New Federal Anti-Workplace Violence and Harassment Requirements

workplace violence and harassment

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When it comes to workplace violence and prevention, the federal government has been playing catch up with the provinces. Starting in 2017, the feds have been working on amendments to the Canada Labour Code (CLC) to more fully address workplace violence and harassment. While Bill-65 – snappily named An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1 – establishing the amendments was passed in 2018, the changes had not come into effect nor had a date for their coming into effect been announced. New regulations were announced on June 24, 2020, which provide employers with more details regarding what will be required of them and setting out an effective date of January 1, 2021, for the changes. There are also requirements that employers need to meet before January 1, 2021. More details can be found on the government site here.  

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Do I have to hire a super expensive external investigator? Maybe. Maybe not.

internal vs external workplace investigations

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So you’ve received a harassment complaint from one employee about another employee. What do you do? Do you have to investigate?  Can you use your common sense and just discipline? Is the complaint clearly BS in the first place? What if the complaint is about a break-the-company level fraud by your CFO?

Workplace investigations are usually an unwelcome but necessary business diversion. Many employers would rather avoid them and will attempt, or seek counsel’s validation for, a quick and dirty alternative such as a quick-release termination of the alleged wrongdoer or relocation of the complainant. But these are not alternatives to investigating, are never the upfront solution and often fail to satisfy the legal obligation to properly investigate. These responses are more likely to expose an employer to greater liability.

A complaint of workplace misconduct needs to move quickly, and yet is no time for fast thinking. Employers should instead think carefully about the substance of the complaint, the impact on the involved parties and the business fallout if their response is the wrong one. 

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UberEats Driver Fight Stays in Canada

We blogged about David Heller and his fight against Uber last May when leave to the Supreme Court of Canada was granted. You can catch up on the history and read that post here. If you’re a true nerd you can also watch footage of the arguments made in the Supreme Court here!  The Supreme Court’s decision has now been released.

A Brief History

Heller, a driver for UberEats, brought a class action suit against Uber in 2017 alleging that he was an employee under the Employment Standards Act, 2000 (“ESA”). Uber, in response to this suit, said that Heller could not sue in Ontario because of the arbitration clause in his contract with Uber. 

The Arbitration Clause

Putting aside the issue of whether Uber drivers are employees – entitled to things like public holiday pay, vacation pay, notice of termination etc. under the ESA – the suit became about the correct forum. Could Heller bring Uber to court in Ontario? Or did the arbitration clause in the contract with Uber apply?

The arbitration clause – which was contained in the standard-form click-through contract drivers agree to in order to become Uber drivers – stated that disputes would be resolved by the International Chamber of Commerce in the Netherlands. 

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The CEWS, the CERB and Returning to Work

As we look towards returning to work and re-opening businesses we thought we would re-visit the CEWS and CERB, both of which have recently been extended. 

The CEWS (Canada Emergency Wage Subsidy) continues to provide employers with a wage subsidy to bring employees back. The CERB (Canada Emergency Response Benefit) may be working against employers in some instances, where employees do not want to come back or serve to make more money by not working and staying on the CERB. 

Extension of the CEWS

The government has doubled the length of the CEWS program to now extend until August 29, 2020. Eligibility for the CEWS is broken down into periods, where an employer needs to demonstrate a specific revenue reduction for that period. Periods 5 (July 5 – August 1) and 6 (August 2 to August 29) are expected to require a 30% reduction in revenue, however, details have not yet been announced.

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A Guide for Employers During COVID-19 – June 19 update

A Guide for Employers during COVID-19 This Guide sets out the key employment law issues to consider, as well as the government's financial relief options to explore to get through this deep economic crisis.  (Last Updated June 19, 2020). Further free resources can be found here. Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

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Cancel Culture at Work: Terminating Employees for Inappropriate Behaviour

Terminating Employees for Inappropriate Behaviour

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In the wake of the killing of George Floyd and in the midst of protests and heightened awareness of anti-black racism across the world, two prominent Canadians have been “cancelled.”

Earlier this month Sasha Exeter, lifestyle blogger and influencer, called out Jessica Mulroney for “textbook white privilege.” Exeter explained, calling out Mulroney by name, that Mulroney took offence to her call to action for people with large public followings to use their platforms to address racial inequality and then proceeded to threaten Exeter and her brand.  Soon after Mulroney’s reality show, “I Do, Redo” had been cancelled by CTV, and Cityline, Good Morning America, Hudson’s Bay and apparently Meghan Markle, had all cut their ties with the star.

Mulroney’s fall was preceded by CBC TV host Wendy Mesley’s suspension from her show “The Weekly,” pending an investigation into her use of a racist word during a meeting. Again, details are fuzzy, but Mesley said on Twitter that she “used a word that should never be used” and that she was “quoting a journalist we were intending to interview on a panel discussion about coverage of racial inequality.” 

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