HR Compliance Preventing Domestic Violence—Lessons from the Dupont Tragedy 2011

HR
Compliance
Your Plain Language Guide to
Hiring, Firing, Human Rights, Benefits & Privacy
Volume 7 Issue 7
WORKPLACE VIOLENCE
Preventing Domestic Violence—Lessons from
the Dupont Tragedy
July 2011
FEATURES
Domestic Violence
1
Our exclusive interview explores the
lessons of the Dupont murder and how
employers can prevent domestic violence.
THIS STORY WILL HELP YOU
Implement a policy to prevent and, if necessary, respond to
domestic violence at your workplace
Model Policy (p. 4)
D
omestic violence isn’t always a domestic occurrence. Abusive partners may commit
violence at the victim’s workplace. Exhibit A: On Nov. 12, 2005, 36-year-old nurse,
Lori Dupont was murdered by her former lover, anaesthesiologist Dr. Marc Daniel.
The tragedy occurred at the Hôtel-Dieu Grace Hospital in Windsor, Ontario, where
both of them worked. The hospital was sued for not preventing the attack even though it was
aware of Dr. Daniel’s mental problems and threats he had made against Nurse Dupont.
Public outrage over the Dupont murder spurred Ontario to adopt Bill 168—the “Lori Dupont
Bill”—which, effective June 15, 2010, requires employers to protect employees from workplace
violence, including domestic violence. Arguably, the same obligation is implied in all of Canada.
The key to compliance: Adopt an appropriate workplace domestic violence policy. How? Where
better to look for guidance on this question than to the Hôtel-Dieu Grace Hospital itself? Here’s a
CONTINUED ON PAGE 2
HIRING & RECRUITING
How to Evaluate a Job Applicant’s “Fit”
Without Breaking the Law
Hiring & Recruiting At a Glance (p. 9)
Model Policy (p. 10)
REGULARS
HR Month In Review
Avoid discrimination when rejecting job applicants because they don’t “fit”
your company culture
Termination: Case of the Month 5
Can employees bring class action
lawsuit for constructive dismissal?
Privacy
11
Absenteeism
12
HR Quiz: Using employees’ personal
cell phone records to enforce distracted
driving policy
IN FUTURE ISSUES
Constructive Dismissal: 8 Traps to Avoid
S
kills and experience are important to job success. But so are personal “fit” with
company culture. The problem is that unlike skills and experience, “fit” is a
subjective standard that’s hard to define and measure. So, basing hiring and firing
decisions on fit—or lack thereof—can get you into trouble under discrimination
laws. Here are the legal risks and the 4 things you can do to avoid them.
CONTINUED ON PAGE 9
5
Key legal changes and cases in
each province, territory and federally
Winners & Losers: Does a long illness
“frustrate” an employee’s contract?
THIS STORY WILL HELP YOU
1
Avoiding the legal risks when using “fit”
with company culture as a hiring criterion.
Avoiding Disability Discrimination in
Attendance Management
Building Your Corporate Career Website:
12 Do’s & Don’ts
Reprisals: Expressing Safety Concerns ≠
Immunity from Discipline
HR W Compliance Insider
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DOMESTIC VIOLENCE CONTINUED FROM FRONT
hr compliance insider
Board of Advisors
summary of the Insider’s interview with HR Director, Mary Benson-Albers, who played a key role
in formulating the Hospital’s domestic violence policy. (Note: The interview was conducted by
lawyer/journalist Sheryl Smolkin.)
Hugh A. Christie
Gowling, Lafleur, Henderson, LLP
Toronto, ON
THE BACKGROUND
David S. Cohen, EdD
Strategic Action Group
Toronto, ON
The Dupont Murder
Q. Is it fair to say that before the murder, the hospital was aware of Dr. Daniel’s mental health
problems?
Vicki L. Giles, LLB
McLennan Ross LLP
Edmonton, AB
A. He had attempted suicide and been off work for some time. He was under the care of a psychiatrist
who, along with the Ontario Medical Association’s Physician’s Help Program, cleared him to return
to work. He did return but, unfortunately, that wasn’t communicated broadly and it wasn’t clear to
physician monitors assigned to him exactly what their responsibilities were.
Maria McDonald, LLB
Dykeman Dewhurst O'Brien LLP
Toronto, ON
Q. Before these events, did the hospital have a workplace or domestic violence policy?
Ken Krohman
McKenzie Fujisawa
Vancouver, BC
A. No.
Developing a Domestic Violence Policy
Greg McGinnis
Heenan Blaikie
Toronto, ON
Q. How soon after the Dupont murder did you begin developing your workplace violence prevention
policy?
Robert Smithson
Smithson Law LLP
Kelowna, BC
A. Within a week. It began with drafting our “covenant,” similar to a code of conduct. There was
a group that met daily at first and it took a couple of months to put the policy together. Our EAP
(Employee Assistance Program) provider was quite involved in policy development and training. The
general workplace violence policy came first; the domestic violence rider came later.
R. Ross Wace
Wace & Associates
Mississauga, ON
HR
Q. How did you develop content for your policy? Did you use a template or model policy?
Compliance
™
A. We used a number of resources. We engaged our EAP provider, Warren Shepell (now Morneau
Shepell) from the beginning and their expertise was instrumental. We also looked at models from a
number of other major employers both in Canada and the U.S. to identify the essential components
of a policy. We also consulted with OHS experts in Ontario.
Your Plain Language Guide to
Hiring, Firing, Human Rights, Payroll & Privacy
THE DOMESTIC VIOLENCE POLICY
Managing editor:
GLENN S. DEMBY
Who & What Policy Covers
CONTRIBUTING WRITERS:
PAULA SANTONOCITO
SHERYL SMOLKIN
Q. To whom do the hospital’s workplace and domestic violence policies apply?
A. Everyone and anyone including staff positions, students and contract workers.
Q. How is “domestic violence” defined?
PRESIDENT AND CEO: ROB RANSOM
A. Broadly to cover not just physical violence but coercive behaviour, including sexual, emotional and
psychological intimidation and verbal abuse, stalking and use of electronic devices.
HR Compliance Insider is published by Bongarde Holdings
Inc. and is intended for in-house use only – commercial
reproduction is a violation of our copyright agreement.
Q. How does the policy define “workplace”?
This publication is designed to provide accurate and
authoritative information on the subject matter covered. It is
sold with the understanding that the publisher is not engaged
in rendering legal, accounting or other professional services.
If legal or other expert assistance is required, the services of
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EDITORI
A. The actual workplace includes any satellite areas like the parking garage, outside parking lot and
sites of off-site hospital-sanctioned functions like the Christmas party.
Q. What are you trying to accomplish with these policies?
A. The premise is that the best predictor of violence is a history of violence. We track complaints so
we can track repeat incidents. We’ve also hired a safe work advocate. Once a complaint is raised, she
Printed in Canada.
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CONTINUED ON PAGE 3
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DOMESTIC VIOLENCE CONTINUED FROM PAGE 2
ensures that the process is followed and claims are dealt with. She also has
an educational role.
Q: What about hospital patients?
A: We also track on patient charts patients and family members who
act out and give them a purple armband and a pamphlet explaining the
program. There has been controversy about “labelling” patients but we
believe staff safety trumps that concern.
Dealing with Domestic Violence
A. Yes. The policy is based on a risk assessment of the high, moderate and
low risk areas in the hospital. The risk assessment is done every 2 years
and then the policies themselves are reviewed by our workplace violence
prevention committee to ensure they’re relevant and up to date. We most
recently reviewed the policies last year when Bill 168 came into effect.
