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Chapter 9: Equity in the Workplace Three Laws Related to Equity in the Workplace; 1.

Employment Standards Act (Ontario) requires that men and women receive equal pay for equal work Section 42 makes it illegal to pay EEs of one sex less money for doing the same work as EEs of the other sex exceptions are allowed only if the difference in compensation is based on seniority, merit, productivity or any other factor not based on gender an ER may not reduce the rate of pay of the high-paid gender to comply with the law; under s. 42(3), it must raise the pay of the low-paid gender enforced by requiring individuals to file a claim with the Ministry of Labour 2. Pay Equity Act (Ontario) requires employers to provide equal pay for work of equal value comparison is made between the value of the jobs, not their content in a job evaluation an ER must base job value on requisite levels of skill, effort and responsibility as well as on working conditions enforced proactively by obliging ERs with 10 or more EEs to evaluate jobs in their workplaces and correct any discrimination in compensation premised on the idea that these jobs are poorly paid because they are primarily performed by women covers all ON public sector ERs and all provincially regulated private sector ERs with 10 or more EEs set wage rates on the jobs inherent value, not the market evaluation 3. Employment Equity Act (Federal) requires federally regulated companies with 100 EEs or more to implement empt equity focussed on improving job opportunities for women, people with disabilities, visible minorities and Aboriginal people range of measures including affirmative action and other programs aimed at ensuring equality in the workplace requires large federally regulated ERs to implement employment equity programs in their workplaces

reduced the wage gap from 38% in 1988 to 29% in 2008 effectiveness has been limited by reduced funding for enforcement during the 1990s and the ON governments failure to continue pay equity adjustments to the female-dominated broader public sector after 2005 Section 2 requires ERs to identify workplace barriers and develop equity plans for the 4 designated groups this program identifies and removes the barrier and replaces it with a practice that is more inclusive applies to; banks, transportation companies, communication companies, ERs with 100 or more EEs, Crown corporations and the federal public service ERs covered by the act are known as legislated employment equity plan employers (LEEP) Achieving Pay Equity 1. Identify establishments how many establishments it has in ON and the number of pay equity plans it requires sets the boundaries for the plans that en ER must prepare the job comparisons that is must make 2. Identify gender-dominant job classes group jobs into job classes positions with similar duties that (a) require similar qualifications, (b) are filled by similar recruiting procedures and (c) have the same compensation schedule or range are considered to be part of the same job class a job class is considered a female job class if at least 60% of the positions are held by women, have been held by women or are perceived as being womens work a job class is considered to be a male job class if at least 70% of the positions are held or have traditionally been held by men 3. Select a gender-neutral job evaluation system 4 designated factors in making its comparisons; skill, effort, responsibility, and working conditions the goal of the job evaluation is to recognize the contribution that a job makes to an organization 4. Compare female and male job classes

a. Direct job-to-job comparison for a comparable male job class within the same bargaining unit as the female job class pay equity is achieved when the female job class and the male job class of comparable value have the same job rate (highest rate of compensation for a job class) if no comparable male job class, the female job class can be compared with all jobs in the establishment b. Proportional value comparison used when an ER cannot find a direct match for one or more of its female job classes using the job-to-job comparison method ER establishes a wage line based on a representative group of male job classes c. Proxy comparison only for public sector where a public sector ER is unable to find a match for a female job class using the first 2 comparison methods, it must look outside its own organization for a comparable male job class in the same sector different pay levels are permitted between comparable male and female dominated jobs if the pay differentials results from a formal seniority system, a temporary training or development assignment, a merit pay system, red-circling or a temporary skills shortage 5. Prepare and post the pay equity plan must identify the establishment and the jobs compared, describe its gender-neutral comparison system, set out the results of the comparisons, identify all positions and job classes in which differences are permitted and describe any adjustments that will be made. if no objection if filed with the Commission within 30 days after the review period has ended, the plan is deemed approved 6. Make pay adjustments Maintaining Pay Equity An ER should also re-evaluate jobs in circumstances such as: - where it eliminates a position by combing two jobs - where a temporary skills shortage or red-circling procedure ends - where it introduces new technology that affects the value of a job used for pay equity comparison

