Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER May 1, 2017 14 FEATURES PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com September 14, 2016 Wrongful dismissal damages — Bonus entitlement BY RONALD MINKEN FOR some workers, a bonus makes up a signifi cant portion of their remuneration. For others, a bonus is something that may or may not be provided by their employee at specifi c times of the year — such as Christ- mas, for example. Often, an employee who is dismissed without cause will ask whether her entitle- ment to wrongful dismissal damages will in- clude a component for lost bonuses. Compensation for wrongful dismissal can include an amount for a bonus which the employee would have been entitled to re- ceive during the notice period. In the absence of an employment agree- ment specifying to the contrary, the question is whether the bonus has become an essen- tial component of the employee's remunera- tion or whether it is essentially a gift — to be delivered at the employer's sole discretion. A recent decision of the Ontario Court of Appeal, Paquette v. TeraGo Networks Inc., dealt with this issue. When Trevor Paquette was fi red by Tera- Go Networks, the dismissed employee and his former employer could not agree on a severance package. Paquette brought a sum- mary judgment motion to determine the pe- riod of reasonable notice and damages. e motions judge awarded notice at 17 months and based damages on salary and benefi ts that Paquette would have earned during the 17-month notice period. e motions judge did not award damages for bonuses, because the employer's bonus plan required an em- ployee to be "actively employed" at the time the bonus was paid. Paquette appealed that decision on the issue of whether the motion's judge made a mistake in not including compensation for lost bonuses. e Ontario Court of Appeal allowed the appeal. e motion judge erred in focusing on the Nurse fi red for forcing care on resisting care home resident Intentions were good but nurse made a mistake forcing protesting resident to have a shower, resulting in injuries to resident BY JEFFREY R. SMITH AN ARBITRATOR has upheld the dismissal of a registered practical nurse at an Ontario long- term care home after a resident suff ered injuries after resisting care and the nurse failed to fi le an incident report. Chester Posada was a regular part-time reg- istered practical nurse (RPN) at Bendale Acres, a long-term care home operated by the City of Toronto. He was hired in September 2008 and worked in the behavioural response unit, a locked area housing cognitively impaired residents who could act out. On Aug. 20, 2014, Posada was working in the unit with three other staff members. One of the patients, an 86-year-old man referred to as TS, suff ered from dementia and several other affl ic- tions that required him to be on blood thinners. e blood thinners increased TS' susceptibility Intoxicated, dishonest -- and reinstated with full pay pg.3 Employe ignored sunset clause in collective agreement CREDIT: LIGHTHUNTER/SHUTTERSTOCK Getting ready or legalized marijuana pg. 4 Employers will have to treat employee use somewhat differently -- but still as an intoxicating substance ASK AN EXPERT pg. 2 Employee harassment outside work ACTIVE on page 7 » EMPLOYER on page 6 » with Stuart Rudner Canadian Employment Law Today is an indispensable tool in keeping managers, business owners, trade unions, HR professionals and law firms up-to-date on the latest developments in employment law. COMPLY WITH THE LATEST EMPLOYMENT LEGISLATION To order your subscription call 1.800.387.5164 | 416.609.3800 www.employmentlawtoday.com/subscribe Subscribe today for only $299 Order No. 20612-17 MENTAL HEALTH 3 things employers should know about substance dependence Human rights-based approach important first step in addressing issue By Rebecca Gowan I t is time to get this right. Substance dependence is common and the stakes are high — too high to allow stigma and discrimination to continue to stop people from either com- ing forward for help or support- ing recovery. A human rights- based approach to addressing substance dependence in the workplace is an important step in getting this right for everyone. Here are three things employers should know when it comes to substance dependence: Substance dependence affects everyone Substance dependence is in- credibly common: 21.6 per cent of Canadians meet the crite- ria for a substance use disorder over their lifetimes, according to the 2012 Canadian Commu- nity Health Survey from Statis- tics Canada, which had 27,500 respondents. is means most of us have experienced or wit- nessed firsthand the negative impact this condition can have on individual health, well-being and relationships. e impact on workplaces is also significant: Substance depen- dence may result in an increase in absenteeism, decrease in work quality and productivity, and an increase in workplace accidents. There are also considerable economic costs: In 2002, the to- tal annual cost of substance abuse on Canadian society was $39.8 billion, according to a 2006 study by the Canadian Centre on Sub- stance Abuse, measured in terms of the burden on services such as health care ($8.8 billion), law en- forcement ($5.4 billion), and the loss of productivity at work or home ($24.3 billion). Yet a majority of Canadians who are dependent on alcohol or drugs are employed — 73.3 per cent, according to the Canadian Community Health Survey. What does this mean for employers? It means there is a very high chance an employee may be struggling with substance dependence at their workplace. Substance dependence is a disability Unfortunately, a fear of stigma and discrimination often pre- vents people