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Guidelines for Making your Workplace Digital


A 2015 CEO survey[1] conducted by Gartner Inc. found that among top business priorities for CEOs were growth, technology, and workforce.  Each of these priorities could be addressed by implementing a digital workplace with features such as new platforms, customer-centric online services, remote work optimization, and analytics improving workplace retention.

If you are assisting your organization to make your workplace digital, you may wish to keep the following guidelines in mind:

1. Give equal weight to the needs of employees as well as the organization

Thinking of the employment relationship through the lens of both the employer and the employee is a crucial element in implementing a digital workplace. It is natural to have expectations of your employees to perform to a certain measure, but in order to allow them to reach these expectations employee needs also must be recognized and met.  Some of these needs could include access to best-in-class hardware, apps and content, the freedom to use one’s working time flexibly, access to a wide range of collaborative tools such as a supportive IT department, and personal analytics that could measure how employees are performing.

2. Approach the workplace as a collaborative environment

In medium size and larger organizations, various departments are seen as entirely separate entities and very little collaboration takes place between them. However, the implementation of a successful digital workplace requires that companies combine projects across departments. There is a lot of opportunity available for a collaboration of different minds to decide on the form of digital infrastructure that should be installed in each department to mesh well with the strengths and weaknesses of the employees within that department.

3. Consider user-friendly workplace technology

Developing technology for your workplace that would require a lengthy training period would be counter-productive. When building workplace technology, the focus should be on how the business process works and how the organization’s employees work. Technology specific to the workplace should be developed based on these two factors. Developing technology that builds on the intuitiveness of those who will be using it, will ensure that employees could transition without a great deal of disruption.

4. Set goals within a reasonable time frame

IT strategies take time to implement, especially when they cause a great deal of change within the organization’s processes. Rather than planning only for the present, a suitable plan for making the workplace more digital should account for future growth.  It will be important to consider which changes could be done in the short-term versus which will require a longer-term implementation. For example, while integrating all applications together will be a long-term goal, a task such as integrating office system applications to allow employees to move data around should be comparatively straightforward and an example of a shorter-term goal.

Making the workplace digital could eliminate the barriers of physical offices, create open workspaces, encourage collaboration and enable more flexible and mobile work arrangements. Such initiatives could better assist organizations with dealing with rapidly-changing work environments. The above guidelines will form a good starting point for discussion around moving forward with making workplaces more digital. If your organization used different guidelines to making your workplace digital, please send them to me, and I may include them in a future post.

[1] Gartner Inc., Gartner CEO and Senior Business Executive Survey Shows Technology Related Change is a Higher Priority Than Ever Before, online:  Gartner

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Court of Appeal Upholds Decision to Reinstate Employee Nearly 12 Years After Termination

Nearly two years ago I blogged about the Ontario Human Rights Tribunal’s decision to reinstate Sharon Fair to her position with the Hamilton-Wentworth District School Board (the “Board”) and award her $30,000 in damages for losses she has suffered as a result of the infringement of her human rights by the Board. My blog can be found here. Ms. Fair was an employee of the Board for nearly 13 years when an anxiety disordered caused her to be off work on disability leave for 3 years. When she was cleared to return to work with certain restrictions, the Board terminated her employment after it concluded that it could not accommodate her disability. The Tribunal found that the Board never had an intention of accommodating Ms. Fair, even though it had a duty to do so, and that, therefore, it failed to accommodate Ms. Fair to the point of undue hardship.

The Tribunal’s decision caused quite a stir because it is unusual for the Tribunal to reinstate an employee following termination. It is even more unusual for the Tribunal to do so more than 8 years after termination. However, the Tribunal reasoned that the passage of time did not render reinstatement inappropriate, especially since the delay in processing Ms. Fair’s human rights application was not her fault.

In my blog I also addressed the Divisional Court’s decision upholding the Tribunal’s decision to reinstate Ms. Fair. The Divisional Court found that the Tribunal’s conclusions were reasonable and supported by the evidence, and that reinstatement was an appropriate remedy in the circumstances. By the time the Divisional Court’s decision was released, more than 10 years passed since Ms. Fair’s employment was terminated.

On May 31, 2016, the Ontario Court of Appeal (OCA) unanimously upheld the Divisional Court’s decision. After a thorough review of the law on accommodation and the Tribunal’s decision, the OCA concluded that the Tribunal followed established principles in making its decision, and made its decision based on facts and evidence that were before it. The OCA agreed with the Divisional Court that, while rarely used, reinstatement is an available remedy under the Human Rights Code. It also agreed with the Tribunal that the passage of time, by itself, is not determinative of whether reinstatement is an appropriate remedy. The decision to order reinstatement is context-dependent, and in this case, the context permitted this remedy to be awarded.

The OCA’s decision acts as a good reminder to employers of a number of best-practices with respect to accommodating employees returning from disability leave. First, employers should seek to deal with human rights applications expeditiously. Should the Tribunal order reinstatement of an employee, as it had in this case, it would typically be far easier for employer to reinstate an employee shortly after termination rather than 12 years down the road.

It is also important for employer to remember that the duty to accommodate has both a procedural and a substantive component. The procedural component requires an employer to assess the needs for accommodation and determine how those needs can be addressed. The substantive component requires an employer to make adjustments to the work environment to address those needs. The concept of “undue hardship” applies to the substantive component of the duty to accommodate.

Employers should also remember that accommodating a returning employee’s needs can prevail over the seniority rights of other employees, and may require the employer to accommodate a returning employee in a position other than that employee’s pre-leave position.

The duty to accommodate should not be disregarded or taken lightly by employers. Undue hardship is a high threshold to meet, and the larger an organization is, the higher the expectation will be that it should  find proper accommodation for a returning employee.

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Do I have to pay my Summer Intern?

shield-1020318_1280Now that summer is here, there are many students looking to gain experience in their field of studies. Many times, this experience comes in the form of unpaid internships.  Besides the benefits that the interns derive by gaining experience, employers could also benefit of having the fresh perspective of a summer intern and an extra pair of hands to help out. However, there has been a lot of controversy around whether unpaid internships should be legal in Ontario or whether unpaid internships really just translate into cheap labour for employers.

