To whom it may concern;

June 23, 2019.

On Wednesday June 19, 2019 at approximately from 09:00h to 12:00h I, Wictor Hechtner performed my daily
duties and served customers to the best of my abilities. From 12pm onward I, Wictor Hechtner assisted Juanda
From H.R. in making a birthday card for the month of July along with various other tasks, including filing
paperwork, replenishing Exception forms and Vacation forms and making photocopies of files. While in the office
assisting Juanda, Managers Navneet and Manuel had asked me to come in the following day Thursday June 20,
2019 to help in preparations for a store walk on Friday June 21, 2019 and take off Friday instead of Thursday as
my scheduled day off. I complied and said yes. Once I completed helping Juanda, I resumed on the work floor
and, assisted customers to the best of my abilities until the end of my shift.

On Thursday June 20, 2019 at approximately 13:45h I once again assisted Juanda from H.R. as requested and
made a call as asked by Juanda to get the helium tanks replenished, once completed Juanda informed me that
A.S.M. Shalini would need help for the pizza party on Saturday and that it would be a great opportunity to help
out as there was no one to help clean up. I gladly said yes. Approximately from 14:10h to 16:30h I was helping
in the Plumbing Department as requested by Manager Navneet. I front faced products and made sure stack out
bins were full and helped customers. From 16:30 onwards I was given a task by Manager Manuel. This task
consisted of locating various items in the Seasonal Department that were clearance and if on the floor to make
sure that it was clearly labeled with a clearance tag. At approximately 20:30h I went to the Lumber Department
and printed all the signs for the singles and made sure that the corresponding products were labeled. I then looked
around the Lumber Department and printed the corresponding signs for what was missing. At approximately
21:40h I printed out two signs for the vestibule as requested by Manager Manuel. I concluded my shift at 22:00h

On Saturday June 22, 2019 at approximately 11:15h I, Wictor Hechtner sought out to assist A.S.M. Shalini as
requested by Juanda from H.R. on Thursday June 20, 2019. I along with a fellow associate from Customer
Service; Nandini and was instructed by A.S.M. Shalini to grab a case of water for the pizza party and help set
up for the event. Once preparations were complete, I was walking back to the Lumber department and was
approached by Manager Ali and was spoken to in a very demeaning way and told go to the Lumber Department.
At approximately 11:50h I, Wictor Hechtner was approached by a customer whom needed help in the Plumbing
Department. I walked to the Plumbing Department sought out a Plumbing Associate and saw that Plumbing
Associate Lucan was busy helping a customer. In doing so I took the initiative to help the customer I was
approached by. With attempting to find a plastic coil pipe fitting for the customers air conditioning unit. The
customer had shown me the plastic coil fitting that they had brought in to find a replacement for. While
assisting the customer I noticed Manager Ali by the plumbing computer desk staring at me while assisting the
customer. This continued for the duration of me assisting the customer. Once I completed helping the customer,
I headed towards Manager Ali and was told by him that I was a Lumber Associate and should not have been
helping the customer in Plumbing, this occurred in front of Flooring associate Hamza. Furthermore, Manager
Ali then attempted to blame me for doing 37 signs wrong with label 3 format in the Lumber Pressure treated
aisle. This occurred in front of Supervisor Scott. While Manager Ali tried to blame me, he pulled out a note pad
and flipped to a page with Sku’s and said in a very demeaning way “look do you think I’m lying. I had to print
all these”, which felt very threating, to which I replied no. I just didn’t do the signs you mentioned. I never
printed any label 3 price tags for the pressure treated lumber. Manager Ali then told me because I was on
modified duties had to do over 100 labels for aisle 26 and 25. Whilst Manager Ali had told me this, he had a
grin on his face and then walked away. I procced to take a break as the situation had made me feel
uncomfortable and harassed. Once I arrived back from my break, I immediately talked to Supervisor Scott and
told him I felt intimidated by Manager Ali and that I did not feel comfortable being around him and would not
be doing the labels as he requested because it felt like a punishment for denying the blame for the 37 signs he
had to print allegedly. Once I informed Supervisor Scott, Supervisor Scott informed Manager Ali. I was then
approached by Manager Ali once more and asked what was wrong. I then told Manager Ali that he had made
me feel uncomfortable and that I would not be printing the labels. Manager Ali then said in a threating way that
he was my manager and I have to do what he says, I then replied I know your my manager but I’m not going to
do the labels I don’t feel comfortable with that. Manager Ali then asked me if I was refusing the work he had
asked, to which I replied yes. Manager Ali then got visibility upset and said then I need to see you in the office,
to which I replied I am uncomfortable with being around you. When A.S.M john is in we can talk about the
situation, to which Manager Ali walked away. I then decided it was best to leave the workplace because I felt
very uncomfortable and believe that being called into the office was a reprisal for the right to deny undue
hardship as stated in the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A Section; (6)
The employer shall accommodate the work or the workplace for the worker to the extent that the
accommodation does not cause the employer undue hardship. 1997, c. 16, Sched. A, s. 41 (6).

