Working from home: A silver lining to the COVID-19 pandemic?
Thanks to COVID-19, the landscape of work has forever changed. Unfortunately, employers had to make a quick decision regarding how to keep their employees working throughout the pandemic. What was once thought impossible for many employers became a reality and it changed how we view the traditional sense of the working environment. We used to think that to go to work, one had to go to a physical location with bricks and mortar. For most of us, the pandemic meant we were working from home. One thing the pandemic has taught us is that the definition of “work” must change. The landscape of work was already slowly starting to change. For some employers, this meant an immediate transition to working from home. Once what was thought unimaginable was now suddenly the norm for most employers and employees. For employers with an injured worker, the pandemic gave support to what employers have long been lobbying for, which was that an injured worker could work from home.
In the past, the Saskatchewan Workers’ Compensation Board (WCB) was less than enthused about employers offering their injured employee a “work from home” option. The WCB thought that this was a cover up for employers to skirt their obligation of return to work. The way of thinking in the past was that a worker working from home could not possibly do meaningful work from home; well, the pandemic has shown us otherwise!
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For many employers, having an injured employee work from home was a great option, especially if the injured worker’s restrictions excluded them from many jobs in the workplace.
The WCB Act, 2013 states, “An employer must have a return to work program.” Returning an employee back to work can sometimes be challenging, especially for smaller employers. For many employers, having an injured employee work from home was a great option, especially if the injured worker’s restrictions excluded them from many jobs in the workplace. Quite often, working from home allows employees more flexibility to take frequent rest breaks but still allows them to be engaged in the workplace and make a valuable contribution to their employer. I think WCB needs to change their definition of what return to work should look like and recognize that working from home is a great option. The pandemic has taught us that working from home is a real option, as many of us had to work from home since March of last year. WBC itself had its employees working from home.
Having an injured worker working from home may not work for all employers, but it is another option for employers. The possibilities are endless when having someone working from home. There is a lot of choice out there for online safety modules and classes on various topics. The safety associations in Saskatchewan are also a good choice for options for training in person and online. Employees can upgrade their safety qualifications online, and there are many options for this, as well. MSDS sheets are available online for updates.
Zoom, Webex and Microsoft Teams make it possible to attend work meetings via video and connect with the workplace. Technology is a fabulous way to help workers stay connected to the workplace. It is so important to keep employees engaged as it helps with the transition back into the workplace. Studies have shown the longer an employee is away from the workplace, the less likely they are to return. It is so important to have flexible work options to help lessen the burden of work injuries while enabling employees to remain connected to the workplace. COVID-19 has taught us that working from home is possible and it may have forever changed the landscape of the work environment.
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7
The Supreme Court of Canada (SCC) released its decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District1 (“Wastech Decision”) on Feb. 5, 2021. The Wastech Decision was heard together with the case of C.M. Callow Inc. v. Zollinger2, and both are important elaborations on the manifestations of the organizing principle of good faith in contract enunciated in the SCC’s seminal decision of Bhasin v. Hrynew3. In particular, the court in the Wastech Decision was tasked with clarifying the basis and scope of the common law duty to exercise contractual discretion in good faith and the applicable standard against which to determine breaches.
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Facts
The Appellant, Wastech Services Ltd. (“Wastech”), a British Columbia waste transportation and disposal company, was party to a long-term service contract with the Respondent, the Greater Vancouver Sewerage and Drainage District (“Metro”). Metro is a statutory corporation responsible for administering waste disposal throughout the Metro Vancouver Regional District4.
The contract between Wastech and Metro concerned the allocation, transportation and disposal of waste in the Vancouver region to three disposal facilities: the Vancouver Landfill, the Burnaby Waste to Energy Facility and the Cache Creek Landfill5. Wastech earned a rate premium on transport to Cache Creek, as it was relatively further away6; however, Metro was conferred “absolute discretion” to determine the amount of waste disposed at the Cache Creek site each year7. Wastech’s annual compensation was “structured around” a target operating ratio of 0.89, meaning Wastech’s operating costs represented 89 per cent of its total revenues, equating to an 11 per cent operating profit8. Although achievement of Wastech’s target operating ratio was not guaranteed under the contract, if Wastech’s actual operating ratio deviated from its target, the contract provided for an adjustment payment to be made from one party to another so as to equalize the financial consequences of the variable that caused such deviation9. One such change that could affect achievement of Wastech’s target operating ratio was Metro’s decision to reduce waste disposal at the Cache Creek facility, and this circumstance was contemplated by the parties during negotiation10.
