human rights compliance

PRESENTER: CHUCK TAHIRALI

Human Rights ComplianceNew System, New Challenges and New Opportunities

“Old” Versus “New”

Comparing human rights regimes in Ontario

• Inquiries steady…and overwhelming the system?• Complaints to Ontario Human Rights Commission down 100%• More applications to Tribunal and decisions from Tribunal in a

month under new system than in a year under old.

• Section 34 dismissals are a thing of the past.• Limited opportunity for early dismissal under new system.• No costs awarded for bringing frivolous application.• But is Tribunal taking the mechanisms that exist more seriously?

What About The Trivial And Frivolous?

Summary hearings

• Introduced 10 months ago• Party may ask or Tribunal may proceed on its own motion• Apply for Summary Hearing to argue that an Application should be

dismissed, either in whole or in part, because there is “no reasonable prospect” that all or part of it will succeed

• Procedure – teleconference but no Skype• No news is bad news if you are the Party who applied for

summary hearing• Early case law – keeping all options open

Procedural Issues

Deferrals

• Request Tribunal to defer pending outcome of another proceeding, e.g., WSIA, ESA, civil matter, grievance arbitration

• Key cases re: WSIA deferrals• How are employers faring?

Procedural Issues

Delay

• Time for filing application doubled from 6 to 12 months• Is the Tribunal taking a stricter approach to late filing?• Early standards – ignorance of the law no excuse• Employers faring well in getting applications dismissed for delay

Procedural Issues

Accommodation is a two-part process

• What are the “procedural” and “substantive” components?• Key cases• How to use the procedural and substantive requirements to your

advantage

Duty to Accommodate

Accommodation is a two-way street

• Employees have to do their part, too• A “collaborative” process• What are the employee’s duties and obligations?• Key cases illustrate the approach you should be taking to

accommodation

Duty to Accommodate

• Employee wrongly insists leave of absence only appropriate accommodation

• Teacher anxious over performance appraisal; School reacts appropriately

• Does doctor’s note justify transfer to less stressful job?• Changing shifts – the right way to avoid family status issues• Accommodation doesn’t always result in job; severance may be

appropriate

Accommodation Case Law

• Orillia Soldiers Memorial Hospital – not just for unionized employers anymoreo Important principles arising from arbitral jurisprudence

“crossing over” to non-union human rights jurisprudence

• Tribunal applies OSMH to duty to accommodate creed (religious needs)o Key case defines employer obligationso Providing paid time off for religious observances not required

Duty to Accommodate

• Employees, clients and contractors in a hot tub away from the office, after hours…and in another countryo In sorting out jurisdiction, Tribunal clarifies and confirms

important principles that may affect your harassment policies

• “Pockets of lost time” discovered months after hot tub retreato What is alleged to have happened during missing time?o Issues of credibility

Harassment: “Hot Tub Time Machine”

• Tribunal rules in favour of employer on the merits; disbelieves drugging, hot tub assault story.

• Despite unbelievable complaint, Employer found to have violated Code in manner of responding to strange story.o Duty to investigate – what are the considerations?o Why a robust investigation procedure is essentialo Remedies, including non-monetary remedies, for failure to

investigate

Harassment: “Hot Tub Time Machine”

• In deciding whether the duty to accommodate has been fulfilled, the conduct of the complainant will be considered.

• Employee has an obligation to inform the employer of the need for accommodation.

• Employee has duty to facilitate search for accommodation.

A Collaborative Process

• Employee has obligation to provide medical updates.• Employee must provide sufficient information to allow Employer

to understand how disability, for example, affects ability to perform duties of job.


• When Employer forwards reasonable proposal, Employee has duty to facilitate proposal.

• If failure to take reasonable steps on the part of the Employee causes the proposal to founder, any subsequent complaint will be dismissed.


• Employee has obligation to accept reasonable accommodation; Employee cannot expect a perfect solution or the one most desired by Employee (not entitled to “cherry pick”).

• If a proposal that would be reasonable in the circumstances is turned down, the Employer's duty is discharged.


• 11 years after 2000 Court of Appeal decision in Entrop, we’re back where we started from

• How labour arbitrators are ruining it for everybody – the “Canadian Model”

• Chronology of events and key cases• How random alcohol testing fell through the cracks – and why it

may be coming back

“Party like it’s 1999”

• Is the “Canadian Model” unassailable?

• “Dangerous is dangerous” – 2010 Court decision in Irving Pulp & Paper

• Recreational drug use – a tale of two provinces and two caseso Will non-union case law drift away from arbitral (union)

jurisprudence?o Recreational drug use cases open the door for pre-

employment testing…?

“Party like it’s 1999”

PRESENTER: PETER CICAK

Constructive Dismissal

1. What is constructive dismissal and how does it work?

2. New developments in the doctrine of constructive dismissal

3. How to protect against a potential constructive dismissal claim


What is it?

• When the employer is responsible for a substantial change to a fundamental term of employment

• The employee can accept the change and continue working, or can reject the change and treat their employment as being at an end (and seek termination/severance pay)

• Employee may be constructively dismissed irrespective of the employer’s intention to terminate employment


Can be triggered by

• Compensation changes: Pay, bonuses, benefits, commission structure

• Position change: Title, prestige, duties, reporting status, demotion,

• Changes in workplace conditions: Location, hours of work, harassment/poisoned work environment

• Seemingly general business practices: Lay-off, suspensions, discipline in general


Timing and employee options

• If the employee does not communicate its rejection of changes within a “reasonable time”, it may be seen to have accepted the new terms of employment

• Changes need not be rejected right away, as employees may “try out” the new terms and attempt to work under new conditions before rejecting them

• The employee may choose to stay in the workplace under the new terms and sue for the difference


New Developments: Mitigation

Evans v. Teamsters Local Union No. 31,SCC

• An employee who has been dismissed may have to accept an offer to return to work for their former employer

• Must do so as a way to mitigate any damages suffered.

• Employee may not have to return if changes or conduct of employer result in significant humiliation for the returning employee


New Developments: Employer Acquiescence

Wronko v. Western Inventory Service Ltd. OCA

• When an employer announces that changes will occur at some future date, the employee may stay on and insist on working under the original terms of employment

• The employer may then terminate the employee with appropriate notice and offer to rehire them on the new terms of employment


New Developments: Employer Acquiescence

Wronko v. Western Inventory Service Ltd. OCA

• Failure to do so may result in an employer being found as acquiescing to the employee’s demand to work under the original terms of employment

• Result: If the employer later puts into action its proposed changes and the employee resigns and launches a lawsuit for constructive dismissal, the “notice clock” starts running when the change occurred, not when the original notice of the change was given (i.e. it will cost more)


New Developments: Economic climate

• Court considerations tend to shift between favouring employers and employees, as the business cycle grinds forward

• In poor economic times, increased recognition by courts of the economic struggles facing employers

• Currently, expect more leeway for employers requiring flexibility in troubled economic times


New Developments: Bill 168

• Requires employers to create procedures for dealing with harassment in the workplace

• Bill 168 may make it easier for employees to prove the existence of a “poisoned work environment” and thus that a constructive dismissal occurred, if harassment procedures/policies are not created or followed



Protecting against a potential constructive dismissal claim

• Create written contractual terms to allow for changes that may occur down the road (upon hire or with new contracts)

• Give reasonable notice of new changes (Terminate/offer rehire on new terms if employee insists on original terms)

• If employee resigns, invite them back to work to mitigate their damages

• Document past practice of similar changes being accepted by employee