Human Resources Administration Research Paper
susanneyang
HRinHospitalityRyersonfinalJanuary2019.pdf
The Legal Requirements of Human Resources
Management Course January 29‐30, 2019
Why Are We Here?
Workplace Dynamics Are Challenging...
Road Map: Laws that Govern Ontario Workplaces
1. Employment Standards Act 2. Labour Relations Act 3. Pay Equity Act 4. Workplace Safety and Insurance Act 5. Occupational Health and Safety Act 6. Accessibility for Ontarians with Disabilities
Act 7. Human Rights Code
Road Map, cont’d
• Human Rights Code: • Prohibited grounds of discrimination • Harassment • Sexual harassment • Poisoned work environment • Bullying
• Accommodation of disabilities • Real life examples/case law
Road Map, cont’d
• Legalities at the hiring stage • Legalities at the termination stage
Ontario Employment Standards Act, 2000 (“ESA”)
• The ESA sets out rights and responsibilities of employees and employers in Ontario workplaces.
• Employment standards enforced under the ESA, which sets out the minimum standards employers and employees must follow.
Ontario Employment Standards Act
• Minimum wage • Hours of work • Overtime • Vacation pay & public holidays • Pregnancy and parental leaves • Layoffs and terminations • Family Medical & Emergency Leaves
Ontario Labour Relations Act
• Certification and de‐certification of unions • Collective bargaining process • Grievance arbitrations • Strikes and lockouts • Unfair labour practices
Ontario Pay Equity Act
• Purpose of the Act is to redress systemic gender discrimination in compensation of employees in female job classes
• All public sector employers and private sector employers with 10 or more employees are required to have compensation practices that provide for pay equity
Ontario Workplace Safety and Insurance Act
• Governs the administration of Ontario's workplace insurance regime, including revenue generation through fees and levies on registered firms and claims administration for injured workers
• Part II of Act deals with prevention of occupational injury and disease
Ontario Occupational Health and Safety Act
• Ontario's cornerstone legislation for workplace health and safety
• Main purpose of Act is to protect workers from health and safety hazards on the job
• Sets out duties for all workplace parties and rights for workers
Ontario Occupational Health and Safety Act
• Sets out roles and responsibilities for workplace parties with respect to workplace violence, workplace harassment and workplace sexual harassment
• Establishes procedures for dealing with workplace hazards and provides for enforcement of the law
Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”)
• Government of Ontario developed mandatory accessibility standards that identify, remove, and prevent barriers for people with disabilities in key areas of daily living
• Purpose of AODA is for Ontario to be fully accessible for people with disabilities by 2025
Accessibility for Ontarians with Disabilities Act
• AODA creates obligations for employers to ensure that their workplaces are accessible, as well as their employment practices beginning at the hiring stage
• Employers must train employees on AODA and their accessibility policies
Ontario Human Rights Code
• Intended to give people equal rights and opportunities without discrimination in specific areas such as housing, services, and employment
Ontario Human Rights Code
• Protecting against harassment, sexual harassment, and a poisoned work environment requires an understanding of the specific Code provisions
• The Code governs discrimination and harassment at all stages of the employment relationship, including: • The application and
recruitment process • Training • Transfers and demotions
• Dismissals • Workplace functions
Ontario Human Rights Code
• What are the prohibited grounds of discrimination?
Human Rights Code (Cont’d)
Anti‐discrimination—Section 5(1): Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
These are considered “prohibited grounds” of discrimination
Human Rights Code (Cont’d)
Although harassment is a form of discrimination, it is treated separately in s.5(2):
s.5(2): Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment Defined
“Harassment” (including sexual harassment), a form of discrimination under the Code, is defined in s.10(1) as: “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” “Workplace Harassment” defined in OHSA as: “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” OHSA definition encompasses all types of harassment
prohibited under Code
Sexual Harassment
Note that harassment on the basis of sex is not included in the list of enumerated grounds in section 5(2). The prohibition against workplace sexual harassment is legislated separately under section 7(2):
s.7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
Sexual Harassment
Examples of sexual harassment: • gender‐related comments about an individual’s physical characteristics, mannerisms or appearance;
• suggestive remarks or gestures; • unwelcome sexual advances or propositions of physical intimacy;
• unwelcome physical contact; • offensive jokes; • displays of sexually explicit pictures/posters, pornography, graffiti or other materials
Workplace Sexual Harassment
• As of 2016, “workplace sexual harassment” defined‐‐OHSA:
• engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
• making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome
Importance of Workplace Policies
Advantages of establishing and applying a sound workplace harassment policy: • Minimize risk of costly
litigation • Improved morale for
colleagues • Prevent loss of valuable
employees • Effect on reputation of
the employer • It’s the LAW
Can Bullying be Workplace Harassment?
