HR MANAGER

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HR MANAGERS GUIDE TO HEALTH AND SAFETY

• RON A. LECLAIR
• Filion Wakely Thorup Angeletti LLP
• September December 2009
• LECTURE 1
• INTRODUCTION OVERVIEW

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ROADMAP

• Overview of the course
• Evaluation
• Objectives
• Good HR management
• Boundaries on management rights
• Working with employees and Unions
• Introduction to OHSA

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OBJECTIVES

• Improve workplace health and safety conditions
• Protect workers from injury
• Protect supervisors from liability
• Improve efficiency
• Improve overall productivity
• Be a model employer fight for right

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EVALUATION

• Pass mark 70
• Evaluations
• 2 exams
• Mid term worth 15 marks
• Final worth 35 marks
• 3 assignments
• 1 individual project worth 10 marks
• 2 group projects worth 20 marks each

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EVALUATIONS CONTD

• Mid-term and final exams
• Multiple choice, short answer questions based on
  material covered to date
• Assignments
• 1 two-page summary of the OHSA
• 2 group assignment to be handed out
• 3 group assignment to be handed out

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HOUSEKEEPING

• Slides will be available on our website at
  www.filion.on.ca
• Contact any of the teachers by email
• Ron LeClair - rleclair_at_filion.on.ca
• Cynthia Kontra ckontra_at_filion.on.ca
• Lance Ceaser lceaser_at_filion.on.ca
• Jamie Knight jknight_at_filion.on.ca

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WHO ARE YOU?

• What is your job?
• How many years in management or HR?
• How many years in HRPAO?
• Why did you take this course?
• What is your career aspiration?
• What is the most fun that you can tell a group of
  strangers about your job?

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ROADMAP REVISITED

• Overview of the course
• Good HR management
• Boundaries on management rights
• Working with employees and unions
• Introduction to OHSA

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GOOD HR MANAGEMENT

• Employees will work effectively and efficiently
• Enhanced productivity
• Expeditious dispute resolution
• Effective and productive communications

• Informed and knowledgeable management
• Good morale
• Collective Agreement will be consistently and
  fairly applied
• People will work together on a common, shared
  vision

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ELEMENTS OF HR MANAGEMENT

• Collective Agreement administration
• Application of policies, rules and practices
• Discipline and performance appraisals
• Training
• Promotions/Demotions

• Compensation
• Day-to-day work relationships
• Communication with employees, peers and managers
• Management of work to achieve corporate goals

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LEADER

• Lead
• Excellence should be your goal
• Action should be your bias
• Document cover your assets
• Evidence preserve the present
• Responsibility pass the buck, with value added

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KEY PRINCIPLES

• Be consistent
• Conduct performance reviews
• Implement corrective action plan
• Document disciplinary actions

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BE PROACTIVE

• Communicate with your employees
• Respond to employee complaints
• Act promptly to deal with complaints, but avoid
  making snap judgments
• Inform employees with respect to what you are
  doing about their concerns and complaints

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POOR HR MANAGEMENT

• Time spent on fixing employee relations issues
  at expense of other programs
• Reactive and crisis-oriented relationships
• Over reliance on third-party participation to
  resolve disputes often to nobodys satisfaction

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ROADMAP REVISITED

• Overview of the course
• Good HR management
• Boundaries on management rights
• Common law
• Statute
• Collective Agreements
• Internal policies procedures
• Working with employees and unions
• Introduction to OHSA

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BOUNDARIES
Statutory Law Legislation and Regulations
Collective Agreement Negotiation Application
Common Law (Wrongful Dismissal)
Management Rights
Employers Self-Imposed Boundaries
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FIRST BOUNDARY THE COMMON LAW

• Everyone is employed under a contract of
  employment
• Employees not represented by a union are governed
  by common law principles
• Employees who are represented by a union are
  covered by a collective agreement
• Some common law principles apply in the union
  context
• Good faith
• Fair representations
• Just cause

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SECOND BOUNDARYSTATUTORY

• Health and Safety
• Workers Compensation (WSIA)
• Human Rights (discrimination and harassment)
• Privacy legislation PHIPA, PIPEDA
• Employment Standards (minimum standards)
• Labour Relations (union law)
• Pay Equity
• Federally - Bill C-45

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EMPLOYMENT STATUTES

• Occupational Health and Safety Act
• Workplace Safety and Insurance Act, 1997
• Ontario Human Rights Code
• Employment Standards Act
• Labour Relations Act

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RELATED LEGISLATION

• Workplace Safety and Insurance Act
• WHMIS legislation (federal and provincial)
• Smoking in the Workplace Act
• Bill C-45
• PHIPA

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THIRD BOUNDARYCOLLECTIVE AGREEMENT

