Canadian HR Reporter, a Thomson Reuters business 2016
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January
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Canadian
Employment
Law
Today
ABOUT THE AUTHOR
PATRICK GANLEY AND LISA BOLTON
Patrick Ganley and Lisa Bolton are lawyers with Sherrard Kuzz LLP, a
management-side labour and employment law firm in Toronto. Patrick and
Lisa can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour)
or by visiting www.sherrardkuzz.com.
effective in reducing the transmission of
the virus.
• Balance of interests. e requirement a
healthcare worker either be vaccinated or
wear a mask made a significant demand of
employees who exercised their right not to
be vaccinated.
Lessons for employers
e decision in Sault Area Hospital v.
Ontario Nurses Association offers the
following important lessons for employ-
ers seeking to develop and implement a
workplace policy:
• Identify the purpose of the policy. e
reasonableness of a policy will be assessed
in light of its purpose. An employer must
therefore be able to rationally defend the
purpose of a policy.
• Ensure the terms of the policy support
the purpose. Policy terms should directly
support the policy goal. e closer the
connection between the terms and goal,
the easier it will be to establish the policy
is reasonable.
• Ensure consistency with existing obli
-
gations. A policy's consistency with other
workplace rules (including where applica-
ble a collective agreement), will enhance
compliance with the policy and help de-
fend it if challenged.
• Ensure the policy is clearly communi-
cated and consistently enforced. e
reasonableness of a policy is often influ-
enced by the manner in which it is com-
municated to employees and enforced.
Consistency is key.
• Engage employees in the development
of a policy. Wherever possible, engage
employees (and union bargaining agents)
in the policy-making process, and incor
-
porate reasonable feedback. is will help
reduce opposition to the policy and in-
crease its effectiveness.
• Consider the impact on employees. Can
the policy objectives be achieved by other
less intrusive means? If so, consider imple
-
menting those means instead.
• Ensure compliance with legislation.
Many workplace policies will engage em-
ployment-related statutes such as the Hu-
man Rights Code, Employment Standards
Act or Occupational Health and Safety
Act. When developing a workplace policy
be sure to take into account obligations
under all relevant statutes.
For more information see:
• Sault Area Hospital and Ontario Nurses
Association (Sept. 8, 2015), J. Hayes - arb.
(Ont. Arb.).
