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

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

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

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

Hena Singh

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