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Special Announcement!

Congratulations to Silvio Rossi, CPC, Sr. Consultant, Supply Chain, Logistics & Operations Management for receiving the 2004 Consultant of the Year Award at Fulcrum Search Science Inc.

Silvio has over 17 years of solid search and recruitment experience and his knowledge of the business industry and dedication has made his current success rate stand out from the pack. Silvio is truly a dedicated top-notch performer who really knows how to recruit and get top talent for his clients.

Silvio remains an active member in many associations and constantly keeps on top of industry news. His follow through and level of integrity is second to none.

Congratulations again Silvio from the team at Fulcrum!

 

Welcome to Fulcrum Search Science Inc.'s Q1/05 newsletter - Fulcrum Forum!

Welcome to 2005!

The year ahead promises to be the strongest yet in the new millennium for the Canadian economy.

- Our GDP is projected to grow by 3.1%, slightly better than the 2004 rate of 2.9%.
- Inflation is projected to remain low, in the 2% range, so interest rates can remain at historic low levels.
- Unemployment is projected to drop to 7.3%, down slightly from last year's 7.5%.
- The Canadian dollar is the strongest it has been against the US dollar in over a decade, reflecting a stronger confidence in the fundamentals of our economy.

Offsetting this rosy picture is the projection for a slightly slower US economy - the projected GDP growth will still be a strong 3.5%, down from an over-heated 4.4% in 2004 however. Additionally, the rise of our Canadian dollar relative to the US will be hard on our exports to that country.

In 2005, corporations will continue to invest in expansion plans, both in physical assets (facilities, equipment and technology) and in human capital.

At Fulcrum Search Science Inc., our vision is to be your preeminent source of professional and management talent. Our mission is simply "Searching…to enhance your business by improving the quality of your talent."

And we have assembled the strongest team in our 33 year history to serve your needs. Give us a call, and we'll show you how our motto "Leverage where it matters most - search, assessment and process control" has driven our assignment completion rates to three times the industry average.

Have a GREAT 2005!

Bruce McAlpine, B. Eng., MBA, CPC
President

 

 

ECONOMIC REVIEW & FORECAST

January 2005

The economic highlights of 2004 include rising energy and commodity prices, a declining American dollar, continuing low interest rates and monstrous U.S. trade and budget deficits. All of this played out against the backdrop of an improving economy both in Canada and the United States.

One of the challenges in the fixed income sector (i.e. bonds, etc.) has been the conflict between protecting capital and generating income. Given there was very little additional yield to be gained by extending term, we opted for holding short-term investments to protect principal, in the widely anticipated event of higher interest rates. We did, however, achieve some gains through trading short-term shifts in bond prices throughout the year.

In terms of asset weightings, we are continuing to keep our bond holdings at their lower limits, reflecting historically low current returns and the potential capital risk inherent in longer-term maturities.

In November, Allan Greenspan, Chairman of the U.S. Federal Reserve said, "Rising interest rates have been advertised for so long and in so many places that anyone who has not appropriately hedged his position by now, obviously, is desirous of losing money."

There is an old expression, "Don't fight the Fed." While our clients have been patient in waiting to establish more permanent longer bond holdings, it is our belief that, with Mr. Greenspan's cautionary words in mind, everyone will be very pleased to have waited.

During the past two years, North American equity markets strengthened considerably. Our clients have benefited from this recovery and we are taking steps now to reduce the volatility of their equity portfolios. These measures include bringing some investments back to Canada and reducing the holdings of mid-sized companies that have disappointed.

Forecast

Rather than beginning by considering the merits of individual stocks, our focus for 2005 is on those countries and sectors of the economy that are in the best position to benefit from world-wide growth. This represents a significant change. Historically, our team has emphasized security selection and discussions with company management, but in recent years it has been difficult to get satisfaction from this approach.

Our team is very experienced and its members hold a diverse wealth of knowledge. As readers of our Quarterly Forecast appreciate, we have an excellent grasp of the major economic and political factors that influence markets. We have embarked on a process which applies these abilities more directly to our clients' security holdings. To do this, we are putting our emphasis on asset mix, country and sector selection. The stocks are then chosen from among the most important companies within each sector whose stocks are demonstrating consistent positive performance.

Our team discussions have centred on the relative prospects for Canada vs. the U.S. and we concluded that Canada will likely be the stronger market. This will lead to a reduction in our clients' holdings of American stocks.

Countries seem to be developing into stereotypes of themselves, wherein Canada is clearly moving back to its resource advantage. Consequently we are increasing our weightings in energy and basic materials. America, on the other hand, has strengths in technology research, pharmaceuticals, finance and marketing. It is in the last area, "brand-name America" that we have been underweight and have added positions, including Colgate and Coke.