On Sunday June 23, 2019 at approximately 16:10h I, Wictor Hechtner was approached by Supervisor Scott
and was told that Manager Ali had instructed him to instruct me that the only light duties in lumber at the
moment was doing labels to which I responded with evidence to the contrary that I was very well capable of
cleaning the drywall area as I was doing while assisting customers. I believe this was done with the intention of
provocation towards my well being at the store, as I previously declined the request and clearly stated that I was
uncomfortable with him around me. I then gave Supervisor Scott a concise list of what I would be able to do
along with the expectations I had to uphold. Supervisor Scott then left, and I continued my duties. At
approximately 16:24h I, Wictor Hechtner was paged to call extension #3601 by A.S.M. Shalini. As I was
working in the drywall section near the tool zone, I walked over to Customer Service and called extension
#3601. I was told by A.S.M. Shalini that she would like to meet me in the office to which I complied. At
approximately 16:26 I, Wictor Hechtner was waiting by the office entrance near customer service when A.S.M.
Shalini came towards the entrance followed by Manager Ali. I immediately let A.S.M. Shalini know that I
would not be going up into the office as I was uncomfortable being around Manager Ali. A.S.M. Shalini then
sent me home for refusing to go into the office. I believe this was an intimidation tactic by Manager Ali as I
clearly stated beforehand that I would not be in the office without A.S.M John. I was not let know for what
reason I was sent home nor given any a reason as why.

I, Wictor Hechtner believe that Manager Ali is Harassing me as he has beforehand on different occasion
displayed these behaviours towards myself and others. I believe that these actions are gardenly bullying as
being on light duties does not only limit myself to labeling. As clearly stated beforehand with examples given, I
am more than capable of doing other tasks and believe that my rights under the Workplace Safety and
Insurance Act, 1997, S.O. 1997, c. 16, Sched. A and Employment Standards Act, 2000, S.O. 2000, c. 41 and
The Occupational Health and Safety Act. I solemnly believe my rights were violated.

____________________________ ____________________________ ____________________________

Bullying in the Workplace
What is workplace bullying?
Bullying is usually seen as acts or verbal comments that could 'mentally' hurt or isolate a person in the
workplace. Sometimes, bullying can involve negative physical contact as well. Bullying usually involves
repeated incidents or a pattern of behaviour that is intended to intimidate, offend, degrade or humiliate a
particular person or group of people. It has also been described as the assertion of power through aggression.

Is bullying a workplace issue?

Yes, bullying is a workplace issue. However, is sometimes hard to know if bullying is happening at the
workplace. Many studies acknowledge that there is a "fine line" between strong management and bullying.
Comments that are objective and are intended to provide constructive feedback are not usually considered
bullying, but rather are intended to assist the employee with their work.

As described by WorkSafeBC, bullying and harassing behaviour does not include:

 Expressing differences of opinion.

 Offering constructive feedback, guidance, or advice about work-related behaviour.
 Reasonable action taken by an employer or supervisor relating to the management and direction of
workers or the place of employment (e.g., managing a worker's performance, taking reasonable
disciplinary actions, assigning work).

There is no way to predict who may be the bully or the target.

What are examples of bullying?

While bullying is a form of aggression, the actions can be both obvious and subtle. It is important to note that
the following is not a checklist, nor does it mention all forms of bullying. This list is included as a way of
showing some of the ways bullying may happen in a workplace. Also remember that bullying is usually
considered to be a pattern of behaviour where one or more incidents will help show that bullying is taking place.

Examples include:

 Spreading malicious rumours, gossip, or innuendo.

 Excluding or isolating someone socially.
 Intimidating a person.
 Undermining or deliberately impeding a person's work.
 Physically abusing or threatening abuse.
 Removing areas of responsibilities without cause.
 Constantly changing work guidelines.
 Establishing impossible deadlines that will set up the individual to fail.
 Withholding necessary information or purposefully giving the wrong information.
 Making jokes that are 'obviously offensive' by spoken word or e-mail.
  Intruding on a person's privacy by pestering, spying or stalking.
 Assigning unreasonable duties or workload which are unfavourable to one person (in a way that creates
unnecessary pressure).
 Underwork - creating a feeling of uselessness.
 Yelling or using profanity.
 Criticising a person persistently or constantly.
 Belittling a person's opinions.
 Unwarranted (or undeserved) punishment.
 Blocking applications for training, leave or promotion.
 Tampering with a person's personal belongings or work equipment.

If you are not sure an action or statement could be considered bullying, you can use the "reasonable person"
test. Would most people consider the action unacceptable?

How can bullying affect an individual?

People who are the targets of bullying may experience a range of effects. These reactions include:

 Shock.
 Anger.
 Feelings of frustration and/or helplessness.
 Increased sense of vulnerability.
 Loss of confidence.
 Physical symptoms such as:
 Inability to sleep.
o Loss of appetite.
 Psychosomatic symptoms such as:
o Stomach pains.
o Headaches.
 Panic or anxiety, especially about going to work.
 Family tension and stress.
 Inability to concentrate.
 Low morale and productivity.

How can bullying affect the workplace?

Bullying affects the overall "health" of an organization. An "unhealthy" workplace can have many effects. In
general these include:

 Increased absenteeism.
 Increased turnover.
 Increased stress.
 Increased costs for employee assistance programs (EAPs), recruitment, etc.
 Increased risk for accidents / incidents.
 Decreased productivity and motivation.
 Decreased morale.
 Reduced corporate image and customer confidence.
 Poor customer service.
What can an employer do?
The most important component of any workplace prevention program is management commitment.
Management commitment is best communicated in a written policy. Since bullying is a form of violence in the
workplace, employers may wish to write a comprehensive policy that covers a range of incidents (from bullying
and harassment to physical violence).

A workplace violence prevention program must:

 Be developed by management and employee representatives.

