Employment issues

On June 15, 2010, the Bill 168 amendments to the Occupational Health and Safety Act come into force.  The amendments require virtually all Ontario employers to conduct a violence risk assessment and to implement policies to address workplace harassment and violence.  This is something that all employers need to be aware of.

The requirements are interesting and somewhat unique.  For example, the amended Act requires that employers report the results of the workplace violence risk assessment to the employees, or a safety committee comprised of employees.

The amended Act further requires that the employer develop policies to deal with workplace violence that:

1. control and minimize the risk of violence in the workplace;
2. provide that immediate assistance is summoned in the event of violence in the workplace;
3. ensure that incidents of violence are reported to the employer in a timely manner; and
4. ensure that incidents are investigated

And of course, once the policies are developed, they must be implemented – the Act requires that as well.

If you have any questions about your obligations under the Act, about how to conduct a risk assessment or how to draft a workplace violence policy in compliance with the Act, please contact us.

Scott R. Young

We are often asked to act for clients who have issues that stem from a conflict of privacy expectations in the workplace.  The expectation never seems to come to a head until there is point issue such as a termination or a workplace incident.  At that point we’re asked to go back and determine whose expectation was more reasonable.

The analysis is never easy.  Workers have a right to privacy, but that right is not unlimited.  Employers have a right to monitor the workplace, but that right, too, is not limited.

We need to look at a host of factors that will help determine where the appropriate expectation should fall.  The nature of the work done is important – in a law firm, the information dealt with is incredibly sensitive and employees might reasonably expect that there management of that information might be monitored;  in a distribution facility, the goods handled by employees are the only source of revenues and employees might reasonably expect that their interaction with those goods will be monitored.

We also look at the various ways that privacy is challenged.  Are employees monitored by surreptitious means, or in accordance with a clear company policy?  Is information collected that serves no purpose?  Is the challenge to privacy as non-invasive as possible?

Ultimately, both parties are best served by a clearly thought out policy that considers that collection use and storage of all potentially private information, and the communication of that policy to all employees who might be subject to it.

We have experience in both helping employers to draw that line before it becomes an issue, and in dealing with the consequences of breaches of the expectation.  If you are an employer and you are concerned about a workplace privacy issue, please contact us before you make your next step.

Scott R. Young

This week NBC announced that its failed experiment with late night television in prime time was coming to end – sending Jay Leno back to 11:35 p.m. and bumping Conan O’Brien back after midnight.

I’m not privy to the details of either Leno’s or O’Brien’s contracts, but generally speaking, this sort of unilateral modification of the terms of employment give rise to one or two legal problems…

The principal is simple – one party cannot unilaterally change the terms of what two parties bargained for.  In the case of employment law, an employer cannot fundamentally alter the terms of the employment contract (whether it is written or unwritten) without the consent of the employee.

Demotions, decreasing salary, changing titles to something less prestigious, sticking you in the early morning time slot, anything that could be viewed as degrading or embarrassing in terms of working conditions or lowers your actual income, can all be considered such alterations.

And once altered, the aggrieved party, the employee, may successfully argue that the terms of the contract of employment have been frustrated and they have been constructively dismissed.  If you are an employer, be very careful about making these sorts of changes.  Speak with your lawyer about the effect and the possibility that your actions are giving rise to significant damages.

It’s simple – contracts, whether they are between employers and employees or between billion dollar corporations and million dollar TV personalities, are bargains – promises to do something in the future in exchange for something else.  They are bargains made between two parties.  Any changes to those bargains must also be made between the two parties.

If you are an employer looking to make any changes to the terms of employment of your workforce, call us first.  If you are NBC, we don’t envy you the payout that this is going to cost you.

–Scott R. Young

In Ontario, and in most Canadian jurisdictions, the law allows an employer to end a contract of employment, and to thereby terminate an employee, at any time. If the termination is for cause, then you had better be ready to prove it. If the termination is without cause, then the law requires you to provide notice of the dismissal to the employee – and that’s the subject of this blog.

There are two options for notice of dismissal – the first is known as working notice. With working notice you inform the employee that you’re letting them go, then you allow them to continue to work (or to collect a paycheque anyway) for a period of time that can be calculated based on a handful of factors, including, most importantly, the employee’s length of service. This is a great option for the fantasy scenario where you know in advance what your work requirements are and the fantasy employee will continue to earn their paycheque right up until the last day.

In reality however, the reason that most employers dismiss an employee is because they want them out of the workplace immediately. That is where the second form of notice comes in; it is referred to as pay-in-lieu of reasonable notice. In this scenario, an employee is paid, either in lump sum, or in installments, an amount equivalent to their pay for the duration of the above-mentioned notice period. It is not uncommon for an employer to be faced with the obligation of paying a long-standing, though ill-performing, employee for an equivalent of a month or more, for every year of the employee’s service – and if the employee disputes your calculation of their entitlement, add legal fees to the payout…

These are the two unpleasant options that every employer who doesn’t plan for the inevitable has to choose from when faced with the already daunting task of having to dismiss an employee.

A third alternative, and one we recommend to clients wherever practicable, is to draft a contract for employment that includes a fair and reasonable limitation on the notice period that the employee will be entitled to on dismissal. This option provides clarity to both the employee and the employer and it provides an unambiguous dollar value to the dismissal entitlement. This allows the employer to weigh the real cost of dismissal. Perhaps most importantly, if done properly, a notice limitation eliminates the need for litigation.

A properly drafted contract, including an explicit clause outlining an employee’s dismissal entitlement will almost certainly save you the legal fees involved in drafting it – every time you use it. If you are an employer who values certainty, please contact us about drafting the contract that all of your new employees should be signing.

Scott R. Young