According to the Ontario Human Rights Code, there are certain circumstances in which an employer will be required to “accommodate” an employee.
Some of the grounds that require accommodation include:
Accommodation can range from having to change a schedule because the employee must work reduced hours, to having to buy additional office equipment such as ergonomic chairs or temporarily changing the employee’s duties (for example, having an assistant do administrative duties).
When we tell our dentist clients about this duty, they say “of course I will accommodate my employee” but quickly follow with “to what point”?
The Ontario Human Rights Code says that a court/tribunal cannot find that the employer is incapable of accommodating unless satisfied that the needs of the employee cannot be accommodated without undue hardship on the employer [s. 17(2)].
To determine what is undue hardship, courts/tribunals are only permitted to look at:
Other considerations, such as inconvenience, employee morale, what it may look like to patients, etc. cannot be taken into consideration (unless they somehow tie into one of the three allowable considerations).
Here are two cases where the “undue hardship” of the employer was assessed and the outcome:
Munroe v. Padulo Integrated Inc., 2011 HRTO 1410 (CanLII)
The Employee, Munroe was an account director at an advertising company. He had been employed with Padulo for several years when he found out he would need hip surgery. That surgery and recovery took about 18 months. Instead of providing Munroe with accommodation to return to work, the company terminated his employment. The company argued that was because the company was in the process of downsizing and cutting costs – Munroe’s job would have ended shortly anyway.
Here’s what the judge had to say:
Over less than two years, the company would shrink from about 31 employees to about 17. In January 2009, other individuals were being laid off or experiencing significant salary reductions. Further, the team on which the applicant worked was in the process of winding down the work with its major client. The work to which the applicant would have returned was not continuing, but was anticipated to come to an end. In the context of these specific circumstances, it would not be reasonable to expect the company to have brought the applicant back as an additional person on its payroll for a period of re-orientation, for the purpose of delaying a decision on layoffs until later.
The judge sided with the company and agreed that it had no duty to accommodate Monroe due to undue hardship based on cost.
ADGA Group Consultants Inc. v. Lane et al., 2008 CanLII 39605 (ONSCDC)
Lane was diagnosed with bipolar disorder, characterized by manic and depressive episodes with periods of stability. Lane applied for and was hired by ADGA as a software program tester without revealing his diagnosis. Once at work, Lane disclosed his diagnosis to a supervisor and told her how to identify when he was becoming manic and asked her to interfere if she observed any inappropriate behaviour. Ten days after starting work, Lane was dismissed from his job for having misrepresented his ability to do the duties of the job. As a result of the job loss, Lane went into a full blown manic episode, was hospitalized, then his condition turned depressive as a result of the financial burden of job loss and his marriage ended up breaking up. The employer was dismissive of their obligation towards Lane and tried to justify its lack of accommodation by arguing that Lane was a health and safety risk, that the supervisor was not able to watch Lane at all times, and that his manic/depressive episodes could lead to a national security issue if he told others classified information ADGA entrusted him with.
The Human Rights Tribunal disagreed. They said that Lane was fully capable of performing the job but had a disability and found that ADGA did not meet its procedural duty of accommodating Lane’s disability and awarded Lane $35,000 in general damages and $10,000 as damages for mental anguish and ~$34,000 in special damages for loss of salary. The tribunal also said that undue hardship cannot be established by relying on “impressionistic or anecdotal evidence or after-the-fact justifications”.
As you can see, it is open to an employer to argue that they would face undue hardship under one of the three heads enumerated in the Human Rights Code, but the success of the argument will depend in each individual case based on the circumstances.
If you are unsure about if or how to accommodate an employee, be sure to contact us and we can help to guide you through the process of accommodation.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
You’ve heard about how bad unionization is. You are told that more and more dental offices are becoming unionized. And, you’re scared.
Don’t worry, we’re here to help! Here are some practical tips on how to avoid unionization at your dental practice or how to deal with staff if they start talking about unionization without landing yourself in hot water.
Think of your employees as assets, not liabilities. They make your business run smoothly and many patients return because of them. So, what’s the best way to treat your employees? Well here are some tips:
Communication with your employees is absolutely vital at every stage of the game. And before there is even whispers about unionization you have to ensure your employees are informed and feel like they are heard:
If you find yourself in the unenviable position of having your employees begin to organize, then there are still measures you can take to try and dissuade unionization which don’t involve the illegal tactics of “union busting”:
You might think that most of this is common sense. And it is, for the most part, but even the nicest and most well meaning dentists may have trouble managing their employees in a way that avoids unionization. Navigating unionization (before and after a unionization vote) is tricky business.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you have any questions about unionization or need advice about your rights/responsibilities as an employer, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Here is a question I often get from our dentist clients and one that might sound familiar to you, if you’ve ever had a bad employee:
My dental assistant is not very good at her job. She has poor interpersonal skills and she’s often late for work without excuse. She talks down to patients and makes them feel uncomfortable. I haven’t talked to her about any of this before, but I’ve documented it all and now I’d like to fire her for cause. Can I do that?
