What Happens When Child Care and Work Conflict – More Guidance for Employers

February 08, 2010 - by: Northern Exposure 1 COMMENTS

By Ralph Nero and Ida Martin

As we reported last week, decision makers across Canada are struggling with the meaning of discrimination on the basis of family status. Last week we looked at a Human Rights Tribunal decision out of British Columbia. This week we look at a recent Ontario arbitration decision, Re Power Stream Inc. and International Brotherhood of Electrical Workers, Local 636 (Bender et al.). Like the British Columbia case, the arbitrator ruled that not all conflicts between family and work lead to a duty to accommodate on the part of the employer.

The employer in the Ontario case is an electricity distribution company. Under a previous collective agreement, employees had the option of working five eight-hour shifts per week or four 10-hour shifts per week. The 10-hour shift commenced one hour earlier and ended one hour later than the eight-hour shift. While most employees chose the 10-hour shifts, the four grievors chose the eight-hour shifts. That schedule allowed them to more easily fulfill their family responsibilities: read more…

To What Extent Must Employees’ Family Obligations Be Accommodated?

February 01, 2010 - by: Dominique Launay 1 COMMENTS

By Dominique Launay

Your employee is a single parent. He has to drop his children off at school each morning. They can’t be dropped off earlier than 9 a.m. He has to be back at the school by 5 p.m. to pick them up from their after-school care. He has no family to assist him. Is he covered by the family-status protections in some provinces’ human rights legislation? Do you have to accommodate him?

Increasingly, tribunals are being required to examine this issue: What is an employer’s accommodation obligation where an employee’s needs relating to his family status conflict with employment requirements?

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When Must Individual Contractors Receive Reasonable Notice?

January 25, 2010 - by: Donna Gallant 0 COMMENTS

By Donna Gallant

A recent appeal court decision demonstrates once again that defining work relationships is far from an exact science. Somewhere on the spectrum between employees and independent contractors, we have seen the emergence of “dependent contractors.” What hasn’t been entirely clear is how one determines “dependent contractor” status.  Nor what that status means in terms of the worker’s entitlements on termination.

The Ontario Court of Appeal in McKee v. Reid’s Heritage Homes Ltd. attempts to shed some light on these issues. The decision may have broad ramifications across Canada.

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Mandatory Retirement Being Retired across Canada

January 18, 2010 - by: Derek Knoechel 0 COMMENTS

Mandatory retirement has a long and storied history as part of the Canadian labor system. As we enter 2010, it appears that a new chapter is being written, one in which mandatory retirement is the exception rather than the norm.

In Canada, mandatory retirement developed along with the introduction of private and public pension plans. Public programs, such as the Old Age Security, Guaranteed Income Supplement, and the Canada and Quebec Pension Plans, provided that retirement benefits were to be paid beginning at age 65. Private businesses developed or adapted their plans to complement and integrate with government pensions. By the 1970s age 65 had become generally accepted as the “normal” age of retirement by employers and workers alike.

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Ontario Adds to Broad Canadian Harassment/Violence Laws

January 11, 2010 - by: Alix Herber 0 COMMENTS

By Alix Herber

Canada’s two largest provinces — Ontario and Quebec — now have laws requiring employers to seek to provide workplaces free of “harassment.” No longer limited to human rights-related harassment, the term is broadly defined in these laws. Further, Ontario’s new law extends beyond harassment. It, like the federal law, also will require antiviolence policies and programs. These laws will apply regardless of whether a workplace has any prior history of such problems.

Ontario’s Bill 168, the Occupational Health and Safety Amendment Act, will come into force in June 2010. (See our previous articles on this bill by Karen Sargeant, May 5, 2009, and Brian Smeenk, May 19, 2009.)

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Obtaining a Work Permit in Canada: The Labour Market Opinion Process

January 04, 2010 - by: Northern Exposure 2 COMMENTS

By Ingrid Anton and Isabelle Dongier

As we mentioned in a November article, most foreign workers require a work permit to legally work in Canada. And to get a work permit for a foreign worker, the prospective Canadian employer must first obtain a Labour Market Opinion (LMO) from the Department of Human Resources and Skills Development Canada (also referred to as Service Canada). Although some workers may benefit from an LMO exemption, this article focuses on LMOs – what are they, who needs one, and how they’re obtained.

What is a Labour Market Opinion?
A positive LMO confirms that the employment of a foreign individual in Canada won’t have a negative impact on the Canadian labor market – the foreign worker won’t be taking work away from Canadians. The LMO is not a work permit. It’s a prerequisite to obtaining a work permit.

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Drug and Alcohol Testing – What’s Permitted in the Canadian Workplace

December 28, 2009 - by: Hadiya Roderique 0 COMMENTS

By Hadiya Roderique

Last year we reported on a case where a Canadian employer was ordered to reinstate an employee who had tested positive for marijuana following a verbal altercation with his employer. Why? Because drug addiction is considered a disability in Canada. And individuals who suffer from addiction are protected from discrimination under human rights legislation.

Because drug testing is considered an invasion of privacy, it is allowed only: read more…

Does Temporary Layoff Result in Right to Severance Pay?

December 21, 2009 - by: Derek Knoechel 0 COMMENTS

By Derek Knoechel

In early 2008, the owner of a dental practice, having recently purchased the business, faced some difficult choices. Given what appeared to be a temporary downturn in revenues, the owners decided on a temporary layoff.

While permitted by employment standards laws, the employer in the recent case of Besse v. Dr. A.S. Machner Inc. found out that the courts considered the layoff to amount to a termination of employment. The employment standards law didn’t provide a right to impose a temporary layoff – at least not without triggering all the severance rights the courts normally accord terminated employees.

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Wal-Mart Allowed to Close Unionized Store: Supreme Court of Canada

December 14, 2009 - by: Northern Exposure 0 COMMENTS

By Marc Ouellet and Louise Béchamp

On November 27, 2009, in two cases involving Wal-Mart (Plourde v. Wal-Mart Canada Corp. and Desbiens v. Wal-Mart Canada Corp.), the Supreme Court of Canada rendered its much-awaited decision on an employer’s right to close operations for alleged antiunion reasons.

The Supreme Court decisions rule that Wal-Mart could close one of its stores following the unionization of its employees. Essentially, the court confirmed the principle by which an employer can overturn the presumption against it, established by section 17 of the Quebec Labour Code, by simply showing that the decision to close is “real and definitive.” This is possible even though the reasons behind the closing could be viewed as “socially reprehensible.”

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When Employee Privacy and Social Media Collide

December 07, 2009 - by: Lyne Duhaime 0 COMMENTS

By Lyne Duhaime

An IBM employee from Quebec made headlines last month when her disability benefits were cut off by the insurance company after it saw pictures of her on Facebook. Despite being off work for depression, the employee had posted photos of herself on vacation at the beach and at a Chippendale’s show. When IBM’s disability carrier saw the photos on Facebook, it cut off her disability benefits. In its view, the employee no longer appeared to be disabled within the meaning of the insurance contract.

This case raises interesting privacy issues. Are photos posted on a social media website personal information? Are employers, disability carriers, and other organizations prohibited from using such information? If not prohibited, are there limitations? Put simply, are employers (or, in this case, insurers) able to use the Internet to collect information about their current or future employees?

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