Category: Human Rights in the Workplace

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Accommodating Employees with Disabilities Human Rights in the Workplace

Human Rights Claims and the Duty to Accommodate Mental Illness

Employees may experience human rights discrimination in some work environments, which can be incredibly difficult. In Ontario, there is a wide range of grounds for discrimination which can arise in the workplace. For instance, there may be discrimination based on age, disability, gender identity, race, and more. Some people may be discriminated against because of their mental illness as a disability. Typically, in the workplace, this would be related to an employer’s duty to accommodate an employee with a disability. An employer’s steps to accommodate the employee are relevant information. Additionally, the Human Rights Tribunal may assess the employee’s efforts in providing adequate information about their disability so that the employer can adequately accommodate them. 

In this post, we will discuss the connections between an employee’s mental illness, human rights discrimination, and the duty to accommodate. We will examine a case example, Yan v. 30 Forensic Engineering Inc., 2023 ONSC 6475, which was an appeal of the Human Rights Tribunal’s decision that there was no discrimination based on post-traumatic stress disorder (PTSD) experienced by the employee. The court upheld the Tribunal’s finding that the employer was not provided an opportunity to accommodate the employee, as she had not provided specifics of her mental illness so that the employer could adequately address the issues. This post will provide key takeaways for parties involved in human rights claims involving mental illness. 

Are Mental Illnesses Covered Under Human Rights in the Workplace?

The Human Rights Code covers human rights legislation in Ontario. The Code prohibits discrimination based on several protected grounds in specific contexts, which include discrimination experienced in the workplace. 

While mental illness is not explicitly set out as a protected ground in the Code, it is included under the category of disability, which is a protected ground. In particular, an employer is prohibited from terminating or denying a promotion for an employee due to a mental health disability. Employees are also protected from harassment in the workplace based on mental health disability. 

What is the Duty to Accommodate?

The Ontario Human Rights Commission has also set out policies for enforcement of the Code. In their Policy on preventing discrimination based on mental health disabilities and addictions, in section 13, employers have a duty to accommodate the needs of individuals with psychosocial disabilities to ensure they have equal opportunities, access, and benefits. The duty to accommodate includes efforts by an employer to ensure that the employee is integrated and able to participate fully in their workplace. This mirrors the case law requirements for employers to accommodate a disability. 

Typically, an employee would ask their employer for assistance with their mental health issues if it is affecting their employment. However, in some cases, an employee’s disability may make it difficult to seek help from their employer. Therefore, an employer would have the duty to take steps in seeking out more information from an employee who may require assistance with a mental illness that is impacting their employment. The employer must try to understand the employee’s needs to tailor the solution to the employee’s circumstances. The employer would need to seek relevant information, such as how the mental illness affects the employee’s job duties. The employee may also request accommodations, and the employer can consider whether those are appropriate. The employer will need to consider if any long-term accommodations are required. 

Some examples of accommodation for an employee with a disability include:

  1. Providing flexible work hours or periods of leave; 
  2. Allowing the employee to work from home or providing quiet spaces for the employee in the workplace; 
  3. Organizing regular check-ins with the employee to adapt the plan to their needs; 
  4. Reducing triggers that may exist in the workplace. 

To fulfill their duty to accommodate an employee’s disability, employers must make all reasonable efforts to accommodate until the employer reaches a point of undue hardship. This means that the employer is not required to negatively impact their business by accommodating the employee, which requires specific and quantifiable evidence. There is a very high bar to show undue hardship, and employers are expected to work with the employee to provide a solution to accommodate their disability, including a mental illness. 

The duty to accommodate can also be seen as a cooperative duty. In particular, the employee needs to collaborate with their employer and provide sufficient information on how their mental illness affects their job duties so that appropriate accommodations can be implemented. The employee also has to take the opportunities from the employer to discuss further what accommodations can be made. 

Evidence of Mental Illness Required for Employer to Accommodate

In the Yan case, the plaintiff claimed that she experienced discrimination from her employer based on her PTSD. She claimed that the employer failed their duty to inquire further, which was part of their duty to accommodate her mental illness as a disability. 

The Human Rights Tribunal found that there was no discrimination based on her post-traumatic stress disorder. In particular, she had not provided much evidence concerning her mental illness and how it affected her job duties. There was also evidence that the employer was aware that she was experiencing some mental health challenges and referred her to speak with human resources to inquire further on what accommodations could be made. The Tribunal found that the employee did not take steps to reach out to human resources, even though she had done so on different grounds in the past. As a result, there were no further conversations about accommodation for her mental illness. The duty to accommodate was a cooperative duty, which also required the employee to provide information that could allow the employer to understand how they could accommodate her mental illness. 

The employee appealed. The Supreme Court found that the Tribunal made no reviewable error on this point, as they found that the employer did make efforts to inquire further, and the employee did not take steps to provide further information. 

Key Takeaways 

Employers have a duty to accommodate disabilities in the workplace, including mental illnesses. They must inquire further about how the mental illness affects the employee’s job duties. To provide sufficient accommodation, the employee is also expected to provide enough information so the employer can take steps to accommodate. 

Contact Haynes Law Firm in Toronto for Advice on Accommodating Disabilities in the Workplace

Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues concerning accommodating disabilities in the workplace. For employees, our goal is to ensure that they understand their rights and receive maximum compensation in wrongful dismissal cases and human rights claims. 

