Update on Current HR Issues
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The document discusses workplace accommodation, outlining the duties of employers and employees in the process, as well as the role of unions and the concept of undue hardship. It also addresses the legal doctrine of frustration as it relates to employment, particularly in cases of permanent disability or illness. Additionally, it covers social media background checks, privacy laws, and the benefits and implications of hiring independent contractors versus employees.
![What is Frustration? Legal Definition
• Frustration occurs when:
– There is a change of circumstances;
– The change is both unforeseen and not reasonably foreseeable;
– The change of circumstances renders the effect of the contract completely
different from what the parties intended or anticipated.
• [P]ut shortly frustration …[occurs] when the events and facts on which it is
founded have destroyed the subject matter of the contract, or have, by an
interruption of performance thereunder so critical or protracted as to bring
an end in a full and fair sense the contract as a whole, so superseded that it
can be truly affirmed that no resumption is reasonably possible.
a) [Lord Strathcona Steamship Co. v. Dominion Coal Co. [1926] A.C. 108 (P.C.)]
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Update on Current HR Issues
- 2. Workplace Accommodation: Duty of Employers vs. Employees Presenter: Cristina Wendel Partner Employment & Labour 2
- 3. What is Workplace Accommodation? • Workplace accommodation is the requirement to make reasonable changes and adjustments to the workplace to avoid a negative impact on an employee in relation to a protected ground • The purpose is to ensure equal treatment to employees without discrimination 3
- 4. What are the Employer’s Duties in the Workplace Accommodation Process? • Employers have the primary duty and responsibility to make reasonable efforts to the point of undue hardship to accommodate employees who face barriers and discrimination in their employment based on the protected grounds 4
- 5. What is Involved in Satisfying the Employer’s Duties? • Initiating the accommodation process • Determining if or how the employee can be accommodated • Reviewing/requesting/obtaining appropriate medical information • Discussing accommodation options with the employee • Considering the employee’s reasonable concerns and suggestions regarding accommodation • Implementing accommodation 5
- 6. What is Involved in Satisfying the Employer’s Duties? • Training and managing staff – management, supervisors and coworkers • Treating the employee with respect and dignity • Respecting the employee’s privacy • Being flexible and creative when developing accommodation options • Having ongoing follow‐up and flexibility • Justifying a refusal to accommodate 6
- 7. What are the Employee’s Duties in the Workplace Accommodation Process? • An employee seeking accommodation in the workplace has the duty to: – Inform the employer of the need for accommodation – Provide the employer with sufficient information to substantiate the need for accommodation and to enable the employer to develop reasonable accommodation – Actively participate and cooperate with the employer in the accommodation process – Facilitate the implementation of a reasonable accommodation proposal – Accept reasonable accommodation 7
- 8. What Role do Unions Play in the Workplace Accommodation Process? • May share the employer’s responsibility to provide reasonable accommodation • Cannot rely on the collective agreement to avoid the duty to accommodate • May be in breach of human rights obligations if they sign a collective agreement containing a discriminatory clause or if they stand in the way of a reasonable accommodation proposal 8
- 9. To What Extent is Workplace Accommodation Required? • Accommodation is required to the point of undue hardship. • What is undue hardship? – No clear definition – Case by case basis – The hardship must be substantial – i.e. some degree of hardship is acceptable 9
- 10. What Factors May Be Considered in Assessing Undue Hardship? • Financial costs • Size and resources of the employer • The disruption of operations • The effect on employee morale • Whether the accommodation would have a substantial interference on the rights of others or on a collective agreement • The nature and interchangeability of the workforce and facilities • Health and safety issues 10
- 11. Scenarios and Solutions • What if an employee fails to request accommodation? • What if an employee fails to provide sufficient medical information? • Is the search for workplace accommodation limited to the employee’s existing position? • What if the employee requires additional training to be able to fulfill the accommodated position? • Does the employee have to be paid the same? • What if an employee refuses an accommodation proposal? • When can an employer terminate an employee’s employment for frustration? 11
- 12. Frustration – As it relates to Employment and nothing to do with raising Teenagers Presenter: Joe Hunder Partner Employment & Labour 12
- 13. I. Way Employment Can End • Termination by Employer: – With Cause – Without Cause • Resignation by Employee • Frustration 13
