We often think of bullying as something restricted to the schoolyard. However, workplace bullying does occur. It is not restricted to a type of work or caused by employees of a certain age. There are cases where both young and senior employees can bully their colleagues and create a toxic workplace where it is hard to retain and keep employees.
The employer can be held liable for having a bully in their workforce. Both federal and provincial legislation prohibits harassment and violence in the workplace. Both pieces of legislation come with significant fines and possible jail time for employers who fail to comply with them. Further, having a toxic workplace environment is grounds for employees to claim constructive dismissal and make a wrongful dismissal claim for thousands of dollars.
When an employer becomes aware of possible workplace bullying, they should investigate the allegations through a neutral third party. If the allegations are founded and the allegations are serious, then the employer may have grounds to terminate a workplace bully. This was the case in The Regional Municipality of Niagara v Canadian Union of Public Employees, Local 1287, (2024 CanLII 6040).
In this case, a 21-year employee of the Regional Municipality of Niagara was terminated after an investigation found a pattern of bullying behaviour. The investigation found that the employee made several threatening and disrespectful comments to colleagues, demonstrated inappropriate conduct, failed to be respectful and collaborative with his direct supervisor, engaged in behaviour that undermined the supervising and management team, was dishonest during the investigation process, and found that he cannot be trusted to act in good faith as an employee in the future. Though the employee admitted to some of the misconduct, he denied the more serious allegations of misconduct. The Union and the employee decided to grieve the employee’s termination.
The labour arbitrator upheld the termination and dismissed the grievance. The arbitrator found that the employee was a major contributor to the toxic atmosphere in the workplace. Though the employer should have taken more effective actions to address the situation sooner, the arbitrator ruled that the investigation allowed the employer to get a better understanding of the pattern of behaviour which justified the termination. The arbitrator noted the employer’s duty to prevent the workplace harassment, that the employee engaged in, is required under Ontario’s Occupational Health and Safety Act. The arbitrator also made it clear that the employee was not only verbally abusive to his colleagues, as his conduct could also be characterized as potentially violent in nature, which also violates the Occupational Health and Safety Act. Though the arbitrator considered the employee’s remorse after his termination, along with other mitigating factors, it was not enough to justify a reinstatement to his position.
Employers should take this decision as an important reminder to investigate allegations of workplace bullying. Federal employers should take particular note, as the Canada Labour Code is designed to give employees similar protections to what is offered in a unionized workplace. If a federal employer fails to address workplace bullying, they could face fines of up to $250,000 per day thanks to Bill C-65.
At Suzanne Desrosiers Professional Corporation, our employment lawyers are aware of the risks and consequences of workplace bullying. We offer training for both federal and provincial employers and employees that addresses workplace bullying and the consequences of not addressing it. The federal training is required, under Bill C-65, to be taken by all employees within three months of their employment and every three years after that. Our Bill C-65 training is offered both in person and online through self-paced training or live on Zoom or Microsoft Teams. To inquire about our training, please call us at 705-268-6492 or email us at learning@sdlawtimmins.com.
If you are concerned about bullying that may be happening at your workplace, Suzanne Desrosiers Professional Corporation has a team of trained and experienced workplace investigators. We can provide an impartial investigation which determines whether there is workplace bullying followed by the legal options that you can consider to help resolve the matter. To talk to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
Both Ontario's Human Rights Code and the Canadian Human Rights Act protect employees from discrimination based on gender identity and gender expression. This is an important right for transgendered employees who are at a higher risk of facing discrimination and tend to face a harder time in finding re-employment after being wrongfully dismissed.
One of the basic rights that all employees have is to be referred to by their chosen name and gender. Simply put, if an employee who was assigned the female gender at birth asks to be referred to using male pronouns and a male name, employers are obligated to respect that request. Courts have recognized that during a transition colleagues may, on occasion, accidentally misgender the transgender employee. However, disregarding an employee's preferred gender pronouns and name after being asked multiple times can lead to a human rights complaint. The employer and upper management in Bilac v. Abbey, Currie and NC Tractor Services Inc. (2023 CHRT 43) learnt this lesson the hard way.