In 2011, Metro re-allocated waste from the Cache Creek Landfill to the Vancouver Landfill, making it impossible for Wastech to achieve its target operating ratio, reducing Wastech’s revenue for that year and causing it to operate at a loss before the adjustment payments were made11. Wastech commenced arbitration proceedings against Metro under the contract, claiming $2.8 million in damages for lost profits resulting from Metro’s discretionary re-allocation decision12. Wastech argued Metro’s exercise of contractual discretion in this respect breached its duty of good faith under the contract.
The Supreme Court’s analysis and key takeaways
The SCC unanimously dismissed Wastech’s appeal and the arbitral award remained overturned; however, its reasons for doing so were split six justices to three. Justice Kasirer authored the majority’s reasons and Justice Brown authored concurring reasons.
The majority of the SCC enunciated the following key principles:
Contracting parties have a duty to exercise contractual discretion honestly13 and in good faith14. This duty, like the duty of honest performance, is a “general doctrine of contract law” that “operates in every contract irrespective of the intentions of the parties.”15
The duty to exercise discretion in good faith obligates contracting parties to exercise said discretion reasonably16, which means “connected to the purpose for which the contract granted the discretion.” Generally speaking, there will often be a range of legitimate, reasonable choices or exercises of discretion17 (and corresponding outcomes flowing therefrom) “in light of the purposes identified by the contract.”18 Thus, “good faith does not eliminate the discretion-exercising party’s power of choice…it simply limits the range of legitimate ways in which a discretionary power may be exercised in light of the relevant purposes.”19
The “touchstone” or standard that courts use to measure and evaluate whether a party has exercised their discretion reasonably and in good faith is the purpose for which the discretion was created and conferred according “to the bargain the parties had chosen to put in place,” which is the “first source of justice between the parties.”20 Where the purpose or intentions of the parties with respect to the conferred discretion is not explicitly discernible from the text of the contract, the court must engage in contractual interpretation to ascertain same.21 In this way, judicial review of the reasonableness of a contracting party’s discretion remains grounded in the parties’ own contract and intentions, and it will be inappropriate for a court to evaluate a party’s choices based on its own view of whether the discretion was exercised fairly, morally or wisely (in a commercial sense, or otherwise).22 This approach avoids “ad hoc judicial moralism.”23
A party will be in breach of the duty where they exercise contractual discretion in a manner that is not consonant with its underlying purposes, an example of which is “where the exercise of discretion is capricious or arbitrary.”24 Further, a party will be in breach of the duty where their exercise of discretion “falls outside of the range of choices connected to its underlying purpose – outside the purpose for which the agreement the parties themselves crafted provides discretion.”25 Discretionary power capable of “objective measurement” will have a “relatively smaller” range of reasonable outcomes26, whereas powers not “readily susceptible to objective measurement” will have a relatively larger range of reasonable outcomes. Ultimately, a court’s evaluation of exercises of discretion is “highly context-specific,” and ultimately dependent on the “intention of the parties as disclosed by their contract.”27
A party’s exercise of discretion that causes its contracting partner to “lose some or even all of its anticipated benefit under the contract,” or causes a “‘substantial nullification’ or ‘evisceration’ of the benefit of a contract,” is not determinative or a “necessary prerequisite” to finding a breach of the duty to exercise contractual discretion in good faith.”28 Rather, such an outcome may be a relevant factor in the analysis of whether the choice leading to that outcome was connected to the animating contractual purposes.
The duty does not require the party exercising discretion to “subordinate its interests” to those of its contracting partner, or to confer a benefit on its contracting partner “that was not contemplated under the contract.”29 This limitation ensures the duty does not confer an advantage or benefit on a party that was not provided for in the agreement.30
For example, if a contract confers discretion to an owner to accept or reject a contractor’s work (such as in a design-bid-build scenario), the owner must exercise such discretion in good faith such that approval is not unreasonably withheld if the contractor’s work product is consistent with the project specifications.
Practically speaking, the Wastech decision makes clear that parties that “provide for discretionary power cannot contract out of the implied undertaking that the power will be exercised in good faith, i.e., in light of the purposes for which it was conferred.”31 Therefore, parties ought to consider expressly providing for, or identifying, their purposes and intentions behind the creation and conferral of all discretionary powers included in their contract in order to mitigate potential litigation.
