HR Professional - October/November 2008 - (Page 32)

COVER STORY Christine Thomlinson, a partner with Rubin Thomlinson LLP, warns that “these cases are fraught with legal landmines.” In dealing with an employee with mental illness, Thomlinson advises assuming a judge or human rights commission will one day review everything and to map out a strategy accordingly. The key concept, she says, is: “Taking care to recognize the more vulnerable employee in the employment relationship is always going to serve HR people well.” THE AGED As the population ages, retirement issues are going to be more common. Recent legislation in Ontario dictates that not only can employers not force someone to retire when they are 65 (or older), they must also accommodate the frailties that come with age. The real challenge for employers now is managing the easily provable, but you’re starting to slow down a step or two.” If that 75-year-old is not performing their job up to standard, discriminated against because of their family status. If the employee is a professional—such as a lawyer, accountant or ‘‘ Employees have become much more litigious over the last 15 years. engineer—whose charge-out rate (and, therefore, compensation) is based on their experience, the problem is magnified. “If you fall behind in your level of experience in a profession such as law, it’s more difficult to justify to the client the same hourly rate. And yet according to human rights legislation, your compensation is generally driven off your hourly rate. So the employer is between the law and the needs of the client.” do you have to show that a bona fide occupational requirement is not being met? “The trouble is there hasn’t been a lot of case law developed to help employers over this,” says Christie. NEW PARENTS The combination of disability and human rights can sometimes have unexpected outcomes for the HR professional. Take maternity leave, for example. What is happening a ’’ 1950 1955 1960 1960 1965 1970 1975 19 Bardal vs. Globe and Mail (1960) Established “Bardal factors”—the primary elements of determining what an employee’s reasonable notice period should be (such as character of the employment, length of service, etc.). Machtinger vs. HOJ (1992) Employment contract provisions stipulating statutory minimum termination compensation are void and will not be taken into consideration in assessing an employee’s reasonable notice period. tail end of a long, productive career. “Let’s assume that you are a normal 75-year-old,” says Hugh Christie, partner and head of Gowlings LLP’s labour and employment group. “And you don’t have a condition—like Alzheimer’s—that is lot is that many women (and some men) exercise maternity leaves but then come back and realize they are now two grades below their peers who didn’t take leave, says Christie. The necessary legal implication is that they cannot be NAVIGATING DISMISSAL Given t he g enera l tr end i n favouring the employee over the employer in the courts and labour panels, nowhere is the old adage that an ounce of prevention is worth a pound of cure more 32 O c t o b e r / N o v e m b e r 2 0 0 8 HR P R OF E S S I ON A L

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

For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.