In Bilac v. Abbey, Currie and NC Tractor Services Inc. (Bilac), Denny Bilac is a transgendered man who uses masculine pronouns. Mr. Bilac uses the name Denny but has not been able to change his birthname, referred to as his "deadname,"&rdquo"; on his legal documents. Mr. Bilac worked as a truck driver at NC Tractor. Arthur Currie was the owner of NC Tractor and Shona Abbey was the dispatcher and the office administrator. Both Mr. Currie and Ms. Abbey repeatedly misgendered him and used his deadname, even after being corrected. Mr. Currie was also found to have made inappropriate and harassing comments towards Mr. Bilac relating to his gender identity and expression that contributed to Mr. Bilac's decision to quit. After quitting, Mr. Bilac filed a complaint with the Canadian Human Rights Tribunal claiming that he was discriminated against based on gender identity and gender expression.
The tribunal found that Mr. Bilac was harassed and discriminated against based on his gender identity and gender expression after repeatably being misgendered and deadnamed by both Mr. Currie and Ms. Abbey. Mr. Currie was also found to have engaged in additional acts of discrimination by making comments and asking questions that communicated Mr. Currie's belief that Mr. Bilac was not a man. NC Tractor, which is completely owned by Mr. Currie, was also found liable. It could not rely on a due diligence defence because it made no effort to prevent such harassment. The tribunal noted that NC Tractor did not have a discrimination or harassment policy, an official way to report harassment or discrimination, nor did it offer any human rights or inclusivity training. When determining damages, the tribunal found that Mr. Bilac is entitled to the higher end of damages for pain and suffering, awarding him $15,000. Based on the circumstances, with Mr. Currie being more responsible for the poisoned workplace and never accepting or apologizing for the discrimination, as Ms. Abbey did, the tribunal found that Ms. Abbey must pay 20% of the pain and suffering award ($3,000) and Mr. Currie and NC tractor are liable for 80% of the pain and suffering award ($12,000). The tribunal also awarded an additional $3,000 against Mr. Currie and NC Tractor in special compensation as Mr. Currie and NC Tractor actively refused to respect their responsibility to protect trans employees from workplace discrimination.
The obvious takeaway is the importance of respecting employees' chosen gender identity and expression by using their chosen names and pronouns. The tribunal made it clear that human rights legislation is quasi-constitutional and protecting all forms of human rights is one of the employer's most important responsibilities.
This case also highlights the importance of employers taking active steps to prevent harassment in the workplace. This includes taking steps such as having an up-to-date discrimination and harassment policy, having a way to report harassment and discrimination, and providing employees with harassment and discrimination training. By taking such steps you are avoiding the potential that an employee faces discrimination while also creating an opportunity to use the due diligence defence if discrimination occurs in your workplace unnoticed.
At Suzanne Desrosiers Professional Corporation, our employment lawyers are up-to-date and knowledgeable about employer's human rights obligations. We can help draft workplace policies on harassment and discrimination. We also have a human rights training seminar that can be given to employees and members of upper management both in-person and online. To contact one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
Online, there is a bunch of recent discussions about Artificial Intelligence (AI). AI is not new. It has been around for decades. However, the recent discussion about AI tends to center around Large Language Models (LLMs) such as GPT-4 which was developed by ChatGPT.
LLMs are not sentient. LLMs work thanks to extensive training of an algorithm through massive amounts of data so it can create sentences that appear like coherent responses to prompts. Essentially, the LLM is trying to come up with words that it is programmed to believe work together without understanding the meaning of words in a way that a regular human does.
Despite AI companies claiming that their AI successfully passed the barrister exam, AI is no replacement for an employment lawyer. As this blog will show, using AI is much more likely to bring legal issues than help solve legal issues.