with substance de- pendence from addressing the problem and seeking treatment. is is the case even though it is an illness. A dependence on drugs or al- cohol (substance dependence) is defined as a disability, accord- ing to the Canadian Human Rights Act. This means when an employee is diagnosed with substance dependence, he has a right to be accommodated by his employer — just as anyone else with a disability. "We want employers to ap- proach substance dependence with the same understanding and compassion that would be extend- ed to an employee with any other illness," says Marie-Claue Landry, chief commissioner of the Cana- dian Human Rights Commission. ere is a new guide to help employers Employers have told the commis- sion they need more tools, skills and knowledge to address impair- ment and substance dependence in a way that is in harmony with human rights. In response, the commission has developed a guide for employers so they know what to do if they believe an em- ployee may be impaired at work and, more importantly, how to go about accommodating substance dependence in the workplace — while, above all else, ensuring workplace safety. The purpose of the guide, Impaired at Work: A Guide to Accommodating Substance De- pendence, is to help Canadian employers understand, first and foremost, that substance depen- dence is a form of disability pro- tected by the Canadian Human Rights Act. is means when an employee is dependent on drugs or alcohol, an employer has an obligation to accommodate and support her recovery. e guide takes employers and managers through the five-step process of what to do if they be- lieve an employee is impaired at work or dealing with substance de- pendence — from how to start the conversation, to when to consider accommodation, to how to ensure job performance and workplace safety are not suffering. And all of this should be done while still meeting human rights obligations. It is not an employer's job to diagnose an employee or know if he has a disability related to substance dependence — this is the job of a medical professional. And in order for accommodation to work, the employee must be willing to participate in the pro- cess and take responsibility for his recovery — which can be difficult because denial is often a factor. Employers are encouraged to approach each employee's situa- tion on an individual basis, and to build accommodation, pro- actively, into the way they do business. The commission's guide also provides human rights consid- erations on another particularly complex issue: Drug and alcohol testing. e guide also gets into detail about a particularly important part of the accommodation pro- cess: Requesting relevant medical information. is step requires the balancing of two competing rights: The employer's right to manage the workplace and the employee's right to privacy. e guide provides guidance on how to balance these two rights, and identifies the roles and duties of employers and employees. It identifies the type of information an employer should provide the medical professional, and lists the questions the employer should ask the medical professional. e guide also identifies situa- tions when it may be appropriate for an employee to undergo an independent medical evaluation, and provides good practices. Many of today's employers are concerned about the possible impact the legalization of recre- ational marijuana might have on the workplace. ey are seeking advice on how to address possible impairment and protect work- place safety and public safety. These are valid concerns, and these are complex issues. But, at the end of the day, the goal of the commission's guide is to help employers understand that when it comes to addressing possible impairment in the work- place — whether it is as a result of marijuana use, prescription medication or any other source of impairment — employers should follow the same steps and prin- ciples outlined in the guide. Rebecca Gowan is a senior policy ad- visor at the Canadian Human Rights Commission in Ottawa. She can be reached at rebecca.gowan@chrc-ccdp. gc.ca or (613) 286-3829. For the com- mission's guide, visit www.chrc-ccdp. gc.ca. Credit: Marcos Mesa Sam Wordley (Shutterstock) according to the MHCC, and peer-reviewed studies show the benefits for individuals trained in the program: • ey increase their knowledge of signs, symptoms and risk factors of mental health problems. • ey decrease the social distance between themselves and some- one with a mental health problem. • ey increase their confidence to help someone experiencing a mental health crisis. • ey can identify professional and self-help resources for in- dividuals with a mental health problem. • They show increased mental wellness themselves. MHFA is quickly empower- ing organizations to uncover problematic factors and discover meaningful solutions as a col- laborative team, which is key to sustainable change. Working to- gether with leadership, middle management and front-line em- ployees, and using psychological health and safety practices, will set organizations apart and ensure lasting organizational change. Psychological health and safety and mental wellness is a shared responsibility. e workplace may not always be part of the issue, but it can always be part of the solution. Based in Regina, Adelle Stewart is director of operations and Ashley Breland is program co-ordinator at Bridges Health, specialists in work- place wellness. For more informa- tion, call (877) 202-3472, email info@ bridgeshealth.com or visit www. bridgeshealth.com. Responsibility should be shared MHFA < pg. 13 A diagnosis of substance dependence means a right to be accommodated.

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