Employer reputation important consideration in harassment cases

Arbitrator cites ‘increased awareness of pervasiveness of sexual misconduct’

While employees accused of sexual harassment should be presumed innocent before proven guilty, an employer must consider its reputation when responding to such allegations.

That was evident in a recent decision in Ontario, when an arbitrator concluded Ryerson University in Toronto was justified in restricting an associate professor’s presence on campus during its investigation.

The professor had worked for the university since 1987 but in June 2018, he was advised that a student had made a complaint against him under the school’s Sexual Violence Policy. The allegations said the professor participated in drinking activities with students between 2007 and 2010 where he “directed unwanted attention to the complainant, including offering her drinks, flirting, putting (his) arm around her, and slow dancing with (his) arm on her lower back.”

The complaint also said the professor entered the student’s home in April 2010 and had “inappropriate contact with her, including unwanted physical contact, remarks, behaviours or communications of a sexually oriented nature.”

As a result, certain interim measures were imposed. For one, the professor was placed on leave with pay for the duration of the investigation. He was also prohibited from contacting or communicating with the student; he was banned from attending the Ryerson campus; and he was prohibited from having any unsupervised in-person contact with students, on or off campus.

Two sides

The Ryerson Faculty Association filed a grievance, saying the latter two restrictions were “unwarranted and unprecedented.” It cited the fact the student was no longer attending Ryerson (though she did take counselling there), the incident happened eight years ago, and no history of misconduct was involved.

The association also said this involved “an indirect allegation of sexual assault.”

The adverse impact of the interim measures would be “quite significant,” said the association, and the scope of the campus ban was particularly broad. Overall, the professor would not be able to fulfil his duties, it said, and while the professor has not been suspended, “the case at hand is analogous to those cases involving a scenario of an employee being suspended in light of outstanding criminal charges or an investigation of misconduct.”

But in this case, “there was no preliminary assessment as to the overall veracity of the allegations prior to the imposition of the interim measures,” said the association.

Further, while some criminal charge cases face publicity and have an adverse impact on the reputation of the employer, in this case, there had been no such thing, it said. 

However, Ryerson said its actions were “entirely without prejudice” and the nature of the allegations “dictate that it is incumbent upon the employer to take certain steps restricting the activities of the (professor) in furtherance of its obligation to provide for the safety of its employees and students and to ensure the integrity of the investigation process.”

Additionally, “from a reputational perspective, there is a legitimate concern with respect to the perception of the Ryerson community and the public generally, if the employer allows the (professor) to have ongoing student contact while the investigation of his alleged sexual misconduct is taking place.”

Arbitrator weighs in

In the end, the arbitrator agreed with Ryerson’s actions, saying the university endeavoured to take the appropriate steps to provide for the safety of its community members.

“There is no doubt that the employer was acting in good faith with respect to the imposition of the interim measures. As attested by the Challenging Sexual Violence Act, taking steps to ensure for the safety of its students and employees is indisputably a fundamental obligation of any college and university in Ontario,” said Brian Sheehan.

It was also incumbent on the employer to balance its legitimate interests and the interests of the professor, he said.

“Specifically, the onus is on the employer to establish it acted in good faith; and that the imposed measures were ‘reasonable and justifiable.’”

The professor was paid while the interim measures were in effect, so Ryerson was recognizing the interests of its employee, said Sheehan.

As for the lack of publicity around the allegations, “it is understandable and quite legitimate for the employer to be concerned about the impact on its reputation and image,” he said. “The relevant question is whether a fair-minded and well-informed public would have lost confidence in the employer if the disputed interim measures had not been imposed.”

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Article written by: Sarah Dobson
Article posted in: HR Reporter- Canadian/ March 21,2019
Article spotted by: Louise Burden

Private eyes

There isn’t much expectation of privacy in the workplace, so employees should be careful not to leave personal information easy to access by anyone at work

An Ontario teachers' union complained that teachers’ privacy was 

violated  when a school board searched their work files and laptops,

 and when the principal looked at what was supposed to be a private log.

Do you know who’s watching? If you’re at work, it’s probably best to assume somebody is.

Everyone has a certain expectation of privacy, especially when it comes to keeping work life and home life separate. Most of the time, employers have no business in the personal lives of employees — as long as things don’t bleed into the workplace and affect productivity or the work environment.

However, things are a little different when it comes to privacy at the workplace.

Modern workplaces feature many different types of monitoring that make it difficult for anything private to take place. From security cameras to computer-use monitoring to good old-fashioned manager walkabouts, workplaces are usually open areas where anyone can see or overhear what anyone else is doing. When someone has an office, there may be a little more privacy that can be expected — though there’s a trend for many offices and meeting rooms to at least have windows, if not doors or walls that are clear glass.