In Ontario, interns are considered to be employees, and must be paid at least the minimum hourly wage of $11.25 ($11.40 an hour as of October 1, 2016). An internship could be unpaid, however, if it meets all of the following requirements:

  1. The training provided to the intern is similar to that which is given in a vocational school;
  2. The training is for the benefit of the intern, who will receive some benefit from the training, such as new knowledge or skills;
  3. The employer will derive little, if any, benefit from the activity of the intern while he or she is being trained;
  4. The intern’s training does not replace another employee’s position;
  5. The employer is not promising the intern a job immediately upon the end of the internship; and
  6. Both the employer and the intern understand that the intern will not be paid for his or her time.

Clearly, most unpaid internships will not meet all of the above requirements. One of the risks to employers is the possibility that at the end of the internship, the unpaid intern will file an employment standards claim to recover wages owing for the unpaid internship. If all of the above requirements are not met, the unpaid intern is likely to succeed.

For example, in 2013, a former intern of Bell Canada brought forward an action for 5 weeks of unpaid wages, claiming that the unpaid internship program had no educational value and that the work she was doing was the same work that paid employees were doing. Ultimately, a federal labour inspector rejected this claim, stating that the intern had acknowledged that the program was unpaid and there was no guarantee of employment, and also that the work she prepared was not used to support or benefit business operations.[1] However, the internship program was shut down and the story got a lot of attention in the media.

Although the Bell Canada case was in the federal sector, the end result would be similar for an Ontario employer. Due to the recent controversy around unpaid internships, many view companies who hire unpaid interns with disdain. Taking on unpaid interns creates the risk of negative publicity and reputation for your company if the intern decides to bring legal action or even create a social media controversy, regardless of the end legal result.

A good question for an employer to ask to assess whether the internship program could truly qualify as an unpaid internship is to consider whether the intern is mostly working for the company’s benefit, or for their own benefit.  If the intern is not a student in an approved work program and/or does not meet the six requirements outlined above, it is advisable that the intern be paid at least the Ontario minimum wage.

[1] Marco Chown Oved, Unpaid Intern’s Claim for Wages Rejected, online: The Star < https://www.thestar.com/news/gta/2013/10/24/unpaid_interns_claim_for_wages_rejected.html&gt;

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Top 5 Tips for Start-Ups when Recruiting Online

Startup Stock Photos

Startup Stock Photos

Since many candidates spend a large part of their time online, a company’s online presence could become a top recruitment source.  With the increased prevalence of social media sites, recruiters can now move beyond traditional advertising to reach potential candidates. Job openings could be shared as a link on Twitter, be posted on a tab for job openings on a company’s Facebook page, or be advertised through YouTube videos.  In addition, a company could search for a potential candidate on LinkedIn. Having an effective online recruitment strategy is necessary to find and attract the best candidates.

Below are the top 5 tips for start-ups conducting online recruitment campaigns.

  1. Be known as a great employer

With information more readily accessible online, candidates are actively seeking out information regarding a potential employer before applying for a position. By ensuring that your company has a cohesive brand image that reflects its mission, vision, and values, candidates will be engaged from the beginning of the process.  They will also be able to proactively self- determine whether they are a cultural fit for the company. Often former employees will post online reviews about their experiences working for their former employer. While you cannot control former employees’ reviews, ensuring that your company treats current employees with respect and provides a positive work environment will likely translate into positive online reviews once employees depart.

  1. Be active

Rather than simply posting a recruitment ad and hoping that candidates will find it, taking a more pro-active approach to online recruiting will ensure greater exposure for the job posting.  Share the posting on all of the social media sites your company is active on. It may be shared by others who follow your company, increasing the job posting’s exposure exponentially. In addition, actively searching for candidates on LinkedIn, Workopolis and other sites, ensuring of course that you are not enticing candidates from current employment, is another pro-active way to find qualified candidates. The two ways in which to go about this could be to either look for candidates that you think will be a good fit for a particular position within your company, or candidates who would be a good fit with your company in general, whatever the role.

  1. Use LinkedIn effectively

LinkedIn could be a great place to find qualified candidates. According to LinkedIn’s own Talent Blog[1] 20% of LinkedIn’s 238 million users are actively looking for work. That’s a huge number of potential candidates. Using LinkedIn’s Skills & Expertise section as well as narrowing down the search by location and industry will allow your company to narrow down this large number of candidates to those who fit the profile for the available position.  Once you create your LinkedIn search, you can save it to get automatic notifications when new candidates sign up. Joining LinkedIn groups that include members with the skills that you are looking for may also be an effective way to meet potential candidates. Finally, when the list is narrowed down to your company’s top candidates, get in touch with these candidates over LinkedIn to determine interest in the position.

  1. Utilize your network

Internal and external referrals could be an effective way to build your team.  Meeting candidates through referrals provides some comfort that someone your company already has a relationship with is vouching for the candidate. Your company may ask its network to recommend qualified candidates for the position, or qualified candidates may be recommended by someone in your company’s existing staff or network. Either way, building your team through referrals also saves your company the time and cost of a more traditional recruiting campaign. Conducting your recruitment campaign online makes accessing second and third degree connections easier as you can see whom you share connections with, allowing you to seek out referrals from those who already know the candidate.

  1. Be tech-savvy

If your company is reaching out to Millennials to fill a position, being tech-savvy, mobile-friendly and innovative will ensure that the position attracts the right candidates. Millennials tend to turn their backs on rigid corporate operations, and prefer employers who resist being restrained by how things used to be done before the online world entered the corporate world. Millennials prefer to communicate electronically through mobile devices, so running an online campaign that is mobile-friendly will make your company’s job opportunity more likely to reach that sector of candidates. Showing potential candidates that your company is tech-savvy and is not afraid to rely on technology to operate, will attract Millennials and more tech-savvy candidates, and substantially expand the pool of candidates to choose from.

As a startup, it is often difficult to compete with the expansive and expensive traditional recruitment campaigns that larger and more established companies may employ. However, by following these tips in building your online presence and taking a proactive role in seeking out candidates, startups can gain the competitive hiring advantage needed to attract top candidates who may not necessarily be looking to join large, more traditional work environments.