 Apply to management, employee's, clients, independent contractors and anyone who has a relationship
with your company.
 Define what you mean by workplace bullying (or harassment or violence) in precise, concrete language.
 Provide clear examples of unacceptable behaviour and working conditions.
 State in clear terms your organization's view toward workplace bullying and its commitment to the
prevention of workplace bullying.
 Precisely state the consequences of making threats or committing acts.
 Outline the process by which preventive measures will be developed.
 Encourage reporting of all incidents of bullying or other forms of workplace violence.
 Outline the confidential process by which employees can report incidents and to whom.
 Assure no reprisals will be made against reporting employees.
 Outline the procedures for investigating and resolving complaints.
 Describe how information about potential risks of bullying/violence will be communicated to
employees.
 Make a commitment to provide support services to victims.
 Offer a confidential Employee Assistance Program (EAP) to allow employees with personal problems to
seek help.
 Make a commitment to fulfill the prevention training needs of different levels of personnel within the
organization.
 Make a commitment to monitor and regularly review the policy.
 State applicable regulatory requirements, where possible.
Employment Standards Act, 2000, S.O. 2000, c. 41
PART Vii
HOURS OF WORK AND EATING PERIODS
Hours free from work

18 (1) An employer shall give an employee a period of at least 11 consecutive hours free from performing work
in each day. 2000, c. 41, s. 18 (1); 2002, c. 18, Sched. J, s. 3 (10).

Exception

(2) Subsection (1) does not apply to an employee who is on call and called in during a period in which the
employee would not otherwise be expected to perform work for his or her employer. 2000, c. 41, s. 18 (2);
2017, c. 22, Sched. 1, s. 10.

Free from work between shifts

(3) An employer shall give an employee a period of at least eight hours free from the performance of work
between shifts unless the total time worked on successive shifts does not exceed 13 hours or unless the
employer and the employee agree otherwise. 2000, c. 41, s. 18 (3).

Part VII.1
Three Hour Rule
Three hour rule

21.2 (1) If an employee who regularly works more than three hours a day is required to present himself or
herself for work but works less than three hours, despite being available to work longer, the employer shall pay
the employee wages for three hours, equal to the greater of the following:

1. The sum of,

i. the amount the employee earned for the time worked, and

ii. wages equal to the employee’s regular rate for the remainder of the time.

2. Wages equal to the employee’s regular rate for three hours of work. 2018, c. 14, Sched. 1, s. 5.

Exception

(2) Subsection (1) does not apply if the employer is unable to provide work for the employee because of fire,
lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of
work. 2018, c. 14, Sched. 1, s. 5.
PART XVIII
REPRISAL
Reprisal prohibited

74 (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an
employee or threaten to do so,

(a) because the employee,

(i) asks the employer to comply with this Act and the regulations,

(ii) makes inquiries about his or her rights under this Act,

(iii) files a complaint with the Ministry under this Act,

(iv) exercises or attempts to exercise a right under this Act,

(v) gives information to an employment standards officer,

(v.1) makes inquiries about the rate paid to another employee for the purpose of determining or assisting
another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work),

(v.2) discloses the employee’s rate of pay to another employee for the purpose of determining or assisting
another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work),

(vi) testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this
Act,

(vii) participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business
Holidays Act,

(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or

(b) because the employer is or may be required, because of a court order or garnishment, to pay to a third party
an amount owing by the employer to the employee. 2000, c. 41, s. 74 (1); 2017, c. 22, Sched. 1, s. 41.

Onus of proof

(2) Subject to subsection 122 (4), in any proceeding under this Act, the burden of proof that an employer did not
contravene a provision set out in this section lies upon the employer. 2000, c. 41, s. 74 (2).
PART XXV
OFFENCES and prosecutions
Offences
Offence to keep false records

131 (1) No person shall make, keep or produce false records or other documents that are required to be kept
under this Act or participate or acquiesce in the making, keeping or production of false records or other
documents that are required to be kept under this Act. 2000, c. 41, s. 131 (1).

False or misleading information

(2) No person shall provide false or misleading information under this Act. 2000, c. 41, s. 131 (2).

General offence

132 A person who contravenes this Act or the regulations or fails to comply with an order, direction or other
requirement under this Act or the regulations is guilty of an offence and on conviction is liable,

(a) if the person is an individual, to a fine of not more than $50,000 or to imprisonment for a term of not more
than 12 months or to both;

(b) subject to clause (c), if the person is a corporation, to a fine of not more than $100,000; and

(c) if the person is a corporation that has previously been convicted of an offence under this Act or a
predecessor to it,

(i) if the person has one previous conviction, to a fine of not more than $250,000, and

(ii) if the person has more than one previous conviction, to a fine of not more than $500,000. 2000, c. 41,
s. 132.

Additional orders

133 (1) If an employer is convicted under section 132 of contravening section 74 or paragraph 4, 6, 7 or 10 of
subsection 74.8 (1) or if a client is convicted under section 132 of contravening section 74.12, the court shall, in
addition to any fine or term of imprisonment that is imposed, order that the employer or client, as the case may
be, take specific action or refrain from taking specific action to remedy the contravention. 2009, c. 9, s. 25;
2017, c. 22, Sched. 1, s. 68.

Same

(2) Without restricting the generality of subsection (1), the order made by the court may require one or more of
the following:

1. A person be paid any wages that are owing to him or her.

2. In the case of a conviction under section 132 of contravening section 74 or 74.12, a person be reinstated.
3. A person be compensated for any loss incurred by him or her as a result of the contravention. 2009, c. 9,
s. 25.