AI is not a legal research tool. It cannot help you prepare arguments to be used in front of a court like a lawyer can. A family lawyer from British Columbia learned this the hard way. In Zhang v Chen, (2024 BCSC 285) Ms. Ke was retained as Mr. Chen’s council. Ms. Ke used ChatGPT to help her find cases to support her notice of application. At first glance, the two “case summaries” produced by ChatGPT appeared to be from strong cited cases that could support her legal argument. If Ms. Ke checked a real legal research site like CanLii and ensured that the summaries were accurate, she would have learnt that the citations led to completely different cases. This is because ChatGPT made up these cases. The court noted that LLMs tend to have legal hallucinations. In a study that the court cited, it found that the largest LLMs made up legal information 69% to 88% of the time.
Submitting fake cases is equivalent to lying to the court. The judge in Zhang v Chen stated that citing fake cases in the court is “an abuse of process and is tantamount to making a false statement to the court. Unchecked, it can lead to a miscarriage of justice.” (para 29). Making false statements in court has consequences. Though the court did not award special costs against Ms. Ke, as she did not intend to deceive, it did hold her personally liable for half of the opposing council’s costs for the four days of trial.
AI cannot write a valid and enforceable employment contract. I know this because, in my free time, I asked ChatGPT to write me an employment contract for a fourth-grade teacher. It provided me with a template where if I entered the personal information of the fictional teacher I would have a contract, ready to sign. Despite its professional appearance, ChatGPT’s contract is not enforceable as it violates the Employment Standards Act (ESA) and could cause more problems than it is worth.
ChatGPT gave me a fixed-term employment contract. My prompt did not ask for a fixed-term employment contract. We have already written about the dangers of fixed-term contracts on this blog. One of the more notable dangers in this situation is if the employer found that the fictional fourth-grade teacher was not a right fit early in the employment relationship, they would have to pay out the rest of the fixed-term employment contract.
ChatGPT’s termination clause would easily be dismissed by a judge and found unenforceable. It states that:
There are three elements to this termination clause that make it invalid. First, it refers to “cause,” which is not found in the ESA and suggests that the intent of the contract is to be bound by common law. Second, it states that the school can terminate the agreement immediately for cause, which is a stricter standard than what’s permitted under Regulation 288/01 to the ESA, which only permits termination without notice when the employee is “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” Third, it permits the employer to terminate the agreement “at any time” which the recent decision in Dufault v The Corporation of the Township of Ignace (2024 ONSC 1029) found to be invalid language, as there are certain circumstances when an employer cannot terminate an employee such as when they return to work from an ESA-permitted leave. It’s also worth noting that if this was not a termination clause for a one year fixed-term employment contract, it would have also been invalid for providing less notice than what is required under the ESA for employees who work for five or more years. Regardless, since this termination clause is invalid, if an employer attempted to rely on it, they would be liable for the remainder of the fixed-term contract, potentially costing them thousands of dollars.
Using AI and LLMs to provide you with legal advice and employment documents could result in costly damages and destroy your side of an employment law case. You could save money and get sound legal advice by contacting an employment law firm. At Suzanne Desrosiers Professional Corporation we have employment lawyers with over 40 years of combined legal experience and who are well versed in recent employment law developments. We will not make the above-noted mistakes that AI has been proven to make. To contact one of our employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
As a school board, adapting to the constantly evolving demands of your institution and employees can be challenging. Ensuring everyone is on the same page and complying with relevant legislation is a crucial responsibility.
At %COMPANY% we provide customized human resources training services that can be designed to fit your workplace. With our help, you and your educational staff can get customized training that includes material on things from human rights training to progressive discipline training and much more.
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Our custom HR training can be held in person or virtually, and it is an excellent resource for helping upper management understand their employment law obligations. We consider your particular institutional environment and modify our seminars to include personalized training concerning your workplace policies and collective agreement, if any.
Drawing on recent cases affecting schools, teachers, and educational professionals, we help you and your team to tackle issues on a number of complex employment law matters. We try to ensure you have an understanding the legislative landscape to keep your organization operating smoothly.
Our training can be customized so you can learn about the following, in detail, in the context of the education industry:
Beyond the materials themselves, we also cater our delivery method to accommodate your needs. We prefer delivering our seminars in person to build strong connections with the participants, but we also offer the training through live virtual sessions to accommodate your busy schedule.