Things can get a little more complicated when it comes to equipment such as computers and cellphones. If these are employer-owned equipment, the employers generally have the right to take them back and look at what’s on them, since they’re used for company business. However, when employees are allowed to take them home for personal use, there may be a certain degree of privacy expectation and who owns the content. As with many circumstances, a carefully worded policy can help clarify things.

But what about when employer-owned equipment is used to access private content? And what if that content relates in some way to the workplace? Generally, private content is just that — private. But if the means to access it is not-so-private, the expectation of privacy could lessen.

Take the circumstances surrounding two Ontario teachers who decided to keep a log about what they didn’t like about other teachers and the principal. The log was kept on one of the teachers’ private Google Docs account, but eventually other staff members and the school board heard rumours about it.

So the school board searched the teachers’ accounts on the board’s network, but they found nothing. However, one day after classes ended, the principal found a classroom laptop that one of the teachers in question had left on and logged into the digital log. The principal looked at the log and took photos with his cellphone, which led to a confiscation and search of the hard drives of that and other classroom laptops — but of course they didn’t find the log because it wasn’t on a computer, it was online.

The union complained that the teachers’ privacy was violated when the school board searched their work files and laptops, and when the principal looked at what was supposed to be a private log. However, while the log itself was in a personal file, there was a low expectation of privacy given the circumstances, found an arbitrator.

The classroom laptops were employer-owned and for the use of all teachers and students, so there was no privacy there — the school board was free to monitor what was on the hard drives. In addition, the teachers’ files on the school board network were assigned to individuals, but it was a work-related network and not for personal information, said the arbitrator

As for the principal viewing and taking photos of the log on the classroom laptop, it was the teachers’ fault for leaving the laptop on and logged into the site — the principal was free to enter the classroom and look at the laptop. He didn’t do anything to log in to the teachers’ personal log, said the arbitrator in dismissing the complaint: See York Region District School Board and ETFO (Shen), Re, 2018 CarswellOnt 13256 (Ont. Arb.).

Personal files and information are just that — private and personal information that employers have no right to dig around for. But if access to such information is available through normal use of work equipment that isn’t private and used for work, you really can’t expect that information will remain private from the employer or co-workers — there’s often somebody around who could be watching.

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Article written by: Jeffrey R. Smith
Article published on: Nov 26, 2018 in HR Canadian Reporter
Article spotted by: Louise Burden

LTD benefits claim allowed after employment: Court

Former Ontario employee’s case leads to ‘remarkable’ decision

A recent decision by the Ontario Court of Appeal raised eyebrows in stating a former employee was allowed to receive long-term disability benefits for an injury he sustained through work three years before he left the company. Lester Balajadia/Shutterstock.com

A recent decision by the Ontario Court of Appeal raised eyebrows in stating a former employee was allowed to receive long-term disability (LTD) benefits for an injury he sustained through work three years before he left the company.

Lenard MacIvor worked for Pitney Bowes from 1996 to 2005, ultimately becoming a division sales vice-president. In 2005, he suffered a severe back injury and traumatic brain injury during a company-sponsored event in Costa Rica and was off work for four months.

But his work performance deteriorated after that, so his responsibilities were reduced and — in frustration — MacIvor quit his job in 2008.

Within days, he found a job at Samsung, but the same performance difficulties continued and he was fired a year later.

When MacIvor asked Samsung about making a long-term disability claim, he was told to apply under his policy at Pitney Bowes since the injury occurred while employed there.

But MacIvor’s 2010 claim was denied, so he went to the Ontario Superior Court of Justice seeking benefits in the amount of $5,834 per month, less 85 per cent of the amounts he received for workers’ compensation and Canada Pension Plan benefits.

In 2017, that court denied his claim, saying the Manulife policy clearly stated there was no coverage for people who were not employed by Pitney Bowes. But the Ontario Court of Appeal disagreed.

The policy stated coverage would end on the day a person ceased to be “actively employed,” but citing the 2016 Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. decision and the need for insurance policy language to be clear — “reading the contract as a whole” — the court said the policy meant coverage would not continue “when an employee begins working for another employer or after the employee has retired.”

In addition, the “termination of coverage” language relates to future claims, not claims that may have arisen during the course of the employee’s employment.

“In other words, if an employee’s claim arises as the result of an occurrence that takes place during their employment, the policy provides coverage,” said Justice Jean McFarland in her April 19 decision.

“The Manulife policy does not contain the type of exclusionary language that terminates coverage for undiscovered disability claims the employee had and that originated during their employment, when their employment ceases. To so conclude would leave former employees, like (MacIvor), in the untenable position of having no disability coverage from either their former employer or any new employer. Such a result would be contrary to the very purpose of disability insurance and the plain meaning of the coverage provision.”