[1] Gregory DePaco, How to Find Active Candidates on LinkedIn, online:  <https://business.linkedin.com/talent-solutions/blog/2013/08/how-to-find-active-candidates-on-linkedin#!>

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Raise the Bar on Performance

The following is a guest post by Shelly Cyr, Founder of Synfini Works* 

Can you believe half of the year is almost over? If you’re scratching your head wondering where did the time go? Join the club. In today’s fast-paced work environment, the day is over in a blink of an eye.

Many companies use this time of year to do formalized check-ins with their management teams and employees to assess progress against the year’s priorities. A time to reflect on what’s on track, what side-tracks did we encounter and/or anticipate, and what’s needed to stay focused and committed? This robust conversation should include feedback and observations from other team members with the intent to drive focus on behaviours and activities required to achieve outputs for the reminder of the year. In my experience, this level of dialogue reveals insights into how the team manages through unexpected change or distractions, unspoken power plays between team members, confusion around accountabilities, and a lack of leadership. Somehow, in a blink of an eye, our focus has become other people’s priorities instead of our own.

Below are tips on how to raise the bar on your mid-year management update meeting which will help your team get back on track and strengthen accountabilities. You can also use these tips in smaller operations with all employees present.

Set aside time. The amount depends on the size of your team and the agenda items. It could range from a half-day to full day meeting. Some leaders will prefer to have one-on-one time scheduled in advance with their direct reports to gather insights and determine focus on team meeting. Make sure everyone is available to attend and it is scheduled at a time with minimal impact on the operations.

Assign pre-work. Ask your direct reports to reflect on progress made against their priorities. You want to see metrics and outputs for their areas of focus. Have them rank their overall priorities using RAG (Red, Amber and Green) ratings. Get them to think about what has contributed to their success, what additional support or request do they need from their team members or from you. You also want them to be ready to share what they have noticed about their team members’ achievements and challenges. This information will give you a sense of how self-aware your managers are about their own behaviours and those of others.

Design a meeting format for optimal dialogue. Key components of this type of meeting would include; working agreements and stated outcomes, set time frame, un-interrupted updates from each member based on prework assigned, your updates including overview of celebrations and areas of opportunities, discuss key themes and observations shared during updates, challenges and issues affecting priorities, brainstorming around what needs to done, by when and by whom. Wrap up includes each person summarizing their accountabilities and key takeaways from session.

Let it get heated. If you follow these tips, the latter part of this meeting could have sparks flying as varying perceptions are shared about each other’s behaviours, achievements and challenges. This is when you remind the team of the working agreements set at the beginning which should include being open and honest, focus feedback on behaviors and not the person, etc. It’s also time to switch hats from chairing to putting on your facilitator hat and grabbing a flipchart (or have your assistant capture notes). Remind the team about the outcomes for this section which is to get clarity around what’s working well and what needs to change to achieve priorities. You want to ask open-ended questions such as;

  • What common themes came up in our updates?
  • What’s working well as a team? What’s getting in our way, in terms of behaviours, actions
  • What’s within our control? Who’s responsible for removing barriers?
  • What do we need to start, stop and continue to achieve our priorities this year?

Notice if and when the discussion focuses on particular individuals and encourage other voices to be heard. The objective is not to blame or take over the limelight and it’s your job to “call it out” if you see it happening. Encourage team members to speak from their point of view using pronouns such as “I”. If things are getting heated, call a “time-out” and summarize what you’ve heard from each party. Seek to find where there is agreement. Acknowledge any emotions getting triggered and after your time-out, ask again what emotions they feel to see if there is change. Your aim is to lessen the intensity of the emotions which arise while having a productive dialogue. If you can stay with conflict and remain as neutral as possible, you will engender robust conversations which will build respect, trust and accountability on your team.

Raise the bar. What needs to change from your point of view? State it aloud. What will it take to achieve aggressive goals? What do you expect to see more or less of? Your input is just as critical and even more important in raising the performance of your team. Some leaders shy away from this because they fear their team is already overburdened so they settle for compliancy. It is your role to promote new thinking and challenge the status quo. Especially if it’s not getting you to the results you expect. If you are hearing resistance, get curious and ask more questions. It’s the opportunity to hold your team accountable for delegating effectively, fostering a culture of high performance by ensuring the right people are in the right jobs and listen for what is needed from you as their leader.

Share a meal and laugh together.  Many companies will plow through these meetings with a working lunch or dinner. If your meetings are designed well, you will have time to breathe, eat a meal and have fun together. After your meeting, change up the flow, move to another room if possible. You can arrange “lighter” topics at each table during the meal or just take the opportunity to socialize with one another.  Think about how you can lighten the mood after what could be an intense meeting.  Some clients will have a fun activity scheduled afterwards. It could be physical like playing golf or game of baseball. It could be volunteering with a local charity or going to a comedy club. Whatever you decide, do it together as a group. Use it as an opportunity to bond as a management team.

As you gear up for your upcoming management meeting, which of these tips could be useful?

* Shelly D. Cyr, Founder of Synfini Works, is passionate about helping business owners and managers become exceptional at leading their people. She has specialised knowledge in Leadership Development, Management Coaching and Team Effectiveness. As a trusted partner, Shelly works with businesses to transform their people development strategies into collaborative high performance cultures.


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The New Liberal Government and What it Means for Canadian Employers

conservative-liberal-road-signOn October 19, 2015, Canadians took to the polls and elected a Liberal majority government. The new federal government’s platform and promises will impact employers across the country as well as their human resource practices in a number of ways

Federally-Regulated Workplaces

The Liberals have proposed several policies that, if implemented, could rock the federal labour and employment landscape. First, they have pledged to repeal the following two bills recently passed by the Conservative government: the controversial C-377, which requires labour organizations to provide financial information to the government, and C-525, which addresses the certification of bargaining agents. In addition, the Liberals have vowed to stray from the Conservatives’ approach with respect to public sector unions, promising to engage in good faith bargaining.

Second, the Liberals have proposed amendments to the Canada Labour Code to allow employees to request flexible working conditions. The proposed amendments include different work start and end times as well as remote working options, without reprisal from employers. A more flexible parental leave scheme is also being proposed, allowing parents to receive either shorter periods of leave over the course of 18 months or a longer period of up to 18 months. However, when combined with maternity leave, this change would likely result in a lower benefit level. The Liberals intend to introduce these changes to federally-regulated workplaces before assisting the provinces and territories in implementing similar changes.