Haynes Law Firm also assists employers in avoiding liabilities that may arise from failure to adequately accommodate employees with disabilities, which can lead to constructive or wrongful dismissal findings. Our team works with employers to prevent human rights violations in the workplace. We are dedicated to finding the best resolution for you.

To book a consultation, please get in touch with us online or by phone at 416-593-2731.

Categories
Employee Terminations Human Rights in the Workplace

Social Media and Job Loss: Can My Employer Fire Me?

It’s safe to say that, at this point, social media is a critical part of many Canadians’ lives. According to We Are Social’s 2023 report, 85.7 per cent of Canadians actively use social media. 

At the same time, we’ve all heard stories (whether from people we know or things we’ve read online) about individuals losing their jobs over controversial or salacious social media activity. For example, an employer may take issue with an employee’s general presence across their social media channels or even over a single post. So, let’s talk about social media and job loss: can you be fired for what you post on social media? 

The Employment Standards Act, Social Media, and Job Loss

Ultimately, whether an employer is entitled to fire an employee for posts they made on social media will depend on the specific circumstances, including the content of the social media posts and any relevant policies or agreements you’ve made with your employer. 

However, we can glean some general insight into social media and job loss by reviewing the relevant provisions of the Employment Standards Act, 2000, SO 2000, c 41, and other relevant legal principles. 

Termination under the Employment Standards Act

Under the Employment Standards Act, 2000, SO 2000, c 41, Ontario employers are entitled to fire employees for any reason, provided that they follow the appropriate steps. In these cases, employers are not required to specify why they are firing the employee – meaning that your employer could terminate you without justifying the reason. 

As a refresher, an employer can generally fire an employee if they do the following: 

  • Provide the employee with written notice of the termination and waits until the notice period has expired; or
  • Notifies the employee of their termination without written notice (or by providing less notice than is required) and pays termination pay to the employee. 

The amount of entitlement to notice or termination pay will depend on the employee’s length of tenure with the company. For further information, see the Government of Ontario’s chart specifying the amount of notice required based on an employee’s period of employment. 

Termination with Cause in Ontario

In more limited circumstances, Ontario employers can fire an employee “with cause.” In these cases, your employer must prove that you have engaged in misconduct incompatible with the employment relationship’s fundamental terms. As a hypothetical example, an employer might be able to fire an employee with cause if that employee signed a confidentiality agreement and chose to post confidential business information on their social media account. However, remember that firing an employee with cause is typically reserved for extreme cases and can be difficult for employers to prove. 

But what happens when an employer has grounds to fire an employee with cause? In those cases, the employer can terminate that employee’s employment without notice (or termination pay). 

Conclusions on the Employment Standards Act, Social Media, and Job Loss

Considering the above information, your employer could hypothetically terminate your employment for nearly anything you post on social media. For example, if you made posts on social media supporting the Toronto Maple Leafs when your employer is a Montreal Canadiens fan, they could terminate your employment (so long as they provided you with the proper notice or termination pay). And, in very limited circumstances, your employer may be entitled to fire you with cause if you post something extremely inflammatory on social media. 

But what about situations where you may have grounds to fight back? We’ll get into those below. 

Social Media and Job Loss: Where You May Have a Claim

While employers can fire employees without cause, assuming they follow the Employment Standards Act, 2000, SO 2000, c 41 requirements, there are some situations where a terminated employee could bring an action against their former employer. 

Social Media and Human Rights Claims

Under Ontario’s Human Rights Code, R.S.O. 1990, c. H.19, discriminating against an individual based on several protected grounds – including race, citizenship, ethnic origin, gender identity, or faith – is strictly prohibited. This protection extends to relationships between employers and employees. 

So, for example, if you were to post about a religious holiday you celebrate on social media and believed you were terminated based on your employer’s discrimination against your expressions of faith on social media, you may be entitled to pursue a claim under the Human Rights Code. 

Social Media and Reprisal 

Ontario employees are also protected against “reprisal” for attempting to exercise their rights under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. or the Employment Standards Act, 2000. While the circumstances of each case are unique and fact-dependent, there may be circumstances wherein an employee may be protected against punishment for social media posts relating to workplace concerns or “whistleblowing.” For further information, speak with an experienced employment lawyer for guidance. 

Tips for Social Media Users

Each situation is different, and it’s nearly impossible to determine when and why an employer will terminate an employee based on their social media usage. To reduce your risk of repercussions for your social media activity, consider the following tips: 

  • Review your employer’s social media policy (if applicable) and other relevant policies: familiarize yourself with any company policies relating to social media usage and ensure you are complying. Consider whether other policies, such as confidentiality, may impact what you post on social media. 
  • Think carefully before posting on social media: think critically about your posts and the content you share on social media. Consider, for example, how others might perceive the content. When in doubt, don’t post. 
  • Do not post sensitive or confidential employer information: never disclose confidential or sensitive information about your employer or coworkers on social media. 
  • Check your privacy settings: take stock of your social media privacy settings to control who can see your posts to ensure you’re only sharing with people you want to share with. 

Contact Toronto Employment Lawyer Paulette Haynes For Guidance On Workplace Social Media Policy And Termination 

Losing your job is very stressful. Paulette Haynes and her team at Haynes Law Firm in Toronto help terminated employees assert their rights and remedies owned. Paulette Haynes and her team will advise and guide you through the process to ensure you are properly compensated. If you would like to schedule a consultation, please complete our contact form or call 416-593-2731.

Categories
Employment Discrimination Human Rights in the Workplace

Racial Discrimination Or Innocent Error?