• The Collective Agreement sets out the terms and
  conditions of employment negotiated with the
  union
• Management Rights prevail unless limited by the
  Collective Agreement
• If you are in a unionized workplace, know the C/A
  and comply with it

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EFFECTIVE MANAGEMENT RIGHTS

• A collective agreement limits managements rights
  
• Know managements position on contentious or
  ambiguous provisions
• Do not compromise your authority
• Do not share responsibility for interpreting and
  applying the collective agreement with the union
  steward

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FOURTH BOUNDARYSELF-IMPOSED BOUNDARIES

• Policies
• Practices
• Rules
• Culture
• History

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EMPLOYER-IMPOSED RULES

• Rules and standards must be job related or have
  an operational and business basis
• Employee must be aware of them
• Employee must know that failure to obey will lead
  to discipline
• Rules and standards must have been consistently
  enforced

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ROADMAP REVISITED

• Overview of the course
• Good HR management
• Boundaries on management rights
• Working with employees and unions
• Imposing Discipline
• Dealing with complaints and grievances
• Introduction to OHSA

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WORKING WITH EMPLOYEES AND UNIONS
This section is important for both union and
non-union workplaces. Non-union workplaces can
learn from the experiences and structure of union
workplaces.
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DEALING WITH UNIONS

• Managements approach to Union Officials
• Foster co-operation and mutual respect
• Inform union of any major decisions or changes
• Do not share your responsibility to manage the
  workplace
• Remember management acts ? the bargaining agent
  reacts!

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DEALING WITH UNION STEWARDS

• Relationship with Union Steward
• The steward is just another employee, who is
  subject to the same rules and standards
• Balance
• Employment obligations
• With union responsibilities and rights as set out
  in the collective agreement

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CORRECTIVE DISCIPLINE
As with the previous section, this section is
also important for non-union workplaces which can
learn from the formal discipline and complaint
structures in union workplaces.
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CORRECTIVE ACTION PLAN

• Targets misconduct and poor performance
• Helps to promote an orderly and efficient
  workplace
• Corrective in nature ? not punitive!
• Based on a fundamental principle of minimal force
• When discipline is warranted, take the least
  serious corrective measure necessary to achieve
  your objective
• When the employee persists in inappropriate
  behaviour, impose progressively more severe
  corrective sanctions

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IMPOSING DISCIPLINE

• Determine whether a disciplinary penalty should
  be imposed
• Determine what the disciplinary penalty should be

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CHOICES OF DISCIPLINE

• Oral counseling, followed by an oral reprimand or
  warning
• Written reprimand or warning
• Suspension without pay
• Demotions
• Dismissal

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CORRECTIVE ACTION

• Corrective action for breaches of rules may be
  specified in the framework or rules
• Otherwise, decisions regarding corrective action
  will be subjective, but influenced by the facts
  and circumstances of each case
• The standard is just cause
• The corrective action imposed should be
  appropriate to each situation

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DISCIPLINARY RESPONSE

• Be neither too lenient nor too severe
• Ensure disciplinary procedure is applied
  consistently
• Inequality in treatment leads to frustrated and
  resentful employees

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PRACTICAL TIPS

• Whether verbal or written, ensure the employee is
  informed of
• The misconduct for which s/he is being
  disciplined
• The rules or standards that have been contravened
• The disciplinary consequence being imposed
• The reason for the severity of consequence
  assessed
• The corrective action the employee is expected to
  take and the period of time within which
  improvement must be shown
• The consequences of failing to correct misconduct

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ASSESSING THE CONSEQUENCE

• Management must demonstrate
• Just cause to impose the discipline, and
• Discipline imposed was appropriate to the offence
• Elements of just cause managements onus
• Employee committed the wrongdoing
• Employees misconduct warranted corrective action
• Discipline was just and appropriate in all the
  circumstances

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EMPLOYEE CULPABILITY

• Employees guilt normally established through
• Evidence of witnesses with direct knowledge of
  the incident
• Documentation pertaining to the misconduct
• Indirect or circumstantial evidence
• Circumstantial facts must point to the employee
  having committed the offence or misconduct
• Must exclude any other reasonable conclusion

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FACTORS TO CONSIDER

• The employment contract
• Applicable policies and procedures
• The severity and nature of the offence
• Previous cases and consistency
• The employees previous record
• The employees explanation
• Provocation
• Mitigating factors

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MITIGATING FACTORS

• Length of service
• Recent favourable performance reviews
• Apology
• Spur of the moment or premeditated
• Personal circumstances
• Double jeopardy

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STATUTORILY-PROHIBITED MOTIVES

• Labour Relations Acts
• Employment Standards Acts
• Human Rights Codes
• Occupational Health Safety Acts
• Workplace Safety and Insurance Acts

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MORE PRACTICAL TIPS

• Keep a written record of investigation action
• Ensure documents are put in the employees file
• Follow-up on warnings you have issued
• Progress the discipline if further misconduct
• Should / must a union steward be present
• Consult with the management team to discuss
  proposed action and obtain appropriate approvals

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TERMINATION

• Employment may terminate in one of the following
  ways
• Just Cause
• Frustration (excessive absenteeism)
• Contractual term
• Indefinite lay-off
• BUT FIRST
• how do we get to this point?