- 15. Frustration – How does it arise in Employment? • In Alberta each employment relationship is based on the law of contract. • Frustration is a legal doctrine that can bring about the end of any contractual relationship. 15
- 16. Significance of Frustration • No obligation to provide notice or pay in lieu of notice. • Obligation to accommodate may be discharged as employer is likely at the point of undue hardship. 16
- 17. What is Frustration? Legal Definition • Frustration occurs when: – There is a change of circumstances; – The change is both unforeseen and not reasonably foreseeable; – The change of circumstances renders the effect of the contract completely different from what the parties intended or anticipated. • [P]ut shortly frustration …[occurs] when the events and facts on which it is founded have destroyed the subject matter of the contract, or have, by an interruption of performance thereunder so critical or protracted as to bring an end in a full and fair sense the contract as a whole, so superseded that it can be truly affirmed that no resumption is reasonably possible. a) [Lord Strathcona Steamship Co. v. Dominion Coal Co. [1926] A.C. 108 (P.C.)] 17
- 18. Events that could be considered Frustration • Any critical supervening event of prolonged duration not within the contemplation of the parties and through no fault of the parties makes the employment contract incapable of being performed and which radically alters the original agreement: – Death – Loss of a designation/qualification • Most commonly arises in the context of an employee suffering a permanent disabling illness/disability. 18
- 19. III. Frustration in Illness/Disability Cases • The Central Question: – Is the employee suffering from a permanent disabling illness/condition which ought to bring about the end of the employment contract? 19
- 21. Frustration in Illness/Disability Cases • Employer needs to be satisfied on solid and documented evidence that the employee’s illness/condition is permanent. • Permanent: Continuing or enduring without marked change in status or condition. • An employee being in receipt of long term disability benefits will not be enough to make the determination that an employee has a permanent illness/condition. 21
- 22. Frustration in Illness/Disability Cases • How long must an employee be off work? – Fact driven inquiry into whether an employee’s condition/illness is permanent. This will depend on the circumstances. – Usually long period of time (in excess of 2 – 3 years). 22
- 23. IV. Take Aways • Employment relationship can end through contractual frustration. • When employment contract is frustrated employer relieved of providing notice/pay in lieu of notice and duty to accommodate can be discharged. • Key is determining whether employee is suffering from a permanent illness/condition. • Do not assume condition is permanent. 23
- 24. Social Media Background Checks Presenter: Alison Walsh Associate Employment & Labour 24
- 25. What is a social media background check? • Social media background checks include: – Searches conducted by HR on prospective employees by searching social mediate sites such as Facebook, Twitter, Linkedin or Blogs, etc; or – Hiring a professional screening companies to perform background checks. • Section 33 of the Personal Information Protection Act (PIPA): – When employers search for information about prospective employees, the collection, use and disclose of that information is subject to the privacy provisions of PIPA. 25
- 26. PIPA and Restrictions on Collecting Employee Information • Sections 15, 18 and 21 of the Act provides that an organization may collect, use and disclose personal employee information if the information is collected, used or disclosed solely for the purpose of: – Establishing, managing or terminating an employee; – Managing a post‐employee relationship; but – Does not include personal information about the individual that is unrelated to that relationship. • It must be reasonable for the employer to collect information for the particular purpose for which it is being collected. • Social media background checks may lead to violations under other Acts such as the Alberta Human Rights Act. 26
- 27. Risks Associated with Social Media Background Checks • The Information and Privacy Commission has identified four risks associated with social media background checks: 1) Collecting irrelevant or too much information; 2) Accuracy; 3) Over reliance on consent; and 4) Inadvertent collection of third party personal information. 27
- 28. Consequences of Violating Privacy • An individual who suspects his or her privacy has been violated may: – Make a complaint to the Information and Privacy Commission; – The Commissioner has authority to investigate the complaint and issue an order; – The Commissioner’s order can give rise to a cause of action for damages for loss or injury; – Commence a civil action for invasion for privacy. 28
- 30. Jones v. Tsige, 2012 ONCA 32 • Elements of the action of invasion of privacy are: – An intentional intrusion; – Into the seclusion of another or his private affairs or concerns; – Which is highly offensive to a reasonable person. 30
- 31. Jones v. Tsige, 2012 ONCA 32 • Limitations on action for invasion of privacy: – A claim will only arise for a deliberate and significant invasion of personal privacy; – It is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive; and – No right to privacy is absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to such competing claims as protection of freedom of expression and freedom of press. 31