China is the cheap provider of manufactured goods and India the efficient services supplier. These reversions to national advantages have significant ramifications for investing. Many of the well-known North American names are in a good position to benefit from overseas growth, but we are also taking stock of what countries we should own directly via Exchange Traded Funds ("ETFs").

Credit and currency considerations will also be greater factors in the future. One factor that affected international investors was the dramatic decline of the U.S. dollar in relation to other currencies, including the loonie. American stocks that did well had their performance undercut in Canadian dollar terms by this relative shift.

After its severe decline, the U.S. dollar staged a rally in the last few months. However, our belief is that the American dollar, after this current rally is ended, could again decline in value against most of the world.

It is our opinion that the Bank of Canada may seek to prevent our dollar from becoming too strong, too quickly. Much above $0.85, cracks begin to develop in our manufacturing base. However, the U.S. trade and budget deficits are still issues that must be dealt with, or else their currency will decline further. We believe that it is wise to take advantage of the current strength in the U.S. dollar to reduce our clients' holdings in that country.

The most important sector in Canada remains financial services - banks, insurance and mutual fund companies. Both for growth and income, we believe that investors should hold a significant investment in this sector.

Some clients have expressed a preference to be almost entirely invested in Canadian equities that produce income. To that end, we have constructed a model portfolio of income producing stocks, mainly financial services, and income trusts. We have also produced a guide to income trusts and how they work.

Timing is important when reallocating funds, as one does not wish to shift positions too quickly without considering current market momentum. One of the premier investment managers in the U.S. that employs a momentum discipline is Strategy Asset Managers, LLC of New York. We have engaged the team at Strategy to provide investment management advice for the Caldwell America Fund. This group has an excellent long-term performance record and their focus on large companies is consistent with our own. We anticipate having the Strategy team in Toronto to speak with our investors presently.

We believe 2005 will witness gradually increasing interest rates, thereby providing opportunities to invest at higher rates during the year. We also see positive equity markets, as the North American economy continues to show strength. Consumer confidence appears to reinforce this view as well as earnings projections for the year.

Our focus on the strongest economy in the developed world, Canada, and those sectors at which we excel, together with the best that the rest of the world has to offer, should combine for a strong 2005 for our clients.

Investment Management Committee

Tom Caldwell, Chairman, Caldwell Securities Ltd. (416-862-7755)

 
MANAGEMENT MINUTE
by Cy Charney, President, Charney & Associates Inc.

Self Development

Weaving a net is better than praying for fish.
Ancient Chinese Proverb

Learning will improve your career and your self-esteem. Putting your learning into practice will be a tribute to your courage, ingenuity, and determination and will enhance the possibility of career advancement. Do these things to keep ahead:

1. Learn from successful people. Seek out these people and ask them to share their life secrets.

2. If successful people are not readily available, write down a list of people you admire. Go to the library and see if there are biographies and autobiographies on these people. Read them and see if you can glean the essence of their success. Make a list of these "nuggets" and prioritize them. Then take them one at a time and start to use them.

3. Identify people in your organization whose careers seem to be taking off. Observe them whenever possible. Try to sit in on their meetings. Volunteer to be on their task forces. Ask them for advice on how to improve your career.

4. Learn from mistakes. If you are human, you'll make many. And that's okay, so long as you don't keep repeating them. Think about what you did wrong and what you can do differently next time, given the opportunity. When next in the same situation, do everything possible to try a new strategy. If it works, give yourself a pat on the back. If not, try Plan C next time.

5. Subscribe to trade journals. Find one idea you can use in each issue. Circulate the idea to show people you are researching value-added ideas.

6. Take courses whenever they are offered, even if you've been on a similar course before. You'll always learn something new from a different instructor or from different approaches.

7. Access any funds available for training. Many organizations pay for programs outside work that can influence your performance.

8. Become a self-directed learner. Take responsibility to get information yourself. If you have a learning centre in your organization, visit it frequently. Find out what's new. Take advantage of Computer Based Training (CBT) during quiet times.

9. At the end of each workshop, summarize what you have learned and, more importantly, what you intend to do. Put theory into practice within a week. After that time, your memory and enthusiasm will fade fast as you get back into your old groove.

10. Avoid going to courses that run three to five days. There is too much to learn and too little time to put everything into practice. One and two day courses are better. They tend to be more focused and practical.

11. Avoid going to courses back to back. Spread your attendance over a period. This will give you time to digest the information and put ideas into practice, and then an opportunity to learn some more.