How the Policy Has Worked—A Case Study
Q. Have you had any actual domestic violence incidents since
implementation of the policies?
Q. Can you me about the key elements of the domestic violence rider of
the policy?
A. Most startling for me has been the number of women experiencing
domestic violence looking for support and resources who have actually
come forward.
A. Our goal is to support a worker who might be experiencing domestic
violence or intimate partner violence and to be sensitive to the impact on
his/her work performance.
Q. So did the policy pass the test—was it effective in protecting those who
came forward?
Q: How do you create awareness of the potential for domestic violence in
the workplace?
A: The policy reflects the understanding that the perpetrator of violence
may be someone in the building or an outsider. It’s also designed to ensure
that everyone in the environment is aware of the signs of violence and
resources available to deal with threats. For example, the policy provides
for establishing a team of people including from HR, health and safety,
security, the safe workplace advocate, the employee’s manager and, where
appropriate, the union, for an employee that comes forward to say she’s
scared because someone’s stalking her. The policy also provides for offering
referrals of assistance to employees threatened with violence.
Q: What safety elements are in place?
A: We’ll put in a workplace safety plan that may involve anything from
special parking to escorts and even advising co-workers in extreme cases.
We also depend on community resources to do safety planning for an
employee outside the workplace.
Training & Communication
Q How often is communication of the policy and training provided?
A. We require all new employees from housekeeper on up to take 3
days of training, including workplace violence and domestic violence
modules, before they can start working. In house staff certified by the
Crisis Prevention Institute (http://www.crisisprevention.com/ ) delivers the
training. We also provide an annual e learning refresher on the workplace
and domestic violence awareness policies.
Q. Have you developed standardized materials for your workplace and
domestic violence orientation training?
A. Absolutely. In fact, our Code White (non-violent crisis intervention)
training is a program we are licensed to deliver. In addition, our in house
trainers have created power point slides and print materials for the
workplace and domestic violence prevention modules.
Updating the Policy
Q. Do you regularly update your policies?
A. Absolutely. One case that comes to mind is an employee who disclosed
that her ex-husband, who had a history of assaulting her and the children,
was going to be released from prison in a few months. She was terrified.
So we created a workplace safety plan for her and referred her to victim
services who helped her develop a personal safety plan for outside the
workplace. She still works in the hospital and I’ve heard back from her a
few times over the years. She’s been very grateful and is doing well.
Reflections on & Lessons of the Dupont Tragedy
Q. Do you think if the policy had been in place in 2005, Lori could have
been saved?
A: That’s a very difficult question. I’d like to think so because to answer
that question any other way would essentially invalidate all of our efforts
over the last 5 or 6 years. But there’s another part of me that thinks it
wouldn’t have. Marc Daniel was a very sick person who was really good at
hiding his illness; he was even able to fool the mental health professionals
in charge of his care. I’m not sure that any policy short of locking down the
facility and frisking people for weapons would have prevented him from
doing what he set out to do.
Conclusion
To the extent it had a silver lining, the loss of Lori Dupont led directly to the
recognition of the threat of workplace domestic violence and the adoption
of new laws to deal with it. It also spurred the Hôtel-Dieu Grace Hospital
to create a state-of-the art domestic violence policy that has proven highly
effective in real-life conditions. In effect, Mary Benson-Albers and her
colleagues have provided a model that other companies can use to prevent
tragedies like the Lori Dupont murder from happening at their workplace.
Probably the most important lesson from the whole Dupont experience,
according to Mary, is to never believe it can’t happen at your workplace. “It
happened to us and we are forever changed because it did.” 
Sheryl Smolkin, who conducted this interview, is a Toronto lawyer and
journalist who can be contacted at www.sherylsmolkin.com.
July 2011 © Bongarde • www.hrcomplianceinsider.com
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DOMESTIC VIOLENCE CONTINUED FROM PAGE 3
INTIMATE PARTNER/DOMESTIC VIOLENCE POLICY
Here’s an outline of and key excerpts from the Hôtel-Dieu Grace Hospital domestic violence policy that you can adapt. For the entire Policy, see http://www.hdgh.org/en/zeroviolence .
I. PURPOSE
Hôtel-Dieu Grace Hospital is committed to promoting the health and safety of our
employees and to making a significant and continual difference in the fight to end
domestic violence. We realize the reality of domestic violence in our society, how it can
affect employees and their work. To address these concerns, we have adopted a policy
to heighten awareness of domestic violence and to guide employees and management
to address the occurrence of domestic violence and its impact in the workplace.
II. DEFINITIONS [key ones to include:]
Domestic Violence: A pattern of coercive behaviour used by one person to gain power
and control over another which may include physical violence, sexual, emotional and
psychological intimidation, verbal abuse, stalking, use of electronic devices, to harass
and control economically. Domestic violence can occur between current or former
intimate partners—adults or adolescents and between people of all racial, economic,
educational, religious backgrounds—heterosexual or same sex, living together or
separately, married or unmarried, in short-term or long-term relationships. Domestic
violence is a major cause of injury to women, although men may also be victims.
Workplace: The workplace includes all on-site locations, including adjacent parking
areas, extended Hospital property and all remote locations where employees engage
in Hospital business and/or social functions.
Employees: This Policy applies to all employees, full- and part-time, temporary or
otherwise, as well as to physicians, students, volunteers, contractors and consultants
engaged to perform services for the Hospital. “Staff” is defined as all employees,
permanent, temporary and casual. Employees may be located in any department,
division or site of the Hospital and may be serving it in any capacity. Any physicians
granted privileges of any kind with Hôtel-Dieu Grace Hospital are considered “staff,”
[including] residents and other physician groups in training.
III. PRINCIPLES OF THE HOSPITAL
[Includes creating a workplace that is safe, non-discriminatory, productive and
informed and socially responsible]
IV. POLICY
A. Responding to Victims/Survivors of Domestic Violence
[Describes measures to respond and support employees who report violence.]
B. Confidentiality
In all responses to domestic violence, Hôtel-Dieu Grace Hospital will respect the
confidentiality and autonomy of the reporting employee, informing other employees
on a need to know basis only, and only to the extent necessary to protect safety
and comply with the law. Wherever practicable, advance notice will be given to the
reporting employee if Hôtel-Dieu Grace Hospital needs to inform others about the
domestic violence situation. . . .
C. Training
[Describes domestic violence training and education activities.]
D. Early Intervention Education Prevention Strategies
[Detailed discussion of Hospital’s prevention and early intervention efforts, including:
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Confidentiality for those who come forward;
Extra security where necessary;
Workplace relocation and/or work schedule adjustments;
Information on where to get help;
EAP support;
Encouraging employees to volunteer for local domestic violence prevention
programs;
77 Information for contacting police and Hospital violence response teams.]
E. Leave Options for Employees Threatened with Violence
1. At times, an employee may need to be absent from work due to family violence,
and the length of time will be determined by the individual’s situation via
July 2011 © Bongarde • www.hrcomplianceinsider.com
collaboration with the employee, supervisor/manager, HR representative and
union representative;
2. Employees, supervisors and managers are encouraged to first explore whether
paid options can be arranged that will help the employee cope with a family
violence situation without having to take a formal unpaid leave of absence. This
may include:
77 Arranging flexible work hours so the employee can handle legal matters, court
appearances, housing and childcare;
77 Consider sick, annual, shared leave, compensatory time or leave without pay,
especially if requests are for relatively short periods;
3. An employee may be granted a period of time off without pay.
4. Where circumstances warrant, the Hospital may place an employee on leave of
absence, with or without pay.
