The scheme recently enacted under the Canada Labour Code to address workplace violence was recently subject to its first interpretation by the courts: in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

Part XX of the Canada Occupational Health and Safety Regulations

Part XX of the Regulations, titled “Violence Prevention in the Work Place”, was enacted in 2008. It forms part of the health and safety scheme under the Code, and therefore its purpose is to prevent accidents and injury to health.

Part XX defines workplace violence as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” The Regulations impose several obligations on employers to address workplace violence, including:

• To develop a workplace violence prevention policy;
• To identify the factors that contribute to workplace violence;
• To assess the potential for violence in the employer’s workplace, and to develop and implement controls to eliminate or minimize violence;
• To train employees on the factors that contribute to workplace violence.

Section 20.9 of the Regulations requires the employer to appoint a “competent person” to investigate any allegation of workplace violence that comes to the employer’s attention. A “competent person” is defined as someone who is impartial and seen to be impartial, has expertise related to workplace violence, and has knowledge of the legislation. It was the interpretation of this provision that formed the subject matter of the recent Federal Court decision.

Federal Court judgment interpreting Part XX of the Regulations

On January 27, 2014, an Appeals Officer of the Occupational Health and Safety Tribunal Canada issued the Tribunal’s first decision interpreting Part XX of the Regulations. The Appeals Officer found that the complaint at issue in the case—a complaint of psychological harassment by a supervisor—did not constitute an allegation of workplace violence, and therefore the employer was under no duty to appoint an investigator. The Federal Court overturned that decision in its judgment, dated November 13, 2014. The Court’s judgment clarifies the interpretation of section 20.9 in several key respects, and supports a broad reading of the Regulations and the obligations on employers to respond to complaints of workplace violence.

1. Harassment may constitute workplace violence

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, thus flatly rejecting the Appeals Officer’s finding that workplace violence excludes harassment. The Court held that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.”

2. The Employer may not unilaterally act as investigator of a complaint of workplace violence

The Court found that employers are permitted to engage in fact-finding in order to facilitate possible resolution of employee complaints, but an employer representative cannot act as the investigator, unless the employee agrees that the representative is an impartial person. The Court therefore held that the member of management who purported to conduct an investigation in this case was not competent to do so.

3. The obligation to appoint an impartial investigator is mandatory

The Court made a clear finding that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint. The Court therefore overturned the Appeals Officer’s decision, which permitted the employer to conduct its own inquiry into the bona fides of the complaint before deciding whether to appoint an investigator.

Important gains for federally regulated workers

The Court’s conclusions in this case corrected obvious errors in the Appeals Officer’s decision: the finding that harassment may constitute violence within the meaning of the Code brings this area of the law in line with the Tribunal’s past cases interpreting similar provisions. Interestingly, it is also consistent with the definition of workplace violence articulated by the government agency established to promote workplace health and safety—the Canadian Centre for Occupational Health and Safety defines workplace violence broadly, and as including harassment and verbal abuse.

This judgment was nonetheless an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. Harassment is a difficult issue, and it is often inadequately addressed by employers’ internal harassment policies. It is therefore encouraging to know that the process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment. The regime under Part XX differs significantly from traditional mechanisms to address harassment: the emphasis is on taking measures to prevent a recurrence. Time will tell whether this approach, rather than one focused on discipline or monetary compensation, is more effective at resolving situations of workplace harassment.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

One of the questions employment lawyers hear most frequently is whether an employer is allowed to terminate an employee for no reason. The short answer? Yes. Unless your employment contract states otherwise, your employer does not need a good reason, or indeed any reason, to terminate your employment. A termination without a reason is called termination “without cause”.

Termination without a reason—termination with notice

A termination without cause does not mean you have no rights as an employee. Generally speaking, if you are terminated for no reason or “without cause”, then you must be provided with notice of the termination, or payment in lieu of notice. The amount of notice required is determined by the terms of your employment contract, relevant legislation, and common law legal principles. (See “Know Your Rights—Determining the Terms and Conditions of your Employment”  and “What is reasonable notice?”  for more information.)

Termination with a reason—termination for just cause

There are circumstances where an employer fires an employee for good reason, and as a result does not provide any notice to the employee. This is called a termination “for cause” or “with just cause”—if the employer has just cause to terminate the employee, the employer is not required to give notice of the termination. (See “What is just cause for termination?”  for more information.)