12. Focus on skills that will enable you to do things that the organization considers its highest priority. This will keep you in the limelight.

13. Buy books and borrow books. Don't read them cover-to-cover. Pick key chapters and skim them to get kernels of ideas. Read the summaries first to discover if the chapters are of interest.

14. Save time. Get summaries of books and tapes to listen to while traveling to and from work.

15. Speak to friends who have been to interesting workshops. Ask them for summaries. Borrow their workbooks, with references to key sections.

16. Go to conferences whenever possible. Seek out competitors. Buy them drinks at the end of the day and pump them for useful information about unique things they are doing.

Cy Charney, President of Charney & Associates. (905-886-5606, www.askcharney.com), is a leading Canadian management consultant focusing on organizational performance improvement. The above is an excerpt from his book, The Portable Mentor, published by Stoddart.

 
STAR CANDIDATES
FINANCE & ACCOUNTING

Director of Finance, CA

A strong background in manufacturing consumer goods, combined with excellent interpersonal attributes and strong technical skills makes this individual a very attractive asset. He has multiple systems implementations to his credit and has successfully coordinated the amalgamation of three very different businesses into one.

If you are interested in this "star candidate" please contact:
Ken Stouffer, CPC, Senior Consultant - Ken.Stouffer@fulcrumsearchscience.com

Corporate Credit Manager

This individual has a very strong record in building teams to consistently reduce DSO, past dues, and bad debts. He then maintains that superior performance. He is very strong interpersonally and typically ends up being involved in more than credit and collections. He is bilingual, an FCI with 25 years of outstanding experience.

If you are interested in this "star candidate" please contact:
John Maybury, Senior Consultant - John.Maybury@fulcrumsearchscience.com

SALES & MARKETING

Manager, Channel Partners - MBA, P Eng

- 10 years of experience with national leaders in the Communications & Technology sectors
- Strong technical competence developed in Systems Engineering, in network switching, 2 way radio, cellular technology and WISP
- Strong credibility in channel development and management
- Loyal, trustworthy, hard-working - able to establish and enhance channel relationships

If you are interested in this "star candidate" please contact:
Bruce McAlpine, CPC, President - Bruce.McAlpine@fulcrumsearchscience.com

Senior Sales Representative

- Strong background in the service industry.
- Very results-oriented.
- Exceeded goals by 20.30%.
- Very strategic oriented and relationship focused and able to grasp the complete situation to develop an appropriate solution in record time.
- A strong self-starter and team player.

If you are interested in this "star candidate" please contact:
Chris Twigger, Senior Consultant - Chris.Twigger@fulcrumsearchscience.com

TECHNICAL

Director of Supply Chain Initiatives, BA, MBA

This individual has:

  • created and started new Supply Chain Department
  • created a team that implemented a new SAP system
  • consolidated 5 warehouses into 2 new warehouses, designed and set up through him and his team
  • set a demand planning Infrastructure through SAP
  • helped to streamline and consolidate carriers, saving over 200 K in the process

He is a strong leader and a great developer of teams.

If you are interested in this "star candidate" please contact:
Silvio Rossi, CPC, Senior Consultant - Silvio.Rossi@fulcrumsearchscience.com

 

FEATURE ARTICLE

by Hubert Rampersad and Bob Angel

 

 
Bringing about Culture Change and Improving Organizational Performance

Organizational performance improvement is an elusive target - and sustainable improvement even more so. This is evident from our discussions with a large number of organizations, and the work we have been doing with some of them. Most organizations are grappling with the challenge of getting their people to line up with the organization's goals and avoid the performance deficit that most organizations experience.

The challenge is to change the organization's culture to one that encourages real sustainable improvement. Our thesis is that organizational performance improvement is a creative learning process, whereby personal and organizational performance and learning mutually reinforce each other. This is especially true in the Information Age, when intellectual property assets outweigh tangible assets in many companies, and change is rampant.

Traditional business management today is insufficiently committed to learning. It rarely takes the specific personal ambitions of employees into account. In consequence, improvements tend at best to be superficial and marked by temporary and cosmetic changes. More and more the result is a failing project that lacks sufficient buy-in. There is a sub-text of fear that permeates most organizations - fear of change, fear of mistakes, fear of losing one's job, fear of office politics, and so on. Surely, there is a better way.

What we refer to as Mental Absence (i.e. being physically present but not focused on the job) has caused huge costs. Research in the Netherlands indicates that a 25% mental absence is typical and costs an organization with 100 employees at least 2,5 million euro annually (about Cdn $4 million). Research also points to 60-80% of all absence because of illness not being caused by an illness but being behavioural due to loss of motivation.