Part XVI

(3) If the contravention of section 74 was in relation to Part XVI (Lie Detectors) and the contravention affected
an applicant for employment or an applicant to be a police officer, the court may require that the employer hire
the applicant or compensate him or her or both hire and compensate him or her. 2000, c. 41, s. 133 (3).
The Occupational Health and Safety Act
What are the penalties for not complying with OHSA and its
regulations?
The maximum penalties for a contravention of OHSA or its regulations are set out in OHSA Section 66. A
successful prosecution could, for each conviction, result in:

 A fine of up to $100,000 for an individual person and/or up to 12 months imprisonment;

 A fine of up to $1,500,000 for a corporation.

How are OHSA and Regulations enforced?

The Ministry's goal is for all workplaces to achieve self-compliance with OHSA and regulations through a well-
functioning Internal Responsibility System (IRS). Where this does not happen, progressive enforcement results.
Enforcement begins with the issuing of orders and may proceed to prosecution.

Inspectors are the enforcement arm of the Ministry of Labour; their role includes the following:

 inspection of workplaces
 issuing of orders where there is a contravention of OHSA or its regulations
 investigation of accidents and work refusals
 resolution of disputes
 recommendation of prosecution.

The powers an inspector may use to fulfil this role are set out in OHSA Sections 54 to 57. A prosecution may be
initiated against anyone having duties mentioned in OHSA Sections 23 to 32, including a:

 constructor
 owner
 employer
 architect
 supervisor
 engineer
 worker
 director or officer of a corporation
 licensee (a holder of a logging licence under the Crown Timber Act)
 supplier

Workplace harassment policy and program

Since 2010, the OHSA has required employers to develop and maintain a workplace harassment policy and a
program to implement that policy. Under the new workplace harassment provisions, the program must be
developed and reviewed annually in consultation with the employer’s joint health and safety committee or
representative (if the workforce is too small to have a committee). In addition to the existing requirements, the
program will need to contain the following components:
  Alternative reporting structures. Under the new OHSA amendments, the program must include
procedures for reporting incidents of workplace harassment to a person other than the employer or
supervisor, if the employer or supervisor is the alleged harasser. The Code of Practice goes one step
further by suggesting that the person who receives the complaint should not be under the alleged
harasser’s direct control. This could prove problematic for smaller workplaces, where it may be
necessary for employers to provide an outside point of contact for their workers (e.g., a helpline or a
member of the board of directors). The intent is for workers to be able to report workplace harassment to
a person who will be able to objectively address the complaint.
 Procedures for investigating and dealing with an incident or complaint. Employers must ensure that
an investigation is conducted into incidents and complaints of workplace harassment that is “appropriate
in the circumstances.” We discuss this requirement under “Investigation requirements,” below.
 Procedures for disclosing (and not disclosing) information. The workplace harassment program must
explain how information obtained about an incident or complaint (including identifying information
about any individuals involved) will remain confidential, unless disclosure is necessary for the purpose
of investigating or taking corrective action with respect to the incident or complaint, or is otherwise
required by law. However, the amendments to the OHSA also require workplace harassment programs
to set out how the alleged victim and the alleged harasser will be informed of the results of the
investigation and any corrective action taken. Unfortunately, neither the OHSA nor the Code of Practice
provide guidance to employers on how to balance these competing confidentiality and disclosure
obligations. The Code of Practice suggests that the amount of information provided about the corrective
action will depend on the circumstances but must indicate what steps the employer has taken or will take
to prevent a similar incident of workplace harassment, if workplace harassment was found.

Although not specifically required under the OHSA, the Code of Practice also recommends that the workplace
harassment program indicate how the employer will maintain records of all incidents and complaints of
workplace harassment.

Investigation requirements
Under the amendments to the OHSA, the duty to investigate will be triggered by “incidents” of workplace
harassment, even if there is no complaint. The Code of Practice suggests that the obligation arises whenever a
supervisor becomes aware of an incident, even if the supervisor fails to pass that information on to the
employer. Therefore, employers should train their supervisors and managers on the importance of reporting
workplace harassment whenever they become aware of it.

The amendments require employers to ensure that investigations are “appropriate in the circumstances.” The
Code of Practice elaborates on this and sets out the following minimum requirements for a workplace
harassment investigation:

 The investigator must not be directly involved in the incident or complaint and must not be under the
direct control of the alleged harasser.
 The investigator should have knowledge of how to conduct an investigation that is appropriate in the
circumstances.
 Investigations should be completed within 90 calendar days, unless there are extenuating circumstances.
 The investigator must remind the worker who allegedly experienced workplace harassment, the alleged
harasser(s) and any witnesses of their confidentiality obligations and protections.
 The investigator must make reasonable efforts to interview all parties involved (including witnesses),
even if they are not workers, and must give the alleged harasser the opportunity to respond to the
specific allegations raised against him or her.
 The parties to the complaint should be updated periodically on the status of the investigation.
  The investigator must collect and review any relevant documents, and take appropriate notes and
statements during interviews.
 The investigator must prepare a written report containing the allegations, response, evidence, findings of
fact and a conclusion about whether or not workplace harassment was found. This report must be
provided to the employer, supervisor or designated person to take appropriate action.

The results of the investigation and any corrective action must be communicated in writing to the alleged victim
and the alleged harasser, if they are a worker of the employer, within 10 days of the conclusion of the
investigation. There is no requirement for the investigation report itself to be shared with such persons.

As discussed above, ensuring that internal investigation procedures comply with the recommendations in the
Code of Practice is an important risk management tool, and will help minimize the risk of a Ministry inspector
ordering a third-party investigation (at the employer’s expense).