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DISCHARGE

• Takes place after all efforts at correcting the
  employees behaviour has failed
• Dismissal may be appropriate in cases where the
  misconduct is of such a serious nature that
  management is left with no other option
• i.e. attacks another employee with a tool or
  weapon, or
• physically assaults a manager, or
• is fundamentally dishonest

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JUST CAUSE

• Management should be able to establish that it
  did not act in an arbitrary, unreasonable, or
  discriminatory manner.
• Management must prove that
• the employee committed the offence s/he was
  charged with (just the facts maam)
• the employees misconduct warranted corrective
  action or discipline (yes or no)
• the penalty imposed was just and appropriate to
  the misconduct (mitigating circumstances)

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COMPLAINTS

• Complaint stage does not form part of official
  record of grievance, but is an integral step
• Supervisor and employee have opportunity to
  resolve the problem without recourse to formal
  complaint process
• Supervisor plays a key role in early steps
• Supervisor usually primarily responsible for
  initial investigation of complaint
• Keep supervisor involved s/he is best informed
  about the circumstances of the complaint

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GRIEVANCES

• The grievance procedure is a problem solving
  mechanism, which facilitates the peaceful
  resolution of a dispute
• A grievance is a written complaint alleging
• A contravention of the Collective Agreement or
  employment statutes (e.g. ESA, OHRC)
• Improper classification
• Unjust discipline, suspension or dismissal

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ARBITRATION

• Failure to resolve a grievance may result in the
  grievance being referred to arbitration
• The decisions of an arbitrator are final and
  binding
• Burden of proof party which asserts a fact
  must prove it discipline vs. everything else
• Civil standard of proof balance of
  probabilities may be a clear balance in serious
  discipline cases

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PRACTICAL TIPS

• DRAFTING SETTLEMENTS
• In writing small words, short sentences
• Identify the complaint in question
• Indicate that a settlement has been reached by
  the parties
• Clearly state terms and conditions of settlement
• Stipulate that the complaint is resolved
• If appropriate - without admission, without
  prejudice and without setting a precedent

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OHSA WORKING WITH UNIONS

• Appropriate collective agreement terms can be
  used in pursuing occupational health and safety
  grievances and arbitrations
• The Board and arbitrators under the Labour
  Relations Act are given power under the OHSA
  regarding unlawful reprisals
• Unions under the Labour Relations Act are
  recognized for certain purposes under the OHSA,
  including the selection of joint health and
  safety committee members

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ROADMAP REVISITED

• Overview of the course
• Good HR management
• Boundaries on management rights
• Introduction to OHSA
• Some history
• Some principles
• To whom the OHSA applies
• Regulations

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INTRODUCTION TO HEALTH AND SAFETY

• Occupational Health and Safety Act
• Improves health and safety conditions
• External vs. internal responsibility system
• Protects workers from injury and illness
• Sets out rights and duties of all parties
• Regulations for specific sectors, issues
• Extensive coverage

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HAM ROYAL COMMISSION (1976)

• Report of the Royal Commission on the Health and
  Safety of Workers in Mines
• Three principal rights of workers
• Right to refuse dangerous work without penalty
• Right to participate in identifying and
  correcting health and safety problems
• Right to know about hazards in the workplace

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HAM ROYAL COMMISSION (1976)

• Ham Royal Commission recommended internal
  responsibility system for Ontario workplaces
• Internal responsibility system the foundation
  for modern-day health and safety legislation

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EVOLUTION OF THE OHSA

• Came into force on October 1, 1979
• Originally covered all workers in Ontario, except
• Domestic workers
• Farm labourers
• Teachers and academic staff in universities
• Inmates in correctional facilities
• Federal workers covered by the Canada Labour Code

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EVOLUTION OF THE OHSA

• 1984 Covers teachers and academic staff
• 1986 Covers patients who participate in work or
  rehabilitation program in psychiatric
  institution, mental health centre or
  rehabilitation facility

• 1987 Introduction of hazardous materials and
  hazardous physical agents definitions
• 1988 Introduction of Workplace Hazardous
  Materials Information System (WHMIS)