F. Procedures for Employees with Performance Issues Related to Domestic
Violence
While the employer retains the right to discipline employees for cause, Hôtel-Dieu Grace
Hospital recognizes that victims-survivors of domestic violence may have performance
or conduct problems such as chronic absenteeism or inability to concentrate as a result.
Such employees will be offered referrals for appropriate assistance. . . .
The manager, in collaboration with the employee, HR representative and union
representative will allow a reasonable amount of time for the employee to get help
regarding the domestic violence. Managers will be mindful that effects of domestic
violence can be severe and take extended periods of time to fully address.
G. Disciplinary Procedures for Acts or Threats of Domestic Violence
[Statement that workplace domestic violence will not be tolerated.]
1. This policy strictly prohibits the use of violence or threats of violence in the
workplace. Additionally, any physical assault or threat made by an employee while
on Hôtel-Dieu Grace Hospital premises or sponsored events is a serious violation
of this policy. This policy applies not only to acts against other employees, but
other persons, including intimate partners. Employees found to have violated
this policy will be subject to corrective or disciplinary action, up to and including
termination or revocation of privileges.
2. Employees convicted of a crime as a result of domestic violence may be subject
to corrective or disciplinary action, up to and including termination or revocation
of privileges when such affects the employee’s work performance or normal
operation of the Hospital.
3. This policy [applies to] . . . employees who use workplace phones, computers, faxes,
email, copiers, regular mail, electronic communication devices or information
systems, the Internet, Hospital property or resources or private property on
Hospital time, during performance of Hospital business or at clients’ sites, to
abuse, intimidate, threaten or harass others, including intimate partners.
4. Hôtel-Dieu Grace may investigate civil or criminal allegations of domestic violence,
sexual assault and/or stalking where an employee is the defendant where there
is reason to believe the employee committed such actions at Hôtel-Dieu Grace
worksites.
5. Upon completion of the investigation, regardless of whether the employee has
been charged or found liable, Hôtel-Dieu Grace may take corrective action and
discipline the employee. . .
6. Hôtel-Dieu Grace, through HR, may also require the perpetrator to seek help at
the Employee Assistance Program or successfully complete an approved Partner
Assault Response Program. Continued employment is contingent upon not
committing new offences and obeying all conditions of any Court Order. HôtelDieu Grace will maintain the perpetrator’s confidentiality.
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HR Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and arbitration rulings.
CASE OF THE MONTH
Ontario Court Nixes Class Action for Constructive Dismissal
When some is bad, more must be worse. That’s why the grouping of individual
ESA claims as class actions is such a scary prospect for employers. The one
saving grace is how hard it is for employees to get their cases “certified,” i.e.,
approved by the court as a class action. So far, the issue of overtime has been
the principal battleground testing whether employees can assert ESA claims as
class actions. But a new Ontario lawsuit opens a new front in the class action
conflict: constructive dismissal. Here’s a look at the case and what it portends
for employers in Ontario and across Canada.
THE CASE
What Happened: In 2007, Allstate insurance told its agents of its plans
to implement major changes to its business model over the next 2 years.
Neighbourhood and locally managed offices would be consolidated into larger,
central locations under corporate control; the compensation scheme would
become more variable and based on individual incentives. 102 agents resigned,
claimed the changes amounted to constructive dismissal and filed a class
action lawsuit. Allstate denied the claims and challenged the agents’ right to
assert them as a class action.
What the Court Decided: The Ontario Superior Court ruled that the claims
had to be brought individually and not as a class action.
How the Court Justified Its Decision: Not just any case can be brought
as a class action. Among other things, the plaintiffs, or persons bringing the
lawsuit, must persuade the judge that the claims have enough in common
to adjudicate them together in a single proceeding. The court found that the
Allstate agents failed to prove commonality in this case.
To prove constructive dismissal, the court explained, employees must show
that the employer made “unilateral and fundamental changes” to the terms
of employment without giving employees reasonable notice. In essence, they
must show the employer tore up the previous contract and substituted less
favourable terms of its own making.
Is that, in fact, what Allstate had done? A trial would be necessary to answer
that question, said the court. During that trial, the court would have to look at
the effect of the changes on each individual agent. The court acknowledged
that the changes were company-wide and applied to all agents. However, it
reasoned, they affected each agent differently depending on their previous
arrangement and where they worked. Because the issue of whether the change
was “fundamental” to the employment relationship had to be dealt with caseby-case, the agents couldn’t bring their lawsuit collectively in a class action,
the court concluded.
Kafka v. Allstate Insurance Co. of Canada, [2011] O.J. No. 1683, April 12, 2011
ANALYSIS
Determining commonality by looking at the impact of company-wide changes
on individual employees basically requires that employees have identical
employment arrangements to bring a class action. So if it’s followed by other
courts, the Kafka approach would severely limit which employees could bring
class action lawsuits for constructive dismissal.
But Kafka is only the opening salvo. If the overtime class actions pattern
holds, the employees will appeal the ruling. And based on the mixed results in
the overtime cases, we can’t be sure how the appeals court would decide the
commonality issue.
The other thing to keep in mind is, like all class action certification cases,
Kafka doesn’t address the merits of the case but only whether it should be
brought in individual lawsuits or a class action. So once all the class action
questions are sorted out, the issue of whether Allstate really did commit
constructive dismissal will bear close watching by other employers restructuring
their businesses. 
LAWS & ANNOUNCEMENTS
Minimum Wage
Jun. 1: The minimum wage goes up 30¢ to $9.30 today, then to $9.60 on Oct. 1, and $10
on April 1, 2012.
Minimum Wage
Apr. 1: Today is the day that the annual CPI adjustment of the
Yukon minimum wage goes into effect. This year’s increase is
a modest 7¢--to $9.00 per hour.
Human Rights
Apr. 13: A bill that would make subtle but important changes to the Human Rights Act
received first reading. Bill 40 would: i. redefine “disability” to include physical, mental or
intellectual disabilities; and ii. Require consent to bring discrimination claim on behalf of
third party to the Executive Director of Human Rights Commission.
Health Insurance
Apr. 20: The province added 25 new drugs to its formulary including 4 high cost drugs:
Orencia, Rituxan, Simponi and Volibris. Other additions: Apridra, Omnitrope, Advagraf,
Olmetec, Camprai, Azarga and Testim.
YUKON
PE
LAWS & ANNOUNCEMENTS
Workers’ Comp
July 1: As of that date, leukemia, non-Hodgkin's lymphoma,
bladder, brain, colorectal, esophageal, kidney, lung, ureter
and testicular cancers will be presumed to be occupational
illnesses for full-time Yukon firefighters. For all firefighters—
whether full-time, part-time, volunteer and woodland—a
heart attack suffered up to 24 hours after an emergency call
will also be considered a work-related incident.
July 2011 © Bongarde • www.hrcomplianceinsider.com
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FEDERAL
LAWS & ANNOUNCEMENTS
CASES
Human Rights
Apr. 4: Of the 1,435 complaints received by the Human Rights Commission in 2010:
77 853 were accepted
77 166 were referred to “alternate redress”
77 139 were dismissed
77 191 were referred to the Canadian Human Rights Tribunal
77 177 were settled.