At %COMPANY%, we leverage decades of combined legal experience and knowledge to provide exceptional HR training. Our legal team has helped numerous education authorities and school boards adapt to changing regulations, and we’re passionate about developing robust training that prepare you to face employment law-related challenges.
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In Ontario, courts are carefully scrutinizing termination clauses in employment contracts. Based on recent cases, if even one part of a termination clause violates the Employment Standards Act (ESA) or Regulation 288/01 to the ESA, the entire termination clause cannot be enforced. It does not matter whether you used or intended to use the clause that violates the ESA or not.
These cases limiting the applicability of termination clauses in employment contracts should be very concerning for those who provide their employees with fixed-term employment contracts. We have a blog on the dangers of fixed-term contracts. As noted in that blog, if a fixed-term employment contract ends early and the termination provision is not enforceable, then the employer will have to pay out the remaining amount of the fixed-term contract. In the recent decision, Dufault v The Corporation of the Township of Ignace (2024 ONSC 1029) the employer learnt this lesson the hard way.
In Dufault v The Corporation of the Township of Ignace (Dufault), Karen Dufault worked as a Youth Engagement Coordinator for the Town of Ignace. They agreed to a fixed-term employment contract beginning on November 24, 2022, and ending on December 31, 2024. On January 26, 2023, Ms. Dufault was terminated effective immediately on a without cause basis. The town provided Ms. Dufault with two weeks of pay in lieu of notice and continued her benefits for two weeks, relying on the without cause termination provision in the fixed-term employment contract. Ms. Dufault sued the town for the remainder of her fixed-term contract.
The judge found that the termination provisions were not enforceable. The court noted that its analysis of the termination clause needs to consider the wording at the time when the contract was signed and not at the time of dismissal. It noted that the termination clause was invalid due to the use of the term of “for cause” as the ESA and its regulations do not refer to “for cause.” This implies that the termination was being considered in a common law context. The for cause termination clause also exceeded the extent that Regulation 288/01 to the ESA permits employers to terminate without providing notice with the judge finding that the “failure to perform services” is not the same as wilful misconduct. The judge also found that the without cause termination provision was invalid. The judge noted that offering weeks of pay based on the base salary is less than offering weeks of pay based on the regular wages, as required by the ESA. The employer also noted that the without cause termination clause ran afoul of the ESA by stating that the employer can “at any time” terminate the employee, as the employer’s right to terminate is not absolute, such as in cases of reprisal where the employee tried to claim an ESA right. Since the termination provisions were invalid, the employee was entitled to the balance of the fixed-term contract, which the judge calculated to be $157,071.57.
The ultimate decision in Dufault is not surprising. Courts have been carefully scrutinizing termination clauses and invalidating such clauses if they are not compliant with the ESA. Based on past decisions in the last couple of years, it is not surprising that the termination clause was found to be invalid. It is also not surprising that the employer had to pay out the balance of the fixed-term contract. It is well established by courts that employers who terminate an employee without cause must pay out the remainder of the fixed-term contract.
What is novel about this case is the judge’s comment that the use of the term “at any time” to terminate the employee is contrary to the ESA due to certain circumstances where an employer does not have discretion to terminate an employee. Employers should be aware of this, as such language may be in their employee’s employment contract. With decisions changing what is an enforceable termination clause, employers should consider reviewing their employment agreements often.
At Suzanne Desrosiers Professional Corporation we can help both employers and employees. With recently terminated employees, we can review your employment contract and determine whether you are entitled to more than what is provided in the termination agreement. With employers, we can review your employment contracts and help create a more enforceable termination clause. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
Employees can get arrested and charged for crimes that they committed inside and outside of the workplace. Such a situation already puts an employer in an awkward position. However, depending on the severity of the crime, the employee may be sentenced to prison. At that point, the employer will be without the employee for the duration of the employee’s incarceration, which can fluctuate based on their ability to get parole.