- 32. Strategies to Avoid Invading Privacy • Suggested guidelines of the Information and Privacy Commission: 1) Recognize that any information collected about individuals is personal information or personal employee information and is subject to privacy laws, whether or not the information is publicly available online or whether it is online but subject to limited access as a result of privacy settings or other restrictions; 2) Conduct a privacy impact assessment including an assessment of the risks associated with your use of social media as a component of background checks. 32
- 33. Factors to Consider when Conducting an Assessment • Find out what privacy law applies and review it, ensuring that there is authority to collect and use personal information; • Identify the purposes for using social media to collect personal information; • Determine whether the identified purposes for the collection and use of personal information are authorized; • Consider and assess other, less intrusive, measures that meet the same purposes; • Identify the types and amounts of personal information likely to be collected in the course of a social media background check including collateral personal information about other people that may be inadvertently collected as a result of the social media background check; 33
- 34. Factors to Consider when Conducting an Assessment • Identify the risks associated with the collection and use of this personal information including risks resulting from actions taken based on inaccurate information; • Ensure that the appropriate policies, procedures and controls are in place to address the risks related to the collection, use, disclosure, retention, accuracy and protection of personal information. • If the collection is authorized, notify the individual that you will be performing a social media background check and tell them what you will be checking and what the legal authority is for collecting it; • Be prepared to provide access to the information you collected and used to make a decision about an employee or volunteer. (Office of the Information and Privacy Commission of Alberta, Guidelines for Social Media Background Checks, December 2011) 34
- 35. Strategies to Avoid Invading Privacy • The Information and Privacy Commission cautions that if you are considering conducting a social media background check: – Do not wait until after you conduct a social media background check to evaluate compliance with privacy legislation; – Do not assume in advance that a social media background check will only retrieve information about one individual and not about multiple individuals; – Do not perform a social media background check from a personal account in an attempt to avoid privacy laws; – Do not attempt to avoid privacy obligations by contracting a third party to carry out background checks; and – Do not perform a social media background check thinking that an individual will not find out about it. (Office of the Information and Privacy Commission of Alberta, Guidelines for Social Media Background Checks, December 2011) 35
- 36. Employees vs. Independent Contractors: What you need to know! Presenter: Fausto Franceschi Partner Employment & Labour 36
- 37. Benefits to Employer in Retaining Services of an Independent Contractor • Save on benefits and other employer costs • Short term or project specific assistance • Assistance in non‐core areas • Expertise of Contractor vs. In‐house Capability • No withholding obligations • No termination obligations 37
- 38. Benefits to Worker of Being an Independent Contractor • Flexibility • Income Splitting • Claiming of Expenses that are Otherwise not Deductible against Employment Income • Potential for Greater Earnings? 38
- 39. Key Implications • Income Tax • Employment insurance • CPP • GST • Employment Standards • Common Law Termination Obligations • Employment Benefits and Insurance • Workers’ Compensation • Vicarious Liability 39
- 40. Calling Someone an Independent Contractor Does Not Necessarily Make Him One • Four tests: – Control test – Fourfold test – Organization or Integration test – Enterprise test 40
- 41. Other Factors • Does the worker hire his own helpers? • Subcontracting of tasks? • Exclusive employment? 41
- 42. No One Test is Determinative • Search for the true relationship based on examining all of the possible factors • Central question: Is the worker performing the services performing them in business on his own account? 42
- 45. Context is Important • Protective legislation will be interpreted broadly (eg. Employment Standards legislation) 45
- 46. Conclusion • Many factors to be considered when determining whether a worker is an employee or independent contractor • Ultimate determination is fact specific 46
- 47. Questions? 47
- 48. The preceding presentation contains examples of the kinds of issues companies dealing with HR issues could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.
- 49. Thank you for Joining Us Joe Hunder 780.423.7354 e: joe.hunder@fmc‐law.com Adrian Elmslie 780.423.7364 e: adrian.elmslie@fmc‐law.com Cristina Wendel 780.423.7353 e: cristina.wendel@fmc‐law.com Fausto Franceschi 780.423.7348 e: fausto.franceschi@fmc‐law.com Alison Walsh 780.423.7147 e: alison.walsh@fmc‐law.com 49