Promotion Denied Over Test Score, Not Family Feud
A postal worker in the Canada Post Career Leadership Development
Program claimed he was denied promotion in reprisal for grievances
filed by his sisters, who were also CP employees. But the Human Rights
Tribunal disagreed and dismissed his family discrimination complaint.
The worker wasn’t promoted because he failed to score the minimum
70% on his assessment tests; the decision had nothing to do with his
sisters’ situation, it found [Silva v. Canada Post Corp., [2011] C.H.R.D.
No. 8, Apr. 8, 2011].
Pensions
Apr. 1: The following pension changes under erstwhile Bill C-9 officially took effect:
77 Individuals whose pensions transferred to another plan no longer “former
members”
77 Written termination notice to members, former members, spouses/common law
partners required within 30 days of termination
77 Written notice of benefits payable required within 120 days
77 Full funding of plan required upon termination
77 Letters of credit to finance solvency deficits allowed
77 Annual statement required to former members
77 Negotiation of distressed plan workout schemes allowed.
Court Chucks “Bad Faith” Sex Harassment Claim
A telecom employee claimed her employer videotaped her in the wash
room and monitored her home TV cable box to see what shows she
watched. The company investigated and found her complaints totally
baseless. The company didn’t have the technology to monitor her cable
box even if wanted to. The appeals court upheld the Human Rights
Commission’s refusal to hear the sex harassment complaint as “trivial,
frivolous, vexatious or in bad faith” [Blackett v. Shaw Cablesystems,
[2011] F.C.J. No. 485, March 29, 2011].
ALBERTA
LAWS & ANNOUNCEMENTS
CASES
Labour Market
Apr. 8: Highlights of the newly released 2010 Alberta Labour Market Review:
77 At 72.9%, Alberta had Canada’s highest participation rate, i.e., percentage of
individuals looking for work
77 Unemployment dropped a tad from 6.6% to 6.5%, third lowest in Canada
77 22% of the labour force had a university degree, as compared to 20.8% in 2009.
Non-Employer Can’t Be Sued for Sex Harassment
A female oil well worker living in a field camp owned by her employer
was appalled to find a male maintenance camp worker spying on her
in the shower. A couple of days later, she awoke from her bed to find
the same colleague standing in her room. The worker sued the camp
owner for sex harassment but the court ruled she had no claim for
employment discrimination. Although the camp worker’s behaviour was
reprehensible, the camp owner wasn’t the victim’s employer, it reasoned
[375850 Alberta Ltd. v. Noel, [2011] A.J. No. 380, April 4, 2011].
Older Workers
Apr. 27: Highlight of new government strategy to keep aging baby boomers in the
workforce longer:
77 Get employers to offer phased retirement and flexible work arrangements
77 Help employers plan for succession
77 Offer post-secondary education and career services to older employees.
Underage Workers
Apr. 20: The Alberta Federation of Labour claims that employers are illegally employing
underage workers at an alarming rate. According to the AFL report, of the 8,200 kids ages 9
to 11 working, 78% are holding down jobs illegal for individuals so young to do—janitorial
services, newspaper delivery, etc.; 21% of working kids ages 12 to 14 are in illegal jobs.
Health Insurance
Apr. 1: Optometrists and eye doctors ratified a new 3-year deal with the province that
expands Alberta Health Care Insurance Plan coverage of optometry services to all
Albertans. The current Plan covers only individuals between ages 19 and 64.
Immigration
Apr. 1: Effective immediately, skilled temporary foreign workers certified in one of
Alberta’s 50 occupational trades can apply directly for permanent residency to the Alberta
Immigrant Nominee Program and no longer have to apply with their employers. See
www.albertacanada.com/ainp.
Ex-Employee Who Takes Firm Clients Violates Fiduciary Duty
In a kind of real life Jerry Maguire, a court found a sports agent guilty
of violating a fiduciary duty by taking clients from the sports agency
he used to work for. The court acknowledged that the agent lacked
authority to hire and fire and that the firm didn’t think enough of his
performance to offer him a new contract. But it had entrusted him with
its key Czech-Slovak NHL player pipeline. Taking those clients when he
left was a violation of a fiduciary duty, it concluded [Evans v. Sports
Corp., [2011] A.J. No. 408, April 8, 2011].
Does Workers’ Comp Cover Smoker’s Lung Disease?
26 years of smoking played a significant role in a worker’s development
of chronic obstructive pulmonary disease (COPD). But so did exposure
to toxic materials in his work in mines, plants, refineries and pulp mills.
Workers’ comp awarded him benefits. A respiratory disease caused
partly by occupational factors and partly by non-occupational factors is
presumed to be work-related, ruled the Appeals Commission [Decision
No. 2011-275, [2011] CanLII (AB W.C.A.C.), April 1, 2011].
LAWS & ANNOUNCEMENTS
CASES
Wage Subsidies
Apr. 1: The Apprenticeship Wage Subsidy
Program will provide employers financial
incentives to offset the salary costs of hiring
apprentices:
77 90%: first year apprentices
77 80%: second year
77 60%: third and fourth years.
Minimum Wage
May 1: The regular minimum wage increased from
$9.50 to $9.65 and the minimum wage for employees
receiving tips went up from $8.25 to $8.35. There
are roughly 292,000 minimum wage earners in the
province.
Facebook Postings Are Evidence of
Harassment
An employee filed a harassment lawsuit
after finding a series of derogatory
comments made by colleagues about
her on the Facebook page of another
work colleague she had “friended.” The
company contested the employee’s
right to use the Facebook postings
about her as evidence in the case. The
Commission des lésions professionelle
disagreed. Facebook postings were
reliable and not privacy protected, it
ruled [Landry and Provigo Québec Inc.
(Maxi & Cie), 2011 QCCLP 1802, March
9, 2011].
Immigration
Apr. 15: The province nominated 1,279
immigrants, many of them highly skilled,
from 76 countries between 2007 and 2010.
Of 221 recent immigrants surveyed, 179 (or
81%) were still living in Newfoundland and
Labrador, a pretty impressive retention rate.
July 2011 © Bongarde • www.hrcomplianceinsider.com
QUÉBEC
NEWFOUNDLAND
LAWS & ANNOUNCEMENTS
Work-Life Balance
Apr. 17: Under a new Bureau de Normalisation du
Québec (“BNQ”) program, employers can qualify
for 1 of 4 levels of work-family balance certification
from the government by establishing a work-family
balance committee, providing training and preparing
documents spelling out their work-family balance
commitment and measures, e.g., offering child care
in the workplace, granting additional leave for family
reasons and using a compressed work week.
HR
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LAWS &
ANNOUNCEMENTS
Minimum Wage
BRITISH COLUMBIA
May 1: A 75¢ increase in the
BC minimum wage to $8.75
per hour takes effect today.
The old first/job/entry level
minimum wage for employees
with fewer than 500 hours of
paid work experience (which
was $6) has been eliminated.
It’s the same minimum wage
everywhere.
Collective Bargaining
Apr. 26: Thompson River
University reached a tentative
2-year agreement with the
teacher’s union covering
500 faculty members and
administrators. Terms weren’t
disclosed.
7
CASES
Laying Off Injured Worker = Disability Discrimination
After 10 months of being allowed to work 3 days a week without heavy lifting, a poultry plant employee with an injured shoulder
was laid off. He claimed disability discrimination. The Human Rights Tribunal said the plant didn’t meet its duty to accommodate
and awarded the employee $7,500 in damages. There was no evidence of why the employer suddenly had to pull the plug on
the part-time arrangement [Sarain v. Wingtat Game Bird Packers Inc., [2011] B.C.H.R.T.D. No. 84, April 6, 2011].