Employees have remedies available if they have been the victim of discrimination at work. For example, if they have been treated adversely due to a protected ground, they may be able to apply to the Human Rights Tribunal of Ontario (HRTO).

One such protected ground is race. But how do you show that race was a cause of the adverse treatment experienced? This article looks at how the HRTO makes such determinations concerning the recent decision in the case of Querobin v Toronto District School Board.

The Human Rights Code prohibits racial discrimination 

The Ontario Human Rights Code (Code) prohibits discrimination on certain grounds in employment. These include race, ancestry, place of origin, colour, ethnic origin, citizenship and creed.

Under the Code, prohibited discrimination can take a variety of forms. In addition to direct and indirect discrimination carried out through another person or organization, the Code generally outlaws constructive discrimination. This refers to rules or practices that unintentionally single out a group of people and treats them unequally.

What is racial discrimination?

The Ontario Human Rights Commission’s policy and guidelines on racism and racial discrimination say that there is no fixed definition of racial discrimination but note that it could be viewed as:

“… any distinction, conduct or actions, whether intentional or not, but based on a person’s race, which has the effect of imposing burdens on an individual or group, not imposed upon others or which withholds or limits access to benefits available to other members of society.”

It explains that racial discrimination can take the form of stereotyping, overt prejudice, racial profiling or subtle discrimination, such as differential management practices, assigning disproportionate blame or characterizing normal communication as rude or aggressive. 

It also occurs at an organizational level through systemic discrimination, which refers to patterns of behaviour, policies or practices that are part of the organization’s structures and which create or continue a position of relative disadvantage.

How can you prove racial discrimination?

In proceedings before the HRTO, establishing discrimination can sometimes be contentious. Was the adverse treatment due to the employee’s race or just because of some other innocent explanation?

The person who brings the complaint needs to prove a “prima facie” (that is, apparent) case of discrimination. If they can do so, the employer needs to provide a non-discriminatory explanation for the conduct if they are to rebut the employee’s case.

To establish a prima facie case of discrimination, the employee needs to show:

  • that they are a member of a Code-protected group;
  • that they were subjected to adverse treatment; and
  • that the Code ground (for example, race) was a factor in the alleged adverse treatment.

Importantly, there needs to be a nexus between the employee’s race and the relevant conduct. The employee does not need to prove that the employer intended to discriminate, but a mere possibility of discrimination is not sufficient – it needs to be proved on the balance of probabilities. 

Employee claimed racial discrimination after his temporary assignment was terminated 

Turning to the recent decision of the HRTO, the applicant is a Filipino person employed by the Toronto District School Board as a secondary school occasional teacher. 

He claimed that his employer terminated a temporary assignment at a secondary school and gave it to another teacher of a different race. He argued that this constituted discrimination because of race, place of origin and ethnic origin.

The employer offered an innocent explanation unrelated to race, claiming that the employee was removed because he lacked the skills needed. 

The employee was given the wrong lesson plan

The applicant accepted a five-day assignment to teach a computer course to students with special educational needs. 

At the start of each day, an administrative assistant provides the occasional teacher with a folder that contains the lesson plans and other information needed to conduct the class. On this particular day, the employee was not given the correct lesson plan containing the link needed to access the computer program so he could not successfully teach the course.

The assistant then cancelled the applicant’s assignment. The applicant argued that the assistant intentionally gave the incorrect lesson plan so that he would be replaced.

The employee had not established a prima facie case of discrimination

The HRTO adjudicator explained that the applicant had not given any evidence that the other teacher was selected due to their race or that the assistant was biased towards teachers of particular races. 

The applicant knew that he did not have the correct lesson plan and did not take steps to fix this. There was a clear administrative error but no evidence of a conspiracy to remove him from the assignment. 

The adjudicator noted that direct evidence of racial discrimination may be difficult to obtain, so it may be necessary to draw inferences from circumstantial evidence showing race was a factor in the conduct. The adjudicator could not draw such an inference in this case:

“However, I find in this Application the applicant has not provided circumstantial evidence to show that the decision to terminate his assignment was based, at least in part, on his protected grounds. It is my view that the applicant, failing to understand why he was unsuccessful in the assignment, speculated that it was due to a reason such as his race and ethnicity, that was beyond his control.”

While the situation was unfair, the applicant had not established a prima facie case of discrimination. The employee’s application was dismissed. 

Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination 

Haynes Law Firm represents both employees and employers in all types of human rights violation claims. We represent employees that have experienced discrimination and harassment, helping them to build strong cases by gathering the necessary circumstantial evidence to show all the factors at play when an employer treats them adversely. We also help our employer clients defend baseless claims and manage performance issues. Please contact us online or call us at 416.593.2731 to schedule a consultation.

Categories
Human Rights in the Workplace Maintaining a Harassment-Free Workplace

Canada Ratifies New Treaty To Combat Workplace Violence And Harassment

On January 30, 2023, Canada deposited its instrument of ratification for the International Labour Organization’s Convention No. 190, the Violence and Harassment Convention 2019. This is important because it is the first international labour standard that specifically addresses violence and harassment in the workplace.

Workplace violence and harassment remain problems around the world, and Canada, unfortunately, is not immune. According to Statistics Canada, 25% of women and 17% of men experienced workplace sexual harassment in 2020, and in 2022 5.6% of employees under federal jurisdiction reported personal experiences of harassment in the preceding two years.

This article looks at the new treaty and its obligations, along with Canada’s role in the treaty’s adoption and its domestic application.

What does ratification do?