Examples: • Shouting at staff
• Demeaning, belittling or embarrassing others
• Spreading rumours, gossiping about co‐ workers
• Emotional tirades, displays of temper, tantrums
• Personal attacks
• Regularly being asked to perform menial tasks that are not included in one’s job description
• Constant criticism that is not constructive or intended to improve one’s performance
What is NOT Harassment:
• Legitimate management activities, including: • Assignment of work
• Performance reviews
• Proper discipline
• Exercising supervisory functions
• Constructive feedback and/or proper provision of negative performance feedback is NOT harassment
When is it unwelcome?
• Comments or conduct which is known or ought reasonably to be known as unwelcome
• What would a “reasonable person” think about the behaviour in question?
• It is the effect on the recipient – not the intention of the person engaged in the behaviour – that is important
Video
Analyze This: Is this Harassment?
Video
30
Video
31
Video
Think Fast — Harassment Or Not? If So, What Kind?
Physical
Verbal
Nonverbal/ Visual
Which Category?
Which Category?
Physical
Verbal
Nonverbal/ Visual
Accommodation of Disabilities: A Review Of Both Employer And Employee Obligations In The Accommodation Process
Duty To Accommodate
• Most employers aware of the duty to accommodate ill or injured employees to the point of undue hardship
• Knowing how to fulfill that duty when it exists can be challenging
Accommodation (Video)
The Employee Is Required To:
• Advise employer of disability • Employer does not generally have the
right to know what the employee’s confidential medical information
• Make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
• Answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals
Accommodation
The Employer Is Required To:
• Accept employee’s request for accommodation in good faith, unless legitimate reasons for acting otherwise
• Obtain expert opinion or advice where needed • Take active role in ensuring that alternative approaches and
possible accommodation solutions are investigated
• Is temporary or permanent alternative work available?
• Is training required for the alternative work?
• Would that training impose undue hardship?
• Keep a record of the accommodation request and action taken
Employer Obligations, cont’d
• Maintain confidentiality • Limit requests for information to those reasonably related
to the nature of the limitation or restriction
• Grant accommodation requests in a timely manner, to point of undue hardship, even when request for accommodation does not use any specific formal language
• Bear the cost of any required medical information or documentation (e.g. doctors’ notes and letters setting out accommodation needs)
Note Regarding Undue Hardship
The Ontario Human Rights Code prescribes 3 considerations when assessing whether an accommodation would cause undue hardship
1. Cost • Costs will amount to undue hardship if they are: • Quantifiable; • Shown to be related to the accommodation; and • So substantial that they would alter the essential nature
of the enterprise, or so significant that they would substantially affect its viability
2. Outside sources of funding, if any
3. Health and safety requirements, if any
Undue Hardship, cont’d
The following should not be considered in the undue hardship analysis:
• Business inconvenience • Employee morale • Customer preference • Collective agreements or contracts
Legalities at the hiring stage of the employment relationship
• Application process • Interview process • Conditional offer of employment • Reference, credit & background checks • Drug & alcohol testing • The offer of employment
The Employment Interview Stage
Video
Is This A Problem?
Legalities At The Termination Stage of The Employment Relationship
Critical Terms Of The Contract: The Termination Clause
• There are three main ways for an employment relationship to come to an end:
• the employee resigns; • the employee’s employment
is terminated by the employer for just cause; or
• the employee’s employment is terminated by the employer without cause.
Termination For Cause
There is not a clear definition of “just cause”. Just cause may include, but is not limited to, the following: • Failure to properly carry out duties and responsibilities (which
may be outlined in an employment agreement) • Failure to adhere to the employer’s policies and procedures • Refusal to adhere to and follow written directions
• dishonesty • wilful misconduct • theft • fraud • gross negligence • Incompetence
• insubordination • chronic lateness or
absenteeism • breach of fiduciary
duties
Termination Without Just Cause
If there is no just cause to terminate the employee, the
employee is entitled to reasonable notice of
termination or pay in lieu of such notice according to the applicable statute and the common law, unless the
agreement says otherwise (i.e. in a valid Termination Clause)
Wrongful Dismissals
• Factors to determine the length of reasonable notice period (Bardal factors) • Age • Length of service • Character of employment • Likelihood of finding comparable employment
Thank You!
Questions & Answers
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