- where a sale or merger renders the current pay equity plan obsolete - where a union is certified to represent a group of employees because this affects appropriate job comparisons under the plan ERs should review their pay equity plans at least once a year Pay Equity is administered and enforced by the Pay Equity Commission of ON The Federal Contractors Program An ER that wants to remain on the list of potential contractors must file a certificate that commits it to implementing employment equity in its workplace. These commitments include; 1. ensuring senior-level commitment to achieving employment equity 2. collecting workforce date 3. analyzing workforce date 4. reviewing employment systems to identify barriers 5. setting numeric goals to correct underrepresentation of designated groups 6. adopting special measure to achieve equity goals 7. monitoring progress and results 8. authorizing access for representatives of HRSDC Chapter 10: Privacy Inside and Outside the Workplace Canadas original privacy legislation related to personal information held only by governments. Ontarios Freedom of Information and Protection of Privacy Act enacted in 1991, allows individuals to file a request for information held by the ON government, also provides privacy protection for the personal information of EEs in ONs public sector privacy rights that an EE has in any given situation depend on a number of factors; - whether the workplace is federally or provincially regulated - whether the province has broadly based privacy legislation (ON does not) - whether the EE works in the public or private sector - whether the EE is unionized or non-unionized Personal Information Protection and Electronic Documents Act (PIPEDA) applies to all federally regulated organizations and affects how they collect, use, disclose and retain personal information concerning their EEs, customers, patients and suppliers

also applies to provincially regulated organizations in the course of commercial activity unless the province in which the organizations are situated has implemented substantially similar legislation

key features; 1. the purpose of PIPEDA is to balance the individuals right to have personal info kept private with an organizations need to collect, use and disclose personal information where necessary 2. applies to all organizations in Canada that collect, use or disclose personal information in the course of commercial activities 3. does not apply directly to personal EE info in provincially regulated workplaces 4. personal information is defined as any factual or subjective information about an identifiable individual 5. requires an individuals consent before her personal information is collected, used or disclosed. Information may be used only for the purpose for which consent was obtained. Further consent is necessary before the information can be used for any other purpose 6. organization must take precautions to safe-guard personal info in their possession 7. with some limited exceptions, individuals have a right to gain access to their personal information and to challenge an ERs treatment of it or its accuracy 8. an individual may make a complaint regarding the way an organization has handled his personal information to the Office of the Privacy Commissioner of Canada

personal information - any factual or subjective info about an identifiable individual. Personal information protected under PIPEDa includes an individuals: - age, home address, and identification numbers - residential telephone numbers and personal email address - sex, religion, ethnicity, social status and marital status - EE files, performance appraisals, disciplinary actions and evaluations - photographs, opinions, and income - relevant dates, such as a birth date - credit records, loan records, and purchasing and spending habits - blood type, genetic information and medical records - pay and benefits records

- video and audio tapes - records of Web browsing, electronic mail and keystrokes PIPEDAs Ten Principles recognizes two fundamental facts; 1. Individuals have a right to privacy concerning their personal information 2. Organizations have a need to collect, use and disclose personal information for appropriate purposes the aim of PIPEDA is to achieve a fair balance between these two valid requirements The following principles are considered to be fair information principles. The standard in applying these principles is one of reasonableness; an organization may collect, use, or disclose personal info only for the purposes that a reasonable person would consider are appropriate circumstances. These principals are; 1. Be accountable - appoint one person to oversee its compliance with PIPEDA 4. Identify the purpose of collection - an explanation of why it is needed and how it will be used - a list of those to whom it will be disclosed 5. Get consent - must be voluntarily given and the individual must be aware of what is being collected and for what reason - all consents should be recorded by means of a note to file where consent is given orally, or by keeping a copy of emails or application forms where consent is given in writing - under s. 7 an organization may collect personal information without an individuals knowledge and consent in circumstances that include the following a. collection is in the interests of the individual and consent cannot be obtained in a timely manner, as in the case of a medical emergency b. obtaining the individuals consent would compromise the availability or accuracy of the information, which is relevant to an investigation of a breach of an agreement or a contravention of law c. collection is for journalistic, artistic, or literary purposes