Firing Ferry Captain ≠ Reprisal for His Raising Safety Concerns
The captain of the Queen of the North ferry that sank claimed he was fired for raising OHS issues during the accident inquiry. The
WCAT ruled that the captain was fired for refusing to play a constructive role in the inquiry. None of the 58 safety concerns the
captain raised during the inquiry related to the actual sinking, the court explained. The company didn’t dismiss his concerns but
tried to get him to focus on the matter at hand [Henthorne v. BC Ferry Services Inc., [2011] BCSC 409 (CanLII), April 1, 2011].
Disabled Employee Secretly Tapes Return-to-Work Meetings
An employee on leave with heart disease claimed he was threatened with termination in retaliation for filing a disability
discrimination claim. The BC Human Rights Tribunal ruled that the employer had accommodated the employee. Threats were
made, the Tribunal acknowledged, but they were prompted not by the discrimination complaint but the employee’s secret
taping of return-to-work meetings to help the union win its case to preserve his pension [Boehler v. Canfor Pulp LP, [2011]
BCHRT 73 (CanLII), March 23, 2011].
Fear of Re-Injury No Grounds for Denying Employee’s Return to Work
A company refused to let an employee return to work after a back injury because it was afraid his back was weak and would get
hurt again. The Human Rights Tribunal found the company liable for discrimination on the basis of a perceived disability—a bad
back—and awarded the employee $8,000 in damages, $1,600 in lost wages and $475 in expenses [Cartwright v. Rona, [2011]
BCHRT 65 (CanLII), March 17, 2011].
ONTARIO
LAWS & ANNOUNCEMENTS
CASES
Employment Standards
Apr. 15: The government is proposing to add Québec to
the list of reciprocating states for purposes of enforcing
the ESA. Reciprocity will enable Ontario employers and
employees to get their rights enforced in Québec and
afford similar treatment to Québecers in Ontario.
Paying Plan Funds to Bankrupt Sponsor’s Lender Violates Fiduciary Duty
An employer files for CCCA, essentially bankruptcy, protection leaving 2 underfunded DB plans that need
to be wound up. The plans’ administrator/CCCA monitor intends to use the money in the plans’ fund
to repay the company’s lenders. That’s our money, claim the DB plan members. The Ontario Court of
Appeal lets the DB members sue for breach of fiduciary duty. Being a CCCA monitor doesn’t relieve the
administrator of its fiduciary duty under pension law to act in members’ best interests [Indalex (Re),
[2011] O.J. No. 1621, April 7, 2011].
Workers’ Comp
Mar. 30: Royal Assent was given to a law called the
Good Government Act, 2011 that includes changes to
workers’ comp benefits:
77 $3,000 increase in threshold for paying Loss
Retirement Income (LRI) benefit as annuity, rather
than lump sum, when worker hits 65
77 Survivor(s) of deceased worker entitled to LRI
ensured access to documents in worker’s file
77 All Non-Economic Loss (NEL) benefits payable as
lump sum subject to worker’s election to receive it
as monthly payment if NEL above threshold
77 NEL assessment reports subject to usual access-torecords rules and no longer sent automatically to
employers.
Mandatory Retirement
Apr. 18: Newly tabled Bill 181 would allow mandatory
retirement at age 60 of salaried firefighters who
respond to emergency calls. Although it might sound
controversial, most municipalities already include a
mandatory retirement age in their collective agreements
with firefighters. Bill 181 opens the door to renegotiation
of those provisions.
Pensions
Apr. 15: FSCO issued a new policy (A300-450) for
plan administrators on responding to questions and
complaints from beneficiaries. The policy calls on
administrators to create a written response policy and
an accompanying guideline explains how.
Spousal Pension Waiver that Omits Key Information Is Unenforceable
A 39 year employee at a chemical plant accepted an early retirement buy-out providing an enhanced
pension for 5 years but no survivor benefits. His wife signed the spousal benefits waiver. The employee
died 3 1/2 years later and the wife sued, claiming the waiver was invalid. The court agreed. The waiver
form didn’t include the mandatory language required by the pension law. And the information omitted
was substantive in nature. So the plan couldn’t hold the wife to the waiver of survivor benefits [Smith v.
Casco Inc., [2011] O.J. No. 1817, Apr. 20, 2011].
Disparaging Remarks about Employees’ Belief in ETs = Creed Discrimination
Employees of an Irish pub who were members of a movement called Raelianism that believes human
life was created by aliens from outer space sued their employer for not letting them host a lecture at the
workplace after work. Not allowing the premises to be used for the lecture was a legitimate business
decision, said the Human Rights Tribunal; but remarks by the manager that he didn’t want the pub
associated with their “cult” were discrimination on the basis of creed [Gilbert v. 2093132 Ontario (c.ob.
Restaurant Patty Bolands), [2011] O.H.R.T.D. No. 678, April 7, 2011].
Bill 168 Doesn’t Protect Against Harassment before Its Effective Date
Sec. 50 of the OHS Act bans employers from firing workers in reprisal for exercising their OHS rights. A
security guard claimed he was fired in reprisal for complaining about being harassed by his supervisor.
Although protection from harassment has been part of the OHS law since Bill 168 took effect on June
15, 2010, the alleged harassment in this case occurred before that. And since the right to be free from
harassment didn’t exist yet, the Board ruled that the guard didn’t have a valid case of reprisal for exercising
an OHS right [Barton v. Commissionaires (Great Lakes), [2011] CanLII 18985 (ON L.R.B.), April 8, 2011].
11 Months’ Suspension Enough for Threat & Chest Bump
A worker was fired for levelling threats and chest bumps at a co-worker who accidentally hit him in the
head with a metal sheet. An arbitrator ruled that the penalty was too severe and cut it to 11 months’ unpaid
suspension. The worker did violate the company’s violence policy. But the “victim’s” conduct incited him.
And his previous complaints to supervisors about the co-worker’s erratic behaviour had fallen on deaf
ears [Georgia Pacific Canada v. Communications, Energy & Paperworkers Union of Canada, Local 192,
2011 CanLII 18182 (ON L.A.), March 28, 2011].
LAWS & ANNOUNCEMENTS
Alternative Energye
Apr. 28: The Northern premiers wrapped up their annual summit in
Yellowknife with a call to Ottawa: Give us more money for development
of alternative energy. The territories don’t have the dollars to pay for
high cost hydro electric and other green energy projects, according to
the premiers.
Public Health
Apr. 26: People in Nunavut are spending more of their money on drink.
Per capita, adults in the territory spent $945 in 2010 on beer, wine and
spirits. Only Newfoundland had a higher year-to-year increase in alcoholgenerated revenue. As in the rest of the country, beer remained the drink
of choice in Nunavut.
NU
NT
LAWS & ANNOUNCEMENTS
July 2011 © Bongarde • www.hrcomplianceinsider.com
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NB
LAWS & ANNOUNCEMENTS
CASES
Health & Safety
Apr. 8: Highlights of WorkSafeNB’s 2010 safety activities:
77 OHS inspections: 8,765
 Serious incident investigations: 243
77 Orders for OHS violations: 7,313
 Work-related fatalities: 9.