We advocate working smarter, rather than harder. There is a need for an organizational structure and philosophy combining the goals and aspirations of the individual with those of the company. It is a melding process, which results in a corporate culture that is both individually and organizationally driven. The emphasis is on the mobilization of the entire organization in order to continuously satisfy the needs of the customer.

What we call the 'missing link' is a personal scorecard (of personal career and non-work goals) that aligns with the organization scorecard. Both address similar topics: mission, vision, key roles, core values, critical success factors, objectives, performance measures, targets and improvement actions, as well as the resulting process of continuous improvement, development and learning.

The Personal Balanced Scorecard (PBSC) continuously improves personal skills and behavior, focusing on personal well-being and success. Self-management is central and must include managers as well as employees - the entire organization.

The Organizational Balanced Scorecard (OBSC) popularized by Kaplan & Norton encompasses the continuous improvement and controllability of business processes, focusing on achieving competitive advantages for the company. This corporate BSC is communicated and translated into all business unit BSCs, team BSCs, and the performance plans of individual employees.

The PBSC focuses on your personal life, well-being and behavior, while the OBSC concentrates on achieving competitive advantages for the organization. Together they seek sustainable performance by preserving and utilizing individual rights and capabilities while adjusting the organizational structure and philosophy to this new environment

The total performance score card approach expands and integrates concepts such as the Balanced Scorecard, Total Quality Management, Performance Management, and Competence Management into one overall framework.

Total Quality Management is a philosophy as well as a set of guidelines forming the basis for a continuously improving organization using the Deming cycle (Plan, Do, Check and Act) as its starting point. It promotes a disciplined way of life, built around continuous improvement of oneself, one's job and one's organization. Defining problems, determining root causes, taking actions, checking the effectiveness of these actions, and reviewing business processes are done here in a routine, systematic and consistent way.

The goal of Competence Management - the process of the continuous development of human potential within the organization - focuses on the maximum development of employees to make optimal use of their potential in order to achieve the goals of the organization. Competence management involves the development of job-related competences; a collection of information, capabilities, experience, skills, attitudes, standards, values, views, and principles (knowledge) that is focused on the expert fulfillment of your job. The development cycle is central here, which consists of the following phases: result planning, coaching, appraisal, and job-oriented competence development.

We use Kolb's Learning Cycle to combine a process of instinctive learning (learning by experience) with conscious learning (learning by education) to result in individual and collective behavioral changes. There are four phases: Gaining hands-on experience, observing this experience, drawing conclusions from this experience, and testing these ideas in experiments, which again will result in new behavior and experiences.

Seen from a strategic point of view, the Total Performance Scorecard continuously develops routine improvement of the entire organization, as well as the development of individual and collective human potential and learning.

Impressive performance lift is the goal. Is this possible? The experiences of major organizations, such as Philips Electronics, Shell Oil Company, and Schiphol Airport indicate strongly that it is. Our research shows that 50% higher employee satisfaction is achievable. We have observed 20% higher usage of people's capacity and higher labour productivity from applying the total performance scorecard principles, followed by significantly higher customer satisfaction. In the end, it is all about the customer.

*****************

This article is based on a presentation Dr. Hubert Rampersad made to the Strategic Leadership forum in Toronto in November 2004. Dr. Rampersad is based in the Netherlands and Bob Angel is based in Toronto. They are respectively president and CEO of TPS Performance Canada Ltd. Dr. Rampersad's latest book, Total Performance Scorecard; Redefining Management to Achieve Performance with Integrity (Butterworth-Heinemann Business Books, 2003) is a best seller in Europe.

 

LEGAL CORNER
by
Yosie Saint-Cyr, Editor HRinfodesk,
Canadian Payroll and Employment Law

This article provides an overview of an organization’s obligation to register with the Ontario Workers’ Compensation Board and focuses on the employers’ responsibilities for reporting work-related injury or disease and the employers return to work and accommodation obligations under the law. It also provides information on whether or not the employee’s entitlement to vacation time or sick days will accumulate while he or she is off on WSIB insurance benefits.

Workers’ Compensation is a provincial/territorial government insurance plan set up to provide income to workers injured on the job or disabled by certain industrial diseases and is based on the notions of no-fault insurance and collective liability. The costs of compensating workers and managing the system are a shared responsibility of employers who pay an annual assessment into a general accident fund administered by the Workers’ Compensation Board of their province or territory. In return for receiving compensation for a work-related injury, workers are restricted from suing their employer for the accident. Employers are required to pay premiums to the workers’ compensation board of a province or territory based on a rate per $100 of their total insurable payroll. The board establishes the rate per $100 according to industry classification to which it assigns the employer.