d. the information is publicly available 6. Limit collection - collect only information that is necessary for its stated purposes 7. Limit use, disclosure, and retention - cannot use information collected for any purpose other than the one stated - personal info must be used only by those who need it and disposed of when it is no longer needed - under s. 7 an organization may use this information in circumstance that include the following; a. obtaining the individuals consent would compromise the availability or accuracy of the information where the information is relevant to an investigation of a breach of an agreement or a contravention of law b. the information reasonably could be useful in investigating a contravention of law and it is used for that investigation c. the information is used in an emergency that threatens the life, health, or security of the individual d. the information is to be used for statistical or scholarly purposes, in which case the organization must notify the privacy commissioner of Canada before using it e. the information is publicly available - under s. 7 organizations can disclose personal information when the disclosure is made a. to a lawyer who is representing the organization b. for the purpose of collecting a debt owed to the organization by the individual c. for journalistic, artistic, or literary purposes d. in circumstances where use or disclosure is required by law e. to assist in an emergency that threatens the life, health or security of and individual f. for statistical or scholarly purposes g. 20 years after the individuals death or 100 years after the record was created 8. Be accurate

9. Provide safeguards - an organization should protect personal info against loss, theft, or unauthorized access 10. Be open - privacy policies and procedures should be readily available to customers, clients, employees and suppliers 11. Give individuals access - organizations must provide individuals with details about the personal information being held about them and the means to gain access to it, upon request - there is little personal information that an ER can keep from an EE unless it falls within one of the exceptions in s. 9 of PIPEDA. Access must be denied; a. if the info would reveal personal info about another individual unless there is consent or a life-threatening situation b. if the organization has disclosed info to a government institution for law enforcement or national security reasons and the organization is instructed by that institution to refuse access or not to reveal that the info has been released - Access may be denied under s. 9 if a. if the information is protected by solicitor-client privilege b. disclosure could harm another individuals life or security c. disclosure would reveal confidential commercial information d. the information was collected as part of an investigation into a breach of an agreement or a law e. the information was generated in the course of a formal dispute resolution process 12. Provide recourse - organizations must establish a procedure to deal with complaints about their compliance with PIPEDA Privacy Rights in Private Sector Workplaces in Ontario provincially regulated private sector ERs in ON are not required to follow PIPEDAs principles in handling personal EE info except in narrowly defined circumstance such as where ERS transfer EE info to a for-profit 3rd party that administers its EE benefit plan

EE monitoring that is disclosed to the affected EEs is allowed where it is a reasonable exercise of management rights in cases where the arbitrator applies the reasonableness standard, generally the following factors are considered; 11. 12. 13. was it reasonable to conduct the surveillance? was the surveillance conducted in a reasonable manner? were there other alternatives open to the ER, such as seeking an independent

medical opinion? an ER has an implied duty to treat an EE in good faith and fairly during the term of the contract, and not just in the manner of termination as decided by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. This is an expansion of an ERs duties under the common law if a computer is company property, the ER is permitted to monitor activity on that property and courts have generally been willing to admit email evidence. However if an ER wants to use info obtained through monitoring to discipline EEs, it should communicate this policy and enforce it consistently Chapter 11: Navigating the Employment Relationship for non-unionized employees the framework underlying the EE/ER relationship remains the individual contract of employment this contract contains the main terms and conditions governing employment, and the parties must always keep it mind when dealing with both ongoing matters and significant changes to their relationship Employee Policy Manuals an EE handbook answers the when, where, and how questions while a policy manual provides insight into why things are done in a particular way in the workplace it is an effective way for an ER to provide info to EEs in a convenient, centralized location. includes company rules concerning such matters as dress codes, probationary periods, benefit entitlements, disciplinary procedures, office procedures, sick leave policy, and the ERs harassment policy and thus communicates an organizations expectations in these areas an employment policy manual also helps ensure consistency in an ERs treatment of EEs

by letting EEs know what is expected of them and what they can expect from the ER in return, the manual helps reduce the potential for dissatisfaction and disputes a policy manual that is clearly written and consistently applied can reduce the potential for wrongful dismissal litigation where the termination results from a breach of an employment policy

a policy manual does not automatically bind the EE; the ER must take certain steps to ensure that it forms part of the employment contract an ER that wants to maximize the benefits of a policy manual should; 9. ensure that the employment contract or letter of hire specifically incorporates the manual 10. provide EEs with a copy of the manual before they begin work 11. ensure that the manual is clearly drafted 12. apply the manuals policies consistently among EEs 13. ensure that all EEs have up-to-date copies of the manual 14. give as much notice as possible of significant changes to manual policy 15. have EEs indicate in writing that they have reviewed the manual and any changes to it, perhaps on an annual basis 16. ensure that EEs are aware of the consequences of failing to adhere to the manual and that these consequences are fair 17. include a statement advising EEs that the organization retains the sole discretion to make changes to any of the policies, procedures and guidelines contained in the manual 18. update the manual periodically to ensure compliance with current legislation Changing Employment Terms and Conditions Constructive Dismissal and Reasonable Notice an immediate 25% reduction in pay or a significant downgrade in job duties clearly goes to the heart of the employment contract. It is a repudiation of the existing terms and conditions of employment