Employees Don’t Get Job Back When “Permanent Disability”
Ends
A pension plan administrator re-reviewed the status of firefighters
getting permanent disability pensions and found they were no
longer disabled. The union claimed the employer had to either put
the firefighters on sick leave or return them to active service so they
could keep earning regular retirement pension service. The arbitrator
agreed but the appeals court found the ruling unreasonable. Getting
permanent disability benefits ended the firefighters’ employment
and with it the employer’s duty to accommodate. You can be either
a lifetime pensioner or an employee but you can’t be both, the court
reasoned [Saint John (City) v. Saint John Fire Fighters’ Assn., [2011]
N.B.J. No. 104, April 7, 2011].
Workers’ Comp
Apr. 11: WorkSafeNB released a guide spelling out employers’ rights, duties and best practices
to accommodate injured workers under workers’ comp, human rights laws and the ESA.
Employment Standards
Apr. 14: Consultations began on reservist military leave. Key issues:
77 Which employees should get reservist leave
77 What notice should employees give before taking leave
77 Should leave cover annual training
77 How should leave affect annual vacation.
SASKATCHEWAN
LAWS & ANNOUNCEMENTS
CASES
Apprenticeships
Apr. 4: The training allowance for apprentices living away from home will increase from $94 to $125 per week on
July 1. The rate for apprentices living whose principal or secondary residence is in the Northern Saskatchewan
Administrative District will go up from $125 to $175 per week.
No Just Cause to Fire Tenant Farm
Worker for Poor Performance
A Saskatchewan grain farm hired a tenant
labourer from Alberta in April; in September,
his employment came to an end. There was
no written contract and each side claimed
the other ended the agreement. The court
sorted out the mess by finding that the
labourer was fired and didn’t quit. And
while his performance was less than stellar,
the farm owner didn’t warn him he wasn’t
getting the job done or tell him what to do
better. So the dismissal was wrongful and
the farm owner had to pay $2,400 in notice
and damages [Hengerer v. Hector, [2011] S.J.
No. 237, April 25, 2011].
Health & Safety
Apr. 20: The government is holding public consultations on proposed changes to the occupational health and safety
laws. Questions:
77 Should there be higher fines for OHS violations?
77 Should government be allowed to impose additional forms of penalties?
77 Should proceeds of fines and penalties be re-directed to public education and prevention?
Pensions
Apr. 26: The Financial Services Commission published a new bulletin clarifying that it expects Saskatchewan plans to
prepare actuarial valuation report in accordance with the revised Canadian Institute of Actuaries’ (CIA) standards.
All reports must contain appropriate levels of margin for the particular plan but specifics will be discussed with plans
on a plan-by-plan basis. It’s also not necessary to include a margin for each assumption, the bulletin explains.
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS cont'd
Immigration
Apr. 29: The province announced initiatives aimed at doubling immigration targets to 7,200
per year by 2020. Highlights of the Welcome Home to Nova Scotia program:
77 More information to employers on the credentialing process
77 Improve settlement programs
77 Faster acceptance of temporary foreign workers
77 Stepped up marketing of province around the world.
Pharmacare
Apr. 11: The government proposed a bill that would, starting July 1, cap Pharmacare prices of
generics at a percentage of their name brand equivalent over a one-year phase-in period:
77 July 1: 45% cap
77 Jan. 1, 2012: cap cut to 40%
77 July 1, 2012: cap cut to 35%.
Health & Safety
Apr. 14: Proposed new legislation would increase fines for OHS violations for the first time
since 1996. The maximum fine would remain $250,000 for a first offence but rise to $500,000
for additional offences within 5 years. The maximum fine for offences involving a death
would also be $500,000.
Public Pensions
Apr. 29: The Nova Scotia Teachers’ Pension Fund achieved a more
than respectable 11% gain in 2010, the second annual increase in a
row. The plan’s funding ratio also rose almost 3% to 78.7%. The bad
news for pensioners: Because funding remains below 90$, there will
be no cost of living adjustments to those who retired on or after
Aug. 1, 2006.
CASES
No Mental Stress Benefits for Worker with Psychiatric Past
The workers’ comp Appeal Tribunal upheld denials of a letter
carrier’s mental stress claims—one for job-related pressures, the
other over an incident in which a co-worker allegedly grabbed his
arm. The carrier had a history of psychiatric issues that predated any
of the events that he claimed caused his mental condition and there
wasn’t enough evidence that he suffered from a mental condition
resulting from unusual or excessive work-related stressors over time
or from a traumatic event [WCAT #2010—226-AD & 2010-473-AD,
[2011] CanLII 16159 (NS W.C.A.T.), March 24, 2011].
LAWS & ANNOUNCEMENTS
MANITOBA
Employment Standards—Overtime
Apr. 20: Under current ESC rules, employers can get a permit to make averaging agreements increasing daily hours or averaging hours worked across a longer period
to avoid paying overtime. Bill 23 would also allow for similar flextime arrangements letting employees put in irregular hours, e.g., when working from home, without
requiring employers to count down time toward overtime accrual.
Employment Standards—Termination
Apr. 20: Bill 23 would change the standard to fire an employee without having to provide termination from “wilful misconduct” to “just cause.” That would open the
door to firing for poor performance, honest errors and other transgressions employees didn’t commit deliberately.
Apprentices
Apr. 28: The government is now offering online technical training for the 2011-12 school year, including electrician Level 1 and 2, water and wastewater technician
Level 1 and 2, carpenter Level 1, heavy-duty equipment technician, transport truck technician and agricultural equipment technician. More course offerings will be
added in 2012. On a related note, budget 2011 provides funding to create 1,200 new apprenticeship seats in the province.
July 2011 © Bongarde • www.hrcomplianceinsider.com
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9
REJECTING APPLICANTS FOR LACK OF 'FIT' CONTINUED FROM FRONT
THE LEGAL RISKS
“Fit” has become an HR buzzword that, when used in connection with
“workplace culture,” supposedly helps assess a job applicant or current
employee’s compatibility with the organization. The employment
arrangement is a personal and multilateral relationship and for employees
to do the best job possible, they must feel connected to and invested in
the organization. So, as a strictly HR principle, probing an individual’s
personality “fit” is not only legitimate but crucial.
But as a legal principle, basing employment decisions on fit is
problematic. The concern is that “fit” is a code word indicating a preference
for individuals of particular socio-economic, racial and age characteristics.
Basing employment decisions on such characteristics is employment
discrimination.
Example: Company A uses “fit” as a pretext for deliberately excluding
minorities. Company B is open-minded and really wants to provide equal
employment opportunity. But, in practice, its corporate culture steers hiring
decisions in the direction of homogeneity. Companies A and B would both
be guilty of discrimination.
4 WAYS TO PROTECT YOURSELF
We’re not telling you that you can’t consider fit to determine which
individuals you want to work for your organization. What we are telling
you is that the practice is potentially illegal and that if you do it, you must
recognize and manage the risks. There are 4 ways to do that.
1. Establish a Clear Definition of “Fit”
First and foremost, ensure that fit is used as an objective measure of an
individual’s qualifications without regard to race, age, sex, religion, etc.
What To Do: The starting point is to nail down an organization-wide and
clear definition of what your culture is and what personal and professional
characteristics and values fit it. In addition to avoiding liability, agreeing on
such definitions will enable you to identify what your organization is really
about and the image of it you want to convey to the world.
Emphasize the “hard skills” and experiences that define your culture.
And keep in mind that even soft and squishy concepts like personality
characteristics can be defined to some extent in objective, measurable
terms.