What remains unclear in the wake of the Wastech decision is the applicable standard of review framework for appeals of commercial arbitral awards under provincial arbitration legislation. Pursuant to prior SCC precedents of Sattva Capital Corp. v. Creston Moly Corp.,32 and Teal Cedar Products Ltd. v. British Columbia33, arbitral awards appealed under arbitration statutes are reviewed on the deferential standard of reasonableness, unless the questions raised are constitutional ones, or those of central importance to the legal system as a whole and outside the arbitrator’s expertise.34 However, the SCC recently released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov,35 (“Vavilov”) which established a revised framework for determining the applicable standard of review from administrative decisions. According to the majority in the Wastech decision, since Vavilov did not “advert to” those prior SCC precedents on the standard of review applicable to appeals of commercial arbitral awards, this question was most appropriately left to another day.36 In contrast, the three minority justices in concurrence concluded that, post-Vavilov, the appellate standard of review framework (i.e., the correctness standard) should now apply to appeals of arbitral awards, given these awards are appealed pursuant to a statutory appeal mechanism and only on questions of law.37 However, these comments are obiter and the impact of Vavilov on the applicable standard of review for appeals of arbitral awards remains to be resolved.
Photo: tashatuvango/123RF
The outcome for Wastech
The SCC unanimously concluded Metro’s exercise of discretion to reduce the waste allocated to the Cache Creek Landfill, which had the effect of reducing Wastech’s profitability for the year and making it impossible for Wastech to achieve the target operating ratio, was not exercised in bad faith. Since the contract gave Metro absolute discretion to determine the amount of waste disposed at Cache Creek each year, the court engaged in contractual interpretation to discern the parties’ specific intention and purpose behind conferring this discretion on Metro in order to evaluate whether it was exercised reasonably, i.e., consonant with, and within the reasonable range of choices connected to, that purpose. Reading the contract as a whole, and particularly focusing on the recitals to the contract and the adjustable compensation structure in Wastech’s favour, the majority of the court concluded the purpose of the discretion was to enable Metro to allocate waste in a way that maximized efficiency and minimized costs, not to guarantee Wastech a certain level of profit. As such, Metro was found not to have breached its duty, as it exercised its discretion reasonably and consistent with the underlying purposes for which it was granted by allocating waste away from Cache Creek Landfill. Wastech’s appeal was ultimately dismissed with costs.
Implications of the Wastech decision on the construction industry
In light of the Wastech decision, stakeholders in the construction industry should remain mindful of all instances in which construction contracts confer discretionary powers to the parties, and ensure their actions are consistent with the purpose of the grant of discretion.
For example, if a contract confers discretion to an owner to accept or reject a contractor’s work (such as in a design-bid-build scenario), the owner must exercise such discretion in good faith such that approval is not unreasonably withheld if the contractor’s work product is consistent with the project specifications.
Conversely, if a contract provides broad design discretion to the contractor (such as in a design-build scenario), the contractor must ensure it exercises its discretion in good faith, and design the project in a manner consistent with the intentions of the parties in light of the overall contract. However, provided it does so, the owner’s ability to dictate particular design outcomes may be severely circumscribed.
Finally, the applicable standard of review for appeals of arbitral awards post-Vavilov will be closely monitored as this will impact those construction contracts with binding arbitration clauses.
Parties ought to consider expressly providing for, or identifying, their purposes and intentions behind the creation and conferral of all discretionary powers included in their contract in order to mitigate potential litigation.
References
Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, 454 DLR (4th) 1.
Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, [2014] 2 SCR 633.
Teal Cedar Products ltd. v British Columbia, 2017 SCC 32, [2017] 1 SCR 688.
Wastech, supra note 1 at para 45.
Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov].
Wastech, supra note 1 at paras 45-46.
Wastech, ibid at para 121.
If you have further questions about the implications of the Wastech decision, or other matters of contract drafting, advice or litigation, please do not hesitate to reach out to one of Miller Thomson’s experienced construction law lawyers. For inquires, contact Adrienne S. Funk, an associate in the Edmonton office, at afunk@millerthomson.com or, for any Saskatchewan construction inquiries, please contact Troy Baril, a partner in the Saskatoon office, at tbaril@millerthomson.com.
Disclaimer: This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.
Don’t skip this important step for optimal workplace safety
Many aspects of safety management have evolved over the past few decades, but one of the things that has remained at the forefront is safety reporting. Safety professionals today still struggle to get the point across to the workforce that it is important to report hazards, unsafe acts and conditions.
The general attitude
Before getting into why employees should report hazards, let’s look at the general attitude towards reporting. When asked why they don’t report, employees working at different levels of an organization have a number of responses. The most common answer is, “When I see something unsafe, I fix it immediately and there ends the matter. Why waste time reporting it when it is not unsafe anymore?” (Some of the worst answers include “I don’t care” and “Nothing is going to change in this place anyway so why bother?”)