constructive dismissal - a change that alters the employment agreement in a fundamental way an EE can either accept the change and continue working under the new arrangement, or inform that ER that the change constitutes constructive dismissal and sue the ER for pay in lieu of proper notice

where a proposed change to an employment contract is arguably a fundamental one, an ER can generally meet its legal obligation by providing the EE with proper advance notice of the change the Wonko case (pg. 214) proposes that providing advance notice of a fundamental change to the employment contract may no longer be enough. To make it effective, an ER must also advise the EE of the consequences of rejecting it.

determining proper notice; - the ER looks at the terms of the employment contract to see whether it sets out a period for notice of termination - in the absence of an enforceable termination clause, the common law implies a duty to provide reasonable notice, which depends on a number of factors, including the EEs age, position, and length of service - where more than one EE is affected by a significant change, an ER probably should proved the same notice to all EEs based on teh longest notice period to which any of the EEs is entitled. Providing Consideration

another way to amend an employment contract is through negotiation. This approach is especially useful where the ER wants the new term, such as non-competition clause to be added immediately

to create a binding contract under the common law, both parties must receive consideration something of value - in exchange for the promise given without consideration the agreement is unenforceable the EE should be given time to review the proposed changes and to seek independent legal advise before signing the amended contract to address the issue of consideration, an ER might introduce an amendment when another aspect of a contract is changing as well, such as when an EE is promoted or given a pay increase. if the amendment is crucial and the EE refuses to sin, the ER may be faced with the last resort of telling the EE that she will be dismissed with reasonable notice or pay in lieu if she does not sign

the employment contract should contain a clause that allows it to be reopened and updated periodically. Alternatively amendment of the existing employment contract could be a condition of all promotions and significant changes in duties.

Managing Employee Performance and Conduct 1. Performance Appraisals key tool in an ERs ongoing management of the employment relationship gives the ER an opportunity to provide regular feedback to an EE about his performance they motivate EEs and foster an atmosphere of openness within an organization provide encouragement to strong performers and alert poor performers to problems at an early stage, this providing an opportunity for improvement useful only if they reflect the actual performance of an EE supervisors should be trained to conduct fair and effective performance appraisals appraisals should be conducted regularly and objectively, based on the following principles; a. be honest and balanced. Identify both strengths and weaknesses b. clearly communicate job standards to each EE c. use a standard form to ensure that EEs are evaluated consistently d. allow the EE an opportunity to respond to an evaluation both on the form and orally e. document the evaluation f. provide EEs with a copy of the evaluation and have them acknowledge in writing that they have received it g. set goals for the future and revisit these goals at the next performance review h. conduct performance appraisals separately from salary reviews 2. Progressive Discipline based on the idea that discipline for less series infractions should be imposed in a series of increasing steps when applying progressive discipline an ER considers the type of misconduct as well as any previous misconduct, the discipline applied, and the length of time over which all of the incidents took place the level of discipline applied must be proportionate to the EEs misconduct applying discipline in a series of steps allows an ER to respond to an EEs inappropriate conduct in a measure way and allows an EE the opportunity to improve

another benefit of consistently applying a progressive discipline policy is that the ER avoids condoning misconduct Condonation occurs when an ER is aware of misconduct and takes no disciplinary action within a reasonable time under the ESA, misconduct must be willful or intentional before an ER is exempt from notice or pay in lieu requirements EEs who are terminated for ongoing performance problems that are not willful as opposed to intentional misconduct, are therefore usually entitled to statutory termination or severance pay under the Act step-by-step guide for ERs; a. outline acceptable standards of conduct and the consequences of misconduct in the policy manual or elsewhere b. describe the steps that may be taken as part of a disciplinary action: a verbal warning, a written warning, suspension(s) with or without pay, a final written warning that the EEs job is in jeopardy of dismissal (under the common law, an ER has no inherent right to suspend an EE for any reason) c. retain the right to disregard these steps and proceed immediately to suspension or dismissal where serious misconduct is involved d. clarify that progressive discipline is a disciplinary procedure, not merely performance feedback e. document every step of the process including verbal warnings, indicating the time, date and reason the step was taken f. explain to the EE the problem, the acceptable standard and the action necessary to meet this standard at every step g. ensure that plans devised to correct the problem are realistic, including timelines for making the necessary improvements h. ask EEs whether they have any comment to add to the disciplinary form i. set a date for a followup meeting but state that management will respond immediately if further problems arise before the meeting j. train managers to deal with performance issues and monitor the EE performance