Often employer’s gut reaction upon hearing that their employee has been arrested or will be incarcerated is to terminate their employment. This can be a mistake. It is better to first meet with an employment lawyer who can guide you through your legal responsibilities. As the following case will show, dealing with an employee who is to be incarcerated can be legally complicated.
In Adam West v J. Dowswell Farms Ltd., Adam West was appealing the decision of an Employment Standards Officer who decided to not grant an order to pay his notice entitlements under the Employment Standards Act (ESA). In this case, Mr. West worked for the employer as a Farm Manager. Mr. West was arrested and charged with a criminal offence. Mr. West advised the employer about his arrest but did not lose any time from work due to the criminal proceedings. Mr. West was eventually convicted and sentenced to 18 months in custody. After an unsuccessful appeal, Mr. West advised his employer that he was required to surrender to police to begin his sentence on January 27, 2023. He did not request a leave of absence. Mr. West’s sister then began corresponding with the employer on Mr. West’s behalf. She informed the employer, on the day Mr. West surrendered to police, that Mr. West would be incarcerated for 18 months, but that sentence could reduced to 6 months if he is granted parole. The employer decided to terminate Mr. West’s employment on January 28, 2023, without providing him pay in lieu of notice. Mr. West was released on March 13, 2023, on bail pending his further appeal. However, the employer had already hired a replacement employee as Mr. West’s job needed to be done in-person.
The Ontario Labour Relations Board held a de novo hearing and found that Mr. West was not entitled to pay in lieu of notice. The Board noted that Regulation 288/01, provides exemptions to the requirement to give notice or pay in lieu of notice. It specifically highlighted section 2(1) 4 of Regulation 288/01 which provides an exception to providing notice or pay in lieu of notice when “An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.” The Board found that Mr. West’s incarceration made his job “impossible to perform” as he was required to report daily to the employer’s farm, which frustrated his employment contract. The Board also noted that Mr. West also did not seek or get leave allowing him to be absent for the duration of his incarceration. Thus, Mr. West’s application was dismissed.
This case establishes that the employer may be able to claim that the employment contract is frustrated when the employee becomes incarcerated. This is because criminal convictions are not protected under Ontario’s Human Rights Code and employers are not obliged to grant leave for an employee who will be incarcerated. However, this does not mean that the inability to come to work frustrates the employment contract in all circumstances. For example, both the Employment Standards Act (ESA) and Ontario’s Human Rights Code contemplate the ability of an employee to take parental leave to take care of a newly born child, which the employer must accommodate.
Although we are not a criminal law firm, we do have experience helping employers who have an employee who got arrested. We can provide tailored advice that helps you deal with the complicated process that comes when an employee is involved with the criminal justice system. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
When an employment contract is frustrated, an employer is exempt from providing the employee with notice or pay in lieu of notice. An employment contract will be frustrated when a situation arises, through no fault of the parties involved, that is not provided for in the contract and renders the performance of the parties’ obligations under the contract into something radically different from what they undertook when the contract was signed. Courts have held that for an employer to prove that the contract has been frustrated, they will need to demonstrate three things:
It is challenging to prove these three elements. A supervening event that radically changes the nature of an employment contract is rare. We are now seeing the results of cases where employers have unsuccessfully tried to argue that COVID-19 and its restrictions frustrated their employment contracts. One such case is the Aldergrove Duty Free Shop Ltd. v MacCallum (2024 BCCA 28) decision.
In Aldergrove Duty Free Shop Ltd. v MacCallum, Barbara MacCallum was a 78-year-old retail sales clerk for Aldergrove Duty Free Shop Ltd. (Aldergrove). Aldergrove is a small family-owned duty-free shop on the Canadian side of the Canada-United States border. In March 2020, the Canadian and United States land border was closed for non-essential travel due to the COVID-19 pandemic. This reduced Aldergrove’s customer base by ninety-nine percent. Due to the border’s closure, Aldergrove temporarily closed its doors, later resulting in the effective termination of Ms. MacCallum’s contract. Ms. MacCallum sued Aldergrove for wrongful dismissal. In response, Aldergrove claimed that the border closure frustrated the employment contract, thereby relieving it of any obligation to provide notice or pay in lieu of notice.