These answers are all wrong. On the surface, the first answer may seem correct. However, there are significant advantages of reporting hazards, unsafe acts or unsafe conditions, and this article is going to examine those next.
Why people don’t report safety hazards
The reasons people don’t report can involve human factors or the reporting process itself. Human factors range from having no trust in the organization to address the unsafe act or condition, reporting being seen as “spying” or “blaming,” a feeling that it’s a waste of time, not being aware or not understanding the benefits of reporting, laziness, forgetfulness and so on.
Process factors are important, as well. If there is a long and complex form to fill out and copies aren’t available close to the work area, employees may not be inclined to take that extra effort. Sometimes, employees do not have time even for a few minutes to be away from work. In some situations, management may even discourage reporting to save time or try to hide the conditions.
Benefits of reporting
Why report? The main thing people say, even from those who have very positive attitudes towards safety and who follow all procedures correctly, is that first answer mentioned above – it is only important to fix the unsafe act or condition. It is true that once fixed, a hazard is being removed and an accident is being prevented from happening. However, reporting what was seen and what was done will prevent not only that one incident but many other incidents, too.
How? The report can be communicated to others so they take similar steps in their work areas or activities to fix the situation and, therefore, prevent incidents from happening in their areas. All the reports collectively create a profile for a particular work site or the organization. The profile can be analyzed to identify trends that can help prioritize resources and form specific strategies.
For example, if there are a large number of reports related to employees lifting objects incorrectly, then training sessions can be arranged to educate on the right lifting technique.
Every report involves a lesson learned, whether it is the way people have behaved or the conditions or equipment that has been maintained.
This lesson can be communicated to others so they can take necessary actions. Communicating lessons learned from one incident and followed by others will prevent more incidents.
The number of reports indicates awareness and attitude of the workforce and can be a leading indicator in measuring safety performance.
All this would not be possible if the report was not there in the first place.
Every report involves a lesson learned, whether it is the way people have behaved or the conditions or equipment that has been maintained.
How to increase reporting
The first step is to educate the workforce about the benefits of reporting. This provides context and increases awareness about why reports matter. However, the single most effective measure is creating trust in the workforce: trust in management and the process that, once reported, things will change for the better and hazards will be removed.
This can happen only if management, supervisors and occupational health and safety committee members take every report seriously and meticulously address the issues. Acting promptly goes a long way in reassuring the workforce that their reporting efforts are not wasted.
The education provided should also note that reporting is not “spying” or “blaming.” This message must be backed by actions (or no actions) by management, to encourage and recognize those who report. Recognition could be in the form of a simple “pat on the back,” a mention during the safety meeting or even establishing an award program to recognize the efforts to report and the quality of reporting.
Trust is a major motivating factor. Making reporting easy and convenient also helps a lot. A simple reporting form where minimal information is needed is helpful. Once workforce trust is earned, it is easier to get “reporting” into the culture of the organization and part of everyday work habits.
Create a safe workplace
When a hazard is seen, resolving it in the best possible manner is only the first step. It is just as important to follow with the second step: reporting it so others are aware and benefit as well. Spread the news around to help everyone create a safe workplace!
Despite pandemic-related challenges, SYA is cultivating more student interest in careers in the skilled trades
Staff at the Saskatchewan Apprenticeship and Trade Certification Commission (SATCC) continued to promote the Saskatchewan Youth Apprenticeship (SYA) program, apprenticeship and careers in the skilled trades throughout 2020–21. However, that promotion looked a little different than in previous years due to COVID-19.
While SYA program staff typically deliver face-to-face presentations in classrooms across the province, this past year they used software like Zoom and Microsoft Teams to deliver presentations remotely. They also recorded presentations and uploaded them to the SATCC’s website and YouTube channel so educators can access the material when it’s convenient for them. They also participated in virtual career events.
“It was a challenging year, but I’m proud of the work our SYA Champions and our staff accomplished this year,” said Paul Blankestijn, SYA manager. “We adapted to the circumstances; we love interacting with students and educators in person, but this past year proved we can also engage folks virtually.”
Photo: Rabia Elif Aksoy/123RF
SYA, overseen by the SATCC, gives students the opportunity to learn more about apprenticeship and careers in the skilled trades through research and hands-on learning. Participants complete 12 activities – or challenges – including attending a career fair; interviewing a journeyperson; researching and preparing a report on a designated trade; and completing Practical and Applied Arts course credits. Participating schools designate an educator to serve as the school’s SYA Champion. These are the people who submit student registrations and administer the SYA challenges.