k. give the EE a final written warning before termination. These usually accompany a suspension letter, which includes the following warning: should you repeat or continue any of the above conduct in the future, you will be subject to further discipline, up to and including termination of your employment. 3. Suspension Without Pay unless there is an express or implied term in the employment contract allowing this form of discipline, a suspension without pay, even for a few days, may constitute constructive dismissal under the common law an ER may therefore choose to include a contractual term that allows it to suspend EEs without pay for cause. A clear, well-communicated and consistently enforced progressive discipline process that specifically includes an unpaid suspension as one of the disciplinary steps probably also meets the requirement alternatively to avoid the possibility of a finding of constructive dismissal, many ERs with non-unionized EEs in ON have adopted a discipline policy with only 3 or 4 steps: a. verbal warning b. written warning (optional) c. final written warning d. termination an unreasonable suspension may constitute constructive dismissal under the common law 4. Probation another form of corrective action that some ERs take with regard to an underperforming EE is to place the individual on probation this puts the EE on notice that her performance is being watched for signs of significant improvement in the absence of a contractual provision authorizing this action, the imposition of probation may constitute a fundamental change to the employment contract and give the EE the right to sure for damages for constructive dismissal 5. Temporary Layoffs unless the employment contract expressly or implicitly allows for layoffs, a layoff may constitute a fundamental change in the terms and conditions of employment that triggers wrongful dismissal damages

temporary layoffs of 13 weeks or less ought not to constitute constructive dismissal 6. Attendance Management Culpable Absenteeism - involve a blameworthy act such as being late without good reason, leaving work without permission or failing to follow absence notification procedures Innocent Absenteeism - as a result of a legitimate medical or other cause and they can never be subject to disciplinary measures - for frequent or lengthy absences an ER should attempt to find out whether they relate to a disability as that term is broadly defined in s. 10 of the Human Rights Code - if an EE is absent owing to a disability she is entitled to accommodation from the ER, unless this constitutes undue hardship - if an EEs absence is likely to continue and there is little change that he will ever return to regular attendance, an ER may consider dismissing the EE on a nondisciplinary basis for frustration of contract Attendance Management Programs - an employment policy manual should include an attendance policy that sets out the EEs basic responsibilities such as being on time for work. - it should also cover the following matters; a. the person and/or number to call about being late or absent b. the requirement to give as much notice as possible c. the requirement to give an anticipated date of return and if relevant the date the ER can expect an update d. the circumstances when a doctors not is required, such as on request, for absences of 3 or more days e. the form that a doctors note should take and the type of info that should be included (functional abilities information describing what the EE can and cannot do and her prognosis for recovery) f. info about the ERs contract program g. the procedure for returning EEs who have been off work for an extended period of time, including rules about when a written medical clearance is required

- a goal of an attendance management program is to promote good attendance by identifying and motivating EEs with a poor attendance record Employers Vicarious Liability for Employees Actions the common law makes ERs vicariously liable - that is, legally responsible for the conduct of another - for damages caused by the actions of their EEs if those actions fall within the course and scope of their employment an action is deemed to be in the course of employment if it is either a. authorized by the ER b. unauthorized but so connected with authorized acts that it may be regarded as a mode of doing an authorized act an ER will not be held vicariously liable for an EEs wrongful acts where they arise independently of the employment relationship or where the workplace merely provided the opportunity for the wrongful act if alcohol is served at an EE event, an ER should consider adopting some of the following measures a. limit alcohol intake by providing a small number of drink tickets to each guest b. hire professional servers and instruct them to refuse to serve alcohol to anyone whoe appears to be intoxicated c. serve meals or appetizers with alcohol d. provide free transportation from office parties by means of taxi vouchers, and insist that guests use them e. provide designated drivers f. keep contact numbers of EEs family members g. appoint people to monitor alcohol consumption

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