Contracts, Dental, Employment Law, Health and Safety, Human Rights

Changes to the Occupational Health and Safety Act: Ready or not, here they come

Open the newspaper on any given day, and it would not be surprising to see a new story on a sexual harassment issue in the workplace (hint: think Ghomeshi).

Society is intolerant of this conduct. It appears the Ontario Government has listened. On March 8, 2016 Bill 132 (titled: “Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015”, received Royal Assent. The Bill will officially come into effect on September 8, 2016. Of importance to dentist employers, Bill 132 amends Bill 168 (Workplace Violence and Harassment) of the Occupational Health and Safety Act (“OHSA”), which previously came into effect in 2010, and creates significant new obligations for employers in Ontario.

Upon coming into effect in 2010, Bill 168 created obligations on employers regarding workplace violence and harassment, including developing and implementing appropriate policies and programs. However, Bill 168 did not contain an explicit provision dealing with sexual harassment. Further, a major deficiency in Bill 168 was that, although it created obligations for employers concerning harassment and violence, there was no real mechanism to enforce those provisions. As lawyers say, “it lacked teeth”. Well, no more. Bill 132 creates new obligations for employers surrounding the prevention, training, investigation and resolution of workplace harassment, particularly workplace sexual harassment. Bill 132 also provides the Ministry of Labour with significant powers to deal with matters of harassment, sexual harassment, and violence.

Sexual Harassment

Harassment under Bill 168 was defined as: engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. Bill 132 expands the definition of harassment under the OHSA, which now reads as follows:

“workplace harassment” means:

    1. engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
    2. workplace sexual harassment

As you will see, “workplace sexual harassment” is now specifically prohibited by the OHSA.  Workplace sexual harassment is defined under the OHSA as follows:

  1. engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
  2. making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

The Ontario Human Rights Code and Bill 132

Sexual harassment has always been conduct prohibited by the Ontario Human Rights Code. Under the Code, sexual harassment constitutes discrimination on the basis of sex. An employee who experiences sexual harassment in the workplace can commence an application at the Human Rights Tribunal, seeking, amongst other things, damages related to the sexual harassment.

Further, cases from the Human Rights Tribunal of Ontario have stated that employers have a “duty to investigate” legitimate complaints of harassment in the workplace, when those complaints are linked to any enumerated ground (such as sex, race, religion, etc.). Failing to properly investigate legitimate complaints of harassment can result in liability for the employer.

With the advent of Bill 132, there are now two avenues available for an employee who has experienced sexual harassment in the workplace. While Bill 132 does not provide the Ministry of Labour with the authority to award monetary amounts to harassed employees (in contrast to the Human Rights Tribunal), it does provide the Ministry of Labour with the authority to order an employer to conduct an investigation into any complaints of harassment. The cost of this investigation is to be borne by the employer, and such investigations are not cheap. If an investigation is ordered, and sexual harassment is deemed to have occurred, the employee could rely upon this investigation in seeking damages from the Human Rights Tribunal.

Written Workplace Management Program

Bill 132 requires all employers to implement specific written programs in the workplace. These programs must:

  1. include measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  2. set out how incidents or complaints of workplace harassment will be investigated and dealt with;
  3. set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;
  4. set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and
  5. include any prescribed elements.

As noted above, Bill 168 required employers to have proper violence and harassment policies in place. However, simply having a written program on workplace harassment will no longer suffice, as Bill 132 confirms that such programs must also be implemented appropriately.  An employer must now ensure:

  1. an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
  2. the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation; and
  3. the program developed is reviewed as often as necessary, but at least annually, to ensure that it adequately implements the policy with respect to workplace harassment.

Dentist employers in Ontario should take steps to ensure they are in compliance with Bill 132 prior to September 8, 2016. Steps that should be taken include:

  • Reviewing and updating existing Workplace Violence and Harassment Policies;
  • Ensuring that Employers are aware of their responsibility to investigate allegations of sexual harassment, including training on how to investigate such complaints; and
  • Training employees and staff on the new laws, to ensure that all staff are aware of their obligations with respect to sexual harassment in the workplace.

Issues of sexual harassment in the workplace are serious, and Bill 132 reflects society’s intolerance for such behavior. Employers must take steps to proactively deal with issues of sexual harassment, or face serious consequences if they fail to do so.

Are you ready to comply? We can help.

If you wish to have proper policies drafted, or have existing policies reviewed, please contact Matthew Wilton at matthew@wiltonlaw.com, or Paul Martin at paul@wiltonlaw.com, or by phone at 416.860.9889.

*The foregoing is not intended to be legal advice and is provided for educational purposes only.  You should retain a lawyer to seek advice prior to taking any legal steps.

Contracts, Dental, Employment Law, Independent Contractors

Independent Contractors: Don’t Judge a Book by its Cover

There is a widespread, but potentially risky, practice within the dental industry of characterizing hygienists as “independent contractors”, as opposed to employees. Despite the prevalence of this practice, there remains much confusion surrounding the distinction between the two categories of worker. Improperly labeling, and paying, a hygienist as an independent contractor, as opposed to an employee, can have serious legal consequences from both a tax and employment law perspective. Continue reading →

Associate Dentists, Associates, Contracts, Dental, Employment Law, Restrictive covenants

Non-solicitation Clauses: Thou Shalt not Solicit

It was noted in Part 1 of this series that Courts prefer the use of non-solicitation clauses to the use of non-competition clauses. As stated, Courts will engage in the following three-part analysis when tasked with determining the enforceability of non-competition clauses in associate agreements:

  • Whether there is a proprietary interest worthy of protection;
  • Whether the spatial (geographical) and temporal (time) aspects of the clause are reasonable; and
  • Whether, in contrast, a non-solicitation clause would adequately protect the principal’s interests. As was noted, in most cases, this is the factor that defeats the enforceability of an otherwise reasonably drafted non-competition clause.