OHSA
Section;
Program, harassment

32.0.6 (1) An employer shall, in consultation with the committee or a health and safety representative, if any,
develop and maintain a written program to implement the policy with respect to workplace harassment required
under clause 32.0.1 (1) (b). 2016, c. 2, Sched. 4, s. 2 (1).

Contents

(2) Without limiting the generality of subsection (1), the program shall,

(a) include measures and procedures for workers to report incidents of workplace harassment to the employer
or supervisor;

(b) include measures and procedures for workers to report incidents of workplace harassment to a person other
than the employer or supervisor, if the employer or supervisor is the alleged harasser;

(c) set out how incidents or complaints of workplace harassment will be investigated and dealt with;

(d) set out how information obtained about an incident or complaint of workplace harassment, including
identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary
for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is
otherwise required by law;

(e) set out how a worker who has allegedly experienced workplace harassment and the alleged harasser, if he or
she is a worker of the employer, will be informed of the results of the investigation and of any corrective action
that has been taken or that will be taken as a result of the investigation; and

(f) include any prescribed elements. 2009, c. 23, s. 3; 2016, c. 2, Sched. 4, s. 2 (2).

Section Amendments with date in force (d/m/y)

Duties re harassment

32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,

(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in
the circumstances;

(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a
worker of the employer, are informed in writing of the results of the investigation and of any corrective action
that has been taken or that will be taken as a result of the investigation;

(c) the program developed under section 32.0.6 is reviewed as often as necessary, but at least annually, to
ensure that it adequately implements the policy with respect to workplace harassment required under clause
32.0.1 (1) (b); and

(d) such other duties as may be prescribed are carried out. 2016, c. 2, Sched. 4, s. 3.

Results of investigation not a report

(2) The results of an investigation under clause (1) (a), and any report created in the course of or for the
purposes of the investigation, are not a report respecting occupational health and safety for the purposes of
subsection 25 (2). 2016, c. 2, Sched. 4, s. 3.

Section Amendments with date in force (d/m/y)

Information and instruction, harassment

32.0.8 An employer shall provide a worker with,

(a) information and instruction that is appropriate for the worker on the contents of the policy and program with
respect to workplace harassment; and

(b) any other prescribed information. 2016, c. 2, Sched. 4, s. 3.

Section;

Order for workplace harassment investigation

55.3 (1) An inspector may in writing order an employer to cause an investigation described in clause 32.0.7 (1)
(a) to be conducted, at the expense of the employer, by an impartial person possessing such knowledge,
experience or qualifications as are specified by the inspector and to obtain, at the expense of the employer, a
written report by that person. 2016, c. 2, Sched. 4, s. 4.

Report

(2) A report described in subsection (1) is not a report respecting occupational health and safety for the purposes
of subsection 25 (2). 2016, c. 2, Sched. 4, s. 4.

Section Amendments with date in force (d/m/y)

Warrants – investigative techniques, etc.

56 (1) On application without notice, a justice of the peace or a provincial judge may issue a warrant
authorizing an inspector, subject to this section, to use any investigative technique or procedure or to do any
thing described in the warrant if the justice of the peace or provincial judge, as the case may be, is satisfied by
information under oath that there are reasonable grounds to believe that an offence against this Act or the
regulations has been or is being committed and that information and other evidence concerning the offence will
be obtained through the use of the technique or procedure or the doing of the thing. 2001, c. 26, s. 2.

Expert help

(1.1) The warrant may authorize persons who have special, expert or professional knowledge to accompany and
assist the inspector in the execution of the warrant. 2001, c. 26, s. 2.

Terms and conditions of warrant

(1.2) The warrant shall authorize the inspector to enter and search the place for which the warrant was issued
and, without limiting the powers of the justice of the peace or the provincial judge under subsection (1), the
warrant may, in respect of the alleged offence, authorize the inspector to,

(a) seize or examine and copy any drawings, specifications, licence, document, record or report;

(b) seize or examine any equipment, machine, device, article, thing, material or biological, chemical or physical
agent;

(c) require a person to produce any item described in clause (a) or (b);

(d) conduct or take tests of any equipment, machine, device, article, thing, material or biological, chemical or
physical agent, and take and carry away samples from the testing;

(e) take measurements of and record by any means the physical circumstances of the workplace; and

(f) make inquiries of any person either separate and apart from another person or in the presence of any other
person. 2001, c. 26, s. 2.

Duration

(1.3) The warrant is valid for 30 days or for such shorter period as may be specified in it. 2001, c. 26, s. 2.
Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16,
Sched. A
PART V
RETURN TO WORK
Duty to co-operate in return to work

40 (1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by,

(a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout
the period of the worker’s recovery and impairment;

(b) attempting to provide suitable employment that is available and consistent with the worker’s functional
abilities and that, when possible, restores the worker’s pre-injury earnings;

(c) giving the Board such information as the Board may request concerning the worker’s return to work; and

(d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (1).

Same, worker

(2) The worker shall co-operate in his or her early and safe return to work by,

(a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication
throughout the period of the worker’s recovery and impairment;

(b) assisting the employer, as may be required or requested, to identify suitable employment that is available
and consistent with the worker’s functional abilities and that, when possible, restores his or her pre-injury
earnings;

(c) giving the Board such information as the Board may request concerning the worker’s return to work; and

(d) doing such other things as may be prescribed. 1997, c. 16, Sched. A, s. 40 (2).

bligation to re-employ

41 (1) The employer of a worker who has been unable to work as a result of an injury and who, on the date of
the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the
worker in accordance with this section. 1997, c. 16, Sched. A, s. 41 (1).

