Reaching Out

Reaching Out – Thirteenth Edition

Reaching Out

Reaching Out – Thirteenth Edition

Date: March 27, 2017

Dear Friends,

With the first official day of spring behind us, we are pleased to provide our Spring 2017 edition of Reaching Out.

Chuck Hofley and Siobhan O’Brien, both from our Ottawa office, have set out some useful tips for those of you about to enter into collective bargaining. We hope you will find them helpful as you grapple with the eternal battle to reach an acceptable settlement with your trade union while at the same time maintaining your financial and operational stability.

Anne Lemay, also in our Ottawa office, has reviewed the new Policy Statement recently issued by the Ontario Human Rights Commission to provide guidance on disability-related accommodation, as a supplement to its Policy on Ableism and Discrimination based on Disability.

Still in the realm of human rights, I have written a follow up piece to a couple of articles Njeri Damali Campbell wrote for the November 2015 and November 2016 editions of Reaching Out. I take a deeper look at the second part of the three-part analysis used by the Human Rights Tribunal of Ontario to determine whether an employer has responded to a human rights claim with reasonable diligence.

We also include a short review of a recent decision of the Ontario Court of Appeal that underscores the importance of having properly drafted employment contracts if you are trying to limit your obligations upon termination to an employee’s Employment Standards Act, 2000 minimum entitlements.

Finally, I want to bring to your attention an Advantage Session that we will be presenting in May (on a date to be confirmed), intended to address specific issues affecting social services employers. The session will be presented in Toronto, with videoconferencing available in our offices in Ottawa, Kingston, Kitchener/Waterloo, and London. Please keep a lookout for an invitation in the near future with further details.

As always, we welcome any feedback or requests for future topics. We hope that you find this newsletter helpful and informative.

Michael S. Smyth

Editor

2017 Bargaining in the Social Services Sector

By: Chuck Hofley and Siobhan O’Brien

The social services sector has always had to balance different stakeholders’ interests but the pressures are rising on all fronts. Funding shortfalls, limited ability to generate additional revenue and increasing fixed costs are just a few of the pressures brought to bear even before an employer reaches the bargaining table. In the developmental services sector there are the added factors of a mandate to continue providing services, passport funding, and family participation and fatigue.

Hicks Morley’s social services group represents social services clients in bargaining both first collective agreements and collective agreement renewals. We are seeing unions advancing national union objectives on a concerted basis. Common union issues and tactics have emerged. Likewise, through Hicks Morley’s involvement in the sector, we have seen common employer issues emerge. Below, we identify those areas regularly advanced at the bargaining table and share bargaining tips for the sector.

Common Employer Issues:

  • Insufficient funding for wage, benefit or staffing increases;
  • The requirement for flexible work hours to respond to client needs;
  • In developmental services, the obligation to allow volunteers, students or family members to assist on an unpaid basis, and passport funding;
  • In child welfare, an increased focus on balanced budgets through accountability agreements now required by law;
  • Unfunded liabilities, e.g. vacation banks, pay equity obligations; and
  • More flexible layoff language required to respond to lack of control over funding.

Common Union Issues:

  • More money (wages, allowances), more benefits and more opportunities to make money (e.g. overtime and premiums);
  • Advancing national unions’ political agendas: expanded harassment and non-discrimination language beyond statutory requirements;
  • Seeking to pass on local union’s administration costs to employer: dues language, information provided by employer, expanded paid union leaves;
  • Occupational health and safety agenda: client-on-staff violence;
  • In child welfare, a push for employers to adopt all findings and recommendations of a recent workplace safety study, accept lower caseloads, and put hard case caps into effect;
  • Employment stability:
      • More rigorous contracting-out language;
      • More generous layoff and recall provisions; and
  • Activity-specific safety clothing.

Common Union Tactics

  • Non-ratification of bargained agreement: the union returns to the table to gain further concessions;
  • Galvanizing the bargaining unit to strike over less-than-pressing matters; and
  • Refusal to include pay equity increases within bargained wage increases.

Bargaining in the Sector

Wages and Benefits

Without question, the interests and care of the clients, residents or “supported individuals” are paramount. In order to advance those interests, agencies must remain firm at the bargaining table where proposals threaten client service or the mandate to provide continued service. Although there may be a temptation to make financial commitments for subsequent years to gain short-term labour peace, unfunded promises made at the bargaining table in hopes funding arrives in subsequent years can place an agency in dire circumstances. Strategically, agencies must bargain only with the funding available. If agreement cannot be reached with the existing financial resources, the parties can agree to subject future years to wage re-openers triggered by new government funding.