There are normally two stages in agreeing to be bound by the terms of a treaty or convention, which is an international agreement made between countries. Firstly, a country signs the treaty. Then it applies its own domestic procedures before ratification. At this second ratification stage, the country becomes legally bound by the treaty, provided that the treaty has entered into force.

Under the terms of the Violence and Harassment Convention, it comes into force for a particular country twelve months after ratification. As a result, the treaty became legally binding for Canada on January 30, 2024.

What does the convention aim to achieve?

The Violence and Harassment Convention states that it protects workers and other people in the world of work from “violence and harassment.” This is defined as:  

“a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aims at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment.”

The Convention has a broad scope of application, applying to persons in the world of work beyond just strictly employees, such as interns, volunteers and job seekers. It applies to the public and private sectors and in a wide range of settings, for example, work-related trips, communication, accommodation and commutation. 

What was Canada’s role in the convention negotiations?

Canada has been heavily involved in adopting the Violence and Harassment Convention. It chaired the committee that negotiated the Convention in 2018 and 2019 and actively participated in the negotiations that led to its adoption. 

In the following years, the Canadian Government worked with the provincial and territorial governments to deliver on its commitment to ratify the treaty. The Convention will apply across all Canadian jurisdictions. 

What do the parties need to do to comply with the convention?

The Violence and Harassment Convention contains a number of key obligations for countries that have ratified the treaty. Some of these are summarized below.

Firstly, they need to adopt, in accordance with national law, “an inclusive, integrated and gender-responsive approach” to preventing and eliminating violence and harassment in the world of work.

Secondly, several specific obligations are related to protecting workers by preventing violence and harassment. The Convention requires parties to adopt laws and regulations to define and prohibit violence and harassment in the world of work. They need to take appropriate measures to prevent violence and harassment.  They also need to adopt laws and regulations requiring employers to take steps to prevent violence and harassment, in particular and so far as is reasonably practicable, in several listed areas, including adopting and implementing a workplace policy on violence and harassment.

Thirdly, the Convention requires parties to take appropriate enforcement measures, such as ensuring the existence of remedies, such as complaint and investigation procedures and legal remedies.

Finally, parties must ensure that violence and harassment are addressed in relevant national policies and that employers and workers are provided with guidance.

What does the convention say about gender-based violence and harassment?

Gender-based violence and harassment are also key focus areas of the Convention. In addition to forming part of the overarching definition of violence and harassment, several of the treaty’s obligations require a specific action to address this problem. For example, parties need to adopt laws and regulations requiring employers to take appropriate steps to prevent gender-based violence and harassment. 

What impact will the convention have in Canada?

Canada ratified the Convention to address worker violence and harassment domestically and abroad. This is clear from the Minister of Labour’s statement upon ratification:

“Canada is joining countries around the world to protect workers and make sure they have the safe and respectful workplaces they deserve. Canadians can take pride in this milestone. We’re stepping up for workers’ rights both in Canada and around the world.”

As can be seen from the obligations outlined above, parties to the Convention have the flexibility to implement many obligations in different ways that suit their domestic systems.

Canada already has federal and provincial legislation that protects workers’ human rights and responds to violence and harassment. For example, Ontario law requires employers to investigate workplace harassment. 

The Convention states that its provisions can be applied by extending or adapting existing measures to cover violence and harassment and developing specific measures where necessary. It is still being determined at this stage whether Canadian jurisdictions intend to amend employment law in order to implement this Convention or simply rely on existing measures to satisfy the obligations.

Contact Haynes Law Firm in Toronto for Advice on Workplace Violence and Harassment

Haynes Law Firm represents employees and employers in all types of human rights claims. We help our employer clients understand their workplace safety and harassment compliance obligations. We also represent employees that have experienced harassment of any kind in the workplace or been the subject of discrimination based on a ground protected under the law. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.

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Human Rights in the Workplace

Human Trafficking In The Employment Context

Employees are entitled to human rights protections in the workplace. For example, under either federal or provincial legislation, employees have the right to employment free from discrimination and harassment, including of a sexual nature. 

Most employees that work at private workplaces in Ontario receive these rights under the Ontario Human Rights Code. As we have mentioned, these rights can be enforced by applying to the Human Rights Tribunal of Ontario or filing a claim through the court system.

In addition and depending on the treatment involved, employees may have other independent civil claims. We recently looked at the possibility of claims concerning vicarious liability for sexual harassment and sexual assault. This article looks at another civil wrong that may apply in the employment context in Ontario – the tort of human trafficking. 

What is human trafficking?

Human trafficking is an indictable offence under Canada’s Criminal Code. It occurs when a person:

“recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation.”

As seen from this passage, two elements need to be proved for a finding of guilt. Firstly, the person needs to have engaged in conduct, including exercising control, direction or influence over a person’s movements. Courts have decided that exercising influence means doing anything to affect the victim’s movements, even if they still have the free will to operate. 

Secondly, there is a purpose element. The person must engage in the relevant conduct to exploit or facilitate their exploitation. Exploitation doesn’t need to be the outcome, but it needs to be the purpose.

Finally, the Code defines exploitation as causing a person to provide or offer labour or service by engaging in conduct that could reasonably be expected to cause the person to believe that their or another’s safety would be threatened if they failed to comply.

There is a statutory tort of human trafficking in Ontario

Ontario’s Prevention of and Remedies for Human Trafficking Act (Act) creates a civil claim for human trafficking victims. 