One of SYA’s goals is to help facilitate increased diversity within the broader apprenticeship system. Currently, 27 per cent of SYA participants self-identify as female and 22 per cent of SYA participants self-identify as Indigenous. Women remain an underrepresented group in the skilled trades – they currently make up about 11 per cent of the apprenticeship population in Saskatchewan, and about 5 per cent of the apprenticeship population in trades where women are underrepresented. Indigenous apprentices currently make up about 18 per cent of the apprenticeship population.
There are nearly 4,500 students currently registered in the program, an increase of 7 per cent over the total number of participants as of June 30, 2020.
Despite the challenges presented by COVID-19, the SYA program continued to grow in 2020–21. There are nearly 4,500 students currently registered in the program, an increase of 7 per cent over the total number of participants as of June 30, 2020.
Students who complete the program and register as apprentices within five years of graduation receive 300 trade time hours; plus, their apprenticeship registration fee and their Level 1 technical training tuition are waived.
SYA participants also have the opportunity to be nominated for an SYA Industry Scholarship. In 2020–21, the SATCC issued 100 SYA Industry Scholarships to students from 79 Saskatchewan communities. The $1,000 scholarships are unique – they’re not awarded upfront. To redeem them, students must demonstrate they’re actively pursuing a career in the skilled trades within two years of graduation, either by registering as an apprentice and completing Level 1 technical training or by completing a pre-employment course in a designated trade.
The SYA Industry Scholarship fund is supported by both the Government of Saskatchewan and industry sponsors. To date, 59 industry organizations, including private businesses; trade associations; and labour organizations, have contributed to the fund.
“The SYA Industry Scholarship program incentivizes recipients to start their skilled trades careers as soon as possible following high school graduation,” saod Blankestijn. “The two-year redemption window encourages young people to embark on their career paths sooner. Whether we’re talking to educators or presenting to students, we always emphasize that the skilled trades are first-choice careers, not fallback careers.”
EQUA provides customized insurance and risk management solutions
Although the start of a pandemic is probably not the best time to begin a new business, that didn’t stop David Richards and Andy Bates. They knew the risks when they began EQUA Specialty Risk Partners Corporation (EQUA), an insurance brokerage that specializes in managing construction risks that leads to improved coverage and competitive pricing for its clients.
Despite the economic pressures brought on by the pandemic, Richards and Bates were confident that they had the right approach that would allow them to start and grow the brokerage. They wanted to create a business that would focus on clients and provide customized insurance and risk management services.
The duo already had a track record of success. Richards was the former chief executive officer of Jardine Lloyd Thompson Canada Inc. (JLT Canada) and an executive vice president of Aon Canada, while Bates had been the chief operating officer of JLT Canada, and a senior vice president with Marsh Canada Ltd.
“We wanted to provide true customer service and get to know our clients as individuals and not just clients.”
– Greg van Ginkel, Managing Partner/Construction Leader
Richards and Bates wanted to attract the right team to make this vision a reality and Greg van Ginkel was one of the cornerstones in that approach. With nearly 40 years of experience in insurance and risk management, he was a natural fit for EQUA. He previously served as a managing director for a large multinational broker, where he became the national construction and design leader. Afterwards, he was a co-owner and CEO of a regional brokerage in Regina.
“We were founded under the premise of serving those businesses, which were the next level down to Fortune 500 businesses, but providing them with the service that a Fortune 500 business would receive,” said van Ginkel, EQUA’s managing partner of the Saskatchewan office and construction business lead. “We wanted to provide true customer service and get to know our clients as individuals and not just clients.”
“For the most part, advice is usually what our clients need the most.”
– Greg van Ginkel, Managing Partner/Construction Leader
He adds that EQUA provides expertise to a select number of industries, such as the construction sector, which enables the company to better understand its clients and the risks they face. They believe in being honest and upfront about potential risks associated with potential opportunities and what could happen if the client decides to move forward.
EQUA is led by a board of directors and nine managing partners, and has offices in Regina, Calgary, Ottawa, Toronto and Vancouver. All nine managing partners are insurance and risk management experts, which creates employee owners across the entire team and leads to an incredible level of dedication to their clients. The company is also supported by a robust administrative team that ensures its leaders and client executives are free to focus on building solutions and creating value while clients enjoy an incredibly high level of support and service.
Looking at construction in Saskatchewan
For Saskatchewan, van Ginkel says the company is focussed on the construction sector.
“We plan to continue to grow and to serve the construction community here,” he said. “Our team members have incredibly deep roots in Saskatchewan. We want to connect with the local business community to learn about your needs. We want to work together to build solutions that support Saskatchewan’s businesses and economy. We are here to help protect this industry and to do what we can to help it thrive.”