Example: Rejecting a 50-year-old applicant for IT position due to lack
of “overall fit” wasn’t discrimination. While acknowledging that most of
the employees in the IT department were in their 20s, the Ontario human
rights tribunal found that the applicant was rejected not just because of
his personality but lack of technical experience with Blackberry Enterprise
servers [Sukhu vs. Universal Energy, 2009 CanLII 2009 HRTO 1922, Nov.
10, 2009].
2. Review Definitions for Discrimination Code Words
Once you define “culture” and “fit,” step back and take a detached look
at what you’ve wrought. Are your definitions fair and non-discriminatory?
Or will they send a discriminatory message about the kind of people you
want for your organization? Clearly, statements like “XYZ employees
AT A GLANCE
4 Ways to Protect Yourself
1. Define your culture and what fits it
2. Screen
your
definitions
discrimination code words
for
3. Establish interview procedures and
questions to ask about fit
4. Oversee your system and ensure it’s
being applied consistently
share Christian values” are a no-no. But beware of more subtle statements
that sound neutral but could be perceived as expressing racial and socioeconomic preferences.
Example: Google fires a 54-year-old employee because he isn’t a good
“cultural fit.” The employee claims that the whole cultural fit business
is a pretext for the company’s preference for younger employees, citing
statements in its job ads expressing preference for employees “who like
to work and play hard.” The court agrees and finds Google liable for age
discrimination [Reid vs. Google, Inc., 2010 FindLaw S158965 Santa Clara
County Superior Ct., August 5, 2010].
What To Do: Put yourself in the shoes of job applicants when
reviewing your statements. Also ask your lawyer to review your statements.
Be on the lookout for buzzwords that could create the wrong perception.
For example, how will statements about “family-oriented” come across to
applicants who are gay or single parents? How will words like “energetic”
and “dynamic” be perceived by applicants in their 50s? Mere use of such
words isn’t necessarily discrimination; but it creates the perception of
discrimination. And in the world of employment discrimination, perception
can be just as important as actual intentions.
3. Set Procedures to Collect “Fit” Information
Having a clear and non-discriminatory definition of “fit” sets you up to
incorporate personal characteristics into your employment decisions. But
troubles can still arise when you seek to apply those criteria to make actual
hiring decisions. To determine whether applicants have the characteristics
you want, you might end up asking for or collecting information that
crosses the line.
Example: You define “dedication” as a characteristic fitting your
company’s corporate culture. During a job interview, one of your managers
asks a female job applicant about her family arrangements. His intent is to
determine if she’ll be dedicated enough to work nights. The problem, of
course, is that in seeking to apply the criterion, he’s relying on a stereotype
that women with kids aren’t as committed to their jobs. And that’s illegal.
What To Do: If you’re going to make cultural fit part of your hiring
decision, you must ensure that the people involved in hiring decisions apply
the exact same criteria and do it in an orderly, consistent and controlled
way across the organization. These individuals need to understand exactly
what they can and can’t do. Conversely, they need to be restrained from
freelancing and making “gut” decisions about who is and isn’t a good fit.
Craft a model policy requiring all interviewers to pose standard interview
questions to gather the personal information about the applicant the
organization needs to determine if they fit the culture.
CONTINUED ON PAGE 10
July 2011 © Bongarde • www.hrcomplianceinsider.com
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REJECTING APPLICANTS FOR LACK OF 'FIT' CONTINUED FROM FROM PAGE 9
Example: A university concludes that a 59-year-old employee is the
wrong fit for a promotion because he lacks knowledge of and is unwilling
to embrace newfangled green products and computer technology.
The employee claims age discrimination but the human rights tribunal
disagrees. The university’s opinion about the employee’s resistance to new
technology was based not on age-ist stereotypes but actual answers to the
pre-set interview questions that the university posed to all applicants for
the position [White vs. Queen’s University at Kingston, 2010 CanLII 2010
HRTO 640, March 25, 2010].
Formulating pre-set questions also goes a long way toward removing the
subjective element from fit criteria. Such questions represent the difference
between “I know it when I see it,” and “I can actually measure it.” They
don’t completely eliminate the “gut” from the equation; but they force
the hiring personnel to actually probe and back up their instincts and
impressions with measurable data.
Example: Remember the Sukhu case where the company with the
IT department dominated by 20-somethings was allowed to deny an IT
position to a 50-year-old applicant because he was the wrong fit? At trial,
the guy who interviewed the applicant admitted that personality “fit is hard
to describe.” However, he wasn’t making calls about fit based just on his
gut. His conclusion was the product of a structured interview process that
probed for experience and skills, which ultimately provided a clear picture
of personality as it relates to fit.
4. Apply Fit Criteria Consistently
In judging the validity of your hiring decisions, courts and arbitrators will
look at whether you apply your fit criteria consistently.
Example: Candidate A, who’s white, and Candidate B, who’s African
Canadian, have similar credentials and personalities. Candidate B is asked
questions to determine her fit with the company; Candidate A is asked no
such questions. The company decides that Candidate A is a better fit and
offers her the job. The company’s lack of consistency in applying its fit
criteria to Candidate A would be evidence that rejecting Candidate B as a
poor fit was racially discriminatory.
What To Do: Exercise oversight over the hiring process and ensure your
controls are being applied consistently to similarly situated job applicants
across the organization:
77 Are all candidates for the same positions or within the same
departments being vetted for fit regardless of age, race, religion, etc.?
77 Are they all being asked the same questions with regard to fit?
77 Are the answers of all candidates being accorded the same weight in
the ultimate hiring decision?
Conclusion
Human rights laws require you to remove personal prejudice from the
employment process. Thus, to the extent it measures merits, qualifications
and prospects for success at your organization, evaluating fit is a legitimate
part of the hiring process; but to the extent it allows prejudice to creep in the
back door, it’s illegal. Doing the 4 things outlined in this story should go a
long way in helping you keep your own fit practices within the boundaries.
And remember that actions speak louder than words. So if your workplace
culture really is stifling diversity and favouring particular races, religions,
genders or socio-economic groups, there are no policies or practices that
will keep you out of trouble. 
MODEL POLICY
MAKING EMPLOYMENT DECISIONS BASED ON “CULTURAL FIT”
STATEMENT OF COMPANY CULTURE: [insert a statement that defines your company’s culture.]
1. HIRING PHILOSOPHY: ABC Company is committed to hiring individuals of the highest
5. GUIDELINES FOR INTERVIEWS: 1. One purpose of the job interview is to gather
2. STATEMENT OF NON-DISCRIMINATION: ABC Company is also committed to
a. As a general rule, base interview questions on real-life situations that have occurred
in your workplace;
b. Ask questions that give applicants a chance to talk about their leadership ability and
how they work as a member of a team;
c. All applicants must be asked the following questions:
professional and personal character and furnishing them a workplace that brings out
their best qualities and thereby maximizes their opportunity to succeed. In furtherance
of this commitment, ABC Company considers an array of factors in determining whether
individuals should be offered positions to work at the company, including whether
individuals “fit” ABC Company’s organizational culture—as stated in the box above.
furnishing equal opportunity of employment to all individuals regardless of their race,
religion, ethnicity, nationality, gender, disability, age, family status, sexual orientation,
political belief, criminal background, source of income or other personal characteristics
protected by human rights laws.
3. PURPOSE: The purpose of this Policy is to establish a framework and set of procedures
that ABC Company personnel can use to evaluate whether individuals seeking positions
with the Company are an appropriate fit with its culture in a way that is clear, consistent,
fair, objective and non-discriminatory.