It defines human trafficking by reference to the Criminal Code provisions and allows a victim to bring an action against a person that engaged in their trafficking. If the plaintiff establishes that they were a victim of human trafficking, the court can award a remedy, even without proof of damage. This includes awarding them monetary damages, including general, special, aggravated and punitive damages.

The tort applies to labour human trafficking

While human trafficking is often associated with the sex trade industry, it also applies to other instances of labour trafficking. This was confirmed during the second reading speech for the Bill when an MLA said:

“The bill … aims both to deter human trafficking of young people to the sex trade or to prostitution, but also to protect people who are being trafficked in what we call labour human trafficking, who are being trafficked into places where their rights will be violated and they won’t be paid and will be made to work for long hours without any protection. Migrant workers are particularly at risk in that context.” 

Employee claimed that he had been subject to abuse

The recent decision of the Ontario Superior Court of Justice in Osmani v Universal Structural Restorations Ltd. was the first trial decision addressing the tort of human trafficking.

The Albanian plaintiff came to Canada and started working for the defendant company in December 2018. Shortly after, he obtained temporary foreign worker status. 

He commenced proceedings against his employer and supervisor, arguing that he had been constructively dismissed, subject to discrimination and harassment, punched in the testicles leading to injury and trafficked. 

Employee sought damages for the tort of human trafficking

Concerning the human trafficking claim, the plaintiff sought damages arguing that the company and his supervisor controlled his movements. He was required to give $1,000 to his supervisor for the work permit fee paid by the company.

The plaintiff also alleged that he received wages in cash lower than the agreed amount, worked in a toxic environment and could not expose the company out of fear of losing his work permit. Finally, he told the court that he was forced to renovate his supervisor’s house for free. 

The company did not control his movements

Justice Di Luca found that the plaintiff was an employee whose pay and conditions were equivalent to his co-workers. His Honour decided that, apart from the usual direction provided by an employer, it was hard to see how the employer controlled the plaintiff’s movements.

The employee’s movements were directed by the supervisor but not for the purpose of exploitation

However, the supervisor was directly involved in obtaining the work permit, and his Honour said:

“I am prepared to find that in a context involving a Foreign Temporary Worker, the thought of being removed from Canada would be objectively sufficient to create a fear for one’s safety from a psychological perspective and perhaps also a physical perspective.”

Justice Di Luca agreed with the plaintiff that the “request” to help with the house renovations was a direction to perform labour. However, his Honour decided that the direction was not given for the purpose of exploiting the plaintiff. It was not accompanied by any explicit threat that failure to help would impact the permit or result in harm, and no such inference could be drawn from the supervisor’s comments in the lead-up to the direction. The supervisor viewed it as repayment for the supposed favour of getting the plaintiff the job and permit. 

As a result, the human trafficking claim was dismissed. However, other parts of the claim succeeded, with the plaintiff awarded almost $300,000 in damages.

Contact Haynes Law Firm in Toronto for Advice on Human Rights in the Workplace

Haynes Law Firm represents both employees and employers in all types of human rights claims. We cut through the complexity to advise you or your organization on the best strategy for moving with your claim or defence. Our team has more than 25 years of experience representing clients in human rights claims and is ready to serve you in whatever forum required, from negotiation to proceedings in human rights tribunals or court. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.

Categories
Human Rights in the Workplace

Can You Be Required To Undergo An Independent Medical Exam?

Employers cannot discriminate against employees on the grounds listed in the legislation, which include disability. As a result, they need to accommodate the needs of employees with disabilities.

These obligations may sound simple and easy to apply, but they frequently create a range of questions and issues in particular cases. For example, if an employee tells their employer that they have a disability, what information is the employer entitled to seek from the employee about their condition? Can they verify this information by requiring the employee to attend an independent medical exam? And what are the consequences for the employee if they fail to comply?

This article looks at these questions, along with a recent decision of an adjudicator appointed under the Canada Labour Code where an employee who had refused to attend an independent medical exam and was fired complained that his dismissal was unjust.

Employers need to accommodate disabled employees to the point of undue hardship

Employers are prohibited from discriminating against employees on a variety of grounds that are listed in the Ontario Human Rights Code and the Canadian Human Rights Act which applies to employees in federally regulated workplaces. Relevantly for the purposes of this article, this includes a prohibition on discrimination on the basis of disability.

An employer of an employee with a disability has a duty to accommodate the employee’s needs up to the point of undue hardship. This requires the employer to take the steps needed to enable the employee to perform their job, which may involve modifying their duties, changing their work schedule or providing particular equipment.

Employees generally need to tell their employer they have a disability to obtain an accommodation

Accommodation has been described as a shared process, with both the employer and employee having roles. The employee should generally tell their employer that they have a disability so that their employer is able to find appropriate accommodation.

The employer has the responsibility of leading the accommodation process and coming up with a solution. The employee may also have ideas and should take part in the discussions. Once the employer has initiated a reasonable proposal for accommodation, the employee needs to cooperate and take reasonable steps to implement the proposal.

In some cases, employers may be entitled to seek additional information or verify the information provided by an employee

Employers need some degree of information to understand the employee’s needs and provide suitable accommodation. However, requests for information should normally be limited to those reasonably related to the needs of the employee in order to make the accommodation.

In some instances, the employer may ask for information from a doctor, such as information about the employee’s disability, where this is genuinely needed to implement an accommodation. As shown below, in some circumstances, an employee can be required to attend an independent medical exam.

Employee terminated for cause after failing to attend an independent medical exam

In Wan v Intek Communications Inc., an employee brought an unjust dismissal action under the Code after he was fired for failing to attend an independent medical exam. 

