Legislative Compliance

You Must Investigate

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There is a reason workplaces are governed by legislation including Health and Safety laws. Most of us want to believe that people in the workplace will do the right thing in the absence of the law. The reality is, however, that laws exist because people do not do the right thing or, even worse, they do not do anything at all unless they are forced to comply with prescribed statutes and regulations.

A prime example of this comes from the amendments to the Occupational Health and Safety Act (OHSA) of Ontario dealing with workplace harassment complaints. In 2010, the OHSA was amended to include employer obligations with regard to workplace harassment under Bill 168. These amendments included psychological harassment and bullying for any reason and expanded the scope of what harassment looks like beyond the previous limitations which were based on prohibited grounds as defined by the Ontario Human Rights Code. While these changes were significant, they did not go far enough until the implementation of Bill 132 in 2016 . This bill legislated the obligations of the employer to investigate any harassment complaints linked to the workplace. The OHSA in Ontario now prescribes what, how, and who must conduct a harassment investigation on the part of the employer.

Click here to read the requirements of the employer to investigate.

It should be no surprise that these increasing investigative obligations have lead to increases in the number of complaints. On the one hand, the fact that employers must ensure that they have met their due diligence obligations is a good thing. On the other hand, it also means that every complaint must be investigated no matter what the perceptions of that complaint may be.

This dichotomy is explored and explained in a recent article written by employment lawyer, Ed Canning.

Click here to read the article.

As uncomfortable as it may be to read the case outlined by Mr. Canning, it does reiterate the fact that just because someone says they are being harassed, does not mean that harassment, as defined by the law, has actually taken place.

How do we know? By ensuring that an effective and thorough harassment investigation has been completed. Not just because the law requires it to be done, but because it is, indeed, the right thing to do.

Discussion Questions:

  1. What steps can the HR professional put into place to ensure that an objective investigation into a workplace harassment complaint is implemented?
  2. How will you deal with a disgruntled employee who, from your perspective, has a legitimate workplace concern that does not fall into the realm of harassment?
  3. What penalties are in place if the employer is found not to have followed their legal obligations under the Occupational Health and Safety Act with regard to harassment investigations?

Upholding The Reasonable Rule of Law

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As Human Resources professionals, we work within very specific legislative parameters.

This applies directly to the need for compliance with health and safety legislation. Our role is not just to ensure that the employer and the organization adheres to the principles and practices of safety requirements – it is to ensure that all persons (including employees) keep the workplace safe for everyone.

The concept of ensuring a safe workplace for everyone, seems to be one that is reasonable within the eyes of the law. A recent legal decision in Saskatchewan outlines and confirms that reasonable safety requirements from both the employer and employee perspective must be followed. In this case, an employee was dismissed for just cause, by the employer, for failing to comply with numerous safety practices.

The former employee filed a claim for wrongful dismissal. This claim was rejected by the courts. The former employee filed an appeal, which was also rejected by the courts, and the termination of employment for just cause was upheld.

Click here to read about the case: Balzer v. Federated Co-operatives Limited.

What becomes very clear, through this brief case analysis, is the fundamental role of ongoing training and monitoring by the employer to ensure safety compliance in the workplace. This is not a case of a single incident leading to tragic consequences due to an accidental error on the part of the employee. All too often, employers do not act until there has been a critical workplace incident or even a fatality before taking action against the employee.

This case shows us that the courts look for the direct trail of evidence. One that proves whether or not the employer acted in a reasonable fashion to guide, monitor and direct the employee in order to keep the workplace safe and in order to avert the reality of potential tragic consequences.

Feeling and being safe at work is reasonable for everyone.

Discussion Questions:

  1. As the Director of Human Resources in this situation, what additional actions would you take to ensure that safety requirements are met by all employees?
  2. Do you agree with the termination for just cause in this case? Explain your rationale.
  3. Why do you think some employees do not report safety infractions? What are the risks and benefits to employees for ‘keeping quiet’ about safety concerns?

 

You Gotta Pay!

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Brian A Jackson/Shutterstock

Even lawyers get it wrong sometimes.

A recent case heard by the Alberta Court of Queen’s Bench provides an excellent summary of the critical importance of processing vacation and holiday pay in compliance with the law. In this case, law firm Stringer Delecky LLP was found to be liable for $19,746.32, representing two years of unpaid holiday pay, and $33,280.14 for unpaid vacation pay, to a former employee. The ex-employee, David Kusick, was a lawyer who resigned from the firm and subsequently filed a complaint under Alberta’s employment standards legislation for unpaid vacation and holiday pay.

Click here to read a summary of the case.

As noted in the case, Kusick had an employment contract which provided for the ‘inclusive’ payment of vacation and holiday pay. The employer argued that vacation and holiday pay were interchangeable which is, according to the law, wrong. Further, the employer did not keep accurate records for calculating vacation pay and holiday pay separately.

More importantly, it seems that the employer relied upon the fact that the original employment contract would be upheld because both the employer and the employee agreed to it and signed it.

