sense since the plaintiff’s case was worth less than $30,000, plaintiff’s counsel brought a motion for partial summary judgment under Rule 76.07 of the Rules of Civil Procedure. Simply put, this rule allows a judge to render a decision when he or she determines there is enough information to do so, and where the judge determines that there is no need for cross examination of the parties. It appears that the evidence used was the plaintiff’s own affidavit that set out his job search. This was enough for the judge to conclude that the plaintiff was entitled to five-and-a-half months’ notice. The human rights issue, which could not be addressed using this process, was left undetermined. This will mean that it can be tried on its own at a later date, or settled between the parties. I am told by counsel that the matter took all of two hours to be heard in court.

If you are an employment lawyer reading this, ask yourself how many of the wrongful dismissal files sitting on your desk could be handled this way. If you are an employer, ask yourself the same question. If you are an employee considering engaging the services of counsel, make sure you ask if your dispute can be determined as simply and as efficiently as this. I think this case is a procedural sign of things to come.

Janice Rubin

Janice Rubin and I have been spending a significant amount of time updating the “Law of Termination in Ontario” book, originally published in 1995. What I’ve come to realize is that while there are a number of technical points which have changed in the Employment Standards Act, 2000 since the book’s debut 15 years ago, the basic employment law concepts remain the same. They are:

1) Employees are still entitled to reasonable notice of termination and the main elements of that calculation remain the same;

2) Termination with cause is still the “capital punishment of employment law”, making termination for cause very difficult for employers to rely on;

3) Termination provisions (especially provisions only entitling employees to Employment Standards Act, 2000 minimums or little more) need to be carefully and expertly crafted to ensure that the employer can rely on them when terminating employees;

4) Most employment law cases are about the sufficiency of notice. The “extras”, such as Wallace damages, mental distress, punitive damages, etc., are generally only awarded in the most extreme cases;

5) An employer’s breach of legislation such as the Human Rights Code, the Employment Standards Act, 2000, the Environmental Protection Act, the Pay Equity Act, the Occupational Health and Safety Act and/or the Workplace Safety and Insurance Act, followed by a termination of an employee can often lead to serious and unforeseen consequences, including an award of the “extras” described above.

As the French saying goes, plus ça change, plus c’est la même chose (the more things change, the more they stay the same).

Hena Singh

Over the last couple of months, we have seen our employer clients engage an increasing number of “independent contractors”. This can be an effective way of getting overflow work done without adding to the headcount, and adding fresh blood to an organization.

Here are a few things to look for when structuring these arrangements:

1. Put it in writing. Even these arrangements can end in tears if there is a disagreement on the basic terms. Your best bet is to set out the agreement in writing. Things that should be included are: what the project is; what the term is; where the person will work; and what the compensation will be. The other very important thing to include is what happens if there is a termination.

2. The duck test. Just because you call your new person an independent contractor, doesn’t necessarily mean that they aren’t an employee at law. If it looks like a duck, and walks like a duck, it may just be a duck, or in this case an employee to whom you may have to pay statutory or common law notice. An independent contractor is just that – independent. If you fully integrate that person into your operation, and if you exercise control over how they do their work, there is a chance that they will be an employee at law. Look to set up arrangements that look like a bargain between two equals, with a substantial amount of control and flexibility resting with the contractor.

3. Leaving it too long. The longer the relationship lasts, the greater the possibility that someone – and that could mean Revenue Canada – will conclude that it is really an employment relationship. In that case, the employer will be on the hook to pay income tax withholdings and CPP and EI premiums for the employee, often calculated from the beginning of the relationship. This can be costly, and may be difficult to collect from the employee.

Janice Rubin

This weekend I was reading several studies, some more formal than others, which focused on the major reasons behind why some prospective employees succeed in gaining employment while others do not. One common theme across the various studies was the increasing reliance of employers upon online tools, including social networking sites, to gain information on prospective employees. Specifically, it appears that some employees who may otherwise have done well in an interview process fail to secure jobs because of online information about them which dissuades the employer from making a formal offer.

These studies serve to confirm what I long suspected: the online world is becoming meaningfully integrated into the so-called “real” world. Specifically, the internet, including social networking sites, is rapidly becoming an investigative tool upon which employers form opinions of prospective employees. Although the studies I reviewed focused on prospective employees, the findings can be applied equally to employers. Specifically, information which employers post online can significantly inform the impression formed by a variety of individuals and groups, including existing clients, prospective clients, as well as prospective employees. Both employees and employers would therefore be wise to ensure that online content which is available to others is both accurate and consistent with the image which they wish to portray to the public.

A good approach is for individuals and organizations to ask themselves candidly whether they are comfortable with others viewing all content about them which is available online. If not, the content should be modified as necessary. This process should also ensure that information which is particularly sensitive is removed from the public sphere. Such a reflective approach can help to ensure that online information is both positive and consistent with the goals of both employees and employers. Regardless of the specific content the guiding principle should remain the same: what is online is also on mind!