What is a non-solicitation clause? Continue reading →

Associate Dentists, Contracts, Dental, Employment Law, Restrictive covenants

Tightening the Shackles: Non-competition Clauses in Agreements of Purchase for Dental Practices

In our last post, we discussed the general prohibition against the enforceability of non-competition clauses in agreements between associates and principals. However, as alluded to in that post, non-competition clauses are also used in agreements of purchase for dental practices, and the Courts have, in contrast, displayed a willingness to enforce non-competition clauses in such transactions. Continue reading →

Contracts, Dental, Employment Law, Restrictive covenants

Non-competition Clauses: Iron Shackles or Paper Tigers?

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We are routinely consulted by newly graduated dentists concerning their first associate agreement. Their number-one concern is invariably the non-competition clause contained in the agreement. A non-competition covenant attempts to restrict the associate from working within a defined zone surrounding the Principal’s business, for a defined period of time, after the termination of the relationship with the principal. Understandably, new dentists are often apprehensive about signing an agreement with a Principal that restricts them from practicing in any way in the event the relationship fails.

We are also frequently contacted by Principal dentists with concerns that a former associate is in breach of the non-competition clause contained in their associate agreement. The Principal, wanting to protect their business at all costs, is often disappointed in the advice we give them concerning the enforceability of the non-competition clause. Continue reading →

Contracts, Dental, Employment Law, Human Rights

The Duty to Accommodate in Dental Offices

We receive calls every week from dentists complaining about employees who are taking too many illness or disability related absences. Dentists are frustrated because in a small office the absence of even one employee can be incredibly disruptive. Ten percent of employees are unscrupulous and will abuse the right to take sick days. We also routinely encounter employees who are disciplined by the employer for not doing their job properly, and suddenly struck down with an undefined illness for an indefinite duration.

Employers cannot terminate employees on the basis of the employee taking time off due to illness. This is because under the Ontario Human Rights Code, the employer has a duty to accommodate the employee in respect of any disability. Continue reading →

Dental, Employment Law, Unions

Unions in Dental Offices: What are my rights?

If the term labour union conjures up images of “blue-collar” automotive or factory workers, then you likely are not aware of the changing face of unions in Canada.

In 2014, Credit Valley Oral Surgery was the first dental office to become unionized in Ontario. We are receiving an increasing number of enquiries concerning unionization, and it is believed that a specific union is targeting dental offices for unionization. If this is to occur, it will represent a seismic shift in the employment law landscape for dentists. Continue reading →

Contracts, Dental, Employment Law

Haste Makes Waste: The Danger in Allowing an Employee to Commence Employment Before Properly Implementing a Dental Employment Contract

“You’ve got the job, I’ll send over the agreement later.”

After reading part 1 and part 2 of our last posts, you are familiar with why dental employment contracts are vital, and you will also know that the easiest way to implement a contract is to have the employee sign it before they start. Based on this, what could possibly be wrong with uttering the words at the top of this post?

We consistently run into employers who have taken the time to prepare a new written employment agreement and have a new employee sign it, before the start of their first shift. Unfortunately, it is quite often the case that these employment agreements were actually signed after the employee truly commenced employment. The employer, after taking the time to get the contract in place before the employee starts their shift, could still run the risk of having the dental employment contract deemed unenforceable. This is a most unfortunate occurrence, but sadder still, one that is commonplace. Continue reading →

Contracts, Dental, Employment Law

An Ounce of Prevention: The Benefits of Dental Employment Contracts (Part 2)

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In the last post, we provided an overview of some of the benefits a properly drafted dental employment contract can provide to an employer. In this post, we will discuss the methods by which an employer can impose a new dental employment contract on existing employees.

Implementing the Agreements

If possible, we recommend that employers put employment contracts in place prior to the employee commencing employment, by having prospective employees sign written offers of employment before commencing employment. This ensures that the terms of employment are clear from the beginning of the relationship. However, the reality is that many dental offices have employees working without written agreements in place. In cases where a dentist has employees working without written dental employment contracts, steps should be taken to ensure they are implemented sooner rather than later. Continue reading →

Contracts, Dental, Employment Law

An Ounce of Prevention: The Benefits of Dental Employment Contracts (Part 1)

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A question we often receive from dentists who run their own practice is: “What are the benefits of having written dental employment contracts in place?” Often (and unfortunately), this question comes too late, and a dentist employer is already entangled in a costly legal dispute with a former employee. The simple answer to this question quickly becomes evident: Employment contracts provide the dentist employer with protection and certainty of terms, both during, and at the end of, the employment relationship.

Over the course of two posts, we will provide you with an outline of the benefits of implementing dental employment contracts in your office, as well as information on how the implementation process must be handled.

So, what are the benefits?

Continue reading →