Pay Equity

For many agencies, pay equity remains a major roadblock to financial security and efficient collective bargaining. Across the province, unions resolutely refuse to include pay equity in their wage demands. Where possible, agencies should attempt to put aside the funds for pay equity prior to determining the budget for any wage or benefits increase. This will help to ensure the money is there when needed.

Workplace Safety and Workload

Employers will want to demonstrate their commitment to employee safety and well-being. However, with limited funding available, social services agencies must carefully consider the cots implicit in proposed workplace safety and workload language, and restrict amendments to those which are truly required for the protection of staff.

Consult

For successful collective bargaining, gather input from your organization’s leaders. We recommend speaking with key internal information sources as early as possible. Gather financial information early and canvass supervisors for possible operational efficiencies. Finally, ensure the bargaining committee discusses the last round of collective bargaining – what worked and what didn’t.

Be Transparent

Some cases call for much greater and earlier disclosure. Some agencies may benefit from sharing frankly the economic reality with the union. More transparency is extremely helpful to manage the expectations of unions and their members before the parties even reach the bargaining table.

Prioritize

As social services agencies look for ways to improve operating flexibility and efficiency, operational issues are becoming increasingly important, adding another element to the bargaining process. We work with clients to focus on the two or three things they really need to fix in each round of bargaining based on their requirements and our knowledge of the sector. Not everything can necessarily be fixed in one round of bargaining – and tackling too much at once can create its own set of problems.

Use Strategic Advantage – Knowledge

Knowledge is an extremely valuable commodity in any negotiation situation, and it’s a key area in which Hicks Morley can help.

During countless bargaining sessions, Hicks Morley lawyers accumulate knowledge about what is going on in the sector across the province. It’s information that’s not often written down anywhere – and we’re able to share it with clients and show what others are doing so clients have a more coordinated bargaining perspective. Unions have been doing this for decades – to contend equally, employers must do the same.

We would be pleased to train your bargaining team, formulate proposals or assist in bargaining. Please contact your Hicks Morley lawyer to find out how we might help.

 

The Ontario Human Rights Commission Provides Guidance for Employers on Disability Accommodation

By: Anne Lemay

On February 1, 2017, the Ontario Human Rights Commission (Commission) issued a new Policy Statement on the medical information to be provided when disability-related accommodation is requested. This Policy Statement supplements the Policy on Ableism and Discrimination Based on Disability (Policy) that the Commission issued last September. While there is no one-size-fits-all approach to implementing accommodation, the Policy and the Policy Statement both offer helpful guidance to employers with the procedural component of their duty to accommodate, as summarized in this article.

Duty to Accommodate

Under the Ontario Human Rights Code (Code), employers, unions, housing providers and service providers have a legal duty to accommodate the needs of persons with disabilities to the point of undue hardship, to ensure that persons with disabilities have equal opportunities, access and benefits. Furthermore, the Accessibility for Ontarians with Disabilities Act (AODA) requires that certain organizations develop, implement and maintain accommodation policies.

The Policy explains that there are two parts to accommodation: a procedural component and a substantive component. Failure to carry out either will result in a finding of failure to accommodate. An organization will be unable to convincingly argue that providing accommodation would result in undue hardship if it has not taken steps to explore accommodation solutions.

Employers have a duty to accommodate a person in their pre-disability job wherever possible. However, the duty to accommodate does not require that employers change the essential duties and requirements of a position, assign the essential duties of an employee with a disability to another employee or fundamentally change the working conditions of the employee. The Policy is clear:

The duty to accommodate does not require an employer to provide “make work” or “to create a job that is not productive or that, in the employer’s view, does not need to be done.” Nor is an employer required to employ two employees to do the job of one. (p.37)

Where a person can no longer remain in their pre-disability job, the employer has a duty to consider temporary or permanent alternative work if such accommodation would not constitute undue hardship. This duty includes diligently investigating positions and proposing job options that are within the person’s functional limitations.

The employer is not required to completely alter the essence of the contract of employment, and is not required to provide “make work” or “to create a job that is not productive or that, in the employer’s view, does not need to be done.” In the final analysis, the employee must be able to perform a useful and productive job for the employer.

What Constitutes Undue Hardship

The Code prescribes that only three factors may be considered when assessing whether an accommodation would cause undue hardship:

  • Cost;
  • Outside sources of funding, if any; and
  • Health and safety requirements, if any.

Other factors such as business inconvenience, employee morale and customer preference are not valid considerations in assessing whether an accommodation would cause undue hardship.