The Court of Appeal upheld the trial judge’s finding that the employment contract was not frustrated by the border closure. The Court of Appeal found that the first two elements of the frustration defence, noted above, were established. This was not in dispute, as neither party would anticipate the COVID-19 pandemic and neither party was at fault for the border closing. The Court of Appeal found that the frustration defence failed on the third ground, as the closure of the border did not radically change Ms. MacCallum’s job duties. Instead, it was the economic viability of Ms. MacCallum continuing to do her job was what led to Aldergrove ending the employment relationship.
This case shows that courts have a stringent standard for the frustration defence. Courts will not bend the rules for small businesses that were affected by the COVID-19 pandemic. Though it may be tempting to claim that a contract is frustrated, as you will not have to pay any notice if successful, it can be even more costly when you get it wrong. In this case, even with legal counsel, the employer ended up paying ten months of pay in lieu of notice.
Any employer who plans to end an employment relationship due to a perceived frustration of the employment contract should meet with an employment lawyer. An employment lawyer can help by analyzing the facts of your case and determining if you fall into the defence of the contract being frustrated. If the employment lawyer believes that the employment contract was not frustrated, the lawyer can then provide other options to end the employment relationship.
At Suzanne Desrosiers Professional Corporation we have a team of employment lawyers who understand when a contract becomes frustrated. We can help employers who want to end the employment of one of their employees while also minimizing the legal cost of termination. We can also help employees whose employer is improperly claiming that their employment contract has been frustrated. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
Most modern workplaces have a workplace policy that sets out the rules of the workplace. Often the workplace policy includes a progressive discipline policy, which sets out how the employer will discipline the employees who do not follow the workplace policy. Typically, progressive discipline starts with a verbal warning, then the penalty for not following the policy progressively increases to a written warning, then a suspension, and finally a for-cause termination. Based on the circumstances, these steps could be repeated or skipped. However, the purpose of implementing progressive discipline is to let the employee know that what they are doing is wrong and to have documentation that will help establish a for-cause termination if need be.
Progressive discipline is not a new topic to this blog. Our firm even offers progressive discipline training. However, it is always nice to see a case when an employer successfully applies progressive discipline, and with the proper retention of documents, can defend a for-cause termination in court.
In Pirani v CIBC (2023 ONSC 5991), Naseem Pirani was terminated, for cause, from her position as a Senior Financial Services Representative from the Canadian Imperial Bank of Commerce (CIBC). While employed with CIBC, Ms. Pirani received her first written warning letter after, over a period of two months, she failed to review an overdraft report to ensure that proper actions were taken regarding one of her client’s accounts, contrary to CIBC’s workplace policy. Later, Ms. Pirani received a second and final written warning because, contrary to CIBC’s workplace policy, on three occasions she pulled Credit Bureau records for clients without their signed consent. Ms. Pirani also received coaching after these privacy breaches, as it could cause liability to CIBC, as the bank is in a highly regulated industry. Despite the final warning, Ms. Pirani committed several more serious breaches of CIBC’s policy, which led to CIBC deciding to terminate her employment.
The judge found that dismissal was a proportional response to Ms. Pirani’s breaches of CIBC’s workplace policy. In this case, the judge found that CIBC properly applied progressive discipline. The judge found that the policies were brought to Ms. Pirani’s attention, and she should have been aware of the importance of the policies, especially after receiving the written warnings. Because CIBC implemented progressive discipline and documented Ms. Pirani’s violation of the policy through progressive discipline, they were able to establish a violation of the employment agreement. Indeed, the judge found that “on the balance of probabilities, that the cumulative breaches of the Code coupled with Ms. Pirani’s continued and persistent breaches of CIBC’s policies signaled that she had no intention to follow the bank’s policies and procedures, and therefore, the bank’s response in dismissing her was proportionate in the circumstances.” (para 173).