The Liberals’ famous promise to legalize marijuana will also affect employers and whether and how they discipline employees for use or possession of the drug.

Retirement and Unemployment

The Liberals’ proposed changes to retirement involve modifications to both Old Age Security (OAS) and the Canada Pension Plan (CPP) benefits. The Liberals plan to restore the age at which Canadians can receive OAS benefits to 65;under the changes implemented by the Conservatives in 2012, the age of eligibility is set to gradually increase from 65 to 67 over six years starting in April 2023.

The Liberals have also promised to work with provinces, territories, and employers to enhance the CPP. These enhancements would have a particularly important impact on Ontario employers, as they may signal the end to Premier Wynne’s Ontario Retirement Pension Plan.

Finally, the Liberals have proposed the following reforms to the Employment Insurance (EI) benefit system: eliminating the requirement for employees to work a certain number of hours before they can qualify for benefits; reducing the elimination period from two weeks to one week; and exempting employers from paying EI premiums for 12 months when employing younger Canadians between the ages of 18 and 24 in permanent positions between 2016 and 2018.

At this time, these proposals are just that – proposals. As with other governments in the past, the Liberal government will likely follow through with some of these proposals but not others. I will update this post as these proposals are amended and make their way through the system.

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The High Cost of Dismissal for Insufficient Cause

An employer in Canada generally has two options when it decides to dismiss an employee. It can do so without cause as long as it provides reasonable notice of the termination or pay in lieu of reasonable notice. An employer may also dismiss an employee for just cause for conduct such as theft, dishonesty, violence, wilful misconduct, and habitual neglect of duty, subject to the contents of the employment contract, progressive discipline policy and other workplace policies. If just cause exists for the termination, then the employer is not required to give advance notice or pay in lieu of notice. However, the threshold for just cause is a high threshold for an employer to meet.

A recent case highlights the importance of ensuring that there is in fact sufficient cause to sever the employment relationship as well as the costly consequences of making unfounded allegations of just cause in an attempt to save on the cost of providing pay in lieu of notice. In Gordon v. Altus the Ontario Superior Court of Justice imposed a steep sanction on an employer for making claims of just cause that it could not prove. In 2008, Alan Gordon sold assets of a business to Altus and was hired to continue with Altus on a three-year written employment contract. For reasons that had nothing to do with Gordon’s performance, the employment relationship deteriorated and Altus decided to terminate Gordon’s employment. Altus dismissed Gordon for cause, claiming that he was not producing effectively, was unpleasant to deal with,  used profanities in the workplace, and failed to declare a conflict of interest.

Gordon sued for wrongful dismissal, claiming that none of the allegations relied on by Altus to justify termination for cause were true. Altus counter claimed for $1,000,000 in damages for breach of fiduciary duty, breach of duty of fidelity and breach of conflict of interest, as well as for $100,000 in punitive damages.

The court held that Altus did not have just cause to dismiss Gordon. It found that the conflict of interest allegation was a “red herring” while the other allegations were exaggerated or false. Of importance is the fact that Altus had an employee handbook that provided for progressive discipline. Gordon, however, was not given any warnings about his performance or other forms of discipline. The Court found that absent conduct justifying immediate discipline, such as theft, progressive discipline should have been followed by Altus.

In the court’s view, Altus “ran roughshod” over Gordon and put together a process to justify its actions after the fact. Describing the company’s conduct as “outrageous”, “cheap”, “mean”, “harsh” and “terrible”, the court ordered Altus to pay to Gordon $100,000 in punitive damages. In addition, judgement was awarded to Gordon in the amount of $168,845, which is equivalent to nine (9) months of pay plus three (3) weeks for every year of service.

Gordon v. Altus serves as an important lesson for employers looking to dismiss an employee. Cause is difficult to prove. Employers should seek the legal advice of an experienced employment lawyer to determine whether cause in fact exists before choosing that option. Otherwise, if an Employer exaggerates a claim of cause just to avoid having to pay what appears to be an expensive severance package, it may end up in the same position Altus recently found itself in – having to pay the proper severance package as well as hefty punitive damages, legal fees to its own counsel and likely some of Gordon’s legal fees.

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Are Employers Required to Give Employees a 3 Hour Break to Vote?

ballot boxIn the days leading up to today’s federal election, I was contacted by a number of employers about their obligation to give employees time off work to vote. In some cases, employees demanded a three hour break today, stating that they are entitled to this break by law.

Section 132 of the Canada Elections Act entitles each person who is eligible to vote, a period of three consecutive hours to vote. It is only where the person’s hours of work do not allow her or him to have three consecutive hours off to vote, that most employers (with some exceptions in the transportation industry) are required to provide for that time off, and continue to pay the employee as though she or he continued to work.

What can employers do to minimize the disruption to the workplace and the costs associated with providing employees with time off?

In Ontario, polls will be open from 9:30 a.m. to 9:30 p.m. Employees who work from 9 a.m. to 5 p.m., for example, will have three consecutive hours to vote following the end of their shift. In this case, the employer is not required to provide paid time off to vote. If an employee works from 11 a.m. to 7 p.m., for example, the employer may allow the employee to start work late (at 12:30 p.m.) or finish work early (at 6:30 p.m.) to allow for three consecutive hours to vote. If it is more convenient, the employer may also choose to give the employee a period of three consecutive hours during the shift to vote. Either way, if the employer gives the employee any time off to vote, the employer must pay for the employee’s full shift.

Please contact any one of our firm’s team members if you have any questions about your organization’s obligations to give employees time off to vote during today’s election.

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Does An Employer Have to Accommodate an Employee’s Child Care Obligations Following Maternity Leave?

meeting-552410_1280I have previously written about whether it is lawful for an employer to terminate a pregnant employee, considering the hardship that termination of employment causes an employee who is on the cusp of having a baby and leaving on pregnancy or parental leave. My previous post can be found here.

A related issue employers often grapple with is whether, upon returning from pregnancy and parental leave, an employee’s new child care obligations have to be accommodated.

