Upholding The Reasonable Rule of Law

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?


Privacy is a Global Issue


The world is getting smaller. This oft-used statement is made in relation to the impact of technology on our lives from a global perspective. It is supposed to signify the advances that have been made that allow us to have ‘real-time’ communications with each other at any time, and from almost anywhere in the world. If you’re in Canada, and have the right access codes, you can send a text message to someone in India and expect to have an almost immediate response. You can order your living room furniture directly from a Swedish manufacturer without leaving your house and enjoying the in-store meatballs. All of this can be done on a computer with a few clicks.

It goes without saying that the world is as big as it ever was. What has changed is our ability to access and share information on a global stage. It is from this perspective that we begin to see how our access to information is being shaped and directed by differing views on data protection and privacy.

In May of 2018, the European Union implemented the EU General Data Protection Regulation (GDPR). This legislation imposes accountability and responsibility on organizations that do business around the world, with particular focus on the protection of private information based on electronic and personal data.

This legislation has significant implications on Canadian businesses as it requires proactive measures to be put into place when there is a potential privacy data breach.

Click here to read about mandatory data breach reporting for Canadian companies.

The Society for Human Resource Management (SHRM) has provided a guide that outlines eight critical elements that the human resources function must have in place to be in compliance with the legislation.

Click here to read the SHRM article.

As noted in both articles, the GDPR impacts strategic international human resources management directly. If the Human Resources function was not actively engaged in data protection prior to the implementation of the GDPR, the legislation changes that business-level approach as well. It is the role of the Human Resources function to ensure that employee data protection rights, organizational data accountability structures, and data breach reporting requirements are all prioritized.

Once again, we see the ever-increasing need for a pro-active and visible Human Resources presence that must find its place on the shrinking global stage.


Discussion Questions:

  1. From an HR perspective, what constitutes a data breach?
  2. How will the European privacy legislation impact global businesses and the Human Resources function?
  3. What should Canadian multi-national companies put into place to ensure the privacy and protection of employee data?
  4. What are possible remedies for privacy or data breaches that happen outside of Canadian business jurisdictions?

Coffee With A Side of Bullying

In Ontario, the Occupational Health and Safety Act includes recent amendments to address incidents of harassment, sexual harassment, and violence in the workplace. The importance of these amendments lies in the presumption that workplaces need to be safe, physically, and that employees can feel safe, psychologically.

Under the Occupational Health and Safety Act – Section 1, we know that the definition of workplace harassment means a person or persons “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” The same section of the act also identifies that “reasonable managerial actions” taken to direct workers is not or does not constitute workplace harassment.

When there is an allegation of harassment, under the Occupational Health and Safety Act, the employer must investigate and report on the results of that investigation. Further, an employee has the right to bring a complaint forward for investigation, based on their personal belief that they are being harassed.

These legislative parameters form an interesting backdrop when looking at the recent and on-going allegations of bullying by Tim Horton’s franchise owners. These are owner-employers who appear to have taken punitive measures against employees resulting from the implementation of amendments to the provincial Employment Standards Act.

Specifically, there has been much media focus on certain franchise owners, who have implemented cuts to benefits and working conditions for employees in a manner that has been reported as bullying. Bullying, while not defined specifically in legislation, falls into the category of workplace harassment.

Click here to read an article about the allegations of bullying Tim Horton’s employees.

In response to these allegations, the Ottawa District Labour Council set up a bullying hotline for individuals to report those employers who are engaged in these bullying practices. In turn, the labour council will publish the names of these bullying employers in order to provide a forum for public shaming of their actions.

Click here to read about the bullying hotline.

From the employer side, in this case, the justification for these actions comes from a need to balance the financial books. In order to provide the increases in wages, the employer appears to be implementing cuts in other areas of compensation so as not to suffer any additional losses in profits. Is it possible that these actions are reasonable and not, in fact, harassing or bullying?

Unfortunately, what seems to be missing is the ability of franchise employees to take reasonable and legitimate steps to report the perceived bullying behaviour on the part of their employer. In the absence of an HR department, reporting structures that include legislative requirements, or clear policies and procedures, it seems that small business and franchise employees continue to have limited options for potential support or resolution.

In these cases, employees often have one of two choices – either they comply with the employer’s demands or they quit. Neither option appears to support the reasonable and legitimate right to feel safe.

Discussion Questions:

  1. As a Human Resources consultant for a small business or a franchise, what types of procedures would you put into place that allow employees to report incidents of bullying or harassment? Be specific.
  2. If you were an employee in a Tim Horton’s franchise, how would you respond to the cuts to your work-related benefits? What actions would you take?
  3. Do you agree that the cuts to employee benefits implemented by some Tim Horton’s franchises are a form of harassment, as identified in Ontario’s Occupational Health and Safety Act? Explain your rationale.

Collecting Data for Good News

Sometimes, good news stories do not get the attention they deserve. In the late spring of 2017, Ontario’s Workplace Safety and Insurance Board (WSIB) released its annual statistical report for 2016.

Click here to access the 2016 WSIB statistical report.

Based on the data provided, the report confirms that lost-time injury rates for workers in Ontario have continued to fall. Conversely, this means that workplaces in Ontario increased their focus to ensure that workers are safe. The WSIB numbers reflect that focus accordingly.

This information received very little media attention. There was a brief article posted in OHS Canada Magazine outlining the relevance of the report and its impact on Ontario’s workers.

Click here to read the article.

Even though there was not much media fanfare about this report, the results are significant. Lower lost-time injury rates show that progressive and positive workplace safety measures are working. It also means that there is increased emphasis on ensuring that injured workers are able to return to work as quickly as they can through the pro-active supports provided by workplace accommodations such as physical interventions, graduated return procedures, modified work, and re-training as needed.

All of this information is available to the public in the aforementioned statistical report. In addition, the report is interactive and allows users to build their own reports based on their particular area of interest. For the Health and Safety professional, the report builder provides a great tool to use for purposes of benchmarking and assessing different injury categories or rates based on specific industries and relevant demographic data.

Why is this important? Data, translated into information, is the tool that tells the story that allows organizations to make decisions. In this case, the story that is told speaks to the importance of continuing progress and positive interventions to keep workers safe.

It is definitely a story worth re-telling.

Discussion Questions:

  1. Based on your current knowledge of your workplace, using the WSIB’s report builder, build a report based on two or three injury categories for workers meeting your age group (demographic filter) for lost-time injuries.
  2. Build a similar report to analyze traumatic fatalities.
  3. As the Health and Safety Officer, how can you use the report builder to convince leaders in your organization to shape or shift health and safety practices?
  4. What types of new information did you discover based on the reports that you built?