You operate a small-sized company in Ontario and have had the same office manager for the past five years. Back when you had your physical office, this person served as your de facto chief-of-staff to keep everything running smoothly.
When you transitioned to working from home at the outset of the pandemic, you eventually made a business decision to give up the company’s physical office space. Thereafter, you noticed that your office manager became less responsive. They’re not replying to emails or answering phones as quickly as they used to, and even though your instant messaging program shows that they’re active online, they’re simply dropping the ball on deliverables.
Initially, you dismiss this as the stresses of the pandemic, the adjustment to working from home and restrictions/lockdowns. Yet after some time, you realize that something’s not right and the situation is no longer sustainable. Curious, you run a quick internet search on your office manager, and the results shock you.
You learn that your office manager, who you thought was a loyal employee, has been working several other jobs on the side. At the beginning of the pandemic, they launched a website to put themselves forward as a freelance project manager, they have a catering side hustle according to their social posts, and they’ve been working other gigs at the same time that they are working for you!
While you’re initially confused and angry, you soon see a larger problem on your hands. Even though you assumed that they were exclusively working for you, you had no policy in place to state that this sort of conduct was not permitted, and there are no clear repercussions for violating a policy that existed only in your head.
You may think of office policies as the domain of “soft” stuff or large companies with HR departments, and not as important for small to midsize businesses or other organizations that aren’t as heavily regimented. The reality is that some policies are mandatory by law to have in place, no matter the employer’s size, and others are recommended to help best enhance your brand or position a business or not-for-profit for growth, and to avoid negative incidents.
Compliance with certain employment laws would be your primary reason to have certain policies. So, what policies do employers need to have legally, and which ones should they have to protect their best interests? I’ve developed an at-a-glance checklist of those as reference here.
What’s the purpose of workplace policies? Let’s explore.
What policy can do
Workplace policies can provide clarity to the employee of what is expected of them—both professional and personal standards of conduct. Aside from the contents of a written employment agreement (contract), workplace policies are the guides that determine employee conduct. Employees need to have a clear understanding of what behaviour is expected of them, and how they should conduct themselves in a workplace. That all stems from well-constructed workplace policies that also make workplaces run smoothly.
We will look at a couple of examples.
All workers are entitled to a safe and healthy workplace. Workplace harassment can undermine a person’s dignity. It can prevent workers from doing their jobs effectively. Workplace harassment, left unchecked, has the potential to escalate into violent behaviour.
Jian Ghomeshi, a former CBC on-air personality, was observed to have questionable dealings with female (and male) subordinates during his career with the CBC. CBC most certainly had comprehensive policies, including those that would have covered harassment in the workplace. And yet, despite those, something went wrong—lack of investigation, warnings, discipline, training and enforcement—when they ultimately had to litigate and manage their reputation after the effects of one of the biggest sexual harassment scandals (and, no doubt, expensive litigation) in recent Canadian memory.
More recently, Hockey Canada is facing a similar yet greater scandal whereby it is putting an Action Plan in place to: 1.) investigate the allegations of group sexual assault by Canadian Hockey League players; and, 2.) address, remediate, train and prevent bullying, harassment, racism, homophobia and sexual abuse that exist in hockey culture.
In a case involving another organization, ThyssenKrupp Elevator (Canada) Limited terminated Mark Render’s employment for “just cause” when the employee slapped a female colleague’s buttocks in front of four colleagues, once, and later claimed it was a joke. Render sued for wrongful dismissal. Even though Render’s position was that the prevailing ‘locker room’ office culture was a mitigating factor which minimized the seriousness of their action and the corresponding severity of any discipline, the Ontario Court of Appeal decision in Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, rejected this argument and upheld the trial decision finding that he was dismissed for cause (although he would not be denied his minimum statutory entitlements). More on this case here.
This is another reason why workplace policies are important—they are key for employee discipline. While there are exceptions, as a practical matter, an employer cannot effectively penalize an employee for conduct that they did not know was prohibited. However, they can be penalized for flagrant violations of a policy. Effectively written policies will warn employees of the consequences for violations, including discipline and even potentially dismissal for cause and, possibly, willful misconduct.
The employment of a non-unionized employee in Ontario can usually be terminated at any time for any (or no) reason provided they receive an appropriate severance. However, blatant, and repeated policy violations may permit an employer to terminate for just cause (and perhaps even willful misconduct) eliminating – or at least limiting – severance obligations. However, employers need to note that these cases are difficult to establish and require thorough and consistent documentation– including appropriate policies–for any prospect of success.
Furthermore, attempting to dismiss an employee for cause without documentation of such policy violations may have costly repercussions. Allegations of policy violations as a cause for dismissal with no evidence of any warnings or other disciplinary measures may result in a claim of bad faith, which can prove costly for employers in litigation.
As aforementioned, I’ve produced a comprehensive checklist of required and recommended policies available here but wanted to highlight and explain a few of them for good measure.