Exception

(2) This section does not apply in respect of employers who regularly employ fewer than 20 workers or such
classes of employers as may be prescribed. 1997, c. 16, Sched. A, s. 41 (2).
Determinations re return to work

(3) The Board may determine the following matters on its own initiative or shall determine them if the worker
and the employer disagree about the fitness of the worker to return to work:

1. If the worker has not returned to work with the employer, the Board shall determine whether the worker is
medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work.

2. If the Board has previously determined that the worker is medically able to perform suitable work, the Board
shall determine whether the worker is medically able to perform the essential duties of the worker’s pre-injury
employment. 1997, c. 16, Sched. A, s. 41 (3).

Obligation to re-employ

(4) When the worker is medically able to perform the essential duties of his or her pre-injury employment, the
employer shall,

(a) offer to re-employ the worker in the position that the worker held on the date of injury; or

(b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the
worker’s employment on the date of injury. 1997, c. 16, Sched. A, s. 41 (4).

Same

(5) When the worker is medically able to perform suitable work (although he or she is unable to perform the
essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to
accept suitable employment that may become available with the employer. 1997, c. 16, Sched. A, s. 41 (5).

Duty to accommodate

(6) The employer shall accommodate the work or the workplace for the worker to the extent that the
accommodation does not cause the employer undue hardship. 1997, c. 16, Sched. A, s. 41 (6).

Duration of obligation

(7) The employer is obligated under this section until the earliest of,

(a) the second anniversary of the date of injury;

(b) one year after the worker is medically able to perform the essential duties of his or her pre-injury
employment; and

(c) the date on which the worker reaches 65 years of age. 1997, c. 16, Sched. A, s. 41 (7); 2000, c. 26, Sched. I,
s. 1 (3).
Human Rights at Work 2008 - Third Edition

11. Managing performance and discipline

The Commission recognizes the right of the employer to manage its workforce, including relying on discipline
when necessary. A progressive performance management approach that takes into account accommodation
needs, and is consistently applied and documented, is a best practice.

a) Evaluating and managing performance

It is in an organization’s best interest to follow good human resources practices, such as regular performance
appraisals and documented progressive performance management of all employees.

i) Performance appraisals:

Performance appraisals and evaluations provide a tool for employees to know whether or not they are meeting
expectations and to have an opportunity to improve. Such evaluations must be conducted regularly, consistently
and fairly. The process for, and frequency of, performance evaluation should be set out clearly so that all
managers, supervisors and employees know what to expect. This is for the benefit of both the employee and the
employer.

When employers do not have good practices in place or do not follow the normal practice of performance
evaluations, they leave themselves open to allegations of discrimination within their organization.

Example: An employer rarely does performance evaluations and is somewhat lax about performance
management – usually relying only on undocumented verbal warnings. A racialized employee raises concerns
about discrimination and shortly afterwards his supervisor begins a process of performance evaluation. He is
asked to meet with his supervisor every month to discuss his performance. Although objectively, the
employee’s performance is no worse than it has always been, and no different than that of his colleagues, his
personnel file suddenly becomes filled with reports of issues with his performance. Ultimately, he receives a
letter of termination based on his negative performance evaluations over the previous six months. The employee
alleges reprisal. Despite the existence of this “paper-trail,” the employer’s actions will be closely scrutinized in
the event of a human rights complaint.

Some performance evaluation systems may have an adverse impact on persons identified by the Code. One
example is if an employee is asked to rate him or herself and then discuss this with the manager. This may
affect some racialized persons, newcomers, older persons, women or persons with disabilities who may have
had past experiences of discrimination or cultural differences that make it more difficult for them to “sell
themselves.”

ii) Progressive discipline:

A best practice is for an organization to have clearly defined policies relating to disciplinary processes and
outcomes. Discipline should range from verbal warnings to written warnings to termination and be based on
objective criteria. The discipline applied in a particular situation should be consistent with the organization’s
established policies and history of disciplining employees.

Example: A pregnant employee is not provided with a written evaluation of her performance, is given less time
than other employees to meet performance objectives and is demoted before leaving for maternity leave. This
could be viewed as sex discrimination.
b) Principles behind discrimination-free discipline

Employers should make sure that performance management, and other forms of discipline, are carried out in a
way that is non-discriminatory and is not based on stereotypes or discriminatory criteria. For example, an
employer may have breached the Code if an older worker is not given opportunities to improve through
performance management because of a perception that the performance is linked to age, or if a worker is
subjected to a higher level of scrutiny because of another Code ground, such as sex or sexual orientation.

At the same time, discipline should not be based on or linked to discriminatory assessments or criteria.

Example: A young female account manager is given a written warning and denied a bonus because her
performance is not on par with her colleagues. A contributing factor is that she has only been assigned
individual accounts rather than the corporate accounts that yield much larger commissions. This is because the
company believes that the clients, many of whom refer to her as “the young lady,” would not take her as
seriously as her older male co-workers. The disciplinary action could be challenged as discrimination based on
age and gender.

Take care to make sure that employees with similar performance problems are subjected to similar types of
discipline. Human rights cases before tribunals and boards of inquiry often include situations where individuals
identified by Code grounds are treated more harshly than others, and are disciplined or terminated from
employment in circumstances where others who were not similarly identified were not disciplined or only
received verbal warnings in the past.