One reason the employer cannot terminate you—a discriminatory reason

There is an important exception to the rule that you can be fired for any reason: the employer cannot fire you for a discriminatory reason. For example, your employer cannot terminate you because of your sex, race, sexual orientation, age, or disability, because that would violate human rights legislation. You should consult an employment lawyer if you have reason to believe you have been fired for discriminatory reasons.

Conclusion

Absent any discrimination, your employer can terminate you without cause, but with notice; or it can terminate you with just cause, and without notice. If you believe you have been terminated without just cause, and without adequate notice, you may have a case of wrongful dismissal, and you should seek advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Raven, Cameron, Ballantyne and Yazbeck LLP is pleased to announce the launch of the Alison Dewar Scholarship in Women’s Equality, Labour and Human Rights Law.

This scholarship was created by the firm in partnership with the National Association of Women and the Law (NAWL), in memory of our dear friend and colleague who died on October 17, 2013. The scholarship will be available annually to a female student at the University of Ottawa’s Faculty of Law who demonstrates a commitment to pursuing a career in women’s equality and union-side labour, workers’ rights or human rights law. Alison devoted herself to this work and our firm is excited to support future lawyers who share her passion for these issues.

For more information on the scholarship please visit the University of Ottawa’s scholarship and bursary webpage <https://bourses.uottawa.ca/p/a/13364/> or contact the Financial Aid Administrator at the University of Ottawa’s Common Law Section. The deadline to apply is November 30, 2014.

Raven, Cameron, Ballantyne & Yazbeck is pleased to announce that David Yazbeck has been appointed to a working group established by the CSA Group to develop and publish a whistleblower guideline for Canada. The CSA Group (formerly the Canadian Standards Association) is a world leader in establishing standards in a variety of areas. Recently, CSA Group, together with the Bureau de normalisation du Quebec, established a national standard of Canada in relation to psychological health and safety in the workplace.

David Yazbeck is one of the leading practitioners in the area of whistleblower law. He is one of many experts or interested persons who have been appointed to the CSA Group working group to establish a whistleblower guideline.

We are proud to introduce Ravenlaw’s new blog, Writing for Working People! Our firm has over 125 combined years of experience representing employees and unions in all aspects of labour and employment law. We have specialized expertise in a variety of areas, including federal public service employment, wrongful dismissal, human rights, administrative law, judicial review, and disability benefits. This blog is part of a new effort to share the benefit of that expertise with our clients and the community through our new Ravenlaw website. We have also posted the first group in a series of articles providing general legal information on topics in our areas of expertise.

On Writing for Working People, we will be providing regular updates and commentary on issues that impact workers’ rights, including: recent court decisions, changes to labour and employment-related legislation, and other legal and political topics affecting unions and workers across the country. Please check back regularly for the latest posts!

As part of the new and exciting changes to our website, we are pleased to announce the introduction of the Resources section, which will include informative articles on topics in our areas of expertise, and Writing for Working People, our new blog. We hope that these new resources will provide our clients and the community with relevant and useful information about workers’ rights in all areas of labour, employment and human rights law. 

The first group of articles is on the topic of Disability Benefits. Several of our lawyers have recently given informational sessions on long-term disability benefits and other related issues, including at the Maplesoft Centre and the Ottawa Fibromyalgia Support Group. We have now posted a group of articles, providing general information on these topics. Similar articles on other legal topics will be soon to follow. 

We have also introduced a new blog, Writing for Working People. On this blog, we will be providing regular updates and commentary on issues that impact workers’ rights, including: recent court decisions, changes to labour and employment-related legislation, and other legal and political topics affecting unions and workers across the country. 

Please check back regularly as we continue to update these new resources!

Employment legislation has a huge impact on workers’ rights. However, employment lawyers know all too well that well-meaning legislation often fails to translate into better conditions for workers, because some workers are excluded from its protection, or it is difficult to enforce.

Tomorrow, the Ontario government is set to pass Bill 18, a sweeping bill intended to strengthen existing labour and employment laws. While many of the proposed changes are to be welcomed, the proposals fail to address the problems with enforcing employees’ existing rights.