Note that the descriptions that follow are only a sample of some required and recommended policies for most workplaces, and do not provide any specific advice or guidance about what your specific workplace may require.
Mandatory workplace policies (under Ontario law and for provincially-regulated workplaces) include, but are not limited to, the following:
These policies have been required for over a decade, with additional requirements for sexual harassment coming into play several years later. Workplaces are required to have written policies not only outlining what sort of behaviour is prohibited but including confidential reporting mechanisms that employees can use to report incidents to management.
These policies are not only mandatory under the Occupational Health and Safety Act (OHSA) law, but imperative when it comes to potential litigation. Employers without policies effectively in place have been penalized severely by courts when incidents did occur, and employers were deemed to have not taken the adequate steps to prohibit and prevent such conduct.
The Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) places requirements on workplaces with any number of employees with regard to hiring, providing information in an accessible format, performance management, and communication of how individuals with disabilities will be supported. Workplaces with over 50 employees have extended requirements.
In addition to the training required by AODA, employers need to have and regularly maintain a policy as to how disabilities will be handled in the workplace. This, of course, includes not only physical and mobility disabilities but also hearing or visual disabilities, learning impairments, et cetera. Two individuals with similar disabilities may have different needs.
Accessibility policies should be reviewed regularly, and must be reviewed annually, in order to ensure that they are still compliant.
Right to Disconnect
The Right to Disconnect is a newer policy requirement recently implemented by the Ontario government and added to the ESA that requires employers with more than 25 or more employees to allow employees to disconnect from work in their off hours.
“Disconnecting from work” is defined as not engaging in work-related communications—including emails, telephone calls, video calls, sending/reviewing messages—so as to be free from the performance of work. Employers that employ 25 or more employees on January 1, 2022 have until June 2, 2022 to have a written policy on disconnecting from work in place. Beginning in 2023, and in the years that follow, employers that employ 25 or more employees on January 1 of any year must have a written policy on disconnecting from work in place before March 1 of that year.
This policy does not mean that employers will be brought to court if they contact their employee after hours to request a shift. However, employees can file a complaint, and if an employer is found to be negligent with compliance (number/type of employee, a written policy, the format the employee must receive it and policy retention), it may result in an escalating monetary penalty. Employers should look towards drafting policies that comply with the law and that make sense for the workplace. Aside from reviewing these policies annually, if any change is made to business operations that necessitate a change to the written policy, the policy must be updated.
Although not mandatory, there are many more policies that are recommended for most workplaces, including the following:
Discipline and Performance Management
These sorts of policies are worthwhile in most workplaces and are imperative as a team grows and new members are learning the organization and its expectations. While other policies may include a threat of discipline and performance management for policy violations, a specific policy about them spells out for employees how the process works.
If an employee’s discipline were to come under legal scrutiny in a wrongful dismissal lawsuit for example, an employer may be required by a court to show that the employee was treated justly and fairly through the process. A well-crafted written policy, that was followed as a matter of routine, may help prove that an employer acted in good faith throughout the process.
Social media policies have changed out of necessity since the start of the pandemic. While employers may once have had an easier time monitoring an employee’s access to social media while in a physical office, that is obviously a greater challenge with the number of employees now working predominantly from home.
However, employers can still maintain policies about social media usage, including regarding engagement with the company. A policy can delineate personal and professional usage of social media channels and can govern how employees interact with the company pages and profiles. These policies can be helpful for avoiding those embarrassing faux pas.
Various Recommended Policies to Address the Office Manager Scenario
There are several policies that can help address the “moonlighting” Office Manager described at the beginning of the blog. These include conflict of interest, internet use, and remote work. A well-worded employment contract can also help.
The above is merely an overview, and there are legal considerations for drafting and implementing any workplace policy–as well as determining which policies are required and what they should contain.
Policies should also not collect dust on a shelf. While some require annual review by law, all workplace policies should be reviewed regularly in collaboration with legal counsel to ensure that they are up-to-date, compliant with any changes to the law you may not be aware of and covering the areas that are important to your business. It is also essential that employees are aware of and can easily access workplace policies.
In addition certain policies, there are also postings and training required by Ontario law as illustrated in our Ontario Employer Workplace tip sheet.
Lastly, the third reason to have thoroughly drafted and well-integrated policies will save businesses and organizations tremendous amounts of time and money that can prevent litigation or during contentious litigation.
To review your required or recommended policies, or other documents such as handbooks or contracts, please contact our office for legal advice or to set up a consultation.
If you are an employee or employer, I can help you with any contract, policy or other workplace issue. I have more than 25 years’ experience as an employment lawyer with satisfied, repeat clients.
If you are a lawyer or paralegal looking to hire a mediator or arbitrator for your employment law dispute, I have been a neutral for over a decade. I conduct employment mediations and arbitrations via videoconference, in-person, and in a hybrid format.
This blog is for educational purposes only and is not intended as legal or other professional advice. Use of this blog does not create a lawyer-client or other business relationship.