Canadian HR Reporter

CANADIAN HR REPORTER February 8, 2016 14 FEATURES HR Manager's Guide to Employment Files and Information Management: Legislation and Best Practices uniquely addresses the management of all types of employee information throughout the employment lifecycle, from recruitment to termination. Employment information and documentation management carries legal requirements that protect an organization from litigation, and are essential to the creation of sound policies for efficient, effective, and ethical business practices. Easy to read and understand, this new guide provides Human Resources professionals and others who deal with employee files, either electronically or in paper format, with: • Key legislation and emerging case law • Best practices in the areas of privacy, records retention, human resources information systems (HRIS), and information security • Practical guidance, tools and templates, such as sample policies • Information on all Canadian jurisdictions Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986618-65203 $70 Softcover approx. 100 pages April 2015 978-0-7798-6618-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00228VC-A49657-E98871 New Publication HR Manager's Guide to Employment Files and Information Management: Legislation and Best Practices A Canadian HR Reporter Special Report Howard A. Levitt, B.A., LL.B., and Tanya Neitzert, B.A., CHRP Brought to you by: T&D More than just a good idea or nice-to-have A look at the potential consequences for failing to provide adequate training By Liz Bernier A sk any HR professional to enumerate the benefits of providing robust, time- ly and proactive training and they'll probably talk your ear off. ere's certainly a business case to be made for investing in training programs, whether that investment is of time, money or both. But what's discussed less often are the potential risks and con- sequences of failing to provide adequate training — particularly when it comes to occupational health and safety and harassment. ere are a broad range of neg- ative outcomes that are possible when an employer does not pro- vide proper training, according to David Whitten, founding partner of Whitten & Lublin in Toronto. It can be as simple and seem- ingly innocuous as having an employee or department not perform well because they lack the necessarily skills training and development. But when it comes to lapses in safety training or training around workplace policies, that's where there can be legal consequences that can really come back to bite an employer, says Whitten. First of all, failing to train em- ployees on proper procedures, safety training or even ergonom- ics can lead to a higher number of disability claims, he says — which can become costly for the employer. "People are off work because they've been injured. And if you're covered by the Workplace Safety and Insurance Act, which a num- ber of employers in this country are, you're going to have to deal with the Workplace Safety and Insurance Board when they try to adjudicate these claims," he says. "If you're not covered by the Workplace Safety and Insur- ance Act, you might also find that employees are suing you for negligence." ere is a differentiation there because if an employer is covered by the act, its employees can't sue for a work-related injury. But em- ployers that aren't covered could be open to those types of personal injury claims. There is also the provincial ministry of labour to worry about, says Whitten. "ey enforce the Occupational Health and Safety Act which re- quires you to train employees on unsafe scenarios and provide safety training." Further to general safety train- ing, there is also required WHMIS training or Workplace Hazard- ous Materials Information Sys- tem training, which carries legal consequences if employers don't provide it properly. "When people are dealing with toxic chemicals or any kind of chemical, it's surprising how in- nocuous stuff that you wouldn't even think was a toxic chemical (actually is considered one)," says Whitten. For instance, some of the mate- rials that are used in photocopiers are considered hazardous — yet in an office environment, many em- ployers don't even think to pro- vide hazardous materials training. Failing to provide training can potentially cause trouble during a termination, as evidenced in one widely cited case. In the 2012 Shakur v. Mitch- ell Plastics, two workers became involved in a verbal altercation which escalated until one worker slapped the other across the face with an open hand. e worker — who had six years of service, a clean disciplinary record and no history of violence or anger issues — was terminated for cause. However, when the employee sued for wrongful dismissal, the judge stated the employer had done nothing to adequately train employees on its workplace vio- lence policies. It did nothing be- yond distributing the handbook, and accompanying revisions, to employees and leaving them to read it and interpret it for them- selves, said the judge. Although rarely seen, there is also the potential for personal li- ability and criminal charges un- der Bill C-45, also knows as the Westray Bill, which came about in 2004 after 26 miners were killed in a mining disaster in 1992. "Now, there's personal liability for directors and owners under the Occupational Health and Safety Act — if they're aware of an unsafe work scenario and al- low it to continue, they could be criminally charged." In fact, a 2015 case in Ontario saw two corporate directors with NewMex Canada, a Brampton, Ont.-based furniture retailer, receive jail time and a $250,000 fine for failing to provide health and safety training. at, among other safety violations, was found to be the cause behind the death of a forklift operator in 2013. e two directors were charged with failing to take reasonable care the corporation complied with OHS legislation, and New- Mex Canada pleaded guilty to failing to provide information, instruction and supervision to a worker regarding fall protection and working from a height. Psychological safety Another issue that's not always ad- dressed is that of providing proper training around psychological safety and workplace harassment — which has led to a number of high-profile cases recently, says Whitten. In 2015, the Canadian Olym- pic Committee came under fire after receiving significant media attention for a so-called "culture of harassment" within the organi- zation. Former president Marcel Aubut, 68, stepped down after being accused by multiple women of unwanted touching and sexual comments. Investigators found there was insufficient training around workplace harassment at the or- ganization and recommended "education, including a manda- tory training session for staff and board members on harassment policies and procedures." The organization received a significant amount of negative media attention and — arguably — reputational damage because of the incident. Failing to provide training around workplace harassment could also see employees taking stress leave, just like with a physi- cal injury, says Whitten. "What's happened is the Work- place Safety and Insurance Board has begun approving more claims for work-related stress and anxi- ety. ey used to only approve it if somebody got killed (for in- stance), but now they've started to approve stress-related claims for "What's happened is the Workplace Safety and Insurance Board has begun approving more claims for work-related stress and anxiety." Credit: Matej Kastelic (Shutterstock) HUMAN > pg. 15

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