Yoho National Park, Canada / Andy Holmes  

Kananaskis Country Canada

© V. Aerden

Malcolm MacKillop shares part II of his media presentation.

The Significance of Keeping Records After a Termination

Employment litigation is highly contentious and issues are often determined on the basis of credibility: in a “he-said-she-said” situation, the more believable party will succeed. Employers can avoid such a situation by retaining and maintaining the integrity of their employee records. 

In the litigation context, employers often bear the onus of justifying certain employment decisions: for example, terminating an employee for just cause, or accommodating an employee under the Human Rights Code. In addition, an employer who loses or destroys material evidence may have a presumption made against them that the evidence in question would not have been in their favour. For these reasons, upon taking a disciplinary action or terminating an employee, employers should act quickly to preserve any records that may be relevant as such records may be used as evidence to justify the action taken should litigation arise. 

Employers should preserve the following types of evidence of employee misconduct in the event of a termination or disciplinary process.

Video Surveillance Video surveillance records can be a very persuasive form of evidence. Video records act like eyewitness evidence, but they have perfect recall and no bias. If the video records are destroyed, the responsibility falls onto the person who viewed the surveillance to discuss its contents during testimony. To avoid this from happening, employers should be sure to save the video evidence. 

Employee Email Immediately following a termination, employers should check the employee’s work email to ensure that any potential evidence is saved and maintained. Like video surveillance, email can serve as evidence of employee misconduct. If an employer has any reason to believe that an employee’s email account may have evidence of misconduct, they should undertake a full review of the email account and make copies of any relevant items. Employers may also consider restricting the employee’s access to the account to avoid the risk of the employee tampering with the content in the emails.

Laptop or Computer Hard Drive Information found on a computer hard drive, including files, software, or internet history may also contain relevant evidence. If an employee was required to use a work computer, it is important to search through its contents before recommissioning the machine to another employee.

Company Phone Records Company phone records may also provide useful evidence for employers. If the employer provides work phones to its employees, they should maintain access to any work-related information and have methods of preventing the loss of this information in the event of a termination for cause. Like emails, employers should have a method of storing this information that ensures it is not manipulated or deleted. 

Evidence relevant to employment litigation can come from a variety of sources, and employers should use their knowledge and judgment to determine what the most likely sources may be in their own workplace. Employers should have a policy of retaining relevant records for a period of at least two years, as this is the period that employees generally have to make a claim under the Limitations Act, 2002. Failing to retain these documents may leave an employer ill-prepared to defend an employment decision.

Bill 47 has Passed: Changes to Employment Standards Come into Effect on January 1, 2019

On November 21, 2018 Bill 47, the Make Ontario Open for Business Act (“Bill 47”), passed Third Reading and received Royal Assent. This comes quickly on the heels of Bill 47’s first reading, on October 23, 2018 and its second reading on November 12, 2018. Bill 47 has not undergone any significant changes in relation to the Employment Standards Act (“ESA”) since our first blog post which you can read about here.

There have been some changes made to Bill 47 since first reading in relation to the Labour Relations Act (“LRA”). One change is that the Ontario Labour Relations Board is no longer empowered to review the structure of existing bargaining units on the basis that they are no longer appropriate.

Changes made to the LRA came into effect when Bill 47 received Royal Assent on November 21, 2018. Employers will have a little more time to adapt to changes to the ESA as they are scheduled to come into force on January 1, 2019. Employers seeking to review their policies to ensure they comply with the latest changes should obtain legal advice in advance of January 1, 2019.

Below are some of the key changes Bill 47 will make to employment legislation:

Changes to the Employment Standards Act (“ESA”) Personal emergency leave – This leave will be removed in its entirety and replaced by three separate unpaid leaves: sick leave (3 days), family responsibility leave (3 days), and bereavement leave (2 days). The bill also removes the prohibition on employers requesting medical documentation to support entitlement to these leaves.

Minimum wage – Instead of increasing to $15.00/hour on January 1, 2019, the minimum wage will stay at $14.00/hour until at least October 2020 when it will be adjusted for inflation.

Scheduling – Many of the scheduling changes introduced by Bill 148, which were scheduled to come into effect on January 1, 2019, will be repealed, including: the requirement for employers to respond to an employee’s request for changes to their schedule or work location; an employee’s right to refuse a request to work or be on call with less than 96-hours’ notice; the on-call pay provisions; and, the shift cancellation pay provisions.

Please note: under Bill 47 employers will still be required to pay employees who regularly work more than three hours for a minimum of three hours of work even if they work less than three hours.

Changes to the Labour Relations Act (“LRA”)

Lists of Employees – Employers will no longer be required to provide employee lists to trade unions who demonstrate at least 20% support in the proposed bargaining unit.

Remedial Certification – The pre-Bill 148 test and pre-conditions for the Ontario Labour Relations Board (“OLRB”) to certify a union for employer misconduct will be reinstated.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.

Originally posted on MalcolmMacKillop.com.

Moraine Lake, Canada by Alec Olson

Malcolm MacKillop discusses Merrifield v. Canada and workplace sexual harassment. 

🌲 Getting lost in all the right directions | joemackin

Location: Banff National Park, Canada

Accommodating Mental Health Disabilities in the Workplace

In recent years, there has been a societal shift towards increasing the dialogue on issues of mental health and reducing the stigma often associated with mental health issues. It, therefore, comes as no surprise that addressing mental health issues in the workplace has become an increasingly important issue for employers. When addressing issues of mental health in the workplace, employers should be aware of the Ontario Human Rights Commission’s (“OHRC”) recently implemented policy which addresses discrimination based on mental health disabilities and addictions (“Policy”). The Policy, which was published in 2014, provides guidance on the application of the Ontario Human Rights Code (“Code”)  specific to mental health disabilities and addictions.

Read the full article here