Pirani v CIBC addresses numerous legal issues beyond what I can discuss in this blog. However, it addresses the importance of following your workplace policy and applying and documenting progressive discipline when an employee breaches that workplace policy.
For employers, the Pirani v CIBC case stands as an example of making your policies clear and applying progressive discipline proportionally. Application of progressive discipline should be proportionate to the facts leading to discipline and thus may require more than just two written warnings in certain circumstances. This case also highlights the importance of keeping detailed records of the progressive discipline applied. These documents were crucial to CIBC getting a successful result in court.
For employees, the Pirani v CIBC case stands as an important reminder to be aware of your workplace policies and follow them. If your employer applies progressive discipline, take the opportunity to understand what you did wrong, so you can maintain compliance with your workplace policy moving forward.
As mentioned earlier in this blog, Suzanne Desrosiers Professional Corporation is well-versed in progressive discipline. We provide progressive discipline training. However, if you have questions about progressive discipline in regards to an issue at your workplace, you can contact one of our employment lawyers by calling us at 705-268-6492 or emailing us at info@sdlawtimmins.com.
In the evolving landscape of employment laws and workplace dynamics, understanding and effectively addressing harassment, bullying, and lateral violence in the workplace is imperative for maintaining a safe and productive workplace. Suzanne Desrosiers Professional Corporation’s employment lawyers recognize the complexity and seriousness of these issues.
In this blog post, I will briefly provide clarity on what constitutes harassment in the workplace and how it can affect your workplace. A more detailed account can be found in some of the training courses that we provide or by speaking to one of our employment lawyers.
Workplace harassment can take on many forms, all of which undermine the dignity and well-being of those who face it. It occurs when an individual acts towards another individual in a way that would reasonably be expected to cause offense or harm. Harassment can come from both the employer and the employees and can ultimately affect the workplace and lead to high employee turnover. Workplace harassment includes verbal abuse, offensive remarks, discrimination, unwelcomed comments, and offensive jokes.
Workplace harassment is normally a series of inappropriate incidents. However, one serious incident can be sufficient to constitute harassment.
Sexual harassment is a particularly insidious form of workplace misconduct that undermines the dignity and autonomy of those affected. It can include unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature that is reasonably known to be unwelcomed.
Women are more likely to face sexual harassment. However, men can be sexually harassed as well. Examples of sexual harassment include unwelcomed advances, displaying or showing sexually explicit material, sexual comments or jokes, and requests for sexual favours.
Bullying does not end in the school playground as kids. Bullying can happen in the workplace. Bullying in the workplace is the repeated, unreasonable actions directed towards an employee or group of employees that undermines their self-worth and feeling of belonging.
Women and minorities are more likely to experience bullying in the workplace, although it can happen to anyone. Workplace bullying can come in many forms, including verbal abuse, unjustified criticism, and exclusion.
It’s essential to distinguish between legitimate workplace interactions harassment or bullying. Constructive feedback, performance evaluations, and reasonable management actions taken in good faith does not constitute harassment or bullying. Similarly, isolated incidents or occasional disagreements, unless severe or pervasive, may not meet the threshold for harassment.
How to report workplace harassment and bullying will differ depending on the employer and the jurisdiction under which the employee works. Most employers are required to have workplace policies that prohibit workplace harassment and provide employees who face harassment a way to report the harassment.
Once an incident is reported, employers are typically required to conduct prompt and thorough investigations. This can be done by outside independent investigators. An investigation entails gathering evidence, interviewing relevant parties, and documenting findings. Employers should ensure confidentiality as much as is possible throughout the investigation process to protect the privacy of all involved.
Upon concluding an investigation, the employer can choose to take remedial action, if reasonable, which may include corrective action, disciplinary measures, and possibly termination. Employers are also typically required to review their harassment policy to determine if there is a way to prevent similar harassment occurring in the future.
Employers can be held liable for acts of harassment, bullying, or lateral violence that occur within their organizations. Under both federal and provincial legislation, employers have a duty to provide a safe and harassment-free workplace. Failure to fulfill this obligation can result in legal repercussions.
