Don’t have an office policy dealing with sexual harassment? You could be setting yourself up for costly legal troubles. Many dentists might be thinking: it doesn’t happen in my office. But do you know what sexual harassment is? Did you realize that you’re responsible for sexual harassment committed by your employees? Are you willing to risk having to appear before the Human Rights Tribunal? Why wouldn’t you take some basic steps now to avoid a potentially devastating situation (human rights proceedings are public and expensive to defend against!). If you want to learn more about sexual harassment and you’re obligations, read on…
The Human Rights Code (the “Code“) and the Occupational Health and Safety Act (the “Act“) define harassment as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Examples of sexual harassment include:
Sexual harassment “at work” includes job interviews, volunteer work, internships, working interviews and includes work outings and after hours events which are off business premises.
Section 7(2) of the Code states that “Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee”.
Individuals who commit sexual harassment and companies who condone or mishandle cases of sexual harassment at work may be liable to the person being harassed.
The Code provides for monetary and non-monetary remedies for victims of sexual harassment including compensation for lost wages. Section 46.2(1) states that individuals who are in breach of the Code, including those responsible for sexual harassment in the workplace (meaning employers) may be guilty of an offence and upon conviction may be liable to a fine up to $25,000.
In a recent Human Rights Tribunal case, Horner v. Peelle Company Ltd, 2014 HRTO 1211, the Tribunal awarded a victim of sexual harassment $78,219. The harassment in question was perpetrated by the employer who, honestly believing there was a romance blossoming between them, asked the employee for a kiss. The request was denied by the employee but the behaviour of the employer following the denial was held to amount to reprisal (being a form of unwarranted punishment). The employee was awarded $28,000 for injury to dignity, feelings and self-respect due to the violation of her rights and $50,219 for loss of earnings.
The Code does not mandate a sexual harassment policy, but employers can prevent many cases of sexual harassment by having a clear, comprehensive and anti-sexual harassment policy in place. Furthermore, the Human Rights Tribunal, when making decisions on sexual harassment, considers the following:
The Act requires employers with 5 or more employees to prepare internal policies with respect to workplace violence and harassment, which includes sexual harassment (see section 25(2)(j)). Such policy must be reviewed at least annually and a written copy of the policy must be posted in the workplace.
It is also not good enough that the employer have a no-harassment policy. Employers must also develop and maintain a program to implement the policy (see section 32.06). For example, the employer must include procedures for how employees can make complaints and how those complaints will be handled.
Section 50 of the Act says that no employee may be fired, disciplined, have a penalty imposed on them or be intimidated or coerced because of complying with the Act, seeking to enforce the Act or giving evidence in a proceeding having to do with the Act.
If an employer is found to have breached the Act, they will be found to be guilty of an offence and on conviction will be liable to a fine up to $25,000 or imprisonment for a term of not more than 12 months. If the employer is a corporation and is convicted for breaching the Act, it may be liable for a fine up to $500,000.
Employees who are punished in contravention of section 50 (see above) may seek payment of lost wages, reinstatement and payment of any other financial losses the employee may have suffered as a result of the employer’s breach.
If you are a dentist employer who has more than 5 employees, you MUST have an employee harassment policy including systems for dealing with harassment complaints. A harassment policy serves to protect you and gives you the opportunity to develop guidelines for best practices in situations of harassment. Having this policy is worthwhile, even if you have less than 5 employees. For a sample sexual harassment policy you can visit this webpage: http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0
If you need help constructing your own sexual harassment policy and becoming / remaining compliant with the Act, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
You’re interviewing someone for a possible position at your practice. You’ve got a bunch of questions you’re going to ask them. Some questions may have come from the internet; perhaps others came from other dentist colleagues. But please keep in mind that you simply cannot ask certain types of questions during an interview – or you may find yourself in legal hot water!!!
So, before we get into those the questions that you simply CANNOT ask during an interview, here is some background information so that you’re well-informed:
In Ontario, we have the Human Rights Code, R.S.O. 1990, c H.19 (the “HRC“). Section 5(1) of the HRC states as follows:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability
You, as an employer, must govern your workplace based on these equality rights. And you must ensure your existing team members also follow these rules (you’re liable for them too!). The bottom line is that you cannot discriminate against existing or future employees based on any of these factors.
Even though you may have conscious or subconscious preferences when it comes to who you want working at your practice, you must be careful and refrain from asking certain questions to avoid human rights complaints against you.
