Willson Lewis LLP Barristers and Solicitors WORKPLACE RIGHTS AND RESPONSIBILITIES: Employee Rights and Employer Responsibilities 67 Mowat Avenue, Suite.

Willson Lewis LLP

Barristers and Solicitors

WORKPLACE RIGHTS AND RESPONSIBILITIES:Employee Rights and Employer Responsibilities

67 Mowat Avenue, Suite 346, Toronto, Ontario M6K 3E3, Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com

Willson Lewis LLP

BIOGRAPHIES

CATHERINE E. WILLSON, B.A., LL.B., PARTNERA longstanding member of the Ontario Bar Association, Catherine E. Willson is a founding partner of Willson Lewis LLP, and has established a successful practice in employment law, civil litigation, equine, collections, construction, and family law. She was an executive member of the Canadian Bar Association (Ontario) – Civil Litigation Section. She is also a member of the Advocates Society, the Association of Trial Lawyers of America, and the Toronto Construction Association. Catherine is both the Chairman of the Risk Management Committee and an Honourary Governor of the Royal Agricultural Winter Fair. Catherine is the legal expert for the Canadian Federation of Independent Business (Member Services) and is a regular speaker at legal and business conferences, an instructor at the University of Guelph, and writes on legal issues for several national publications.

CRAIG A. LEWIS, B.A., LL.B., PARTNERHas been practicing employment law since being called to the Bar. He received his Bachelor of Laws degree from Queen’s University and was admitted to the Law Society of Upper Canada in 1993. A member of the Ontario Bar Association, Advocates Society, Canadian Association of Black Lawyers and the Metropolitan Toronto Lawyers Association. Craig has been a speaker at Ontario Bar Association seminars concerning advocacy matters and has litigated at all levels of Court in the Province. In his employment practice, Craig has prepared employment contracts and independent contractor agreements. He has provided advice on hiring, terminations packages and wrongful dismissal claims. He has assisted clients in drafting employment policy manuals. Craig has extensive experience in responding to human rights complaints.

MARLENE KAZMAN B.Sc., LL.B. - ASSOCIATEMarlene was called to the Ontario Bar in 1993, having received her LL.B. from the University of Western Ontario and completing her articles at one of the oldest law firms in Canada. Marlene’s practice includes civil, matrimonial and construction lien law. Marlene has trial experience at all levels of Court in the Province of Ontario, and she is a member of the Ontario Bar Association and the Women’s Law Association of Ontario. Marlene is a frequent contributing writer of legal information articles for the National Credit News.

STEFANIE NAVASCUES, B.A., LL.B. - ASSOCIATEStefanie Navascues was called to the Ontario Bar in 2003. After completing her articles with the Ministry of the Attorney General, Stefanie entered private practice as an associate in a boutique civil litigation firm. She has appeared before the Ontario Superior Court of Justice, as well as the Ontario Court of Justice and various administrative tribunals. Stefanie continues her practice in all areas of civil litigation. Stefanie is a member of the Ontario Bar Association, the York Region Law Association, and is also a member of the Ontario Trial Lawyers' Association. Stefanie is fluent in Spanish, and has a good working knowledge of French and Italian.

AIMEE COLYER, B.A., LL.B. – ASSOCIATEAimee was called to the Ontario Bar in 2007. After completing her articles with Willson Lewis LLP, Aimee practised as an associate with two large Bay Street firms. In 2009, she returned to the firm to practice family law and civil litigation. Aimee is a member of the Ontario Bar Association.

Willson Lewis LLP

BIOGRAPHIES

Our experienced counsel practice:

Civil Litigation dispute resolution court actions, applications,

injunctive relief commercial disputes personal disputes mediation and arbitration

Employment Law employment contracts and

consulting agreements wrongful dismissal conflicts in the workplace termination packages

Our experienced counsel practice:

Construction Law construction projects (general contract/project

management/design build) preparation of construction contracts tender advice and resolution of disputes negotiation and litigation of construction disputes

including lien actions and breach of trust issues

Family Law divorce, separation, custody, support,

property issues separation agreements cohabitation and marriage contracts settlement negotiation and mediation

Our experienced counsel practice:

Equine Law Dispute resolution, litigation purchase and sale agreements,

boarding agreements and leasing agreements

co-ownership agreements and syndications

WORKPLACE RIGHTS AND RESPONSIBILITIES

Employee Rights and Employer Responsibilities

RELEVANT LEGISLATION RE: WORKPLACE CONDUCT

Ontario Human Rights Code

Canadian Human Rights Act

Occupational Health and Safety Act

RELEVANT LEGISLATION RE: WORKPLACE CONDUCT

Human Rights Code, s.5(1), 5(2) and 7(2)S. 5(1) Every person has a right to equal treatment with respect to

employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. R.S.O. 1990

s. 5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability

s. 7(2)  Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. R.S.O. 1990, c. H.19, s. 7 (2).