Sharaf Sultan

Bill 168 received Royal Assent on December 15, 2009.  It will come into force on June 15, 2010. 

Hena Singh

The passing of December 31 causes many of us to consider resolutions for the New Year. What will we do differently? How will we behave better? What will change?

As employment lawyers, if we could suggest our top 5 resolutions for employers and employees for 2010, they would be:

1. Prepare written employment contracts for every employment relationship.
The good news is that we’re beginning to see people being hired again. As lawyers, we will always tell you that the way to enhance certainty in the relationship is to ensure that everything that was discussed at the beginning finds its way onto paper.

2. When writing those employment contracts, think about post-employment restrictions.
Both employers and employees should think about whether there is a need for restrictions on what an employee does (competes/solicits) after the employment relationship ends. Now is the time to set this out – not later.

3. Continue to exercise care in the termination process.
For the most part, companies seemed mindful of engaging in sensitive terminations throughout the 2009 recession. We encourage the continuation of this practice even if the number of terminations drops in 2010.

4. Pay particular attention to issues of harassment and bullying in the workplace.
Pending legislative changes in Ontario mean that employers need to be addressing bullying and violence in the workplace. Residual stress in the workplace caused by the fallout of the recession may also mean a rise in this type of behaviour.

5. Be aware of changes to the Ontario litigation system.
Changes which come into effect on January 1, 2010 are hoped to bring better access to justice and a quicker resolution of employment matters for all.

From all of us here at RT LLP, we wish everyone a very prosperous and happy new year!

Christine M. Thomlinson

Employer-sponsored holiday parties are usually intended to be events where employees can relax and celebrate the successes and accomplishments of a company as a group. However, there are several considerations to be made when planning a holiday party in order to maximize their success and minimize liability. I’ve noted a few considerations below.

First, employers must be cognizant of the fact that not all employees celebrate the same religious holidays. Therefore, employers should be sure to be inclusive when planning holiday parties. For example, employers should be careful not to label their parties as “Christmas parties” when there is a possibility that not all employees celebrate Christmas.

Second, employers and employees should not forget their responsibilities while at an employer-sponsored event. Specifically, employers should remind their employees that Workplace Policies (Respect at Work,etc.) still apply and that professional behaviour is expected.

Third, employers also have an obligation to protect the health and safety of their employees under the Occupational Health and Safety Act and the common law. This obligation continues to exist at employer-sponsored parties. This is particularly important to remember when alcohol is being served and/or consumed at a company event.

Employers should consider providing taxi chits to employees for the purpose of getting home from the company event. At the very least, employers should advise their employees to make alternative arrangements if they plan to consume alcohol – and any responsible employee should.

Hena Singh

Bill 168, which amends Ontario’s Occupational Health and Safety Act with respect to violence and harassment in the workplace, passed third reading yesterday.  It is anticipated that it will receive Royal Assent in the next couple of days.  It will come into force 6 months after it receives Royal Assent. 

Once in force, the legislative changes will impose several obligations on employers to conduct risk assessments, and develop and implement policies and programs, in an effort to reduce the incidents of violence and harassment in the workplace.

While 6 months may seem to be a long time to prepare for the Bill to come into force, employers should strongly consider conducting their risk assessments, policy and procedure drafting, and training and implementation as soon as possible as these can be lengthy and time consuming processes.  Employers who leave these items to the last minute may find themselves in non-compliance with the law come mid-2010.  The Occupational Health and Safety Act indicates that corporations that are in non-compliance with the Act can face penalties, including significant fines. 

Hena Singh

For those of you following the progress of Bill 168, which proposes to add explicit protections for employees against workplace violence and harassment, you will know that one of the trickier elements of the Bill is the requirement that employers perform a risk assessment of the workplace. The purpose of this assessment is to determine if any parts of the employer’s operation are vulnerable to acts of violence.  Unfortunately, in its current form, the Bill does not explain how such an assessment is to be done.

I had a conversation with a client just last week that provided a great example of the kind of potential risk that an employer might uncover through an assessment.  This client is a retailer, and operates out of several malls.  On occasion, members of the public have come into the store and have been difficult to deal with.  Some have been overly aggressive. Even more rarely, members of the public have behaved in a violent fashion in the presence of staff. Luckily, to date, this violence has been directed at the store itself, i.e. knocked down and smashed merchandise, not the employees.

When I was reviewing this situation with the client, they mentioned that they did not know how many of these incidents had occurred and which stores were more susceptible to customers behaving this way. Most importantly, the client indicated that they did not have emergency security buttons in the store, they did not have an established security protocol, nor did they train their employees to know what to do if there was an act of violence or a threat of violence.

I suspect this is not an uncommon situation for many businesses.  I plan to review this situation with my client in anticipation of the Bill coming into law.  For those of you struggling with how to approach an assessment, these types of incidents might be a good place to start.

Janice Rubin