Some interviews are very informal and conversational in style, so there will be instances where an interviewee volunteers information. However, you should be vigilant of potential human rights complaints and steer these conversations away from the topics that have the potential to land you in hot water.
There may also be instances where asking a certain question is mandated by the kind of work the person will be doing (see the examples I give below), but this does not give you carte blanche to ask discriminatory questions.
The following are 10 illegal questions or topics you should avoid during interviews:
Never ask the potential employee’s age or year in which they were born. You may ask a very vague question such as “are you between the ages of 18 to 65?”.
It is never OK to ask a potential employee about their gender or sexual orientation.
It is also never OK to ask about the person’s race, skin colour, eye colour or any other race-identifying factors. Of course, this will apply more in a phone interview setting as opposed to face-to-face interviews.
You may not ask the potential employee about their religious affiliation or denomination, what church / mosque / synagogue they attend. You may not ask the name of their pastor, minister, or rabbi.
You should not ask which religious holidays the interviewee observes. If you wish to know if they can work certain shifts, you should ask, for example, “can you work Saturday or Sunday”.
In the 2009 decision of Qureshi v. G4S Security Services, 2009 HRTO 409 the Human Rights Tribunal of Ontario (the “HRTO“) found that Qureshi, a potential security guard, was discriminated against on the ground of creed. The would-be security guard was ejected from the security guard training program for requesting 1 hour off each Friday for prayer. The HRTO found that G4S had a duty to accommodate Qureshi’s request and that it was not incumbent on Qureshi to inform G4S of his religious need at the interview process. The HRTO awarded Qureshi approximately $7,500 for lost wages and injury of dignity, feelings and self-respect.
You cannot ask about a person’s personal details, for example, “how tall are you? ” or “How much do you weigh?”
However, you can ask personal statistics which are relevant to the job. For example, if there is a possibility that your assistant will have to lift heavy packages of supplies, you may ask “are you able to carry heavy boxes for a short distance?”
You may not ask if the interviewee has ever been arrested. But you may ask about arrests for crimes reasonably related to the performance of the job in question.
For example, if you are hiring a front desk staff who will be dealing with cash / cards and insurance requests, you may wish to ask if they have ever been arrested for theft, fraud, etc.
Unacceptable questions about disabilities include:
“Do you have any disabilities?”
“Do you now or have you ever had any illnesses or operations?”
“What is your family history?”
Acceptable questions include “are you able to perform the essential duties of this job?”. If you are interviewing a dental assistant, you may ask her / him if they can stand for extended periods of time. If you are interviewing for a receptionist, you may ask if they can sit for an extended period of time.
You may only ask if a person requires accommodation to perform the job after a job offer has been made. If you ask this question during the interview, you will likely be seen as asking about particulars of the person’s disability.
You may not ask an interviewee about their affiliations or political views. Asking about organizations or clubs which may assist in the performance of their duties is acceptable.
You can ask if the potential employee is eligible to work in Canada, but you may not ask where they hail from, where their parents are from or what their mother tongue is.
Asking about marital and family status in an interview is unacceptable. This particular subject is especially relevant in a dental office setting, where the majority of staff are overwhelmingly female.
Not long ago I received a question from a dentist (let’s call him Dr. X) who hired a young female receptionist and found out one month later that she was several months pregnant and was going on maternity / parental leave for the next year. Dr. X was outraged. He said he felt “duped” and “cheated” because the girl did not tell him she was pregnant during the interview process. He wanted to know if he had an obligation to give the young receptionist her job back upon her return from maternity leave.
Unfortunately for Dr. X, asking if the interviewee is pregnant amounts to discrimination. The interviewee also has no obligation to disclose whether they are pregnant or not. Dr. X ended up having to give the receptionist her job back upon her return from maternity leave. Not doing so may have resulted in an HRTO case.
When interviewing a female or a male, you cannot ask about their living situation, their marital status, if they plan on having children, how many children they have, etc.
The kinds of questions which are acceptable include:
“Are you able to work the following shifts…”
“Are you able to work overtime or evenings / weekends if necessary?”
“Are you able to re-locate if necessary?”
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (David Mayzel) or Michael Carabash.
In this blog I will continue my discussion on locum agreements which dentists should have in place in the event a dentist is unable to physically be at their dental practice. In my last blog post I briefly reveiwed why every Ontario dentist needs a locum agreement.
