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3 Trends in HR Law

Employment law in Canada has a solid foundation of jurisprudence and excellent practitioners on behalf of both employers and employees who feel that their rights have been infringed upon in the workplace. But there are always new issues and new developments to deal with. They include an ever-expanding number of human and personal rights issues like transgender issues and how to deal with a workforce that is more precarious and transient. In addition, employers are now not just being asked to deal with some tricky legal issues after they arise, but to be responsible for preventing them in the future. Here are 3 of those trending issues...

Employee Engagement or Experience?
There used to be a widely held belief that the key to success in modern enterprise was an engaged workforce. That is still true. But the way to get employees engaged is to get them involved in having an experience that is true for them.

Supporting Military Veterans in Business
As we commemorated Remembrance Day in November, we were reminded of all that military men and women do for our country. They risk their lives so that we can enjoy freedom. They know what it takes to work hard, to take risks, to be self-sufficient and resilient.

Click here to read one of this month's featured articles

Personal Finances a Major Stressor for Many Canadians
Many Canadians continue to struggle with high debt levels and some feel they have insufficient savings for the future. New research suggests that the stress is affecting workplace productivity.


Fed. Gov’t. Takes Strong Action Against Harassment and Sexual Violence at Work

Canada's Unions Welcome Legislation on Workplace Harassment and Violence

More Choice And Flexibility For Families And Caregivers, Starting December 3, 2017

Winners of the 2018 'Canada's Top 100 Employers' Competition are Announced

Canadian Gender and Good Governance Alliance Established to Advance Gender Diversity on Boards and EX Positions

Website Aims to Help Canadians Prepare For an Infectious Disease Outbreak

Making the Case for Workplace Wellness Programs



BC: Paving the Way for Women to Thrive in the Building Trades

AB: New Transition Supports for Alberta Coal Workers

SK: Prov. Celebrates Skilled Trades and Technology Week

MB: Prov. Begins Consultations On Project Labour Agreements

ON: Prov. Creating Fair Workplaces by Expanding Personal Emergency Leave

ON: Prov. Seeking Public Input to Strengthen Worker Safety

ON: Unifor Welcomes Paid Domestic Violence Leave in Bill 148

NB: Legislation to Support Small Businesses Introduced

PE: Helping Students Move from the Classroom to the Workplace

This Month
Retirement Just Ain’t What it Used to Be
Smart HR professionals will take advantage of this new cadre of older workers to fill existing holes and provide a steady hand to guide their younger workforce.

3 Trending Issues in Employment Law
Employers are now not just being asked to deal with some tricky legal issues after they arise, but to be responsible for preventing them in the future.
Which Comes First Employee Engagement or Employee Experience?
The way to get employees engaged is to get them involved in having an experience that is true for them.

Employer Not Liable for Defamation for Giving Partly Negative Reference
An employer must be able to give a job reference with candour,” a judge rules.
Arbitration Decision on Random Drug and Alcohol Testing Is Overturned
An appeal court found the arbitration board ignored evidence regarding substance misuse among non-unionized employees.
Union Found to Discriminate Against Tradesperson with Exam Anxiety
An Ontario employer has been found not liable for defamation for providing a partially negative employment reference to a former employee looking for work elsewhere. A woman worked for an energy corporation as a cost control analyst. She received positive performance reviews and merit-based salary increases. After working there for five years, her employer was bought out by another company, which laid her off. She looked for other work. A year later, she was offered a job with another energy company, with more responsibilities than her previous position, conditional on positive reference checks. That company contacted her former manager for a reference. The woman alleged that her former manager told the potential employer that she did not handle stress well, did not follow directions well, and is narrowly focused. She alleged he said that there was a lot of conflict between her, her immediate supervisor, and other employees and that he would not re-hire her. The potential employer rescinded the woman’s job offer based on the former manager’s negative employment reference. The woman sued her former employer for defamation. She was unemployed at the time she filed her lawsuit. The woman testified in a five-day trial before the Ontario Superior Court of Justice that her former manager was motivated by malice, spite, and a desire to seek revenge for three workplace events in which she had embarrassed him, contradicted him, or showed him to be wrong. She said that he must have “stored up venom to be used at a later date.” The woman “believes that this venom was expressed in the form of an untrue and malicious job reference,” the judge wrote. The judge wrote that the woman “was still affected by [her former manager’s] view of her and had difficulty accepting it. During her evidence she questioned [his] competence. At one point, in the context of his assessment of her suitability for a project controls position she questioned ‘whether he had Alzheimer’s’. There was no basis in the evidence for such speculation regarding [his] mental health.” The judge found that the former manager had made statements to the potential employer about the woman’s competence and attitudes that “would tend to lower [the woman’s] reputation in the eyes of a reasonable person…Difficulties in getting along with people, in coping with stress, and in taking directions are not positive descriptors of workplace behaviour. Put another way, all are generally considered to be undesirable characteristics in an employee.” The judge concluded that the former manager’s remarks were defamatory. The former manager’s lawyers argued that he was protected by qualified privilege, meaning that he reasonably believed that most of his defamatory statements were true when he made them. He testified that he did tell the woman’s potential employer that he would not re-hire her—but in the context of the more senior role she applied for, which required skills and experience he felt she didn’t have. He said he told the potential employer that in other positions, she would “shine.” He said that the “gist” of the other statements she claimed he made were true. However, he argued that he said those negative things along with making statements about the woman’s strengths. He denied that his comments were said with malice. The judge determined the former manager to be a credible witness, who “spoke honestly and described what he believed to be the truth. He was neither dishonest nor reckless in doing so.” The judge accepted the former manager’s defence, finding that he gave what he thought to be a true account of his interactions with the woman. The judge found that there was no malice, which includes speaking in reckless disregard for the truth, or having any indirect motive or ulterior purpose. The former manager made both positive and negative comments, backed up by examples, which should be protected. The judge stated that qualified privilege can protect an employment reference, and found the former manager not liable for defamation. “The social policy underpinning the protection of employment references in this manner is clear: an employer must be able to give a job reference with candour as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer.” The judge awarded the former manager his legal costs.

Leadership Lessons on Supporting Military Veterans in Business
Military veterans know what it takes to work hard, to take risks, to be self-sufficient and resilient. We have an obligation and a duty to make sure their transition back into civilian life is as easy as possible.
Thank-You Notes Can Tip the Scale in Job Candidates' Favour, Yet Few Write Them
Survey shows manners matter in job search.

Shop Talk
The Season – and Rewards – of Corporate Giving
Canadian CFOs cite importance, benefits of corporate social responsibility.
Money on the Mind: Personal Finances a Major Stressor for Many Canadians
Canadian organizations could benefit by increasing employee financial wellness initiatives.

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