What this case reinforces for us is the concept that employers, in the creation of the employment contract, cannot abdicate their responsibility to the law. When the employment contract is found to be incorrect or unlawful the statutory provisions, such as the relevant employment standards legislation, will prevail. Employment standards legislation typically provides for the minimum requirement that an employer must include vacation and holiday allocations when it pays its employees. The legislation also provides strict and prescriptive processes for tracking and maintaining compensation-related records. These factors are not negotiable, nor do they fall into an ‘opt-out’ category for an employer. An employer can provide a better benefit to its employees, such as vacation time or pay that is more than the minimum legislated requirement, but less than the minimum is not an option. The expensive and very public lesson Stringer Delecky LLP learned from this case, is that an employer cannot ignore the requirements of the law.

 

Discussion Questions:

  1. How many paid vacation days and statutory holidays do you earn in your current workplace?
  2. Looking at a pay stub/pay record from your employer, how is the information on it formatted? Does the pay stub clearly identify vacation pay as a separate item? What other information is included on the pay stub for record keeping purposes?
  3. If you were the compensation manager for the law firm noted in the article, how would you have processed the vacation and holiday pay differently?
  4. How would you use clear language in an employment contract that identifies entitlements for earned vacation (time or pay), holiday pay, and other paid or unpaid leaves of absence?

Crime & Punishment

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Every day we make choices; big choices and little choices, all of which are within our scope of control.

It’s the same with health and safety in the workplace. Working safely is a choice-based trajectory that individual workers follow on a daily basis. There are also rules, guidelines, structures, and requirements that help workers make the ‘right’ choice — which is to work safely.

However, no matter how much support is put in place, from time to time individual workers make the ‘wrong’ choice. It may be intentional or unintentional, but workers who make the choice to take a risk, choose to work unsafely. This choice all too often results in harm to themselves or to others in the workplace, sometimes with devastating consequences.

Besides the actual physical harm that can follow from unsafe work practices, other consequences include punishments imposed by provincially legislated health and safety sentencing systems. The judicial approaches to work-related health and safety violations have followed the traditional wisdom that penalties paid either with time (jail) or with money (fines) are sufficient to deter future violations and to compensate for harm caused.

But is the threat of punishment through these traditional methods enough to encourage individuals to make the decision to work safely? The province of Nova Scotia has decided it is not. In addition to the existing consequences, the province has introduced alternative sentencing options that focus on changing an individual’s behavior through “creative sentencing”.

Click here to read about Nova Scotia’s alternative approach.

Learning from those who have had to live with the consequences of their poor safety decisions is a powerful motivator. Let’s hope that these sessions lead to better choices, better decisions, and better safety practices for all.

 

Discussion Questions:

  1. From your reading of this article, how do the creative sentencing alternatives impact the workplace?
  2. If you were the Health and Safety representative in your current organization, how could you change safety training sessions to incorporate some of the techniques identified in this article?
  3. If you had to choose between paying a fine and presenting a ‘lessons learned’ training session to others because your actions caused harm to someone in the workplace, which one would you choose? Explain your rationale.

 

Strategic Bullying

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Suat Gursozlu/Shutterstock

The changes to the minimum wage rate in Ontario are not just about compensation increases.

In January of this year (2018), legislation came into effect that amended numerous working conditions for employees in Ontario, including a stepped increase to the minimum wage for workers. Prior to the implementation of this particular piece of legislation, there were numerous headlines outlining the potential benefits and negative consequences impacting every employer in Ontario.

It should be no surprise, then, to read and hear about controversial employment practices as a result of these changes. Leading the negative storyline were the corporate heirs and franchise owners of the Tim Horton’s restaurant chain. The owners not only removed existing paid breaks and other paid benefits from employees, they also required existing employees to sign a document acknowledging (and accepting) these losses.

Click here to read the CBC report on this issue.

The premier of Ontario, Kathleen Wynne, has called out the actions of the owners as ‘bullying’.

In her statements, the premier accuses the owners of taking out their frustrations with the legislative requirements on their employees and identifies this a bullying behaviour. This is an example of employer conduct, which identifies the actions and behaviours of the employer as setting the tone for the entire organization. If the employer acts in a way that is disrespectful of the law by de-valuing and de-grading their employees, what types of strategic messages or corporate values does this particular employer promote?

If the strategic, corporate objective is to earn profits, then the employer should be clear and direct that this is the first priority. However, when the employer promotes Canadian, family-based, feel-good values as part of its marketing campaigns, the implementation of bullying practices in order to achieve the strategic objective of profits at all costs, leaves a very bitter taste.

Discussion Questions:

  1. What types of values does the Tim Horton’s brand promote in its media campaigns?
  2. From an HR perspective, how should these values present themselves within a Tim Horton’s franchise?
  3. How does bullying ‘from the top’ influence organizational behaviour?
  4. From a values perspective, identify specific changes you would make, as an owner of a Tim Horton’s franchise, in order to
    1. comply with the new legislation.
    2. benefit both the employees and the organization.