Mediation

Bill C-13: Whistleblower Protection Explained

mcroeser@boardofmediatiors.com (Marius Croeser) — Wed, 17 Oct 2007 16:15:00 +0000

The members of the Employment, Labour & Pensions Group of Stikeman Elliott LLP provide the following helpful explanation:

"Effective September 15, 2004, it became a criminal offence for an employer and certain other individuals to threaten or retaliate against an employee who blows the whistle on conduct of their employer which the employee believes is in breach of a provincial or federal law.

This new criminal offence was part of Bill C-13, An Act to Amend the Criminal Code (Capital Markets Fraud and Evidence-Gathering), which was promoted as Canada’s response to a number of corporate scandals in the United States. However, the amending legislation is so broadly worded that it protects whistleblowers who report any conduct on their employers’ part they believe is in breach of any provincial or federal legislation, including any labour or employment-related legislation such as occupational health and safety, human rights and employment standards legislation.

Under Section 425.1 of the Code, it is a criminal offence for an employer or a person acting on behalf of an employer or in a position of authority to take or threaten to take any reprisal action (including disciplinary action, demotion or termination) intended to prevent the employee from providing information or to retaliate against the employee who provided information to a governmental body such as the Ministry of Labour or the police relating to any offence that the employee believes is being or has been committed by the employer or its directors, officers or employees in violation of any federal or provincial statute or regulation. Anyone convicted is liable to imprisonment for a term of up to five years.

Given the broad scope of Bill C-13, employers must ensure that none of their managers take any retaliatory action against an employee who reports to a governmental body or to the police what he/she believes is illegal conduct on the part of his/her employer or its officers, directors or employees. Training will be essential to ensure that managers are fully aware of the protection granted to whistleblowers under the amended Criminal Code.

Currently, some employment-related legislation contains whistleblower protection, but the penalty is less severe than under Section 425.1 of the Code. The sanctions for a breach of Section 425.1 are not, however, as harsh as those provided under similar whistleblower protection given to employees in the United States under the Sarbanes-Oxley Act of 2002 . The Sarbanes-Oxley legislation not only imposes serious criminal-type sanctions (i.e. imprisonment for up to ten years and/or substantial fines) to a person or entity convicted of silencing or attempting to silence a whistleblower, but it also entitles employees of publicly traded companies who provided evidence of fraud against their employers or any of their employers’ officers, employees, contractors, subcontractors or agents to initiate civil action against their employers and/or any individual who took reprisal action.

Although Bill C-13 restricts criminal liability to the offending party, it is conceivable that an employee in Canada who has been threatened because he/she blew the whistle on his/her employer’s allegedly illegal conduct may resign and claim constructive dismissal, based on a poisoned work environment. Given the new whistleblower protection under the Code and the potential for a constructive dismissal claim, it is crucial that all management employees understand their exposure and their employer’s potential liability for any retaliatory action against a whistleblower".

View: http://www.stikeman.com/

Feel free to contact Marius Croeser - e-mail: mcroeser@boardofmediators.com

Disciplinary Action with Volunteer Workers.

mcroeser@boardofmediatiors.com (Marius Croeser) — Mon, 15 Oct 2007 23:26:00 +0000

I am often asked how to deal with harassment & disciplinary action in non-profit or faith based organizations. Many constituents are not considered “employees” - there seems to be “gray areas”, when trying to apply workplace regulations and laws. Following are some basic considerations on applying disciplinary action to volunteer workers:

Step 1: Written Policy: It is imperative that non-profit or faith based organizations formulate a clear written policy to deal with harassment. The policy should define harassment, to whom the policy applies, the process for investigation and for taking action. Insure that your organization has a written policy with statements that mention “volunteer” workers e.g. Habitat for Humanity Canada: "Habitat will not retaliate against any individual who makes a report of harassment, nor will it permit any employee or volunteer to retaliate. Any person found to be retaliating against another individual for reporting harassment will be subject to appropriate disciplinary action, including suspension as a volunteer or termination as an employee."

Include a statement that clearly outlines the consequences for harassment e.g. Swimming Canada: "In directing disciplinary sanctions, the Panel may consider the following options, singly or in combination, depending on the nature and severity of the harassment.." Include a statement regarding failure to comply with disciplinary decisions.