Ontario’s Human Rights Code prohibits employment-related discrimination on a number of grounds, including family status. The leading authority on family status discrimination, Johnston v. Canada (Border Services) (“Johnston”) is a decision of the Federal Court of Appeal in a case where an employee who worked rotating shifts prior to leaving on maternity leave, requested to be placed on a fixed-shift full-time scheduled upon returning from maternity leave to accommodate her child care arrangements. The employer refused, but offered the employee a fixed-shift part-time schedule. In holding that the Canadian Human Rights Tribunal appropriately found that the employee suffered adverse differential treatment in the course of employment based on family status related to her role as a parent, the Court developed the following criteria that an employee must demonstrate when advancing a family status claim resulting from child care obligations:

  1. That a child is under his or her care and supervision;
  2. That the child care obligation at issue engages the employee’s legal responsibility for that child, as opposed to a personal choice;
  3. That he or she has made reasonable efforts to meet those child care obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible; and
  4. That the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.

In a recent Ontario case, Partridge v. Botony Dental Corporation (“Partridge”), the test for family status discrimination was applied and led to substantial damages being awarded to the employee.  Prior to taking pregnancy and parental leave, Partridge held the position of an office manager with Botony Dental Corporation, where she worked 9am to 5 pm, four days per week. Prior to her return to work from leave, Partridge was advised by text message that she will be returning to the position of hygienist, and that a number of her working conditions will be changed, including her hours of work. The new hours of work conflicted with Partridge’s child care obligations. Her employment was terminated shortly after she returned to work.

Justice Healey of the Superior Court of Justice applied the criteria for family status discrimination outlined in Johnston and found that the new hours imposed by Botony interfered with Partridge’s ability to fulfill her child care obligations in more than a trivial way; not only would Partridge be charged a significant sum for picking up her child after 6 pm, but in securing child care she had to rely on a number of family members, a neighbour and her husband who was self-employed, inconveniencing their schedules. The Court awarded Partridge $20,000 for family status discrimination, in addition to damages for the wrongful termination of her employment.

There is no question that employers have an obligation to seriously consider employees’ requests for accommodation because of child care obligations. Since each employee’s set of circumstances will be different, with each request an employer should apply the four criteria set out in Johnston to the employee’s particular circumstances to determine whether accommodation is warranted. Only where the employee can demonstrate that she or he could not find an alternative solution to child care after making reasonable efforts to find alternative child care, and only where the position or hours of work interfere with child care in a manner that is more than trivial or insubstantial, will the employer have an obligation to provide accommodation because of child care obligations. However, as the decision in Partridge demonstrates, an employer should not simply ignore such requests or turn them down without proper consideration – such actions might prove to be much more expensive than simply accommodating the employee’s request.

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Yes, Off-Duty Conduct CAN Give an Employer Cause for Termination

You're firedMany seem to be surprised by Hydro One’s move to terminate an employee who chose to support his friend’s vulgar, sexually explicit comments made to Shauna Hunt, a CityNews reporter, while she was filming a segment following a Toronto FC game on Sunday night. Ms. Hunt, who says that she regularly faces such vulgar comments from men while at work, appears to have had enough and decided to confront the men making the comments, while the CityNews cameras were filming the interaction. She later posted the video. The video went viral and has raised many good questions, including questions surrounding the boundaries between work life and personal life, and when an employer can cross the boundary and discipline an employee for conduct that took place outside of work hours.

Generally speaking, employers may discipline and terminate employees for misconduct that occurred during work hours. However, there are circumstances where discipline and termination are justified for conduct occurring outside of an employee’s work hours. To justify discipline or dismissal for off-duty conduct, there must be a nexus between the misconduct and the employer, the employer’s reputation, other employees or the employee’s ability to discharge his or her duties.

We all heard about the firing of Donald Sterling, the former owner of the Los Angeles Clippers, for making racist comments. Although the comments were made in private to a friend, they were taped and went viral. Once they were made public, Mr. Sterling was very quickly fired by the NBA, to nip in the bud any affect that the comments may have on the NBA’s reputation, morale amongst the players and attendance at games.

The swift termination of Jian Ghomeshi’s employment by the CBC is another example of an employer trying to stop in its tracks any anticipated reputational damage that may be caused by an employee’s off-duty conduct. In this case the CBC did not even wait for details of Mr. Ghomeshi’s alleged conduct to become public before firing him. It knew the impact the allegations will have on its reputation and on Mr. Ghomeshi’s ability to continue working for the CBC.

Public figures are not the only ones losing their jobs because of off-duty comments or conduct. Although the name Conner Mcilvenna may not ring a bell, he was the carpenter who was fired after posting comments on Facebook supporting the 2011 Stanley Cup Vancouver riots. Mr. Mcilvenna did not participate in the riots. But on the same Facebook page where he made the comments supporting the rioters, he also listed Rite Tech Construction as his employer. The next day, Rite Tech fired Mr. Mcilvenna because of the comments.

The video of the Hydro One employee (and others) throwing inappropriate remarks at Ms. Hunt, defending those remarks and taunting her when she asks for an explanation has likely been seen by millions within hours of its release on Twitter. It was just a matter of time before information about the personal lives of these men, including who their employers are, would be discovered and made public. Hydro One took the position that the employee’s actions were in breach of its Code of Conduct. Whether that was the case or not, the potential damage to Hydro One’s reputation as a public sector company is unquestionable. Once word was out that one of these men was its employee, Hydro One had to act. Ultimately, the terminated employee may challenge the termination, and a decision maker will give us the final answer as to whether the termination was appropriate. But in light of the magnitude of the distribution and impact of the video, those of us dealing with employment law issues on a daily basis are not surprised by Hydro One’s reaction to the video and its swift move to terminate this employee.

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Why Employers Should Think Twice Before Inducing Employees

twitter-recruitment-toolWhen an employer makes a decision to dismiss an employee, it often considers the employee’s length of service, position, age and availability of other employment when it determines the appropriate length of the notice period. However, few employers think back to how the employee ended up working for the employer. Many employees are hired after an application process. For those employees, looking at the usual factors when determining the appropriate notice period is reasonable, but considering the typical factors alone would not suffice for employees who were induced by the employer to leave their former employment.

