Canadian Employment Law Today

March 11, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Stuart Rudner Ask an Expert RUDNER LAW TORONTO 2 | March 11, 2020 Have a question for our experts? Email jeffrey.smith@keymedia.com Canadian HR Reporter, 2020 Answer: The short answer is, it depends. In Ontario, employers are required to have certain policies based on various legislation. These requirements often depend on the size of the organization in question. There are also various posting requirements in relation to these policies. The table to the right provides an overview of employment-related policies required for small and large businesses in Ontario, as an example. Notably, employers are required to post in a conspicuous location within the workplace (such as in an employee break room) the fol - lowing documents and policies (if applicable): • The Occupational Health and Safety Act (OHSA) "Prevention Starts Here" poster, which outlines the rights and responsibilities of workers, supervisors and employers on the job • A copy, in full, of the OHSA • The Health and Safety Policy • The Workplace Violence and Harassment Policies. Workplaces with a Joint Health and Safety Committee have additional posting require- ments. In addition, if the company is a Sched- ule 1 or Schedule 2 employer pursuant to the Workplace Safety and Insurance Act, 1997 (WSIA) — if the company has an account with the WSIB — it is also required to post the "In Case of Injury" poster in the workplace. Finally, employers are also required to post the Employment Standards Act, 2000 poster in the workplace, entitled "Employment Stan - dards in Ontario," and to provide each of their employees with a copy of the poster. Even if a policy is not required to be posted, it is in an employer's best interest to ensure that rules and policies are properly commu - nicated and that there is evidence of the fact that they were communicated to employ- ees. Otherwise, an employee may be able to avoid discipline for breach of a policy by proclaiming that they were unaware of it. In most cases, it is preferable to have one book- let or digital document that incorporates all rules and policies applicable to employees. Ensuring that all rules and policies are avail- able for employees to access at any time will potentially increase the likelihood that they will actually be followed — after all, employees can only follow such rules and policies if they know what they are. If it is too difficult to locate a policy, employees may be able to show that they could not be expected to be aware of it. As well, in the event that some employees breach such policies, it will help employers discipline the offenders — employers will be able to show that the applicable policies were communi - cated to employees, made available to them for review and that they were aware of it. Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He can be reached at stuart@rudnerlaw.ca or (416) 864- 8500. This article was written with the assistance of Nada Zaman, an associate at Rudner Law in Toronto. She can be reached at (416) 864-8503 or nadia@rudnerlaw.ca. Providing information on company policies Question: If an employer sends out an email to employees containing certain rules and policies, do these rules and policies still need to be posted or stored somewhere for employees to access? Changing a benefits package Question: Can an employer make significant changes to a benefits package without notice or consideration to employees? Answer: Generally speaking, an employer can- not unilaterally change the terms of an employ- ee's employment contract. If they do, there is a risk of potential liability as the employee may allege "constructive dismissal." A constructive dismissal occurs when the employer makes a substantial change to a fundamental term of the agreement or em - ployment relationship. If there is no written agreement, then the terms can be ascertained through past practice; an employer can't sim- ply say that there is no contractual entitlement to a bonus, for example, when a bonus has been consistently paid out over time. So, the question to ask is whether we are dis - cussing a fundamental term and whether the extent of the change is substantial. A nominal decrease in compensation will not rise to the level of constructive dismissal. In this case, what is the impact of the changes to the ben - efits package on the employee? Another thing to consider is whether the employer had the right to make the changes in the first place. Many contracts explicitly provide that benefit plans can be changed at the discretion of the employer. This requires a case-by-case analysis. That being said, employers can make such changes if they provide sufficient notice or consideration. For example, the employer could advise that the changes will be effective on a specified date in the future. However, the amount of notice required would be the same as if they were providing notice of dismissal, which can be extensive. The employer might also provide consideration — something of value — such as cash compensation. The em - ployee would have to accept this quid pro quo for it to be legally effective. The extent of the employer's ability to make changes will depend on what the parties agreed Policies Required for small business? Required for medium/ large business? Occupational Health and Safety Policy No Yes Workplace Harassment and Violence Policies Yes Yes Accessibility Policies Yes Yes Multi-Year Accessibility Plan No Yes Employment Standards Policies No Yes Accessible Customer Service Policies Yes Yes

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