The employee worked as a warehouse assistant for a telecommunications company. He was previously a cable technician but after being at fault for an accident in which he was injured and subsequently disciplined, the employee was hurt again and was accommodated into the warehouse role. He completed a functional abilities evaluation in 2015, which suggested “micro-breaks,” which were implemented with support from his treating physician. He was warned again in 2017 for taking more breaks than anticipated.

In 2018, the employee’s physician recommended a five-minute break every 20 minutes for at least five years. The employer wrote to the doctor asking for insight into possible alternative accommodations. The doctor noted that her recommendation was based on the 2015 evaluation, at which point the employer requested that the employee participates in an independent exam. The employee indicated his refusal to attend through his lawyer and was later terminated after failing to show up for the exam.

Employer entitled to require an independent exam

The adjudicator decided that:

“the Complainant failed to discharge his onus of proving prima facie discrimination … because of his repeated and unjustified refusal to satisfy his duty to cooperate in the search for a reasonable accommodation of his disability, leading to the irreparable breakdown of the employment relationship”.

The adjudicator explained that searching for a reasonable accommodation may require the disclosure of medical information and the employee’s participation in an exam, but a balance needed to be struck between the employee’s privacy interests and the employer’s need to know sufficient information in order to provide suitable accommodation.

In this case, the employer had a basis for doubting the adequacy of the information provided by the employee. Specifically, the recommendation for more breaks was based on an outdated evaluation. 

Termination for cause was justified

The adjudicator found that the employer acted reasonably in first seeking more information from the employee’s treating physician and, when that proved unsatisfactory, then requiring attendance at an independent exam. The information sought by the employer was necessary to understand the employee’s limitations. 

As a result, the adjudicator decided that the employer acted reasonably in requiring an independent exam, did not discriminate against the employee and had grounds to terminate the employee for just cause.

Contact Toronto Employment Lawyer for Guidance on the Accommodation Process

The Haynes Law Firm helps both employers and employees deal with issues relating to the accommodation process. We advise on the rights and obligations relating to the search for reasonable accommodation for disabled employees and provide representation in discrimination claims. Paulette Haynes assists employers to comply with their legal responsibilities to mitigate risk and fights for the rights of employees to be treated fairly and without discrimination in the workplace. Please contact the Haynes Law Firmonline or call us at 416.593.2731.

Categories
Human Rights in the Workplace Sexual Harassment in the Workplace

Is There A Standalone Tort Of Sexual Harassment?

Sexual harassment is a specific form of workplace discrimination constituting conduct (such as jokes or comments) relating to sex, sexual orientation, gender identity or gender expression that is unwelcome or ought to be known to be unwelcome. 

This article examines some of the legal options for dealing with sexual harassment in the workplace. Specifically, we look at whether employers can be held liable for a civil wrong of sexual harassment and the other options available to employees, such as applying to the Human Rights Tribunal of Ontario (HRTO).

Employees can apply to the Human Rights Tribunal of Ontario seeking a remedy for sexual harassment

Under section 7 of the Ontario Human Rights Code, employees have a right to freedom from sexual harassment in the workplace by their employer, employer agent, or another employee. They may apply to the HRTO, and the matter will proceed to a hearing if they do not reach a settlement. If harassment is proven, the adjudicator can grant remedies, including the payment of monetary compensation.

Importantly, under the Human Rights Code, there is no vicarious liability against an employer in respect of sexual harassment claims. This means that complaints must be brought against the individual who committed the sexual harassment, for example, a specific employee – not against the company. 

Employees can allege sexual harassment in the context of an independent civil action

Under section 46 of the Human Rights Code, a court is able to order monetary compensation or restitution in a civil proceeding where a Human Rights Code right has been breached. However, a person is not able to commence a civil action solely based on an infringement of a Human Rights Code right – they need to have another cause of action.

In the context of workplace sexual harassment, this means that employees may be able to use incidents of sexual harassment to prove wrongful dismissal or constructive dismissal and as a component of this civil claim, also establish a breach of their Human Rights Code right to freedom from sexual harassment. 

Employers have obligations under the Occupational Health and Safety Act

Under the Occupational Health and Safety Act (OHSA), employers have a range of duties relating to the prevention of sexual harassment, including the obligation to:

  • provide information, instruction and supervision to a worker to protect their health and safety, and take every precaution reasonable in the circumstances for their protection;
  • have a policy with respect to workplace sexual harassment; and
  • investigate all complaints of sexual harassment.

Inspectors from the Ministry of Labour, Training and Skills development enforce the OHSA, and it is possible for employers that fail to comply with their obligations to be prosecuted. 

Is there an independent tort of sexual harassment?

A question remains whether an employee can claim damages from an employer in court proceedings for an independent civil wrong of sexual harassment. 

This issue was raised in the recent decision of the Ontario Superior Court of Justice in Incognito v Skyservice Business Aviation Inc.

Employee sued employer for vicarious liability for sexual harassment

The plaintiff employee worked for the defendant employer Skyservice. She alleged that she was subjected to sexual harassment, which caused her to undergo breast reduction surgery to lessen herself as a target. The plaintiff also claimed that the employer failed to provide her with a work environment free from sexual harassment or investigate her complaints. 

The employee sued the employer for vicarious liability for sexual assault and vicarious liability for sexual harassment. She also sued the company’s vice president of sales personally. 

