Why Employers need a Discrimination-Free Workplace Policy

Nov 20, 2018

Although a workplace anti-discrimination policy is not mandatory in Ontario, we recommend it. If a complaint about discrimination is brought forward, employers can rely on the policy to help address the issue and follow predetermined steps. This type of policy can protect an employer if litigation is commenced by an employee about discrimination. Employer discrimination policies are reviewed and considered by human rights tribunals.

Discrimination-free Workplace policies should be customized to the individual needs of the workplace. The policy should include a definition of discrimination and what grounds are protected in the relevant human rights legislation. As the protected grounds such as age, disability, and gender, vary in each province and federally, it is important employers are aware of the human rights legislation that applies to their workplace. For example, the Canadian Human Rights Act allows someone to claim discrimination based on genetic characteristics whereas the Ontario Human Rights Code does not.  Part of the discrimination policy documents needs to include what employees and managers should do if they witness discrimination and what steps an employer will take to deal with any complaint.

If a complaint is brought, an employer must take it seriously, respond promptly, take steps to conduct an investigation, and ensure confidentiality. The respondent must be given details of the complaint and information about the policy in order for them to respond. Both the complainant and respondent must be provided the outcome of any investigation.

Having a policy, and following these steps can significantly reduce the potential liability for employers arising from discrimination in the workplace.

Lessons for Employers

  • Although it is not mandatory, it is prudent for all employers to implement a discrimination policy to prevent and deal with issues when they arise.
  • Employers should review their discrimination policies annually.
  • Once a discrimination policy is in place, staff and managers should receive proper training.
  • Educating employees on their rights, and making them understand what behaviour is not acceptable, will allow employees to feel that they can come forward should issues arise.

If you have any questions about employment policies, discrimination complaints, or human rights issues, you can contact MacLeod Law Firm at 647-204-8107 or at [email protected]

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.

      or

  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.

 

Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."

 

The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."

 

Decision

The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”

 

Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.

 

For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

k

Recent Posts

Toronto Office

702 - 2 Bloor Street West,
Toronto, ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue,
Barrie, ON L4N 9J2

Collingwood Office

220 - 1 First Street
Collingwood, ON
L9Y 1A1

Contact

Phone

+1 (888) 640-1728

Fax

(866) 883-8445

Email

[email protected]

Toronto Office

702 - 2 Bloor Street West, Toronto ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue, Barrie ON L4N 9J2

Collingwood Office

220 - 1 First Street, Collingwood, ON L9Y 1A1

Translate

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!