4. WHAT FIT MEANS: Based on internal research and the input of managers, supervisors
and employees in all departments, ABC Company has identified the characteristics that
individuals who succeed in the organization are likely to possess. Although it’s not a
scientific indicator, ABC Company is of the judgment that such characteristics are the best
indicator of the kinds of individuals who best fit its culture. Accordingly, individuals involved
in the hiring decision will consider whether they possess the following characteristics:
[Insert characteristics].
July 2011 © Bongarde • www.hrcomplianceinsider.com
the information needed to determine whether the applicant possesses the above
characteristics. To that end, ABC Company personnel involved in job interviews must
follow these guidelines:
i. What is the culture like at your current or most recent company?
ii. What is your ideal job and why?
iii. What do you think it takes to be successful at ABC Company?
iv. In what kind of environment do you work best?
v. Which of your qualities do you consider most important?
vi. What do you think the most important qualities for this job are?
vii.How would you fit with ABC Company’s corporate culture?
7. OTHER FIT DATA COLLECTION PRACTICES: [Describe anything else you do to
collect data about an applicant’s fit.]
8. USE OF DATA: [Indicate how the answers to fit questions and other data are factored
into the decision of whether to hire the applicant.]
HR W Compliance Insider
11
PRIVACY
test
your
HR I.Q.
Using Personal Cell Phone Records to Enforce Driver Distraction Rules
SITUATION
Railway policy requires train operators to keep their cell phones and personal communication devices off at all times while on duty. A spate
of accidents in clear weather gives railway officials grounds to suspect the policy is being ignored. So they adopt a new policy requiring
employees involved in “serious accidents” to turn over their personal cell phone records to the investigator, if requested. The sole purpose
is to enable investigators to determine if the device was on when the accident occurred. Employees are allowed to cross out phone numbers
and the content of any text messages. But refusal to disclose is treated as an inference that the device was on. The union claims the policy is
a privacy violation and files a grievance.
QUESTION
What should the arbitrator do?
A. Strike down the policy because personal cell phone records
are private information.
B. Strike down the policy because it forces employees to
incriminate themselves.
C. Uphold the policy because railway safety outweighs
employee privacy.
D. Uphold the policy because it serves a compelling safety
interest and applies only to information necessary to
accomplish the purpose.
ANSWER
D. The arbitrator should find the policy valid because of the narrow
way it’s written and the compelling safety interest it serves.
EXPLANATION
Few would argue that employers have the right to limit employees’ workplace
use of cell phones, blackberries, portable computers and other potentially
distracting personal electronic communication devices—especially in
safety-sensitive industries like railroad and trucking. This scenario, which
is based on an actual federal case, poses a novel question—but one likely
to come up over and over again: Can employers demand employees’
personal cell phone records to enforce these restrictions?
The Canadian Railway Office of Arbitration upheld the policy on
the basis of 4 criteria: 1. The policy was “demonstrably necessary” to
meet a specific need; 2. It was effective in meeting that need; 3. The
loss of privacy was proportional to the benefit gained; and 4. There was
no less privacy-intrusive way to achieve the purpose. Although it’s a
federal case, courts and arbitrators in other jurisdictions are likely to use
the same criteria in determining whether employers can get access to an
employee’s personal cell phone records [Canadian Pacific Railway Co.
and Teamsters Canada Rail Conference].
WHY WRONG ANSWERS ARE WRONG
A is wrong because the fact that an employee’s personal cell phone
records are private information is the beginning, not the end of the
inquiry. Arbitrators must also weigh the employer’s interests against the
employee’s privacy rights.
B is wrong because requesting phone records is no different from
asking an employee if they broke a rule. “Such questions are common
in disciplinary investigations” and don’t necessarily violate an employee’s
right to a fair and impartial investigation, said the arbitrator.
C is wrong because it’s not just a weighing of interests. The railway
didn’t win because safety outweighs privacy; it won because its purpose
was compelling and its policy was the least privacy-invasive way to
accomplish it. The railway didn’t care who employees talked to and what
they said; all it wanted to know was whether their cell phones were on.
Allowing employees to excise personal information from their cell phone
records thus kept the privacy ramifications of the policy to a minimum—
and took the wind out of the union’s sails. 
SHOW YOUR LAWYER
Canadian Pacific Railway Co. and Teamsters Canada Rail Conference,
Canadian Railway Office of Arbitration & Dispute Resolution, Case No.
3900, May 11, 2010
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HR W Compliance Insider
12
ABSENTEEISM
winners & losers
Does Long Illness ‘Frustrate’ an Employee’s Contract?
Long, debilitating illnesses that keep employees away from work for extended periods are a nightmare for HR. A rule called “frustration of contract” allows
you to terminate when an illness (or injury) makes it impossible for employees to do their job. The problem is that it’s unclear how long you have to wait
before pulling the frustration rip cord. Each contract has a different frustration point, depending on the type of employment involved, the nature of the illness
and the expectations of the parties. The employer bears the burden of proving that such point has been reached. And that’s one reason employers lose more
frustration cases than they win. Here are 2 cases showing how courts decide if a long illness frustrates an employee’s contract.
CONTRACT NOT FRUSTRATED
CONTRACT FRUSTRATED
FACTS
FACTS
A 59-year-old manager of a family-owned music store gets lung cancer
and takes 6 months of medical leave. She tries to return after surgery but
chemotherapy wears her down and makes it impossible for her to work even a
reduced schedule. The store has its lawyer write the manager a letter warning
that she’ll be fired unless she gets back to full-time work. Six months later, the
manager is fired. The store claims the illness has frustrated her contract; the
manager claims she can still work and sues for damages.
In April 2000, a physiotherapist comes down with a mysterious disabling
illness—later diagnosed as fibromyalgia and chronic fatigue syndrome.
After 3 failed attempts to return to modified work, a Dec. 2001 functional
evaluation concludes that she lacks the “functional ability” to carry out
her physiotherapist duties on a full-time basis. In April 2002, with no
improvement and no prospect for recovery in sight, the employer claims
frustration and terminates her employment. The therapist sues for
wrongful dismissal..
DECISION
The Ontario Superior Court finds the store liable for wrongful dismissal and
awards the manager 22 months’ notice, $35,000 in Wallace and $20,000 in
punitive damages.
EXPLANATION
Illness frustrates a contract only if it’s permanent, i.e., of such a nature as to
make it impossible for an employee to do the job she was hired to do. The
medical evidence suggested that it would be not only possible but therapeutic
for the manager to keep performing her job functions. The fact that the manager
had worked at the store for 30 years and considered the owners like family
also weighed against the frustration argument. An employment relationship
“of long standing is not so easily destroyed as one with a short history,” the
court reasoned in rejecting the store’s frustration argument. 
Altman v. Steve’s Music Store Inc., [2011] O.J. No. 1136, March 8, 2011
DECISION
The Alberta arbitrator throws out the grievance.
EXPLANATION
The employer had just cause to dismiss the therapist for excessive
absenteeism. It had been 7 years since the therapist had worked, other
than her 3 brief attempts to return. And unlike in Altman where the
medical evidence suggested a return was possible, none of the medical
information in this case offered grounds to believe that the therapist
could make enough improvement to work as a physiotherapist. No
accommodation the employer could make could change that medical
reality. So the employer was justified in treating the contract as frustrated.

Health Sciences Assn. of Alberta v. David Thompson Health Region,
[2007] A.G.A.A. No. 35, May 10, 2007
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