Employee argued that the claim was not solely for a Human Rights Code violation

The employer sought to have the claim against it for vicarious liability for sexual harassment struck out on the basis that it did not disclose a reasonable cause of action because the Human Rights Code does not permit civil actions based solely on an infringement of a Code right.

The employee acknowledged that the Human Rights Code could not solely be a cause of action but argued that sexual harassment accompanied and should increase the damages for the tort of sexual assault. The plaintiff also claimed that there was a compelling policy rationale, considering the “Me too” movement, to be able to sue for vicarious liability for sexual harassment.

Ontario courts have held that sexual harassment is not an independent tort

Justice Vermette explained that because the Supreme Court of Canada has held a plaintiff is unable to pursue a common law remedy when human rights legislation contains a comprehensive enforcement scheme, and the Code deals with sexual harassment, Ontario courts have previously held that sexual harassment is not an independent tort capable of supporting a cause of action. 

Employer cannot be vicariously liable for sexual harassment 

Her Honour turned to the facts of this case. She decided that, as there was no independent tort of sexual harassment in Ontario, the plaintiff’s claim of vicarious liability for sexual harassment against the employer had no reasonable prospects of success and must be struck.

However, Justice Vermette explained that the Human Rights Code provision ruling out vicarious liability only applied to alleged infringements of certain named sections, including the section 7 prohibition on sexual harassment. 

Given that the plaintiff had also claimed against the employer for vicarious liability for sexual assault, as part of that cause of action, it may be possible to claim compensation under the Code for infringement of a right outside section 7. Her Honour said that the facts, as pleaded by the plaintiff, could potentially support such a claim, opening the door to tacking on a Code claim to her vicarious liability for sexual assault action. 

Contact Haynes Law Firm in Toronto for Advice on Sexual Harassment

The legal options for seeking a remedy for sexual harassment are complex, and the best route depends on your circumstances. Haynes Law Firm assists employees in obtaining the compensation to which they are entitled if they have been a victim of sexual harassment. We also help employers defend specific claims and make sure they meet their obligations to maintain a harassment-free workplace. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.

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Employee Terminations Human Rights in the Workplace

Covid-19 – Can Employees Be Required To Return To The Workplace?

With the scrapping of most COVID-19 rules in Ontario, including removing the mandatory five-day isolation rule for those that test positive, many employers are returning to pre-pandemic normal and requiring employees to attend workplaces in person. 

While some employees have rejoiced at the opportunity to return to the office and be reunited with colleagues, others are less happy. The ability to work from home or remotely has offered some employees greater flexibility, whether for childcare or just avoiding the morning commute. Others may fear returning to the workplace, catching COVID-19, and passing it on to loved ones.

This article looks at some considerations for employers and employees when it comes to returning to the workplace as we transition toward the post-pandemic era. 

The specific circumstances of the workplace and individual employees need to be considered, so we suggest discussing your issue with an experienced employment lawyer. For example, while some employers cannot offer remote work (such as retailers), the situation may be different for other employers that successfully moved to remote or hybrid work during the pandemic.

Is returning to the workplace consistent with the duty to ensure the health and safety of employees?

Under the Occupational Health and Safety Act (OHSA), employers have a duty to keep employees safe, including protecting workers from hazards from infectious diseases. In particular, employers are required to take every reasonable precaution in the circumstances to protect a worker.

The OHSA allows employees to refuse work if they have reason to believe that the condition of the workplace is likely to endanger them. Workers are able to complain to the Ministry of Labour, Training and Skills Development. 

While it isn’t clear whether attending a workplace during the COVID-19 pandemic constitutes an unsafe condition, this is likely to depend on the circumstances of individual workplaces and employers need to comply with public health guidelines and carefully consider employee safety when returning to the workplace.

What does the employment contract say?

As always, the terms of the employment contract are important. For example, if the contract permits an employee to work remotely, they will have grounds to resist an attempt by the employer to require them to work in person from the workplace.

Is accommodation required?

Some employees may not be able to return to the workplace due to medical issues. Under the Ontario Human Rights Code (Code), employers cannot discriminate against employees on a range of enumerated grounds, including disability and family status.

For example, suppose the employee suffers from a physical or mental disability. In that case, the employer must accommodate the employee’s needs by undertaking all reasonable efforts until undue hardship. This may require the employer to, for example, change the employee’s duties, tools or schedule to enable them to be able to perform their role effectively. We have written more about the duty to accommodate here. 

In the context of returning to the workplace, accommodation options might include allowing the employee to work from home, facilitating the isolation of the employee at the workplace, or maintaining vaccination policies or mask-wearing requirements in the workplace.

Is the employee otherwise entitled to leave?

There are a number of circumstances in which employees are entitled to statutory leave. For example, under the Employment Standards Act (ESA), employees may be entitled to leave, including:

  • Infectious disease emergency leave – Employees are eligible for up to three days of paid infectious disease emergency leave if they will not be performing the duties of their position because, for example, they are under medical supervision having contracted COVID-19, they are experiencing a side effect from COVID-19 vaccination, or they are providing care or support to a specified person. The paid leave period applies until March 31, 2023. Employees have the right to take unpaid leave for as long as the ESA conditions are met. The leave is job-protected, meaning employers are unable to fire, threaten or penalize an employee if they are taking infectious disease emergency leave.
  • Sick leave – If employed for at least two consecutive weeks, employees are entitled to a leave of absence without pay because of a personal illness, injury or medical emergency, for three days each calendar year.
  • Family responsibility leave – If employed for at least two consecutive weeks, employees are entitled to a leave of absence without pay because of an illness, injury, medical emergency, or urgent matter concerning a specified person for three days each calendar year.