Inducement is rarely an issue for front-line employees. However, more senior employees are often induced to leave their former employment because of the unique or exceptional skills and experience that they possess. Their unique skills and experience also make it more difficult for them to find other employment upon termination, which is why inducement sometimes comes with a high price tag for the employer upon termination. Inducement can take many forms, and typically include offers that were designed to be more financially attractive to the employee than his or her current compensation, signing bonuses or specific assurances of long-term job security).

Recently, in Rodgers v. CEVA Freight Canada Corp, the Superior Court of Justice substantially increased the notice period of a short term executive because of inducement. Bruce Rodgers was the president of Sameday Worldwide (“Sameday”), a transportation company. He was approached by CEVA Freight Canada Corp (“CEVA”) and was recruited to become CEVA’s Country Manager of its Canadian Operations. At that time Mr. Rodgers has been with Sameday for 11 years. Although Mr. Rodgers was interested in the position, he turned down the first offer. CEVA made him a second offer with a higher compensation package and a signing bonus, which Mr. Rodgers accepted. As a condition of employment, Mr. Rodgers was required to purchase CEVA shares at a cost of over $102,000. Mr. Rodgers had to take out a loan to satisfy this condition. Almost three years after he moved to CEVA, CEVA terminated Mr. Rodgers’ employment with only two weeks of pay in lieu of notice and about a week of severance pay. Mr. Rodgers sued for wrongful dismissal.

The Court found that because of the limited availability of similar positions in Canada (the evidence was that there are only six other employers in Canada engaged in a similar business), the recruitment of Mr. Rodgers when he was employed in a senior position of significant length of service and the requirement that he make a significant purchase of CEVA shares as a condition of employment all point to a lengthy notice period. In addition, although there was no explicit promise at the commencement of employment that the employment relationship would be a lengthy one, the fact that Mr. Rodgers had to invest four months’ salary in CEVA shares amounted to an implied promise that the employment relationship would be long. For these reasons, notwithstanding the fact that Mr. Rodgers was employed by CEVA for less than three years, the Court awarded him 14 months’ pay in lieu of notice, including all monetary benefits which Mr. Rodgers received during his employment with CEVA (car allowance, RRSP contributions, benefits, cell phone allowance, golf club membership and food and beverage allowance). Mr. Rodgers’ total compensation for the notice period was fixed at $428,246.

What could CEVA have done differently to protect itself from a court finding that such a long notice period was owing? As with many other issues upon termination of employment, the language in the employment contract is key. An enforceable termination provision in the employment contract would have superseded Mr. Rodgers’ common law entitlement, would have dictated the notice period to which Mr. Rodgers was entitled and would have protected CEVA from liability for its inducement of Mr. Rodgers. In addition, a provision in the employment contract stating that Mr. Rodgers left secure employment willingly, sought independent legal advice and was aware of the implications of leaving his former employment and accepting a position with CEVA would have further helped CEVA in its argument that the inducement should not have increased the reasonable notice period, even in the absence of an enforceable termination provision.

If your organization is planning to recruit a senior employee away from secure employment, it should consider retaining an employment lawyer to draft appropriate provisions for the recruited employee’s contract. It will be a small expense upfront that will likely save your organization a much larger amount after termination.

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Supreme Court of Canada Confirms Constitutional Right to Strike

StrikeIn the 1987 Labour Trilogy cases (Reference re Public Service Employee Relations Act (Alta.)PSAC v. Canada and RWDSU v. Saskatchewan), the Supreme Court of Canada (“SCC”) ruled that freedom of association protected by Section 2(d) of the Charter of Rights and Freedoms excludes collective bargaining, the right to join a union and the right to strike. In 2007, in Health Services and Support v. British Columbia the SCC ruled that Section 2(d) protects the right to collectively bargain. Just earlier this month, in Mounted Police Association of Ontario v. Canada (AG) the SCC ruled that RCMP members have the right to unionized pursuant to Section 2(d). Until today, however, the right to strike was still not addressed by the SCC.

In 2013, the question of whether the right to strike was constitutionally protected was raised before the Saskatchewan Court of Appeal (“SCA”) in R. v. Saskatchewan Federation of Labour. At issue was a Saskatchewan essential services legislation that prevented public sector employees from striking. The SCA overruled a lower court’s ruling that the right to strike is protected by Section 2(d), but stated that since the last clear pronouncement on the issue was in the SCC’s Labour Trilogy cases in 1987, that only the SCC could overturn that line of authority.

Not surprisingly, the SCA’s decision was appealed to the SCC. This morning, the SCC released its decision and, in a 5-2 ruling, found that the legislation at issue violated Section 2(d) and was therefore unconstitutional. The Court gave the Government of Saskatchewan one year to enact new legislation. Justice Rosalie Abella, for the majority, wrote that “[t]he right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations” and that the right to strike “promotes equality in the bargaining process”.

The ruling will affect all provinces with essential services laws, but more importantly for the labour bar, it overturned the last remaining ruling from the 1987 Labour Trilogy cases, that the right to strike is not protected by Section 2(d).

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CASL at 6 Months – The Sky Has Not Fallen

InboxOn July 1, 2014 Canada’s Anti-Spam Legislation (“CASL”) partly came into effect. CASL creates a comprehensive regime of offences, enforcement mechanisms and severe penalties designed to prohibit unsolicited commercial electronic messages (“CEMs”) and deter online and other electronic fraud. The parts of CASL that came into effect on July 1, 2014, require the sender of CEMs to obtain prior express or implied consent from the recipient, to include certain information in the message and to provide an easy-to-use unsubscribe mechanism. CASL creates a reverse onus of violations, meaning that individuals and entities who are charged with violations are considered guilty until proven innocent.

Since e-mails, text messages and other electronic messages used in carrying on business day-to-day fall within the definition of CEMs, it was the consent requirement that created the most uproar in the business community before the legislation came into effect. On the marketing side, CASL created a situation where many businesses could no longer send “cold emails” and use other marketing tools to promote their products and services. On the human resources side, employers are be liable for employees’ violations of CASL – if employees send CEMs while acting within the scope of their employment without obtaining proper consent, employers may be on the hook for a fine of up to $10,000,000 per breach. As the July 1, 2014 deadline to comply with CASL was getting near, employers were scrambling to create policies and checklists for staff to reduce the risk of violations and the resulting hefty fines.