My answer is always a resounding NO! Here’s why…
“Just cause” for firing an employee must be either
Our incompetent assistant example above falls in the “cumulative” category, so it may seem like our dentist has got enough dirt on the assistant to fire her for “just cause”. But, alas, that is not so!
The courts have said that employees in this situation are entitled to “progressive discipline” in the form of a clear warning and an opportunity to mend their ways and remedy their weaknesses. An employer cannot treat matters of which he/she was previously aware but didn’t bring to the employee’s attention as cumulative cause for dismissal. Here’s a visual aid on how progressive discipline may work:
Progressive discipline must be applied even in the absence of a progressive discipline policy at the office. But, having a progressive discipline policy and not following it when required is even worse, as evidenced in a 2007 case where a senior manager was fired for cumulative just cause but only one of a series of minor incidents of misconduct was brought to his attention (Laszczawski v. Aluminart Products Ltd., 2007 CanLII 56493 (ON SC)). The judge in that case decided that the employee should have had the benefit of having the progressive discipline policy applied and the dismissal was held to be unlawful (meaning without just cause) and awarded the employee pay in lieu of notice.
In some instances, employers are convinced that they have a case of grievous misconduct on their hands and attempt to bypass the progressive discipline process only to get burned in the end. In a recent Ontario court case, Sinnathamby v. The Chesterfield Shop Limited, 2016 ONSC 6966, the plaintiff, Ms. Sinnathamby was a long time employee of the Chesterfield Shop who took ill and didn’t report to work and didn’t provide a doctor’s note for the absence, despite being asked to do so by the manager and being warned that failure to do so will result in termination. The manager terminated the employee for cause and the employee subsequently gave proper documentation for her medical leave of absence. The judge in this case acknowledged the employer’s right to ask for a doctor’s prognosis but found that the employer was not adversely affected by Ms. Sinnathamby’s absence or her failure to provide the documentation by the date requested. The manager’s mere frustration at not receiving proper documentation in clear defiance of the office policy was NOT enough to constitute just cause in this case. The judge once again reiterated the need for proportionality in an employer’s actions against employees and the need for progressive discipline in cases where misconduct is not considered grievous.
Despite the countless court decisions about what behaviour constitutes just cause and what behaviour warrants progressive discipline, the fact of the matter is that termination for just cause is a mine field. Tread carefully and always seek legal assistance when deciding to terminate an employee for just cause.
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), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Another case from the Ontario Superior Court was released recently and it confirmed an important point for employers: beware of fixed-term contracts! Read more
You’ve likely heard horror stories about employees suing their employers and getting thousands of dollars in court or tribunal awards for wrongful termination or breaches of human rights.
If you have to fire an employee, you should FIRST be talking to your dental lawyer about a legal document called a “Release” or “Release Agreement“. A well-drafted Release can save you time, headaches, and MONEY when you and an employee are parting ways.
Before presenting a Release, please be aware (among other things) that:
Here are 5 benefits of a properly drafted, presented and signed Release Agreement:
If a law suit or tribunal complaint has already been commenced by the departing employee, then a Release can stipulate that such suits or complaints must be discharged by the departing employee in return for a certain amount of money.
The Release should state that the departing employee will not commence any new complaints or suits having to do with employment law or otherwise against the dentist employer. This should include human rights tribunal complaints.
The Release Agreement should also say that the Release Agreement and all aspects of the termination or events leading to the termination will be kept confidential by the departing employee. This is important when the departing employee still maintains friendships with others who remain employed at the practice.
Friends talk… but you don’t want them talking about the amount of money you paid an employee for termination, as a settlement or as an enticement to sign the Release Agreement.
When scorned employees are terminated, they sometimes feel the need to air their complaints about their former employer in the public domain. The non-disparagement clause will have the effect of stopping the departing employee from saying or publishing disparaging or deleterious remarks about the dental practice, its employees, directors, associates, patients, etc.
Finally, a well drafted Release will set out consequences for breaching any aspect of the Release Agreement.
The recent case of Wong v. The Globe and Mail Inc. 2014 OSC 6372 is a good example of the importance of being specific about the consequences of breaching the terms of the Release. In this case Wong, a former employee of the Globe signed a release that stipulated that she would be getting about $200,000. In return for the money, Wong agreed to keep the agreement and the contents of the agreement confidential and failure to do so would result in her having to pay back all of the amounts paid to her.
A few years later, Wong published a book about her time at the Globe that included telling the readers that “I’d just been paid a pile of money to go away…”, ” Two weeks later a big fat cheque landed in my account”, etc. The Globe saw these comments as breaching the confidentiality portion of their agreement with Wong and asked her to return the amounts paid to her. In the end, Justice Nordheimer of the Divisional Court upheld an arbitrator’s finding that Wong had breached the non-disclosure portion of the agreement and she was obliged to pay the entire amount back to the Globe.
For further guidance and information on Release Agreements, you can contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org.
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.