Has the employee abandoned their position?

Suppose none of the above situations apply and there are no Code protected reasons for accommodation. In that case, an employee that refuses to return to the workplace may have abandoned their position. 

For an employee to abandon their position, they need to clearly and unequivocally indicate an intention to abandon their employment, as viewed from the perspective of a reasonable person. Abandonment has similar effects to resignation, with the employee not entitled to reasonable notice (or pay in lieu of notice) or severance pay.

However, in the current competitive labour market and to retain staff, employers may wish to extend flexibility to employees that can perform their roles remotely, beyond the situations strictly required by law.

Contact Haynes Law Firm in Toronto for Guidance on Accommodating Employees

Haynes Law Firm can help employers and employees deal with all issues relating to returning to the workplace. For example, Paulette Haynes helps employers explore all reasonable options to accommodate employees with a protected Code ground, limiting their exposure to potential claims. We also stand by employees who cannot return to their workplace, ensuring they are aware of their options. To discuss how the Haynes Law Firm can help you, please contact us online or call us at 416.593.2731.

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Human Rights in the Workplace

What Does The Duty To Accommodate Employees With Disabilities Involve?

Under the Ontario Human Rights Code, every person has a right to equal treatment with respect to employment without discrimination because of disability. Employers must accommodate the needs of employees with disabilities.

This article provides a brief overview of this duty to accommodate. It is a remarkably complex and onerous obligation for employers, so it is essential to seek the guidance of an experienced employment lawyer skilled at identifying creative, cost-effective solutions that benefit all parties. 

What is the duty to accommodate?

Under section 5 of the Code, every person has a right to equal treatment concerning employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability.

Regarding disability, section 17 provides that this right is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements because of disability. However, it also states that a person is not incapable unless the person’s needs cannot be accommodated without undue hardship on the employer, considering the cost, outside sources of funding, if any, and health and safety requirements.

What does reasonable accommodation involve?

The employer needs to provide an employee with the necessary adjustments to their work environment to perform their job effectively. This generally involves adopting a measure that achieves its business goals without having a discriminatory impact on an employee. 

Typically, an employee will notify the employer of the issue impacting their performance at work and/or request a specific accommodation. The employer must investigate the employee’s proposal comprehensively and promptly, considering the employee’s specific needs. This is likely to involve seeking specific information about the employee’s condition.

The employer must also investigate the feasibility of alternative measures that do not have a discriminatory impact, not restricting itself to examining the particular accommodation proposed by the employee. This is because the employer is likely to better understand its overall operations and could be in a better position to identify reasonable accommodations. 

The type of adjustment required obviously will depend on the employee’s needs and the employer’s particular business. Relevant accommodations will need to be considered on a case-by-case basis. Accommodations that may be reasonable include:

  • adjustments to an employee’s schedule to allow for attendance at medical appointments;
  • providing equipment to enable the employee to perform their job effectively; and
  • changing the employee’s duties to avoid tasks that they are unable to do.

What does undue hardship mean?

The duty to accommodate stops at the point of undue hardship. This means that the employer is not required to take measures that would cause undue hardship to the employer or other employees. 

What qualifies as undue hardship will vary from case to case, depending on the particular circumstances. However, the simple business inconvenience will not suffice. 

A range of factors could be relevant in determining whether a particular accommodation would cause undue hardship, including:

  • financial cost, including the cost relative to the size of the operation;
  • personnel specialization, in the sense that it may be more difficult to substitute for a highly specialized claimant (who requests an accommodation like time off);
  • purchases or modifications to equipment and buildings; and 
  • the general economic conditions facing the employer.

Once the employee establishes a case of discrimination, the onus then shifts to the employer to establish that it had accommodated the employee to the point of undue hardship. A court has said that:

Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concerns that certain adverse consequences “might” or “could” result if the claimant is accommodated.

As a result, the employer needs to provide evidence about the costs and/or negative consequences if a proposed accommodation is adopted. In order to prove undue hardship, simply asserting that the cost is too high or risks too great will not be sufficient. If cost is the reason for undue hardship, they need to be quantifiable and shown to be related to the accommodation. 

What does the employee need to do to facilitate accommodation?

Accommodation has been described as a “joint process”, which requires the employee to cooperate with the employer in the accommodation process by providing the employer with the information relevant to meeting their needs. The employee should work with the employer to identify possible solutions.

Where an employer has initiated a reasonable proposal and would, if implemented, fulfill the duty to accommodate, the employee also needs to facilitate the implementation of the proposal. The employee cannot thwart the venture by failing to take reasonable steps to implement the solution. 

What are the consequences of failing to comply with the employer’s duty to accommodate?

If the employer does not appropriately accommodate the employee, the employee may have grounds for a constructive dismissal or wrongful dismissal claim. 

The employee may seek a remedy under the Code, which can include the payment of monetary compensation for loss arising out of the infringement of a right and compensation for injury to dignity, feelings, and self-respect. Courts can award these human rights damages in the context of dismissal actions.

Contact Haynes Law Firm in Toronto for Advice on Discrimination and the Duty to Accommodate

Haynes Law Firm helps employers and employees throughout Ontario achieve practical solutions to legal issues and conflict management in employment law and civil litigation. We help employees who have experienced discrimination in the workplace ensure employers are held liable. We also work with employers to identify and implement accommodations for employees and mitigate legal and financial exposure. Contact us online or call us at 416.593.2731.