Ontario’s Bill 18: Stronger Workplaces for a Stronger Economy Act

Bill 18, which passed Second Reading in the Ontario legislature on October 29, is what is known as an ‘omnibus’ bill: it includes amendments to several existing statutes affecting labour, employment, workers’ compensation and health and safety. Some of the highlights include:

• Enhancing the protections for temporary foreign workers in Ontario;
• Requiring employers to provide employees with information regarding their rights under the Employment Standards Act;
• Removing the $10,000 cap on recovery for unpaid wages through a Ministry of Labour order to pay, and extending the time limit to recover wages;
• Amending the definition of “worker” in the Occupational Health and Safety Act to extend coverage to co-op students, trainees and other unpaid workers;
• Indexing minimum wage to the rate of inflation.

Motion for time allocation passed, limiting debate

The Liberals brought a motion on Monday, October 27 for “time allocation”, limiting debate of Bill 18 and expediting its passage. The government justified this move as following through on the strong mandate the Liberals received in the last provincial election to end the delays in passing important legislation.

Opposition members questioned this rationale for limiting debate, and emphasized that Bill 18 is incredibly important to workers across Ontario, meaning all affected parties, including precarious workers and interest groups, should have an opportunity to be heard. Peggy Sattler, an NDP MPP who has tabled her own private member’s bill seeking to improve rights for unpaid interns, pointed out that a curtailed debate will prevent discussion of the shortcomings of Bill 18, including the fact that enforcement of employment rights remains difficult for vulnerable employees, such as unpaid interns and migrant workers, because it is dependent on employee complaints.

Important rights may go unrealized

On the whole, Bill 18 is to be lauded for extending certain protections to various groups of vulnerable workers, who are currently excluded from employment regulations. These changes are encouraging as they appear to reflect a genuine desire to increase workers’ access to rights such as redress for unpaid wages, workers’ compensation, and health and safety. However, without a robust method of enforcing these rights, they may go unrealized for many workers.

Existing enforcement mechanisms based on employee complaints are problematic, because they depend on workers, who are often in a vulnerable position, knowing their rights and coming forward. Many workers may be unwilling to bring a complaint for fear of negative consequences in their employment. Our firm’s social justice intern last year, Daniel Tucker-Simmons, wrote a comprehensive report  on the problems with the current enforcement model for the Broadbent Institute.

As discussed in that report, an important step to improve the enforcement of employment standards legislation would be to repeal provisions enacted by the 2010 Open for Business Act that require employees to raise an alleged violation of the Employment Standards Act with their employer before being allowed to file a complaint with the Ministry of Labour. That amendment was widely criticized at the time, as most workers would be unwilling to directly confront their employers about violations of their rights. Repealing this requirement would improve the chances that the proposed new rights will be adequately enforced. Unfortunately, the limited debate of Bill 18 will prevent these and other issues from being the subject of appropriate discussion and review.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On November 8, 2014, James Cameron from Raven, Cameron, Ballantyne & Yazbeck LLP will be speaking before members of the Association of Professional Executive of the Public Service of Canada APEX.   James’ presentation on “Rights, Responsibilities, and Realities – Employment Law Matters for Government Executives” will highlight some surprising realities for APEX members.

Government executives may be surprised to learn that as they progress up the hierarchy, their access to basic employment law rights may actually narrow. What employment law rights and responsibilities government executives still possess or may access will be the focal point of this talk. The members will hear about basic legal principles governing demotions, terminations, changes to duties, severance packages, and other topics. Successful negotiation strategies, based on real-life experience with many Government Executives, will be discussed.

Raven, Cameron, Ballantyne and Yazbeck, LLP/s.r.l. takes great pride in helping working people across Canada. Doing so means we need a national presence and greater communications channels. To this end, we have created a brand new website that provides a greater level of access to our services.

The new Ravenlaw.com includes:

• Information about Ravenlaw and our values.
• Profiles and contact details of our lawyers, staff and students.
• Fields of expertise for each lawyer.
• News and updates from Ravenlaw.
• Career oppurtinities.
• Articling opportunties for students.
• A comprehensive directory of contact details, including social media.

Our website, like our practice is completely bilingual, available in both English and French.

Our new website is fully accessible and browsable by users with assistive technology. The site is also responsive, which means it will be dynamically rendered to be viewable on your desktop, tablet or smartphone. Our goal was to create an intuitive and dynamic website that anyone can access at any time.

Design and development was done by Ottawa-based agency Soshal. Soshal works with purpose-driven organizations to build effective websites that focus on helping people.

We welcome your feedback on the new Ravenlaw.com, and how we can continue to improve our website. Please send your feedback to info@ravenlaw.com.