HR Professional - October/November 2008 - (Page 31)

CHANGES TO THE ONTARIO HUMAN RIGHTS TRIBUNAL The Ontario Human Rights Tribunal is a quasi-judicial, independent agency that adjudicates cases of discrimination, harassment and reprisal under the Human Rights Code. In order to streamline the system, since June 2008 all new discrimination applications under the code are filed directly with the tribunal, instead of being referred by the Ontario Human Rights Commission, as was previously the case. This is a significant move, but just how much is it going to affect HR departments? “It will have a fairly big impact in terms of how cases dealing with human rights are litigated,” says Malcolm MacKillop, a partner with Shields O'Donnell MacKillop LLP. “What we are seeing now is that when employees get terminated, they contend they are also the subject of a human rights code violation because, for example, they are disabled. The issue is going to be whether or not a court is going to be able to impose remedies that are under the Human Rights Code, such as reinstatement, back pay or damages for hurt feelings because of the breach. Some employment lawyers believe the changes will increase the number of cases that go to the tribunal. Whether this will end up being more efficient is still of concern to many observers. “Certainly the idea is that it will be quicker and more efficient,” says Christine Thomlinson, a partner with Rubin Thomlinson LLP. “But the way the process is set up, it entitles anyone bringing a complaint to have a hearing— to which our initial response was: ‘Are you kidding?’ So many of the cases we see appear to have no merit and under the old system at least there was a mechanism that resulted in many of them not proceeding. We are being assured that there will now be some form of vetting, either in the form of an intake process or through mediation or officer review in advance of a hearing. That will be critical if the tribunal is to not get bogged down with cases that have no merit.” What is clear is that a faster, more litigious system means HR professionals will have to work harder at making their companies litigation-proof. “The operative word is ‘proactive,’” says Michael Sherrard, an employment lawyer with Sherrard Kuzz LLP. “In the old days when you had a human rights complaint, you filled out your response and then you waited from 18 to 24 days. The new process suggests there will be quicker disposition times.” He also suggests having clear policies that are proactively communicated annually and provide some legal training for HR and perform internal audits to test its compliance rates. AY BACK IN 1986, THE relatively simple dismissal of an employee resulted in a landmark legal decision that is still reverberating through the HR profession. When the Supreme Court of Canada sided with Jack Wallace—who had been dismissed without cause after 14 years—against United Grain Growers Ltd., it set a legal precedent that changed the employment law landscape. In effect, the Supreme Court’s decision in Wallace told employers that employment relationships are extremely important and if they did things that can be seen as irresponsible and inappropriate, they were going to be punished. This was a groundbreaking case—employers suddenly had to consider the effect dismissal had on the mental and social well-being of employees. They had to consider how the dismissal was done, not just why. And that was just the thin edge of a legal and cultural wedge that has changed and complicated labour and employment law over the past 20 years. Of course, changes to the legal environment are being seen in other areas too, such as evolving demographics and the surging use of communications technology in the workplace. But they are also driven by society’s increasing focus on human rights. It’s no coincidence that the Ontario Human Rights Tribunal was recently allowed to take over workplace grievance functions (see sidebar right). This trend appeared to be given further impetus by another well-known landmark case, Keays vs. Honda Canada Inc. However, the Supreme Court recently set aside damages awarded against Honda by lower courts, which has at least slowed the pendulum swing in favour of employees (see sidebar on page 33). Wallace, plus more recent ones—including a Canadian Human Rights Tribunal decision against the RCMP, about a cadet who was racially taunted during training; the Supreme Court’s decision in McKinley vs. BC Tel, which stressed that the nature and context of alleged misbehaviour must be considered in assessing just cause for dismissal; and the Ontario Court of Appeal’s decision in Simpson vs. Consumers’ Association of Canada, which addressed sexual harassment in the workplace and the duties of a manager/employer—all demonstrate that the legal playing field is being levelled in favour of human rights. “One of the biggest HR developments over last 10 to 15 years,” says Malcolm MacKillop, an employment litigator with Shields O’Donnell MacKillop LLP, “is that, in terms of the courts, there is a very strong sense that employees don’t have as much bargaining power as employers. But the reality is that in areas of dismissal or human rights—and particularly disability—employers don’t succeed that often.” ACCOMMODATING THE DISABLED The issue of workplace disability accomodation has become more complex over the past few decades. For one thing, it is not always about physical disabilities, which can often be accommodated in the workplace relatively simply with special software or ramps. Mental disability, however, is another matter. It could manifest, for example, as someone who is off on a disability leave and is not communicating with their employer because they are experiencing a major depressive episode. W C L O C K W I S E F R O M T O P L E F T; 1 . M A L C O L M M A C K I L L O P, SHIELDS O'DONNELL MACKILLOP 2. MICHAEL SHERRARD, SHERRARD KUZZ 3. HUGH CHRISTIE, GOWLINGS 4 . J O H N M A RT E L L I , B R U C E POWER 5. CHRISTINE THOMLINSON, RUBIN THOMLINSON w w w.H RThought L eader. c om O c t o b e r / N o v e m b e r 2 0 0 8 31 http://www.HRThoughtLeader.com

Table of Contents Feed for the Digital Edition of HR Professional - October/November 2008

HR Professional - October/November 2008 Contents Editor's Letter Contributors Leadership Matters Upfront Legal Compensation Human Capital Talent Management Murphy’s Law Wise Counsel On Message HR 101 Interview with Joseph McCool Off the Shelf The Last Word

HR Professional - October/November 2008

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