Step 2: Judgment based on report: It is managements/directors obligation to make judgment based on the fact-finder's report. This report is a technical document that may carry weight in court. The fact finder's report is the foundation for taking appropriate and corrective action. Securing the services of an independent fact-finder is not always financially viable. In this case your written policy should provide clear guidelines on the process for conducting “internal investigations”. Ultimately there should be an investigation and a written report. This report should outline the nature and severity of the harassment and the findings regarding probability that the complaint is justified. Based on the nature, severity and probability management/directors should determine a response. Keep in mind that you may have obligations to report criminality or abuse to appropriate agencies.

Step 3: Select & apply disciplinary action: I suggest a mediated settlement. A mediated settlement can provide satisfactory resolution to all concerned. Parties to the mediation may include management, perpetrator(s) and victim(s). The mediator will work with each party to determine their interests (for resolution). In the context of non-profit or faith based organizations, mediation provides a superior outcome. Disciplinary directives available to managers/directors may include:
- verbal apology;
- written apology;
- letter of reprimand from the organization;
- a fine or levy;
- referral to counseling;
- removal of certain privileges of membership;
- temporary suspension;
- termination of volunteer contract;
- expulsion from membership
- publication of the decision

Step 4: Enforce disciplinary action. A mediated agreement is binding. Failure to comply with an agreement or disciplinary action can result in automatic suspension in membership. Manager/directors are obligated to enforce the disciplinary directives.

For assistance regarding your policy and procedures please contact Marius Croeser, mcroeser@boardofmediators.com or Call: 905-952-7912

Teach your teenager how to solve conflict.

mcroeser@boardofmediatiors.com (Marius Croeser) — Sat, 13 Oct 2007 21:48:00 +0000

Parents face the challenge of teaching kids how to deal with conflict. Useful to this endeavor is to have clarity on key concepts:

What is “conflict”? Answer -- when people have competing perspectives.

Conflict results when we struggle with others perspectives, in a way, that damages relationships.

What is “perspective”? I use the word “perspective” to convey the notion of a mental view or personal interest. Our perspective comes from our own cultural and social versions of life (how we interpret reality/life). In my experience, perspective derives from “nurture” rather from “nature”.

Key Concept: Conflict resolution is all about perspective management!

Let's use the analogy of a stairway to consider our options for conflict resolution –call it the “Conflict Resolution Stairway”. Think of a set of 3 steps. The higher up you go, on these steps, the more serious the consequences become.

Let's label the top, 3'RD step, “Power Options” -- Often power solutions for solving conflict come naturally to kids. These often result in rebuke e.g. while arguing at school one kid strikes another. In adult life, power options hold serious consequences.

Label Step 2 with “Law Based Options” -- An example is where a kid comes running to mom to resolve a complaint. In adult life, these law based options can be costly and time consuming.

Label the bottom, 1'ST step “Perspective Management Options” -- It is here where kids (and adults) can be empowered to best solve conflict. Perspective management options are the least costly and often provide the best results.

Some basic Perspective Management techniques for solving conflict:

Perspectives are fluid. Perspectives can be modified. Perspectives can be discussed, understood and negotiated. When we deal with conflict is is not so much about right and wrong, facts or truth. Rather is is about our ability to understand, communicate and negotiate perspectives. When we remove the hard barriers of right and wrong, truth or fact we create opportunity for mutual understating, agreement (or respectful disagreement) and for conflict resolution.

Key Concept: Teach your kid self-reflection and verbalization skills relating to;

- identifying underlying results (what he/she “really” wants),
- identifying available process (ways to obtain his/her “result”),
- identifying and naming feelings.

We recently had conflict with our 12 year old. She wants a cell phone, we don't want her to have a cell phone. We made progress, reflectig on, and talking about what she really wants (to fit in with her peers) and what we really want (avoid the “foolish notion” of a 13 year old spending money on a cell phone). Our perspectives where grounded in different social values. By identifying feelings, such as our “fears” and her wanting to “be cool”, we made good progress.

Teaching and applying these self-reflection and verbalization skills will empower your child to solve conflict in healthy and productive ways.

If you have questions contact Marius Croeser, e-mail mcroeser@boardofmediators.com

A basic explanation of your workplace regulations.

mcroeser@boardofmediatiors.com (Marius Croeser) — Fri, 12 Oct 2007 17:33:00 +0000

Managers often ask for an, easy to understand, explanation of their own workplace regulations.

You can think of your workplace "regulations" as a layered cake.

A the bottom layers we have the body of "codes" that apply to all organizations as imposed by society via provincial and federal legislation.