Example: Mr. Smith, a white male, is constantly late for work, but his supervisor has never warned him about
this inappropriate behaviour. A co-worker, Mr. Lyn, a Chinese male, was late twice and received a warning
letter from the supervisor. There may be a perception on the part of Mr. Lyn that the supervisor is treating him
unfairly, because Mr. Smith never received a similar letter.

c) Consider whether reasons for discipline or termination are linked to disability

Before terminating or sanctioning an employee for "unacceptable behaviour," an employer might first consider
whether the actions of the employee are caused by a disability, especially where the employer is aware or
perceives that the employee has a disability. For example, a severe change in an employee's behaviour could
signal that the situation warrants further examination. Progressive performance management and discipline and
referrals to employee assistance programs should be used before sanctions or termination are considered.

Mental illness should be addressed and accommodated in the workplace in the same way as other disabilities. A
recent decision of the Human Rights Tribunal of Ontario has confirmed that an employer is liable if it does not
accommodate the needs of an employee with a mental illness, such as bipolar disorder. The employer must go
through the process of determining and implementing accommodation options before making the decision that
an employee cannot fulfill the essential duties of the position.[74] The remedies for the breach of these rights can
be substantial. See also Section 13b(i) – “Firing a probationary employee” and Section 9m (viii) –
“Performance managing an employee who is suspected to have a mental health problem.”

In some cases, an employer may need to pay special attention to situations that could be linked to mental
disability. Even if an employer has not been formally advised of a mental disability, the perception of such a
disability will engage the protection of the Code. Prudent employers should try to offer help and support to
employees before imposing severe sanctions. Also, consider that some mental illnesses may make the employee
incapable of identifying his or her needs.
Example: John has severe anxiety and depression, which he has chosen not to disclose to his employer because
he is concerned about how he would be treated at work if it were known that he had a mental disability. He
experiences a crisis at work and then does not appear at work for several days. The employer is concerned about
John's absence and recognizes that termination for failure to report to work may be premature. The employer
offers John an opportunity to explain the situation after treatment has been received and the situation has
stabilized. Upon learning that a medical issue exists, the employer offers assistance and accommodation.

d) Attendance management programs and policies

Employers need to make sure that any absenteeism policy or attendance management programs in place or
contemplated will not have a discriminatory impact on people identified by Code grounds. Such policies and
programs must be applied in a way that meets the requirement to accommodate to the point of undue hardship,
including individual assessment where appropriate.

A policy or program that provides for counselling, automatic discipline, enrolment in a punitive attendance
management program or termination based on a set number of absences may give rise to claims of
discrimination based on grounds such as disability, family status, sex and creed.[75] For example, rigidly
applying absenteeism policies to a pregnant woman who is experiencing domestic violence could result in
disciplinary action that raises human rights concerns.

The Commission has heard that a number of employers have policies that state that any employee who takes
more than six sick days off in a year will be enrolled in an attendance management program and performance
managed with consequences up to and including termination. Rigidly applying these kinds of policies gives rise
to human rights concerns. It would be discriminatory for this policy to be applied equally to all employees,
including persons whose absences are linked to Code grounds.

Example: An employer has an absence management policy that is based on the average number of sick days
used by employees. Employees who take more than the average number of sick days face disciplinary measures
such as interviews, warnings and requests for detailed medical information. An employee with a disability who
submitted medical notes justifying each of her absences from work is then subjected to this disciplinary process,
and her disability is not taken into account as a mitigating factor. This policy may be found to be discriminatory
and requests for medical information as part of a disciplinary process could constitute harassment.

While the employer is entitled to expect that employees attend at work, it is also required to provide
accommodation, including individual assessment, in applying its absenteeism policy. Case law has indicated
that it is discriminatory to take disability-related absences into account in deciding to terminate an individual’s
employment for excessive absenteeism.

Example: Over nine years of employment, an employee misses more than 365 days of work due to various
health problems. The employer implements a new attendance management policy that requires the top 25% of
employees ranked by number of days absent to attend for an interview. The employee is interviewed by the
employer and asked to provide a medical certificate, which she does. Her absences continue over the following
month and her employment is ultimately terminated on the basis that there is a poor prognosis for future
attendance. A tribunal finds this to be discriminatory, since the employer failed to consider that a number of the
absences were disability-related.

At the same time, a rule that employees must bring in a doctor’s note for every absence or face discipline may
have a disproportionate impact on employees with disabilities. A policy that does not allow for individualized
assessment and accommodation is problematic and may be the basis for a human rights claim.
Policies that provide incentives such as monetary rewards and bonuses may disadvantage persons who may
need to be absent from the workplace due to Code-related accommodation requirements.

Employers are not required to indefinitely maintain employees in the workforce who are permanently unable to
work or have a record of excessive absences that are not related to Code grounds. An employer should not
decide to discipline or terminate an employee because of past attendance or poor prospects of future attendance
related to a Code ground, without providing accommodation to the point of undue hardship.

Even where an employee has had a high number of absences in the past, the question is whether the employee’s
future rate of Code-related absences would be at a level that the employer could accommodate without undue
hardship. This is a judgment call that depends on an objective and individualized assessment of the three
factors: cost, outside sources of funding and health and safety. Employers are often too hasty in claiming undue
hardship based on an employee’s Code-related absences.

Example: An employee had over 300 full days, and a number of partial days, of disability-related absences
over nine years of employment. A termination in this case was viewed as discriminatory.

Example: An employee had been absent for over 160 full days and more than 30 part days in 12 years of
employment. The employer was successful in proving undue hardship and the termination of an employee
because of his record of absences was upheld.