Now that CASL has been in effect for just over 6 months, were the concerns founded? The CRTC reports that it received more than 140,000 complaints of violations of CASL since July 1, 2014. That is a staggering number. However, there is very little information about the complaints, CRTC’s investigation and any compliance orders issued. Businesses are no further ahead in understanding how to comply with CASL in January of 2015 than they were on July 1, 2014 when CASL came into effect. A single news release by the CRTC from October of 2014 states that the CRTC, with the cooperation of two businesses in Saskatchewan, eradicated a virus from the server of an internet service provider in Saskatchewan. The virus caused the server to send millions of spam emails. There is no information on who, if anyone, was fined, in what amount, which section of CASL was violated and how the CRTC went about investigating this issue. This is hardly the kind of enforcement businesses have been gearing up for in the months leading up to July 1, 2014. In particular, employers are still in the dark with respect to the type of investigation and enforcement the CRTC will engage in if employees act in violation of CASL.

Six months after CASL came into effect the sky has not fallen. Businesses who were well prepared for CASL continue to act in compliance with CASL in case the CRTC comes knocking. Businesses who were not prepared in time seem to have some time to get into compliance, since the CRTC does not appear to be actively looking to investigate organizations who were not fully CASL compliant by July 1. As I did prior to July 1, 2014, I continue to advise clients to stay in compliance with CASL since the threat of hefty fines outweighs the risk of not complying. However, a better flow of information from the CRTC would go a long way in helping businesses comply and helping counsel give more informed advice on this controversial legislation.

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Labour Law in Ontario – The Next Generation

I recently had the opportunity to work with the Ontario Bar Association’s Labour and Employment Law Section (where I sit on the executive) on a labour law program geared toward young lawyers. Although my practice area is often referred to as “Labour & Employment”, most lawyers belonging to the labour and employment bar practice employment law, with little or no labour work.

Labour relations in Ontario are governed by a number of pieces of legislation, but most predominantly they are governed by the Ontario Labour Relations Act, 1995, a piece of legislation which few outside of the labour bar claim to know well (or care to get to know at all). The world of labour relations is often confrontational and litigious, and many labour lawyers spend more time at arbitrations and other hearings than doing anything else. Nonetheless, the labour bar in Ontario is a very collegial bar, with lawyers who spend most of their time fighting each other for a living, getting along fabulously and supporting each other outside of hearing rooms.

The world of labour relations is so particular in its features and so misunderstood by those who don’t practice in this area, that young lawyers do not seem to gravitate toward it. It may be that not enough labour courses are offered at law schools, or that the bar is simply not producing enough information and professional development programs to interest young lawyers in this area. Whatever the reason, labour relations remains an area of law that is misunderstood and largely ignored by young lawyers.

It was for these reasons that I was excited to chair the Labour Law Essentials program for the Young Lawyers’ Division and the Labour & Employment Law sections of the Ontario Bar Association. The intention behind the program was to provide a foundational understanding of this practice area for those not familiar with labour relations. On October 15, 2014, 42 young (and young at heart)  lawyers attended this program and were provided with a basic foundation of the law, but more importantly, with practical tips for preparing for labour arbitrations, appearing before the Ontario Labour Relations Board and managing client expectations in labour proceedings. The speakers who generously donated their time to this program during a very busy time of year at our bar have all been practicing in this area for many years, and it was obvious through their presentations that they enjoy their work and want to help young lawyers break into the world of labour relations. As always, I was impressed by the collegiality of the bar and its members’ willingness to assist, teach and mentor. Here’s to hoping that the interest in this practice area grows, and that the next generation would enjoy working in this area as much as the current one does!

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Failure to Accommodate Results in the Reinstatement of an Employee 10 Years After Termination

Sharon Fair was an employee of the Hamilton-Wentworth District School Board (the “Board”) for nearly 13 years when an anxiety disorder caused her to go off work on disability leave. After being on leave for over three years, The Board concluded that it could not accommodate Ms. Fair short of undue hardship due to a number of work restrictions related to her disability, so it terminated her employment. Ms. Fair filed a complaint with the Human Rights Commission, and later in the process requested that she be reinstated.

In 2012, 8 years after Ms. Fair’s employment with the Board was terminated (and 11 years since Ms. Fair stopped active work with the Board), the Ontario Human Rights Tribunal found that the Board never had an intention to accommodate Ms. Fair even though it had a duty to do so. There were two jobs that complied with Ms. Fair’s restrictions that she could have been placed in, with one of the jobs being vacant at the time, but the Board simply would not accommodate her, the Tribunal found. The Tribunal also found that the Board had a duty to obtain whatever medical evidence it needed to accommodate Ms. Fair, but failed in that duty. The Tribunal ordered the Board to reinstate Ms. Fair and awarded Ms. Fair compensation for losses she had suffered as a result of the infringement of her human rights. The Tribunal’s decision can be found here: Fair v. Hamilton-Wentworth District School Board (https://www.canlii.org/en/on/onhrt/doc/2012/2012hrto350/2012hrto350.html).

On judicial review (https://www.canlii.org/en/on/onscdc/doc/2014/2014onsc2411/2014onsc2411.html), the Divisional Court found that the Tribunal’s findings were reasonable. Although 10 years had passed since termination, and although reinstatement is unusual in human rights litigation, the Tribunal had broad remedial authority to do whatever it deemed necessary to ensure compliance with the Human Rights Code, and so the Court found that that remedy was available to Tribunal. The result was that 10 years after termination, Ms. Fair was reinstated with the Board.

Although reinstatement is a common remedy in the unionized context, it is rarely awarded in human rights applications. Many applicants ask for reinstatement as a remedy in their human rights applications, but by the time the application is processed and reaches mediation (where many applications settle) or hearing, the applicant has either moved on to other employment or realizes that in fact she does not wish to return to work for this employer who she feels violated her human rights, but would instead prefer to be compensated monetarily. In other cases, although reinstatement is sought as a remedy, the Tribunal decides that it is inappropriate because the relationship between the employee and the employer has broken down and has become irreparable. It is unusual for the Tribunal to award reinstatement in the first place, and a lot more unusual considering the length of time that passed between termination and the decision. The fact that the Divisional Court confirmed that this remedy was available for the Tribunal in this case is worrisome to many employers.

