Canadian Employment Law Today

April 16, 2014

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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April 16, 2014 2 published by Canadian hr reporter, a thomson reuters business 2014 Workplace violence and health and safety QuEStion: if an employee is harassed or threatened by another employee at work, this raises concerns about harassment and workplace violence. does this also relate to an employer's obligations un- der occupational health and safety leg- islation or are these things usually kept separate legally? anSWER: Any time an employee is ha- rassed, threatened or subjected to vio- lence at work, it will relate to an em- ployer's obligation to provide a safe workplace. That obligation, in turn, relates to oc- cupational health and safety legislation, so the issues are certainly not separate. Generally speaking, both pursuant to legislation and common law, there is an obligation on the part of an employer to make reasonable efforts to ensure that the workplace is reasonably safe. Of course, it is impossible for anyone to guarantee a workplace will be 100 per cent safe. In the past, concerns regarding work- place safety typically focused on issues relating to the layout of the workplace it- self, such as loose stairs or slippery floors. However, in recent years we have seen a dramatic increase in the amount of atten- tion given to workplace harassment and bullying. In Ontario, Bill 168 was introduced in order to amend the province's Occupa- tional Health and Safety Act and explicitly refer to, among other things, harassment and bullying. Employers must take reasonable steps in order to address such concerns, and a failure to do so will expose them to poten- tial liability. It is not acceptable for an employer to ignore or trivialize complaints regarding threats, violence, or harassment. These are not "personal issues" and the em- ployee cannot be left to "deal with it;" they are workplace issues that must be addressed. Where another employee is guilty of such conduct, she should be disciplined, which might include summary dismissal in appropriate cases. As I have discussed in many other contexts, employers must be cautious when considering summary dismissal, as it requires a consideration not only of the misconduct in question, but all rel- evant circumstances. However, employ- ers cannot simply ignore the issue, and appropriate measures, including disci- pline, should be undertaken. It is important to note the "work- place" extends beyond the four walls of the office or shop. As a result, even if the situation involves harassment that takes place online or off-site, it will likely be deemed to relate to the workplace, and the employer will have an obligation to address it. inquiring about older workers' retirement plans QuEStion: is there a way to make inqui- ries as to when older employees plan to retire for the purposes of resource plan- ning without risking being seen as pres- suring them and facing charges of age discrimination? anSWER: Not surprisingly, this is a very touchy subject with significant potential ramifications. As the question implies, an employer cannot assume an employ- ee will retire at any particular age. However, as the workforce ages, suc- cession planning has become more and more important. It is a legitimate tool, so long as it is done appropriately. Within the context of this question, it would generally not be appropriate to ask when an employee plans to retire, but it would be appropriate to have dis- cussions with respect to the employee's plans, more generally. Many older workers have become disengaged, and it can be beneficial for everyone if a plan is developed that will allow them to provide value to the orga- nization by adopting the different roles, such as that of mentor. An employer can certainly broach such an option with the employee, and discuss their future plans. However, while it may be feasible to have a general discussion and get a sense of the employee's desires and in- tentions, it will not be possible to force her to commit to a certain amount of time or a specific retirement date, unless she does so voluntarily and of her own volition. These are all discussions that should be approached very cautiously, but in order to ensure that your business and succession planning is adequately ad- dressed, the issues can be raised. However, the employer should never be seen as pressuring the employee to retire, or otherwise forcing her to take any action based upon her age. Stuart Rudner is a founding partner of Rud- ner MacDonald LLP, a Toronto-based em- ployment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business (see for more information or to order your copy). He can be reached at srudner@rudnermacdonald. com. with Stuart Rudner ask an Expert Have a question for our experts? Email Rudner MacDonald LLP, Toronto in recent years we have seen a dramatic increase in the amount of attention given to workplace harassment and bullying. EMPLoyMEnT Law bLog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey r. smith discusses recent cases and developments in employment law. the blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. the blog features topics such as random drug and alcohol testing, workplace investigations, accommodation of international qualifications, and sexual harassment. you can view the blog at

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