The Saskatchewan office provides insurance and risk management solutions for the local construction community, using highly specialized knowledge, its local presence, national support and a global network. It offers the full suite of risk management advice – including assessing and allocating risk – and insurance procurement.
The local office is connected to the talent elsewhere in the company. When clients present their specific issues, the brokerage accesses expertise from other departments to ensure they understand the possible risks that a client may face with a particular project and who is going to take responsibility for those risks through the process.
It’s this connectivity that served them well during the pandemic. EQUA was founded as a digital company with no legacy systems that needed to be maintained. This helped them better respond to the restrictions set in place when the pandemic hit. The brokerage is paperless and cloud-based, which made them naturally remote from the moment they opened their doors and that has benefited them through the entire pandemic.
Dave Richards, Chief Operating OfficerAndy Bates, Chief Executive OfficerGreg van Ginkel, Managing Partner, Construction LeaderPhotos courtesy of EQUA
Their experience with digital systems has led them to be experts in the growing field of cyber insurance. They recognize the importance of having highly secure access to fields and information from anywhere in the world using secure systems.
van Ginkel says EQUA has grown, and will continue to grow, because of the value they provide to their client. “The value could mean something different for each client,” he said. “For some it could be advice, for others it could be a price. But, for the most part, advice is usually what our clients need the most.”
Connections are also very important to the company and that’s a key reason why the company joined SHCA. Staff pride themselves on reaching out and making the calls so they can better connect with the people in the communities they serve.
“Our membership with SHCA provides us with access to important conversations and the opportunity to learn about the challenges that the industry is facing here,” said van Ginkel. “For us, that is fundamental. We pride ourselves on offering relevant solutions and creating unprecedented value, which is only possible when we work closely together with our community. SHCA is the right place for us to grow our network and listen to the voices that make up this industry.”
Protect your business: No organization is too small to not need a policy in place
It is a good feeling spending your workday being productive alongside people that make you feel welcome and valued. So, too, is going home knowing what you did and how you spoke throughout the workday was helpful, not harmful. Not every day or every workplace is like that, but there are tools to guide employers, supervisors and employees towards maintaining that type of work environment.
People don’t always agree, understand or appreciate one another. How some people behave and speak when there are disagreements, misconceptions or biases can be considered harassment.
Doing or saying something that insults, ridicules, threatens or sabotages someone you work with – or who works for you – can put you in a position of uncertainty and risk. That is true for employers, supervisors and employees.
Folk recommends workplaces search online for the many government resources available to guide them on developing a harassment policy. Having such a policy is required under the Saskatchewan Employment Act and the Occupational Health and Safety Regulations.
That risk can be handled through a harassment policy that links with a policy on employee discipline. Making those policies available to employees and providing training so everyone in your workplace recognizes how to appropriately navigate interpersonal situations can also help.
Erin Folk guides workplaces and leaders looking to prevent workplace harassment or needing to handle complaints. As an investigator and facilitator with Folk Consulting, she works with governments, private business, non-profit organizations, First Nations and other groups to provide advice and services related to harassment prevention and investigations.
She has also supported her husband’s earthmoving and landscaping business, Folk Construction. Her experience through the company has showed her first-hand examples of questionable workplace behaviour in the industry and the awareness employees have of their rights.
“In years past, if an employee was not being treated well on a job site, they might have just walked away, quit and got a job somewhere else,” said Folk. “That’s maybe not the case anymore. The employer has that legal duty to ensure the safety [of its employees].”
Harassment is inappropriate conduct, comments, displays, actions or gestures that the harasser knows or ought to reasonably know would cause an individual to be humiliated or intimidated. It is inappropriate to intimidate, humiliate or threaten another employee so their psychological or physical wellbeing is damaged, causing a threat to their health and safety. Additionally, if the behaviour and conduct relate to another person’s race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, it is considered a breach of Human Rights legislation, and is considered an illegal act, as well as workplace harassment.
“We all want to come home at the end of the day having put in a good day’s work and not had to put up with abusive behaviour and discriminatory behaviour,” said Folk. “Everyone wants to be respected for the work that they do.”
To take a first step towards preventing and dealing with harassment as an employer, Folk recommends workplaces search online for the many government resources available to guide them on developing a harassment policy. Having such a policy is required under the Saskatchewan Employment Act and the Occupational Health and Safety Regulations. Employers should seek assistance from subject matter experts if they feel uncertain about creating their own policy and procedure.