So what is an employer to do? The duty to accommodate is a duty that should never be disregarded by employers. Undue hardship is a pretty high threshold, and the bigger the organization (like the Board in this case), the more accommodation opportunities it will be expected to have for employees with restrictions. Even if the employer really cannot accommodate short of undue hardship and must therefore terminate an employee seeking accommodation, the employer should seek to have any human rights applications dealt with expeditiously. This may be counter-intuitive, but if the terminated employee seeks reinstatement and is successful, it is far better for the employer to have the employee reinstated shortly after termination than 10 years down the road, like in the Board’s case. Most importantly, if the employer’s case is not strong, it should seriously consider settling at mediation for monetary damages rather than risk reinstatement by the Tribunal.

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Relocating Your Business – What About Your Employees?

Computer-and-office-equipment-in-a-boxIn the current economic climate, many companies have been looking for ways to cut down on costs. With the expense of carrying on business in certain geographic locations, we have been seeing many companies move locations, taking their employees with them. What these employers often fail to consider is the legal implications of requiring employees to move to a different location that may increase their commute time, add to their travel expenses and interfere with personal obligations.

Will you be constructively dismissing your employees when you relocate your business?

The main concern for employers who decide to relocate their business should be the possibility that they are constructively dismissing some of their employees. An employer may constructively dismiss an employee when the employer imposes a unilateral, substantial change to the essential terms and conditions of the contract of employment without the employee’s consent and without providing proper notice.

If the employment contract with your employees addresses possible relocation, or if you communicated to your employees upon hiring that they may be required to relocate at some point during their employment, a claim for constructive dismissal is not likely to be successful. However, if the employee has worked in a particular geographic location for a significant period of time, and the move will result in hardship to the employee, the claim for constructive dismissal may be successful.

“Hardship” is difficult to define, but typically includes a substantial increase in commuting time, a substantial increase in travel expenses, the unavailability of public transit or major highways, the exacerbation of a medical condition due to the increase in commute time and interference with childcare, family and other personal obligations. An employee who has worked in the same location for an employer for 15 years, and who had a 5 minute commute time, would no doubt encounter hardship if the employer relocates across the city and increases the employee’s commute time to an hour. However, a relocation that would increase the employee’s commute time to 15 minutes may not cause hardship to the employee, and therefore would not likely amount to constructive dismissal.

To determine whether your company may be constructively dismissing your employees, each employee’s circumstances should be reviewed on their own, and consideration should be given to their length of service with your organization, their current commute time, their mode of travelling to work, any medical conditions that may be exacerbated and their personal obligations outside of work.

Human rights considerations

Existing medical conditions and personal obligations outside of work may also give rise to human rights claims in the event of relocation. An increased commute time may exacerbate an existing medical condition, or interfere with childcare, elder care and other family obligations. This may give rise to discrimination claims based on disability and family status, in addition to the possibility of a successful claim of constructive dismissal.

What is an employer to do?

To avoid potential legal issues, your organization should begin by providing sufficient written notice of the change to each employee. If the employee refuses to relocated, his or her employment will be terminated at the end of the notice period. Offering travel allowances, car allowances or gas rebates, paying for public transit and offering flex hours or the ability to work from home will all minimize hardship and assist in avoiding constructive dismissal claims.

Potential human rights issues may be avoided by offering accommodation to employees who require it (this is required by human rights legislation in any event). Accommodations may include different hours of work, flex hours and the ability to work from home.

Your employees may be the last thing you think of when you decide to relocate your business. However, keeping them top of mind would ensure a smoother transition, a happier workforce and the avoidance of additional, unnecessary legal issues during a busy, stressful time for your business.

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Safety Reprisal Leads to Reinstatement of Employee

Section 50 of Ontario’s Occupational Health and Safety Act (OHSA) provides that an employer cannot penalize a worker because he or she has complied with the OHSA or has sought to enforce the OHSA. In other words, this provision seeks to prevent reprisal by employers when their employees raise health and safety concerns under the OSHA. A recent case demonstrates how reprisal could lead to a violation of this provision.

In Le v. Safecross First Aid Limited, the Ontario Labour Relations Board (the “Board”) reinstated an employee whose employment was terminated for raising safety issues. Le was a general labourer employed in the construction industry. His duties included carrying boxes up and down the stairs at Safecross’ facility. Le complained to a company representative that his work caused him knee pain and was dangerous because certain loads he was carrying obstructed his view. The next day, his employment was terminated. Safecross stated that Le was fired because he was “not himself”, was “complacent”, was “not doing what he normally would be doing”, and was “entrenched in what he was doing next”.

The Board ordered Safecross to reinstate Le and to compensate him for lost wages. At the hearing, Safecross testified that Le had previously asked to be laid off so that he could collect Employment Insurance benefits and pursue his education. According to Safecross, when it denied Le’s request, he became complacent and rumours began to swirl that he was planning to stage a work accident so he could collect benefits. Safecross also stated that on the day before the termination of his employment and before Le’s safety complaint, it had given Le a “final written warning”, which referred to his alleged plan to fabricate a workplace injury claim and warned that further infractions could result in dismissal. The Board, however, concluded that Le had never seen the warning and that the warning actually hurt Safecross’s case because it demonstrated that the company believed, before Le made the safety complaint, that a warning, rather than termination, was the appropriate discipline. According to the Board, because none of Safecross’ evidence regarding Le’s behaviour the day he was dismissed could possibly be accepted as sufficient to establish the further infractions referred to in the warning letter, there must have been another spark to set off the termination process. The only other event was Le’s safety complaint the day before he was dismissed. His dismissal, then, must have been in response to his complaint.

This case has important takeaways for employers, especially those operating in the construction industry, where safety concerns are particularly prevalent. Employers must ensure that they are not disciplining employees for raising health and safety issues. Doing so would constitute reprisal and would be a violation of the OHSA. In addition, it does not take much to trigger the rule against reprisal. In fact, even if an employer has what would otherwise be legitimate reasons for terminating an employee, if one factor in the decision is that the former employee exercised his/her rights under the OHSA, then the termination will be found to infringe the legislation.