Type and Scope of Medical Information Needed in the Accommodation Process

The Policy makes it clear that accommodation is not only the responsibility of employers or service providers; it is a shared responsibility and a cooperative process. At the outset, organizations are entitled to have enough medical information to allow them to engage in the accommodation process.

When faced with ambiguous or vague medical notes that do not provide enough information to meaningfully engage in the accommodation process, employers are entitled to request further medical information. Where further information about a person’s disability is required, the Policy Statement indicates that “the information requested must be the least intrusive of the person’s privacy while still giving the organization enough information to make an informed decision about the accommodation.”

So as not to undermine the dignity or privacy of persons with disabilities, the medical information requested should be limited to:

  • confirmation that the person has a disability;
  • the limitations or needs associated with the disability and whether such limitations are permanent or temporary;
  • whether the person can perform the essential duties or requirements of the job, with or without accommodation;
  • the type of accommodation(s) that may be needed to allow the person to fulfil the essential duties or requirements of the job; and
  • regular updates about when the person expects to come back to work, if they are on leave.

Employers do not have a right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless clearly related to the accommodation being sought.

DOs and DON’Ts of the Accommodation Process

As the substantive duty to accommodate depends on the facts of each situation (including the employee’s limitations and duties, and the organization’s operational requirements), we have compiled the following tips from the Policy and the Policy Statement to help employers fulfil the procedural component of their duty to accommodate.

  • DON’T dismiss an accommodation request without engaging in the accommodation process.
  • DO keep a record of the accommodation request and of the actions taken in that process.
  • DON’T assume a person cannot perform an essential requirement of a job.
  • DO give the employee the opportunity to demonstrate their ability.

 

  • DON’T assume you need to provide a person’s preferred accommodation.

 

  • DO consult with the person (and their doctor) to determine the most appropriate accommodation of the employee’s functional limitations (i.e. their needs).
  • DON’T provide the medical professional with the generic job description for the employee when requesting information on limitations, unless it accurately reflects that person’s duties.
  • DO take the time to identify the essential duties of a position (as opposed to peripheral duties) to provide the medical professional with an accurate job description for the employee.
  • DON’T ask for diagnosis (unless it is clearly related to the accommodation being sought).

 

 

 

  • DO request information on a person’s limitations and DO ask for prognosis (for return to work or the expected duration of the need for accommodation). Limit requests for information to those reasonably related to the nature of the limitations and to be able to respond to the accommodation request.
  • DON’T request an independent medical examination (IME) to “second-guess” a person’s request for accommodation.

 

  • DO accept the person’s request for accommodation in good faith and only request a person attend an IME where their needs are unclear, or where the initial medical evidence provided is objectively inaccurate or inadequate.
  • DON’T rely on stereotypical or speculative evidence of risks caused by an accommodation measure in assessing undue hardship.

 

  • DO evaluate the nature, the severity, the probability and the scope of the risks that an accommodation measure may pose by relying on objective evidence. DO try to mitigate the risks where they exist.

 

An Employer’s Obligation: Taking Appropriate Action Once a Complaint Has Been Received

By: Michael Smyth

In our November 2015 edition of Reaching Out, we reviewed the three-part analysis used by the Human Rights Tribunal of Ontario (Tribunal) in Laskowska v. Marineland of Canada Inc. to determine whether an employer has responded to a human rights claim with reasonable diligence. In our November 2016 edition, we looked at the first part of that analysis in more detail – the obligation of an employer to ensure sufficient awareness of discrimination and harassment in the workplace.

We now take a closer look at a couple of decisions that have considered the second and part of the Marineland test – “Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action.” There is no dispute that an employer must develop and implement policies and procedures that address discrimination and harassment in the workplace. However, the formal processes and policies that may be in place are less important than what it actually does once a complaint is received.

(a) Harriott v. National Money Mart Company and Desmond Wade

The applicant alleged discrimination in employment on the basis of sex and sexual solicitation or advances as well as reprisal. She had been employed by the corporate respondent as a Customer Service Representative for just over one year when she was terminated from her employment. The personal respondent was a Branch Manager, and the applicant’s direct supervisor.

The Tribunal found that the personal respondent had engaged in numerous incidents of inappropriate conduct including leering/staring, making derogatory comments and jokes about women, making inappropriate physical contact and invading personal space. The applicant had reported the behaviour to a manager at another branch, who in turn reported it to a District Manager. Despite this, the applicant was not contacted by the District Manager. The evidence established that while there were no formal complaints filed, the District Manager had been aware of a number of similar complaints made by other employees against the personal respondent.