The layered cake of workplace regulations: In non-unionized (also known as common law) workplaces, these laws are an amalgam of statutory minimum requirements like employments standards, occupational health and safety, workers insurance, human rights, pay equity all followed by (the next layer) internal company policy and procedures. Organizations are often required by law to develop their own harassment policies. These "layers" are topped of with "common law" of employment.

For unionized workers the top "common law" layer is replaced by "labor law" and the "cake layer" just below labor law would be "the collective bargaining agreement". Remember that "the collective bargaining agreement" is the agreement reached between your union and the organization.

Every manager should know: For the average manager it is important to note that, in Ontario "fair treatment" is defined via the various workplace rights codes e.g. Minimum standards, human rights and health and safety laws. Also, the Canadian Human Rights Act provides every person in the workplace the right to freedom from harassment based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction. These are referred to as "prohibited grounds". Your internal organizational harassment policy should go beyond these requirements by addressing other types of workplace harassment such as harassment of a general nature not related to the grounds prohibited under the Canadian Human Rights Act, including rude, degrading or offensive remarks or e-mails, threats or intimidation.

Train your team: Remember that "workplace-related harassment" is defined in the Ontario bill as "harassment by a worker's employer or supervisor or by another worker, whether or not the harassment occurs at the workplace, or harassment that has the effect of interfering with the performance or safety of any worker at the workplace or that creates an intimidating, hostile or offensive work environment for any worker." Also, remember to train all non-employees such as volunteer workers!

Take action to protect and investigate: Employers are required to protect workers from harassment in the workplace, to give workers the right to refuse to work in certain circumstances after harassment has occurred, to investigate allegations of workplace-related harassment and to take steps to prevent further occurrences of workplace-related harassment. Remember to take action to protect whistle blowers and alleged victims! Again, employers should be responsible for preparing guidelines for eliminating and dealing with harassment incidents and provide compulsory, regular harassment prevention training for workers and managers. In Ontario, employers should ensure that the source of the harassment is identified and the harassment stopped, that steps are taken to remedy the effects of the harassment.

Managers will do well to read:
- Whistle Blower Protection Bill, Bill C13. Also view, info at:
http://www.parl.gc.ca/LEGISINFO

- Provincial Codes.
- The Personal Information Protection and Electronic Documents Act, PIPEDA

Also, for dealing with an uncooperative party during investigations read our BLOG "Investigating Individuals for Harassment".

For questions please e-mail Marius Croeser, mcroeser@boardofmediators.com

How much will my court case cost?

mcroeser@boardofmediatiors.com (Marius Croeser) — Fri, 12 Oct 2007 16:19:00 +0000

I am often asked what the cost and time savings are in mediation versus going to court? The answer is not simple. However, below are some considerations and time/cost estimations, for a basic civil case -(that you may encounter).

Step 1: Usually the process starts with the plaintiff's counsel sending a “letter of demand” to the respondent. This may cost you up to $1000. Plan for 30 to 60 days.

Step 2: After receiving a “letter of response” (or not), from the respondent - papers may now be prepared (by your counsel) to be filed in court. This may cost you $2500. Plan for 30 to 60 days.

Step 3: The respondent now has time to prepare and file a “statement of defense”. Your counsel will have to review this document. This may cost you $2500. Plan for 30 to 60 days.

Step 4: You receive a trail date. This trail date may be 24+ months in the future. Your counsel will now want to interview witness and prepare statements etc... This may cost you $8000.

Step 5: Mandatory pretrial mediation session(s). Months may pass before reaching this stage. This may cost you $2500.

Step 6: Actual trail starts. Usually 1 to 6 days. This may cost you $8000.

In this conservative example, assuming you win your case (receive a judgment against the defendant), 36+ months may have passed.

Your costs would have been $24000+. The judge may award a verdict – remember, the verdict is different from the actual penalty. You may NOT receive the full financial award that you where hoping for! In addition, you may only be awarded up to ½ of your court costs (½ of the $24000 you had to spend to get a verdict!).

The above delays in time and financial costs stand in stark contrast to a mediated settlement:

With the assistance of a trained & skilled mediator you would have had a 85%+ probability of achieving settlement. This settlement would have been contractually binding.

The mediation process may have taken only 1 to 3 days (plus some additional time for legal review, say up to 6 days).

The mediation may have cost (for both parties to share) only $2500 - $4500 (excluding some legal review costs) - Money you would, in any event, have had to spend prior to your trail.

Mediation is proven to be a viable way to find settlement - In all probability mediation is your best option.

