Employment Law News Roundup: Misconduct, Racial Insensitivity, Workplace Mask Mandate Conflicts, and More

Written on behalf of Peter McSherry
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This is a dynamic time for workplaces across Canada, so it is no surprise that many workplace issues have been taking centre stage in the news over the past few weeks. Employees and managers have experienced heightened stress during the pandemic, which can spill into the workplace. Plus, legislative changes are coming, employers are taking steps to engage BIPOC communities, many employees are returning to work, mask mandates are ending while new pandemic waves are hitting Europe, and more. Keeping up with all of the stories and changes happening right now can be challenging, so we have recapped some of the biggest stories here.

Major Legislative Changes Proposed or Coming Into Force

As regular readers of this blog will know, both the Government of Ontario and the Government of Canada are keen to be seen supporting employees with the challenges of remote work, and the gig economy, while addressing technology that supports working 24/7 and that can be invasive. Here is a summary of the latest changes to keep you up to date:

Reminder of Tax Code Changes

In 2021, the Government of Canada implemented the Temporary Flat Rate Method tax deduction to allow employees working from home due to the pandemic an opportunity to offset some of the costs associated with working from home.

While the Temporary Flat Rate Method is not strictly speaking newly proposed or coming into force, as tax season approaches it is important to note that this measure remains in place for employees required to work from home! Consult with your financial advisor or accountant for further advice on whether this applies to your tax situation.

Union Leader Accused of Accepting a $50,000 Payment From a Supplier

According to recent media reports, Jerry Dias the now-former head of Unifor has been credibly accused of accepting a $50,000 payment from a potential supplier of COVID-19 testing kits.

Unifor is Canada’s largest union, representing over 315,000 workers in Canada. Unifor was formed following the merger of the Canadian Autoworkers Union and the Communications, Energy and Paperworkers Union of Canada. Mr. Dias was its founding leader, first elected in 2013. He had previously been an aerospace worker and an active member and staffer in the Canadian Autoworkers union prior to the merger.

Unifor leaders received an allegation of an unethical payment to Mr. Dias and conducted a workplace investigation to determine the validity of the reported concern. The investigator determined Mr. Dias accepted $50,000 from a supplier of COVID-19 rapid test kits and then promoted those kits to employers of union members.

For his part, Mr. Dias declined to participate in the investigation and stepped down from his position with Unifor citing issues with his health. He advised that he is entering a residential rehabilitation facility due to his use of alcohol, painkillers and sleeping pills and he indicated that these health issues might have impaired his judgement at work.

While Mr. Dias has resigned, there are a number of employment law issues engaged in this story. How far do employers need to go to accommodate mental health disabilities when they may be connected to serious workplace misconduct and reputational risk to the employer? Are employers doing enough in establishing robust codes of ethics? Are employers taking sufficient steps to communicate and educate their workforce on how the code applies to everyday situations?

Bank’s Indigenous Recruitment Program Offends Indigenous Canadian

CBC’s Go Public program recently investigated a Canadian bank’s recruitment program following complaints of insensitivities from an indigenous Canadian.

As part of society’s increasing awareness of racism coming out of the Black Lives Matter movement and the Truth and Reconciliation Commission of Canada, many employers are increasing their efforts to recruit and promote employees who identify as black, indigenous, and persons of colour.

Canadian Imperial Bank of Commerce (“CIBC”) is coming under fire for their indigenous recruitment program. As part of the application, it asked applicants to name their favourite indigenous tradition or story and asked for a video cover letter that featured an ask for applicants to include: “a song, poem, dress in traditional regalia or bring in back-up dancers!”

An applicant found this insensitive, as it seemed to be asking applicants to prove their indigenousness. Many indigenous Canadians don’t have access to indigenous traditions due to the history of residential schools in Canada. Furthermore, even for applicants who do have access to their history and culture, those traditions including indigenous regalia can have sacred meaning.

The Canadian Human Rights Act and Ontario Human Rights Code allow for special programs, such as recruiting campaigns to consider characteristics such as gender, race and sexual orientation if the purpose of the special program is to assist disadvantaged persons or groups to achieve equal opportunity. However, employers may also want to be mindful to ensure these programs create positive experiences for the applicants and employees.

Mask Conflicts in the Workplace

As Ontario drops many of the mandates around mask-wearing in public places, employees, workplaces, and managers are increasingly making their own decisions about whether or not to wear a mask in a variety of workplace settings. This inevitably leads to differing opinions and potentially conflict. What do you do if you want to continue wearing a mask, but your workplace has dropped mask mandates and is pressuring you not to wear one? What do you do if you want to stop wearing a mask, but your workplace is continuing mask mandates that don’t make sense in your workplace context?

Recent media reports have featured experts providing advice on managing these types of conflicts in the workplace. Employees and employers should be mindful that there continue to be protections for employees under health and safety legislation federally and provincially. There are also protections for persons with disabilities under human rights legislation if they require accommodations.

Contact Peter A. McSherry in Guelph for Advice on Workplace Conflict, Wrongful Dismissal and More

If you are an employee or employer with concerns about employment standards, workplace conflict, or wrongful dismissal, employment lawyer Peter A. McSherry can assist. We regularly advise employees and employers on a range of legal matters, including wrongful dismissal, workplace harassment, and employment-related human rights issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.