In January, 2008 the applicant contacted that Human Resources Manager by phone and advised what was happening in a general way, indicating she would provide more details later. But, she did advise him that she was experiencing sexual harassment and that the personal respondent had massaged her neck and touched her. The HR Manager advised her to send him a letter and that he could not take any action until he received the letter. The applicant subsequently provided a letter detailing the inappropriate behaviour, and asked for an immediate transfer to another branch. She also said she wanted to have a one-to-one meeting to elaborate her concerns and detail other activities.

The meeting took place on January 24, 2008 and in addition to the HR Manager, the District Manager to whom the incidents had been reported by the other Branch Manager was also present. The applicant’s request to be transferred to another Branch was granted; however, she never heard back from Human Resources regarding the outcome of the investigation. She was never contacted to provide a written statement beyond her original letter. At a chance meeting with the HR Manager in February or March, the applicant asked him about the investigation and he told her that as far as he was concerned it was over and he would not elaborate on anything.

The applicant was subsequently terminated for performance reasons on June 30, 2008.

The Tribunal found that the applicant had been subjected to sexual harassment and sexual solicitation, and that the personal respondent’s comments and conduct created a poisoned work environment. The Tribunal further held that the corporate respondent completely failed to investigate the various complaints that the District Manager had received before the applicant’s January, 2008 complaint. The Tribunal stated that in the circumstances, despite the absence of a formal written complaint, the company had an obligation to investigate the allegations which were being brought forward, consistent with its obligations to maintain a harassment-free workplace.

With respect to the HR Manager’s actions, the Tribunal found that he did not follow through with a prompt, thorough and professional investigation of the complaint. He failed to contact all of the witnesses provided by the applicant, never put the allegations to the personal respondent to obtain his response, and did not get back to the applicant within a reasonable time frame to advise her of the status and outcome of his investigation.

While accepting that the standard for an employer’s investigation of a harassment complaint is not perfection, the Tribunal found that the company did not satisfy the second part of the Marineland test, in that the company did not take the complaint seriously, did not deal with the complaint promptly, did not take care of its employees, did not demonstrate sensitivity to the concerns of the applicant, and generally did not conduct a reasonable investigation.

The Tribunal also concluded that the company did not satisfy the third part of the Marineland test (resolution of the complaint and restoration of the workplace) by not communicating the status and outcome of the investigation to the applicant. The only consequence to the personal respondent was a “coaching” session, which the Tribunal found to be inadequate and unreasonable.

The Tribunal awarded damages of $30,000, with $22,500 attributable to the harassment and poisoned work environment, and $7,500 for the failure to investigate.

(b) Welykyiv v. Rouge Valley Co-operative Homes

The respondent was a non-profit housing cooperative (Co-op), and the applicants (there were ten in total) were members of the Co-op. Between April 28, 2012 and September 15, 2012, someone posted or wrote 18 “vulgar and incredibly vicious messages” in the Co-op building that were directed at the applicants. These messages related to the applicants in terms of the prohibited grounds of disability, race, sex, gender identity, ancestry, age and receipt of public assistance.

The parties agreed that the messages amounted to discrimination and harassment contrary to the Human Rights Code (Code). The perpetrator of the messages was never identified. The applicants claimed that the Co-op failed in its duty to deal with the issue appropriately.

The governing body of the Co-op was a volunteer Board of Directors elected by the members. The Co-op had no anti-discrimination/anti-dispute policies at the times material to the applications, and Board members had not received any training about dealing with human rights issues. As a result of the applications, the Co-op adopted a comprehensive human rights by-law in 2014 and the Board members underwent human rights training.

The Tribunal reviewed the steps that the Board had taken after the applicants brought the offensive messages and posts to its attention, and found them sorely lacking. The Co-op had posted two separate announcements that simply referred to vandalism in the building, without explicitly describing the harassment that was taking place. A third notice, posted in August, was found to be the only communication from the Board that clearly addressed the harassment directed at the applicants. In addition, the Board did not hold a meeting to address the concerns of the applicants until September, despite the fact the harassment had began in late April. Even then, it was not clear that the purpose of the meeting was to address their concerns. The Board did authorize a number of video cameras to be installed, but the Tribunal found that it delayed in taking this step and staff were not directed to view the footage after each incident of harassment.