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Article written by: Sarah Dobson
Article published on: April 7, 2018 on Employment Law Today
Article Spotted by: Louise Burden

Ontario Seeks to Address Wage Gap with Pay Transparency Act

Ontario’s proposed Bill 203, the Pay Transparency Act (the “Bill”) was introduced in the Ontario Legislature on Tuesday, March 6, 2018. The Bill takes aim at the wage gap between men and women in the province by implementing a number of measures to increase transparency in hiring and payment practices. If passed, the proposed Bill comes in to force on January 1, 2019.

Recruitment Rules

The Bill would prohibit all employers from seeking compensation history about a job applicant. However, employees would still be permitted to voluntarily and without prompting disclose their compensation history, and where they have done so employers would be permitted to rely on such information in determining the applicant’s compensation.

The Bill would also require public job postings to include the expected compensation or the range of expected compensation for the position. These changes will impact salary negotiations with new employees, as employers will be legally required to “show their hand” at the outset of the job application process.

Reporting Requirements

The Bill also proposes a reporting requirement for certain prescribed employers. These employers will be obligated to prepare a “pay transparency report” that contains information relating to the employer, the employer’s workforce composition, and differences in compensation between genders and other prescribed characteristics. Prescribed employers will be required to submit the pay transparency report to the Ministry of Labour (the “Ministry”) and to post the report in a conspicuous location at all of their work locations. The reporting requirements will be implemented progressively: initially applying only to the Ontario public service, then to employers who employ 500 or more workers, and later to those who employer 250 or more.

The reporting requirements will force these larger employers to closely track and report compensation trends in their workforce. These requirements will certainly bring wage inconsistencies to the forefront of workplace discussions. As a result, Ontario may see an uptick in pay equity litigation following the Bill coming into effect.

Protection From Reprisal

The Bill purports to protect employees from reprisal for engaging in activities prescribed under the proposed Pay Transparency Act. Employers will not be able to take any punitive action against an employee for making inquiries about compensation, disclosing their compensation to another employee, making inquiries about a pay transparency report, or seeking compliance with the legislation. Interestingly, the Bill expressly provides for the adjudication of alleged reprisals by labour arbitration where the employment relationship is governed by a collective agreement.

Further, Ministry-appointed compliance officers will have the authority to enter and inspect an employer’s workplace, without a warrant, to ensure compliance with the legislation. A compliance officer will have broad powers including the production of records, and questioning any person on a relevant matter.

If passed, employers will need to adjust their hiring practices to comply with the Bill’s requirements. The Bill is still in its early stages and will need to undergo second and third reading in the Legislature, as well as consideration by a standing committee. There is no formal timetable on when the Bill may pass. However if the Wynne government’s recent passing of Bill 148 is any indication (which took just under six months), the Bill could possibly become law prior to the June 7, 2018 election.

Click here to read the full article....

Article Published : March 8, 2018 , Shields O'Donnell MaKallop LLP- Labour and Employment Law for Business - Blog

Article Written by:  Hendrik Nieuwland and Seth Holland 

Article Spotted by: Stacy Glass

Landmark Legislation Triples Penalties for Corporations under the OHSA

Bill 177 makes long anticipated changes to Ontario's Occupational Health and Safety Act

This update is intended for all provincially regulated Employers in Ontario, including managers and supervisors.  

Ontario has passed legislation bringing significant changes to the Occupational Health and Safety Act. Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017 is in force as of December 14, 2017.

The landmark legislation is an important turning point in the history of Ontario's OHSA, which has not seen such sweeping changes since 1990.

Fines Increased

Individuals are now liable to a fine of up to $100,000, quadrupled from $25,000. The maximum fine for corporations is increased threefold from $500,000  to $1.5 million. The 25% surcharge, required under the Provincial Offences Act, is added to the penalties. Jail sentences for individuals remain unchanged.

The other amendments are as follows:

1. Amendments to Limitation Period: Up until now, the limitation period for laying charges under the OHSA or its Regulations has been one year from the date of the alleged contravention. Bill 177 has revised the Act with respect to limitation periods. The limitation period now includes the day upon which an inspector becomes aware of the alleged offence. This legislative change effectively expands the 1 year limitation period, for instance, if an inspector becomes aware of circumstances providing a basis for an alleged contravention, if it occurred more than one year ago.
2. Reporting Requirements for Structural Inadequacies: Require an employer to notify a Director under the Act if a committee or a health and safety representative has identified potential structural inadequacies of a workplace as a source of danger or hazard to workers
3. New Reportable Incidents: Allow for regulations to expand the circumstances in which persons are required to report an accident or other incident under section 53 of the Act and to require additional notices to be provided in the circumstances described in sections 51, 52 and 53 of the Act.

       To View the online article click here......

Article Written by: Norm Keith and Cathy Chandler
Article Published: Dec 15, 2017 Fasken
Article Spotted by: Nunzio Presta and posted by Louise Burden