Canadian HR Reporter

CANADIAN HR REPORTER November 14, 2016 EMPLOYMENT LAW 5 Jeff rey Smith LEGAL VIEW Start by learning the key components with Basic Workplace Investigation Techniques & Report Writing Workshop or enhance your skills with one of our Advanced training sessions. • Investigating Complex Cases • Interviewing and Dealing with Difficult Witnesses • Assessing Credibility • Conducting Workplace Assessments • The Essential Human Rights Primer for Workplace Investigators • Understanding and Addressing Bias • Conducting Sexual Harassment and Violence Investigations Basic and Advanced Workplace Investigation Training for HR Professionals from Canada's Leading Workplace Investigation Experts. For more information and for workshop dates call or visit: (416) 847-1814 | RTworkplacetraining.com | RubinThomlinson.com Learn to address inappropriate workplace behaviour before it becomes a legal issue. Ending LTD benefi ts at 65 not age discrimination: Adjudicator Worker claimed she was forced to retire, take pension after LTD benefi ts ended Mandatory retirement no longer exists in Ontario, meaning workers who reach the age of 65 can continue working if they wish. Employers that try to pressure older workers into retiring can face claims of age discrimination. But does this right apply to workers receiving long- term disability benefi ts? Not if the plan specifi es that benefi ts end and the pension begins at 65, accord- ing to an adjudicator. Trudy Austin began working for Bell Canada in 1969. In 2002, she had to go on long-term disability (LTD) leave. Bell's LTD plan in- cluded an income protection pro- gram that stipulated benefi ts — upon which the employee would continue to make pension con- tributions the same as if actively working — would end when the employee reached 65 years of age. At that point, the pension benefi ts earned under the company's pen- sion plan would kick in. In 2014, Austin suffered a medical issue that required some recovery. By October of that year, she felt stronger and more confi - dent, so she thought she could try to return to work after 12 years of LTD leave. She saw her doctor, who informed Bell that Austin was ready to try to return to work. Over the next couple of months, a plan was formulated for a gradu- ated return to work in an accom- modated position. The return-to-work plan in- volved Austin working at a Bell lo- cation in Mississauga, Ont. How- ever, Austin's lawyer wrote to Bell saying that location would cause undue hardship for Austin. e lawyer then asked about the pos- sibility of an exit package for her. Bell advised Austin it would ac- commodate her further by allow- ing her to fi rst work at home and then out of its offi ce in London, Ont., closer to her home. Nearly a month later, Austin wrote to say she wasn't well enough to return to work and was going to be re- assessed by her doctor. Bell requested Austin submit an updated physician's report to evaluate her continued eligibility for LTD benefi ts. Austin's lawyer again asked about a package as an incentive to retire but Bell replied that Austin was not being termi- nated and there was no package. Worker faced choice at age 65 On Feb. 5, 2015, Bell received a physician's report stating Austin would be unable to return to work in the foreseeable future. How- ever, that month, Austin turned 65 years old, so Bell informed her that her LTD benefi ts would be discontinued and she could start receiving a pension. e company said if Austin chose not to start receiving her pension, she would be considered to be on an unpaid leave of absence. Normally, employees receiv- ing LTD benefi ts were sent their pension kit three months before they turned 65 so they would start receiving their pension on time. However, Austin didn't receive hers until January 2015 — two months before her birthday — be- cause of her plan to return to work in October 2014. Austin signed her pension forms on March 7. In April, she started to receive pension pay- ments from Bell. And in May 2015, Austin fi led an unjust dismissal complaint, claiming Bell constructively dis- missed her by discriminating against her on the basis of age and forcing her into retirement by ter- minating her LTD income. Austin argued that Bell's LTD plan stated that all regular em- ployees were eligible for the plan so, with no mandatory retirement at 65, there was nothing prevent- ing Bell from continuing her LTD payments past age 65. Bell's dis- continuance of LTD payments forced her to make a choice of either going on unpaid leave or giving up her employee status and retiring. Financial necessity required her to retire so she would receive pension income, said Aus- tin, and this duress constituted constructive dismissal. Austin also sought a declaration that the provision in Bell's income protection program terminated LTD payments at age 65 was un- lawful and unenforceable. But the adjudicator found that the Canadian Human Rights Ben- efi ts Regulations under the Cana- dian Human Rights Code specifi - cally allow insurance plans to end benefi ts for employees who reach "not less than 65, or the normal pensionable age under the pen- sion plan of which the employee is a member, whichever occurs fi rst." As a result, it wasn't illegal for Bell to discriminate based on age when it came to LTD benefi ts at age 65. "When LTD payments to Mrs. Austin ceased when she reached the age of 65, it was not the result of a discriminatory provision or practice that was illegal, but rather because it was in compliance with Bell Canada's LTD plan, the terms of which had not changed since 1992, and a provision specifi cally permitted under the Canadian Human Rights Regulations," said the adjudicator. ere was no duress for Aus- tin when she chose to end her employment and begin receiving pension payments, found the ad- judicator. ough the choice may have been diffi cult, there was no evidence showing Bell threatened or coerced her into choosing one option over another. In addition, there was no "unex- pected or unavoidable event" that negatively aff ected the employ- ment contract that could warrant severance pay, said the adjudica- tor. Bell didn't terminate Austin's employment; rather, she elected to take her pension and no longer be an employee, leaving no con- sideration for severance or rea- sonable notice. The adjudicator determined Bell Canada properly terminated Austin's LTD benefi ts, as allowed under the LTD plan, and did not place her under any duress that aff ected her decision to retire and begin receiving her pension. Aus- tin's claim was dismissed. For more information see: •Austin and Bell Telephone Co. of Canada, Re, 2016 CarswellNat 4451 (Can. Lab. Code Adj.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. ere was no duress for Austin when she chose to end her employment. e threat is big for any organi- zation, said Faith Tull, senior vice- president of human resources at Randstad in Toronto. "We remind people not to open unfamiliar emails or resumés that they weren't expecting: Always be careful opening attachments." Regular campaigns are a good way to remind employees of the dangers, she said. "We have awareness campaigns about security so it's top of mind for our employees," said Tull. "We can't rest on our laurels. e big- gest protection is awareness." Workers should be educated and reminded that the threat of ransomware and other malware is always present, said Mirpourian. "A lot of it has to do with pre- vention through education," she said. "It's also creating communi- cation initiatives that will educate the organization at large." "You can have the best policies, tools from a security perspective but without the implementation and the understanding from an end-user perspective as to what the potential risks could be, you're not necessarily preparing yourself for the best-case scenario." Computer security training should be done when an employee is fi rst hired, and then reinforced constantly, says Myers. "We need to be reminded how to do this," she said, adding some companies conduct a "fi re-alarm" test by sending an email that mim- ics malware, and whoever clicks on it will receive further training. "(It's) the idea of preparing peo- ple to behave in a way that is use- ful when they're in an emergency or when they are not especially thinking really clearly," said Myers. The C-suite is ultimately re- sponsible for positioning the company to withstand a security attack, said Mirpourian. "CIOs need to make sure that they have the right technical tools available to them to protect them from such risks but also commu- nicate the best practices of those tools to ensure they are mitigating the risk of potential ransomware from threatening the organiza- tion," she said. "As an organization constantly evolves with new individuals coming in to the various groups, there needs to be a constant com- munications of security best prac- tices from the leadership group." Reinforce training RANSOMWARE < pg. 2

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