The Tribunal stated:

In my view, the formal processes and policies that a housing provider may have in place are less important than what it actually does once it receives a complaint of harassment. Whether the respondent’s reaction to complaints of harassment was reasonable, depends, as noted, on the unique circumstances of each case. One of the unique and obvious characteristics of this case was that the harassment experienced by the applicants was egregious and persistent. In this context, the evidence does not support the respondent’s contention that it took the matter seriously or addressed it with a sense of urgency. In my view, the respondent’s most significant failure was the complete absence of communication with the applicants. In my view, when a respondent receives a human rights complaint, it should acknowledge the complaint, assure the complainants(s) that the complaint is important, and that action will be taken to address it. In ongoing situations such as this one, a respondent should maintain contact with the complainant(s) and keep them apprised of the actions the respondent intends to take. Such communication is particularly important in the housing context where a housing provider does not have control over the residents and therefore has limited ability to investigate and address complaints. … [para. 169]

Recognizing that a housing provider is different than an employer in that it could not compel residents to participate in an investigation, the Tribunal still found that a housing provider should attempt to speak to residents or anyone else who may have knowledge of the incidents in question. It stated “the primary goal of investigation is to gather evidence, but the act of investigating also shows the victims and other residents that the housing provider takes the matter seriously and is doing what it can to address the harassment.”

The Tribunal took into consideration the fact that the members of the Board of Directors were volunteers and relatively unsophisticated, but even in that context the Tribunal concluded they failed to address the harassment experienced by applicants in a reasonable manner. It ordered the Co-op to pay each of the applicants $3,000 to compensate them for the failure to adequately address the harassment and to provide a discrimination and harassment-free environment.

Lessons Learned

It is not only important to have proper policies and procedures in place, it is important to ensure that such polices and procedures are implemented and applied appropriately. This means:

  • Investigating any complaints received under the policy promptly, seriously and thoroughly, using either internal or external resources as appropriate
  • Ensuring that complainants are advised promptly and regularly of the steps being taken and the outcome of any investigation.

The Saga of the ESA-Only Termination Clause Continues

By: Michael Smyth

In our March 2016 edition of Reaching Out, we included a short checklist to assist you in developing enforceable employment agreements. A recent decision of the Ontario Court of Appeal highlights the importance of drafting employment agreements that, at the very least, provide employees with their statutory minimums under the Employment Standards Act, 2000(ESA). Failing to do so will result in a court setting aside the termination provision and ordering the employer to provide common law damages for wrongful dismissal.

In this case, Wood v. Fred Deeley Imports Ltd., the employee had signed an employment agreement that contained the following termination clause:

[The Company] is entitled to terminate your employment at any time without cause by providing you with 2 weeks’ notice of termination or pay in lieu thereof for each completed or partial year of employment with the Company. If the Company terminates your employment without cause, the Company shall not be obliged to make any payments to you other than those provided for in this paragraph, except for any amounts which may be due and remaining unpaid at the time of termination of your employment. The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000. [Emphasis added by the Court.]

The employee had worked for the employer for eight years. Upon termination the employer paid salary and benefits for 13 weeks of working notice as well as a lump sum equivalent to eight weeks’ pay. The employee brought a motion for summary judgment, arguing that the termination clause was unenforceable and that she was entitled to reasonable notice. The motion judge found the clause to be enforceable and that in fact she had been provided with greater notice than required by the ESA. The employer provided 13 weeks’ working notice during which time there was benefit continuation, plus an eight weeks’ lump sum payment. The motion judge dismissed the action.

The employee successfully appealed the decision to the Court of Appeal. The Court reviewed the jurisprudence on the enforceability of ESA-only termination provisions and noted the employee received more compensation than she would have under the ESA. However, the “voluntary contributions or offer to contribute to [the employee’s] plans after giving her notice her employment was being terminated cannot remedy an otherwise unenforceable termination clause. The enforceability of the clause stands or falls on its own wording”, not what the employer did after termination.

In addition, the Court of Appeal held that the clause said nothing about benefit contributions, and held that the fact that the employer made contributions following termination should have no bearing on whether the termination clause itself contravenes the ESA.

The Court concluded that “an employer’s conduct on termination, or during the notice period, [cannot] remedy an otherwise illegal or unenforceable termination clause” nor can “an employer’s later compliance with an employment standard … cure the termination clause’s exclusion of the employer’s obligation to contribute to those benefits plans during the notice period.”

The employee was awarded nine months of pay in lieu of notice – significantly more than she would have received had the contract been enforceable.

One way to minimize this risk is to use termination clauses that provide employees with more than their entitlements under the ESA. Alternatively, if you are going to use ESA-only termination clauses, review them carefully to ensure that they address all aspects of an employee’s entitlements under the ESA.

 


The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©