“Under occupational health and safety legislation, you see that the employer, the manager, the supervisor and the employee all have listed responsibilities when it comes to safety in the workplace,” said Folk, who explains that the more responsibility an employee has in an organization, the higher the threshold is for what is expected of them.
“Psychological safety is a component of the safety of the employee, equally as important as the physical safety of an employee,” she said.
A harassment policy must contain a definition of harassment, which Folk says can be taken directly by employers in this province from the Saskatchewan Employment Act. The policy should also include a statement by the employer that harassment is not acceptable or tolerated and expresses the employer’s commitment to do everything reasonable to prevent harassment and act when an employee feels they have been the subject of workplace harassment.
But Folk says a more robust policy can benefit an organization. Including a process that outlines how complaints can be brought forward and managed, appropriate procedural steps for mediation or investigation, and how the complainant and alleged harasser will be informed of the outcome of an investigation should also be described.
The more responsibility an employee has in an organization, the higher the threshold is for what is expected of them.
Erin Folk, an investigator and facilitator with Folk Consulting, guides workplaces and leaders looking to prevent workplace harassment or needing to handle complaints. Photo: Erin Folk
“The policy is there to protect the employees and to protect the employer. The policy is supposed to give clear guidelines that discourage inappropriate behaviours, so you want to have very clear definitions,” said Folk, who encourages employers to link their harassment policy to their discipline policy. “Not only are you protecting your employees by saying this is not tolerated or allowed, but you also have mechanisms under which, if this inappropriate behaviour happened and is found to have occurred, the employer has the ability to take action under the discipline policy however the employer sees fit, under the circumstances – whether that is a reprimand, guidance, education or dismissal.”
When a complaint is made, an investigation looks at whether the allegation occurred as it was alleged and, if it did, if it is contrary to the policy in place. That’s what makes sound definitions important, according to the legislation.
Photo: Dmitry Ageev/123RF
Employers who feel some people today are simply too sensitive and discredit complaints of employees as insignificant or frivolous assume a significant risk to their business.
“We can find harassment based on a vague definition, but where does it go from there? Now what does the policy say about how the employer can deal with that? If you have a very vague definition and limited policy, you might also have a limited ability to apply discipline,” said Folk.
The risk of a vague policy to the employer in a situation where an employee has harassed another is not being able to dismiss an employee with cause, if training and other progressive discipline steps have not rectified the behaviour. An employee who continues their harassing behaviour in the workplace can leave the employer vulnerable to a civil action, known as an employer’s vicarious liability for the conduct of their employees.
Having a policy can mitigate an employer’s responsibility. Not having a policy or allowing an employee to continue their behaviour unchecked can be an aggravating circumstance that could lead to a more significant financial remedy being awarded to the victim of workplace harassment by an adjudicator if the matter is elevated to a tribunal.
An employer who can point to a sufficient policy and training aimed at preventing harassment may have an adjudicator consider that as a mitigating factor and find the employer less liable for the conduct of their employee.
An organization’s policy does not have to be hundreds of pages long, but Folk recommends it being more than a single page in a safety manual and employee handbook. The policy needs to be informative and proscriptive. It should serve as a resource to staff, supervisors and managers, so those accountable for addressing harassment in a workplace understand their responsibilities and the processes. Proactively having this in place and making everyone in the organization aware of it can help minimize disruption to the organization when a situation arises because the expectations have already been made clear.
Employers who feel some people today are simply too sensitive and discredit complaints of employees as insignificant or frivolous assume a significant risk to their business. The financial and human costs of workplace harassment are high. Staff turnover, lost productivity, bad publicity and damage to reputation, as well as costs for paying for a mediator or investigator, have a considerable effect on an organization’s bottom line.
“You are putting yourself in the crosshairs of a lawsuit and/or a lot of bad publicity if someone comes forward with a complaint,” said Folk. “There is a lot of human and financial cost to allowing harassment to occur.”
Being at work means dealing with other people. How you behave towards and around one another can contribute to whether co-workers feel more or less included on the team and at your workplace.
A workplace with people who harm others – psychologically or physically – through their words or actions will eventually be held responsible, Folk says, because workers are increasingly aware of their rights and will act to protect those rights and their wellbeing. Demonstrating respect for those you work with is important to keep a workplace productive, effective and inviting.
Following a vote of the membership, Municipalities of Saskatchewan will be transitioning back to the name Saskatchewan Urban Municipalities Association (SUMA).
“As a member-focused association, our members will always have the final say on important decisions,” said Mayor Rodger Hayward, president of Municipalities of Saskatchewan. “We respect the decision that has been reached through an open and transparent membership vote.”