The main advantage of having a locum agreement in place prior to a dentist finding him or herself away from their dental practice is good planning and practice management (which is the business side of dentistry). Specifically, the dentist has had the foresight to plan for an eventuality where they can not attend their practice for a period of time but their practice can continue, through the provision of dental services by the locum dentist, to serve the practice’s patients and maintain the practice’s operations, which, in addition to dental services to patients, maintains billings which are required to pay rent, wages, suppliers, and of course, the dentist. It would be a shame if a dentist, who has spent years growing a dental practice (or maintaining a dental practice they purchased), could not serve his/her patients resulting in those patients seeking out other dentists to attend to their dental needs. Although it is widely accepted that dental patients are some of the most loyal ‘clients’, it is hard to maintain that loyalty when there is no dentist or dental practice to be loyal to. Once a patient has left the practice in favour of another dentist it can be very difficult to have that patient return.
Further to the issue of loyalty is the goodwill that the dentist and his/her practice has developed with the patients and/or the community the practice works within. What a lot of medical professionals forget (or don’t know), but the business lawyers and accountants know, is that there is great value in the goodwill that a dental practice has developed and accrued. Although a dentist may not see a tangible dollar amount attached to goodwill in their daily practice, when the time comes to sell the dental practice the dental practice’s goodwill does add significant dollars to the sale price of a dental practice. Having a locum dentist in place to provide dental services while the owner dentist is away allows for the continuity of the practice and the maintenance and preservation of the dentist’s and dental practice’s goodwill.
Another advantage of a planned locum agreement is the ability to negotiate mutually agreeable terms in advance (as opposed to when the dentist may be in a desperate and vulnerable negotiating position). As with any contractual relationship, a properly thought out contact, drafted with care and not in a rush, can serve to reduce or eliminate risk and provide for foreseeable eventualities should there be an unfortunate breakdown in the relationship between the owner dentist and the locum dentist.
In general terms a locum agreement is essentially a contract for services. Given the nature of the agreement, certain familiar terms and conditions will appear in all locum agreements. These terms include, in no particular order: nature of the relationship, who appoints the locum dentist, remuneration for the locum dentist, responsibilities of the locum dentist (including management of the dental office and staff supervision), confidentiality, non-solicitation, ownership of dental records and termination of the locum agreement.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (David Mayzel) or Michael Carabash.
In this blog I will be discussing locum agreements which dentists should have in place in the event a dentist is unable to physically be at their dental practice.
The contract all Ontario dentists need to have
There are times in a dentist’s practice when he or she will find themselves away from their dental practice for a fixed or uncertain period of time. This time away from the dental practice could be as short as 2 weeks or as long as 2 years or more depending on the reason for the absence. Reasons for an absence can include the dentist desiring to take a family vacation, the dentist taking maternity or paternity leave, the dentist suffering a sudden medical infirmity, the dentist having to deal with the illness or death of a family member or the dentist requiring time to undergo their own medical procedure and convalescence.
Since a dentist’s primary business is attending to and serving their patients’ dental needs, what happens to a dentist’s business when they are away from the practice? Does the dentist simply put a sign on the door and change the office’s answering machine to advise their patients that the office will be closed? Does the dentist try to reschedule weeks or months worth of appointments? Does the dentist temporarily lay-off their staff? What about the patients that booked appointments months prior to attend for a recall appointment or the patient that scheduled time off work to undergo a cosmetic dental procedure? More subtly, does the absence affect the value of the dentist’s practice or undermine the years of effort the dentist put in to building their practice (or maintaining the dental practice they bought from another dentist)? The short answer for any dentist is to take the simple, yet necessary, step to prevent their practice from spoiling or suffering undue risk or loss by not maintaining the active relationship the dentist and his/her practice has with the patients. So what is that step? The answer is a locum agreement!
A locum agreement is a contract between the dentist who will be away from their dental practice (let’s call this dentist the “owner dentist”) with a dentist or dentists who will temporarily be providing dental services to the owner dentist’s patients while the owner dentist is away from the practice (let’s call this dentist(s) the “locum dentist”). For ease, think of the locum dentist as a supply teacher. The locum agreement will be the rule book and documented arrangement between the owner dentist and the locum dentist. This contract is one that should definitely be negotiated and finalized well in advance of the owner dentist knowing or discovering that they will have to be away from their practice [think of the old adage that an ounce of prevention is worth a pound of cure]. It is also the type of contract that should be reviewed on a yearly basis as the owner dentist’s practice could change over the course of the year or the locum dentist that the owner dentist had planned to use could be unable to provide the locum services due to changes in the locum dentist’s own dental practice or personal life.
* I will be continuing my discussion of locum agreements, including the advantages of such a contract and the usual terms and conditions in my next blog.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or email@example.com.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.