Employees who engage in harassing or bullying behavior may face disciplinary action, up to and including termination. Moreover, in certain circumstances, they may be personally liable for any harm caused to their colleagues through either civil or criminal proceedings.
Suzanne Desrosiers Professional Corporation can support employees and employers in navigating the law on harassment in the workplace. We provide training for both provincial employers and federal employers that address harassment in the workplace. We can also help employers address workplace harassment by either acting as an investigator or guiding the employer through there legal requirements, including imposing discipline. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.
Though it may surprise some, a lot of employment agreements are made orally. Sometimes it works out well. However, by creating an oral agreement, you put yourself in potential legal liability. With an oral contract, there will be no clear terms of employment. Further, you would be subject to common law notice if you need to terminate the employee. Simply put, if you create an oral employment agreement, you are at the mercy of the court if things go wrong.
It is also important to create written employment policies and then deliver them to your employees. You need to make sure that they acknowledge receipt and accept that it forms part of their employment agreement. Failure to do so will result in the policies being ineffective. The time, effort, and cost of creating the policies will be lost. It becomes an expensive piece of paper in your office.
The importance of having written employment contracts and having workplace policies that are circulated to all employees is obvious even to a semi-competent HR team. Boyer v Callidus (2024 ONSC 20) serves as an important reminder of this obligation, even when it is easier to look the other way.
In Boyer v Callidus, Craig Boyer worked for Callidus Capital Corporation (“Callidus”). He made an oral agreement to work as one of Callidus’ vice presidents, a position that has a net pay of over $200,000, significant bonuses, and a stock option plan as part of the compensation. Callidus did have written workplace policies. However, they did not circulate the policies well, resulting in Mr. Boyer not being aware of most of them. The policies that Mr. Boyer did see were often unclear and required Mr. Boyer to ask for clarification from his employer, creating new elements to his oral employment agreement. Eventually, Mr. Boyer decided to retire. Among other things, Mr. Boyer asked for a payout of his unused banked vacation days, payment of his deferred bonuses, and payment in lieu of getting the stock option plan to which he was entitled to. Callidus claimed that it had a no carry over vacation policy, a policy on the deferred bonus plan, and a policy on when the stocks vest.
The court ruled that Mr. Boyer was entitled to his banked vacation days. The court found that Callidus failed to provide evidence that it had a use it or lose it policy for paid vacation days. Even if it did have such a policy, the court found that Mr. Boyer was not made aware of such a policy and therefore cannot be bound by it. The court also found that Mr. Boyer never received a copy of the deferred bonus policy. As such, Callidus could not use the deferred bonus policy’s requirement to still be employed with Callidus as a condition to get the earned but deferred bonus. The court found that Callidus had a policy on stock options that they gave to Mr. Boyer. However, the policy was not clear in all situations when the stocks would vest. At the time of receiving the policy, Mr. Boyer asked his superior if the stock options would vest upon retirement. Since the superior said yes, the court found that became part of Mr. Boyer’s oral contract and thus entitled him to his stocks upon retirement. In conclusion, the court ruled that Mr. Boyer was entitled to $93,076.92 for the banked vacation days, $525,000 plus 3% interest for the deferred bonuses, and $1,213,856.98 for damages for the value of the lost stock options.
This may be obvious for those with employment law or HR experience, but do not have an oral employment agreement. This case shows that you can end up making new clauses to an oral employment agreement by the employee simply asking the employer a question about the job. The lack of clarity in an oral employment agreement allows a lot to be interpreted, which, as this case shows, can be costly.
This case also shows the importance of drafting clear policies and circulating them to all of your employees with the understanding that they will govern the employment relationship. This case shows how the failure to circulate the employment policy makes it useless. Employees need to be aware of the rules that they are bound to.
At Suzanne Desrosiers Professional Corporation we have employment lawyers who have experience with drafting both employment contracts and employment policies and can guide you with implementing them. Avoid liability with any oral contracts or policies and get our employment lawyers to draft the relevant legal documents to your wishes. To contact one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.