If you have questions please contact Marius Croeser, mcroeser@boardofmediators.com

Settle your divorce through mediation NOT court...

mcroeser@boardofmediatiors.com (Marius Croeser) — Wed, 10 Oct 2007 23:55:00 +0000

Settle your divorce through mediation NOT court...

I am often asked why couples do better settling their divorce through mediation.

Cost savings are HUGE: I recently met a lady who told me that her court managed divorce cost over $28 000. She indicated that she was unhappy with the final arrangement. “The stress of it all almost killed me”. She and her ex-husband hardly ever speak. The fact is, that she could have mediated her divorce settlement for under $3000. She would have incurred some legal review costs however, the final cost would have been under $6000!

Less Stress: As opposed to court, mediation is a non-adversarial process. The idea is to help parties reach an agreement that works for both. Mediators understand how to work with both parties to create a power balance (fair playing field). It is far less stress full dealing with a mediator and collaborative lawyers than arguing in court. In mediation parties come out with a binding settlement and maintain amicable relations.

Best for kids: Trained family mediators understand that kids interest come first. Often, professionals are involved to assist with the creation of a joint parenting plan etc... Kids cope better with separation when they see their parents co-operating and when parents maintain a working relationship.

Equitable division of assets: Trained family mediators manage the process of dividing assets. Unlike a court ruling, parties in mediation have control over the process and the end result. Trained mediators will insure that spousal support guidelines are followed and will assist both parties to have their particular interests met. Often parties find agreement on 85% of business – they then have the option to ask the mediator to arbitrate a settlement, on the remaining issues.

Privacy: In a mediated settlement - the privacy of all parties is 100% assured.

It is imperative to work with a highly trained and skilled mediator. If you have any questions please contact Marius Croeser at mcroeser@boardofmediators.com

Investigating Individuals for Harassment.

mcroeser@boardofmediatiors.com (Marius Croeser) — Wed, 10 Oct 2007 22:15:00 +0000

Investigating individuals for harassment:

I am often asked to explain the steps for investigating workplace harassment.

The process often starts with allegations being made by a "whistle blower" or by a perceived / actual victim.

Step 1: Usually, management should appoint an independent fact-finder. Legislation dealing with Freedom From Workplace Harassment for employees or volunteers compel management to take allegations seriously. A fact finder is a person with extensive knowledge and experience dealing with human rights matters. A fact-finder is tasked to gather the facts and then make a determination (by way of a report) as to the probability that the allegations are true. Fact-finders should be experts on dealing with “he said - she said” situations i.e. They understand how to manage a situation where it may be the word of one person against others. The fact-finder does not have to be a lawyer – if he/she is a lawyer they should NOT function as lawyers during fact-finding.

Step 2: Take active measures to protect alleged victims or whistle blowers. Management, who do not provide active protection may face consequences i.e. Canadian & US Whistle Blower Protection laws e.g. Canada, Bill C13. Also, once an investigation is initiated it should be carried to completion. Failure to do so can result in further harm to victims and provide exposure to management.

Step 3: Interviews by the fact-finder. The purpose is to gather and assess facts. Ideally, all people who have information should be interviewed. It is important to note (and state) that information shared with the fact finder by individuals is NOT confidential. What if individuals (alleged perpetrator) refuse to participate? If, after several attempts to obtain co-operation of the individual fails, then the fact-finder must advise the individual that the investigation will proceed without the benefit of the individual's input. This advise must be in writing. Failing to take action will allow an individual to 'hi-jack' the process and inevitably leads to additional complaints.

Step 4: Once the fact-finder provides a report - management should determine an appropriate course of action. If the allegations are found to be probable, management should make a judgment regarding culpability. Keep in mind that there is a difference between “passing judgment” and “ascribing penalty”. Penalty should be formulated with the assistance of your HR specialist and/or legal counsel. If the report finds the allegations to not be probable step 5, below, should still be followed. In such a case there should NOT be consequences for the initiator -- unless management has had extensive consultation with the HR specialist and legal counsel.

Step 5: Find resolution. This is often the most important step. Mediated meetings are effective in enabling victim and perpetrators to rebuild working relationships. Mediated meetings can also help victim and perpetrators reach agreement on personal settlement. At the very least, the victim(s) & whistle blower(s) may need to be invited to a meeting to be informed regarding managements findings and the steps taken.

The key is to learn from these experiences.

If you have questions please Marius Croeser, e-mail mcroeser@boardofmediators.com