The membership vote was held electronically from June 1 to June 3. As per the association’s bylaws, each municipality was afforded a number of voting delegates based on population, to vote on their municipality’s behalf.
In total, 364 votes were cast. Ninety municipal representatives voted in favour of the organization changing its name to Municipalities of Saskatchewan, and 274 were opposed. Of the association’s 12 regions, two of the regions were in favour of proceeding with the name change. Given the importance of the vote, the Board of Directors set the threshold for success of the rebranding as a supermajority, with 60 per cent of participating voting delegates needing to vote in favour, as well as a simple majority in at least seven of the association’s 12 regions.
To ensure impartiality, voting was conducted electronically by Data On The Spot.
“No matter our name, our values and principles remain the same,” said Hayward. “We continue to represent the interests of Saskatchewan’s hometowns – the cities, towns, villages, resort villages and northern municipalities that more than 80 per cent of Saskatchewan’s population call home.”
The transition back to SUMA will begin taking place over the coming weeks.
Meeting with a group that is open to advice and generous with their insights is an empowering experience that helps to develop one another.
A group like that came together recently to create that experience for women in construction. We met as the Women in Construction – TEC Group for its inaugural meeting. This introductory meeting was held to gauge the interest in this type of a group holding ongoing meetings to support those involved.
Women from various sectors of construction who are living and working in many different communities in the province met on May 20 to learn about TEC and gain peer support and offer advice. Some of the women had been working in their field for decades while others were new to theirs. Their roles covered a wide array of functions, from ownership to human resources to fleet management.
It was an important opportunity to draw out the perspective of women discussing the challenges, issues and successes in the construction industry. The group discussed navigating work relationships, giving one another suggestions on how to ensure those in the relationship recognize it is strictly professional. Others were looking for input on human resources challenges, including onboarding new employees who primarily speak a language other than English. Through the discussions, we generated great ideas to help find solutions to common concerns.
It was an important opportunity to draw out the perspective of women discussing the challenges, issues and successes in the construction industry.
Coming together to discuss challenges and opportunities related to business and career development is important for anyone building their career. Sitting down on a scheduled basis to have these discussions with people who have similar life experience can be reassuring.
There is interest in another meeting being scheduled to allow for the conversation to continue and to welcome additional women interested in an opportunity like this. Given the busy season that is summer, the plan is to schedule the next meeting sometime in late August.
If you would like to participate, please send me an email to get more information, including the date once one is set. You can email me at slipp@saskheavy.ca
Rapid antigen tests may now be used by Saskatchewan businesses and individuals to help screen people who do not show COVID-19 symptoms.
The province has amended The Medical Laboratory Licensing Regulations, 1995 so that a formal agreement is no longer required between those who use rapid antigen tests and the Saskatchewan Health Authority (SHA).
“Our government is committed to improving access to health care services for people across the province, and providing the necessary tools to address the pandemic,” Health Minister Paul Merriman said. “This step means that businesses and individuals can easily procure and use these tests, helping asymptomatic people who have COVID-19 receive testing and treatment more quickly. Ultimately, the best way to protect yourself and those around you is to get vaccinated.”
Rapid antigen tests are not a diagnostic test, but are used to screen asymptomatic people for COVID-19. Health officials strongly recommend that people who receive a positive test result immediately self-isolate and call 811 for further instructions, such as scheduling a confirmatory test through a SHA testing centre.
“The Saskatchewan Health Authority’s Test to Protect program is an important element of a multi-layered approach that we have added to our pandemic response along with vaccination,” SHA Testing Chief Carrie Dornstauder, said. “The Test to Protect community rapid antigen testing program provides workplaces with early detection of COVID-19 ensuring a strong and healthy workplace and workforce through outbreak prevention.”
Large national businesses that operate in Saskatchewan and wish to use the tests can request them through the federal government’s online business portal at https://health.canada.ca/en/rapid-tests.
Small and medium-sized enterprises within Saskatchewan can apply for rapid tests from the SHA by submitting an Intake Form available at www.Saskatchewan.ca/COVID19 (search for Rapid Testing). Tests will be provided for workplace screening as supplies allow, however Saskatchewan’s federal allocation of rapid antigen tests will be prioritized for health care professionals and priority settings such as long-term care facilities, personal care homes, schools, group homes and shelters.
General information on rapid antigen testing is available at https://www.saskatchewan.ca/government/health-care-administration-and-provider-resources/treatment-procedures-and-guidelines/emerging-public-health-issues/2019-novel-coronavirus/testing-information/rapid-testing.