For information on how to make decisions about undue hardship, see Section IV-8d) – “What is undue
hardship?” and Appendix E – “Accommodation Template for Employers.”

i) Accommodate before disciplining for absenteeism:

Before warning or disciplining an employee about the consequences of “excessive absenteeism,” the employer
should make sure that it has accommodated Code-related needs that are known, or ought to be known, to the
point of undue hardship. Failing this, any letters or discussions suggesting that disciplinary consequences may
be applied could be seen to be discriminatory.

Example: An employee asks to use flex-time as an accommodation of her family status – this will help her
meet her mother’s age and disability-related needs. This request is granted. Some months later, the employer
suspects that the employee is abusing this “privilege” because the employee is increasingly absent from the
office during working hours. The employer sends a letter warning that further absences will result in discipline
and possibly termination. The employer has taken no steps to determine whether there are legitimate Code-
related reasons for the extra absences, nor has it indicated an intention to provide accommodation to the point of
undue hardship in relation to such absences. This approach is not consistent with the objectives of the Code and
should be avoided.

A best practice is for employers to clearly refer to their willingness to accommodate Code-related needs to the
point of undue hardship, and to request relevant information to allow them to provide such accommodation
where they have concerns about an employee’s absences. If the employee fails to provide such information and
yet the absences continue, the employer may be entitled to take appropriate disciplinary steps.

Example: An employer becomes suspicious about an office worker’s pattern of absences because she often
calls in “sick” on Fridays, particularly over the summer and before holiday Mondays. The employer knows that
there may be valid health or other Code-related reasons for such absences, and asks the employee whether these
absences are linked to a need for accommodation under the Code. The employer makes it clear to the employee
that it will provide accommodation for any Code-related needs that may exist. The employee states that she has
no accommodation needs and provides various excuses for her absences. The pattern of absences continues and
the employer proceeds with progressive discipline. Such an approach likely would not raise concerns about
potential violations of the Code.

Employers should make sure they take into account the possibility of undiagnosed mental illness before firing
an employee for attendance issues. See also Section IV-9m) – “Mental illness in the workplace.”

Example: An employee with a good attendance record suddenly starts missing whole or partial days of work.
The employee quite obviously appears to be unstable when he is at work, and co-workers have said they no
longer wish to work with him. The employee has provided no medical information and none has been
requested. The manager sends a letter to the worker detailing the dates he was absent and indicating that
disciplinary consequences will apply up to and including termination, if such absences continue. The letter does
not indicate that the employer is willing to provide accommodation to the point of undue hardship for any Code-
related health needs, nor does it request documentation relevant to providing such accommodation. The
employee is later terminated due to an escalation in the rate of absences. This scenario could raise an inference
of discrimination.

e) Discriminatory treatment leading to performance issues

Employees who face discriminatory treatment may legitimately object to such treatment – a person’s behaviour
may itself be a reaction to the experience of discrimination or the existence of a poisoned environment. In some
cases, employees who challenge discriminatory treatment are subjected to discipline or other forms of
management scrutiny for having engaged in conflicts with their co-workers or supervisors.

If an employee states that his or her behaviour was caused by or linked to discriminatory treatment, an employer
needs to investigate the underlying allegations. If the employee’s behaviour can be seen as a response that is
linked to discriminatory behaviour that has not been addressed by the company, this should be taken into
account in determining what action to take. A decision to proceed with discipline, including termination,
without having considered the impact of the poisoned environment may be found to be discriminatory.[76]

f) Extending probation

Extending a probationary period is a common element of claims of discrimination based on race, disability and
other Code grounds. When an employer extends an employee’s probation, it must make sure that its reasons for
doing so are not influenced by discriminatory considerations. One way to make sure of this is to have clear and
objective criteria about what performance is expected of an employee, and to inform the employee of this at the
start of the probationary period. A best practice is for the employer to provide feedback during the probationary
period to allow the employee an opportunity to work on any areas where their performance appears to be falling
short of the stated objectives.

Employers should also be aware that extending a probationary period could either be an indication of
discrimination or an appropriate accommodation, depending on the circumstances and the context. Where an
employer is considering extending a probationary period, it should be consistent with human rights principles
and the duty to accommodate.

Example: An employee is absent from the workplace for one month due to a pregnancy-related illness during
her three-month probationary period. Contrary to standard practice, her probationary period is extended for a
period of an additional three months even though she was only absent one month. The deviation from standard
practice in this case raises concerns about sex discrimination.

Example: An employee with a disability is often absent from work, and although he does not ask for
accommodation, it is obvious that his disability is interfering with his ability to do the job. He is told that his
employment will end at the end of the probationary period. The employee requests accommodation and
extension of the probationary period to prove that he can do the job. In these circumstances, the employer
should consider providing the extension unless it can prove that doing so would amount to undue hardship.

[74]
Lane, supra note 70
[75]
See for example O.P.S.E.U. v. Ontario (Ministry of Community and Social Services), 1996 CarswellOnt 545,
89 O.A.C. 161 (Div. Ct.) leave to appeal refused 1996 CarswellOnt 4378 (C.A.)
[76]
See Naraine v. Ford Motor Co. of Canada (1996), 27 C.H.R.R. D/230, [1996] O.H.R.B.I.D. No. 23 (Ont.
Bd. of Inquiry); affirmed (1999), 34 C.H.R.R. D/405, 124 O.A.C. 39 (Ont. Div. Ct.); reversed on other grounds,
[2001] O.J. No. 4937, 41 C.H.R.R. D/349 (Ont. C.A.); leave to appeal refused [2002] S.C.C.A. No. 69
(Naraine).
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