RELEVANT LEGISLATION RE: WORKPLACE CONDUCT

Canadian Human Rights Act, s. 14(1)Section 14 (1) of the Act states that harassment is a

discriminatory practice with respect to: (a) in the provision of goods, services, facilities or

accommodation customarily available to the general public,(b) in the provision of commercial premises or residential

accommodation, or(c) in matters related to employment,to harass an individual on a prohibited ground of

discrimination

RELEVANT LEGISLATION RE: WORKPLACE CONDUCTOccupational Health and Safety Act, Bill 168

Currently, employers who contravene the Act are guilty of an offence and face fines pursuant to section 66. Bill 168 will amend section 1 (1) to include the following definitions:"workplace harassment" means 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;"workplace violence" means, (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. The Bill will require employers with more than 5 employees to develop a program to implement a workplace harassment policy. The program must include measures for workers to report incidents of workplace harassment and set out how the employer will deal with incidents and complaints of workplace harassment.

HARASSMENT IN THE WORKPLACE

Types of Harassment:Sexual – “intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours”.

Non-Sexual Bullying or verbal abuse

Unwarranted Discipline - where the employer's treatment of the employee makes continued employment intolerable

EMPLOYEE RIGHTS

Internal Complaint to Human Resources or management

Human Rights complaint under the Code

Stress Leave/Disability (if available)

Civil Action/Constructive Dismissal

EMPLOYER RESPONSIBILITIES

Employment Contracts

Policies (Harassment, Internet Use)

Training

Monitoring

Discipline

EMPLOYER RESPONSIBILITIES

Employment Contract and Policies Outline what behaviour is not

acceptable in the workplace Set out the employer’s expectations

regarding proper conduct in the workplace

Advise what range of disciplinary action will be taken should an employee be found to have breached the policy

EMPLOYER RESPONSIBILITIES

Investigation Assess the complaint Appoint an investigator Conduct interviews Make interim decisions on

complainant/respondent Process evidence and interview

additional parties

EMPLOYER RESPONSIBILITIES

Discipline - breach of the policy constitutes cause for discipline, up to and including termination of employment

HUMAN RIGHTS COMPLAINT

Usually arises after the Employer has either failed to respond to a complaint or has made a decision with which the Complainant disagrees

Under the current system an applicant may bring their complaint directly before the Ontario Human Rights Tribunal

Within this system a complaint may be resolved by adjudication or mediation

DISABILITY BENEFITS

If the harassment results in severe mental distress it may result in a claim for short-term or long-term disability, if available

Workplace stress has rapidly becoming one of the most popular causes for employee absence and disability claims

CIVIL ACTION

Constructive Dismissal Where the employer's treatment of the

employee makes continued employment intolerable the employee may successfully argue that they were forced to resign and claim constructive dismissal.

See Shah v. Xerox (Ont. C.A.) to be discussed later

APPROPRIATE COMPUTER USAGE

Employer Policies are used to: Define use of Information Technologies Communications guidelines To Support Discipline To prevent breach of confidentiality

INAPPROPRIATE COMPUTER USAGE (OFFENSIVE DOWNLOADS AND E-MAILS)

Not a right but a privilege subject to limitations set by employer

Useful tool for work with potential for abuse Policies required re: propriety Effective balance of personal needs of

employees and business interests Minimizing abuses Reducing inefficiencies Maximizing beneficial uses of business tools Eastern Ontario Catholic District School Board

v. O.E.C.T.A

QUESTIONS?

Willson Lewis LLP

Barristers and Solicitors

WORKPLACE RIGHTS AND RESPONSIBILITIES:Employee Rights and Employer Responsibilities

67 Mowat Avenue, Suite 346, Toronto, Ontario M6K 3E3, Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com