POLICIES & TRAINING
Many employers believe that having workplace policies are optional, unimportant, or only apply to large organizations. However, having comprehensive workplace policies is often not only required by law, but can significantly limit any employer’s legal exposure. While the specific requirements can vary depending on the size of the workplace, the following legislation places requirements on employers with respect to policies and training:
- The Occupational Health and Safety Act (“OHSA”) has many policy requirements. Specifically, employers with more than five regularly employed employees must prepare and review (at least once a year): (1) a workplace violence policy; (2) a workplace harassment policy; and (3) a written occupational health and safety policy. Employers also must develop and maintain a program to implement those policies. Notably, OHSA policies and training practices can be subject to a Ministry of Labour Audit and/or complaint. In the event of the Ministry’s intervention, it has the power to: (1) institute an order to comply; and (2) to fine a non-compliant employer. If a non-compliant employer experiences an issue related to violence or harassment, a fine is more likely to be imposed and the impacted employee can expose the employer to additional liability in litigation.
- Similarly, the Ontario Human Rights Code (“HRC”) has policy and training requirements. While not legislated, the Human Rights Tribunal of Ontario (“HRTO”) will consider if an employer has a policy dealing with the nature of the complaint. If an employer fails to have proper policies in place, it could be subject to an order by the HRTO to create them and to pay associated financial penalties. As with the OHSA, if there is an issue of harassment or discrimination, the absence of a fulsome anti-harassment, anti-discrimination policy and related training exposes the employer to greater liability.
- The Accessibility for Ontarians with Disabilities Act (“AODA”) also has a policy and training requirement. The AODA requires a policy in respect of customers and customer service, such as how to work with someone with a disability. The AODA also requires employers make employment practices accessible to meet the needs of employees and job applicants with disabilities. This includes advising employees about the employer’s policies to support those with disabilities. Having a separate customer service policy is important, as a customer is entitled to a copy of an employer’s customer service policy upon request.
Various pieces of legislation in Ontario require that specific documents are posted in a location that is clearly visible to employees. For example:
- The OHSA requires that the following be posted: (1) “Prevention Starts Here” poster (https://files.ontario.ca/posters/poster_prevention.pdf); (2) a copy of the OHSA (https://www.ontario.ca/laws/statute/90o01); (3) a copy of the employer’s requisite policies mandated by OHSA; and (4) the names and work locations of joint health and safety committee (“JHSC”) members in workplaces that require a JHSC.
- The Workplace Safety and Insurance Board’s “In Case of Injury” poster (https://www.wsib.ca/en/case-injury-poster-form-82).
- The Pay Equity Act requires employers in the private sector who have ten or more employees to post their Pay Equity Plan.
Employers no longer need to post the Employment Standards Act, 2000 poster (https://files.ontario.ca/employment-standards-in-ontario.pdf). However, one must be provided to new employees within 30 days of the date of their hire.
The lawyers at Robinson Heeney would be happy to help with any of your drafting needs or answer any of your questions.
Update on Dawe v. Equitable Life Insurance Company
Following up from our January 2019 Newsletter, the Ontario Court of Appeal (“ONCA”) has reversed the 2018 Dawe v. Equitable Life Insurance Company decision in which the Superior Court of Justice awarded an employee a reasonable notice period of 30 months. The ONCA reduced the notice period to 24 months and reiterated that 24 months is the longest reasonable notice period that can be awarded absent exceptional circumstances. The ONCA held that the trial judge had erred in relying on changes in “society’s attitude regarding retirement” to support a finding that the presumptive standard of a 24-month cap was not applicable. The ONCA found that there were no exceptional circumstances and the 24-month period was sufficient to account for the plaintiff’s age of 62, 37-year tenure, and senior position.
This decision is noteworthy as it goes against the recent trend of courts awarding notice periods of more than 24 months.