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OHSAs Limitations

• Cannot prevent workplace accidents
• May be inadequate, unclear, out-of-date
• Cannot predict all possibilities
• Often unknown or badly communicated
• Enforcement is often difficult, time-consuming
• Requires internal responsibility system

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UNDERLYING THEORIES

• Collective Bargaining management and the workers
  create the safe workplace together
• Tax theory by imposing a cost on employers, they
  will be motivated to be safe
• Criminal sanctions safety offences should be
  treated as crimes and punished
• Regulatory partnering merges consensus between
  workplace participants with regulatory and
  legislative consistency

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INTERNAL RESPONSIBILITY SYSTEM (IRS)

• Safety First and Safety Always
• Safety is Everyones Responsibility
• Human resources supports operations
• Every supervisor is part of human resources
• Personal liability
• Safe Work is Efficient Work
• There are no shortcuts
• Even minor accidents cost time money

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LEGAL SUPPORT FOR IRS

• Requirement for health and safety policies and
  programs
• Direct responsibility on officers of a
  corporation to ensure workplace health and safety
• Joint health and safety committees
• Basic rules set out in the OHSA

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WORKERS FOUR BASIC RIGHTS

• Right to participate in identifying and resolving
  workplace health and safety concerns
• Right to know about any potential hazards to
  which they may be exposed
• Right to refuse work believed to be dangerous to
  their own health and safety or that of a
  co-worker
• Right to stop work that is dangerous to any
  worker, in carefully prescribed circumstances.

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DUTIES IMPOSED BY OHSA

• Who has control over the workplace?
• Employers Take all reasonable precautions to
  protect the health and safety of workers
• Officers and Directors Ensure compliance with
  the OHSA and its regulations
• Workers Protect themselves and each other
• Enforcement mechanism when IRS fails

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APPLICATION OF THE OHSA

• Who is covered?
• Almost every worker, employer, supervisor,
  manager and workplace in Ontario
• Each owner, constructor, supplier of equipment,
  supplies and materials
• Government of Ontario

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WHO/WHAT IS EXCLUDED?

• Workplaces that fall within the federal
  jurisdiction regulated under the Canada Labour
  Code
• Private residences owners, occupants, servants
• Includes connecting land
• Farming operations

• NOTE all workplaces, federal AND provincial, are
  covered by Bill C-45

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OHSA REGULATIONS

• Set out how OHSA duties must be carried out
• Prescribed duties require a regulation to be in
  force
• Four principal sector-specific regulations
• Industrial establishments
• Construction sites
• Health care facilities
• Mines

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INDUSTRIAL ESTABLISHMENTS

• Applies to the broadest range of workplaces
• Office buildings, factories, arenas, shops,
  offices
• Specifies what is required by the OHSA
• Premises, lighting, fire prevention, material
  handling, protective equipment, machine guarding,
  air quality, noise, first aid, industrial hygiene
• Sets out many general workplace conditions
• Equivalency or alternative measures provision

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CONSTRUCTION PROJECTS

• Applies to all projects in Ontario
• Definition of project and construction very
  broad
• Administrative reporting duties
• Includes specific reporting requirements
• General health and safety provisions
• Equivalency provision
• Deemed knowledge

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HEALTH CARE AND RESIDENTIAL FACILITIES

• Facilities must fit within the applicable
  definition
• Must refer to specific statute (e.g. Public
  Hospitals Act)
• Addresses issues specific to health care field
• Does not address resident conduct, violence,
  abuse
• Scope and application governed by the regulation
• Not governed by the OHSA
• Equivalency provision

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ADDITIONAL REGULATIONS

• Control of exposure to biological agents
• Criteria to be used and other matters to be
  considered by adjudicators under OHSA s. 46(6)
• Critical injury defined
• Designated substances
• Designations under OHSA s. 16(1)(n)
• Diving operations

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ADDITIONAL REGULATIONS

• Firefighters protective equipment
• Inventory of agents or combinations of agents for
  the purpose of OHSA s. 34
• Joint health and safety committees exemptions

• Mines and mining plants
• Oil and gas offshore
• Roll-over protective structures

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ADDITIONAL REGULATIONS

• Teachers
• Training programs
• Training requirements for certain skill sets,
  trades
• University academics and teaching assistants
• Window cleaning
• WHMIS
• X-ray safety

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ROADMAP REVISITED

• Overview of the course
• Good HR management
• Boundaries on management rights
• Introduction to OHSA
• Some history
• Some principles
• To whom the OHSA applies
• Regulations

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NEXT WEEK

• Chapters 4-9
• Obligations under OHSA
• Internal responsibility system
• Duties of employers employees
• Work refusals
• Discipline reprisals
• Critical Accidents Investigations
• MOL Inspections investigations

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Questions