Every province and territory has workers’ compensation legislation—identifying the industries covered, employers’ responsibilities for paying assessments and responding to workplace accidents or diseases, and the conditions under which an employee may claim workers compensation benefits. Each province or territory sets its own policies, and employers across Canada must be aware of each board’s differing requirements.

In addition, under the Government Employees Compensation Act, federal government employees are entitled to receive compensation at the same rate and under the same conditions as private sector employees covered by the workers’ compensation legislation of the province where the federal employee works. However, for workers’ compensation purposes, federal employees in the Yukon, Northwest Territories and Nunavut are considered to be employees in Alberta.

This article provides an overview of an organization’s obligation to register with the Ontario Workers’ Compensation Board and focuses on the employers’ responsibilities for reporting work-related injury or disease and the employers return to work and accommodation obligations under the law.

Workers’ Compensation and Coverage

In Ontario, the Workplace Safety and Insurance Act is the legislation governing workers’ compensation. The Act requires employers covered by the legislation to register with the Workplace Safety and Insurance Board (WSIB) within 10 days of employing their first worker. The Act covers most full-time and part-time employees from the time they are hired including learners, students, seasonal workers (even those brought in from other countries), managers and superintendents.

Executive officers and independent contractors are excluded from automatic coverage under this legislation, although they may apply for optional coverage. Some employers are totally excluded and may not apply for coverage. These include (this is not an exhaustive list):

  • Banks, trusts and insurance companies
  • Private health care practices (such as those of doctors and chiropractors)
  • Trade unions
  • Private day cares
  • Travel agencies
  • Clubs (such as health clubs)
  • Photographers
  • Barbers, hair salons, and shoe-shine stands
  • Taxidermists
  • Funeral directors and embalmers

A complete listing of excluded industries may be obtained by contacting the WSIB offices.

Employers who hire contractors or sub-contractors may be liable for paying the contractor’s/sub-contractor’s workers’ compensation premiums depending on whether the WSIB considers a contractor to be an employer, worker or independent operator. If contractors employ workers they are considered employers and must register with the WSIB and pay premiums on behalf of their workers. If you are hiring contractors you should obtain from the WSIB a certificate of clearance which assures you that a business, contractor or subcontractor is registered with the WSIB, and has an account in good standing. It clears your organization of financial liability and ensures they won't be held responsible for someone else's WSIB payments.

Employers who fail to register will have to pay a penalty charge, as well as the regular premium for the year. They may also be liable for the cost of all work-related accidents that occur at their business while they are not registered.

Reporting Work-Related Injury or Disease Responsibilities and Rights under WSIA

Under the Workplace Safety and Insurance Act (WSIA), an employer has several responsibilities after a work-related injury or disease occurs. These include:

  • First aid;
  • Paid transportation to a health care facility, if necessary;
  • Reporting the accident to the Workplace Safety and Insurance Board (WSIB);
  • Investigating and locating the reason for the accident;
  • Continuing regular employee benefits for up to one year while the worker is absent;
  • Returning the worker to the same or a similar job when the worker is able to return to pre-injury employment and to a suitable position if the worker is not able to return to pre-injury employment; and,
  • Pay the worker their regular daily rate for the day of an accident.

The employer must provide first aid according to standard first aid practices, and make an accurate record of the incident and first aid given. The employer must also report accidents to the Workplace Safety and Insurance Board (WSIB) if an employee has to obtain health care for a work-related injury or disease or if an employee has to take time off work and cannot earn regular wages because of the injury or disease.

The Workplace Safety and Insurance Board (WSIB) Form 7, the “Employer’s Report of Injury/Disease”, is used for reporting workplace accidents. Ontario imposes the following workplace accident reporting obligations on employers:

An accident or injury must be reported to the WSIB within three days if an employee receives health care or medical treatment. Any accident or injury that keeps an employee away from work and reduces an employee’s employment income for more than seven days must also be reported.

“Health care” refers to the services of a doctor, nurse, chiropractor or physiotherapist at a hospital, or other health care facility, including the employee’s place of work.

An accident does not have to be reported if the only treatment the employee receives is workplace “first aid”, even if that treatment is administered by an in-house nurse. “First Aid” means the cleaning or treating of minor cuts, scrapes, scratches, and burns, including the application of bandages, dressings, cold compresses, ice-packs, and splints.

Employers should keep records of all accidents or injuries whether they need to be reported or not.

If an employer has a surveillance protocol for monitoring and testing employees for possible exposure to infectious diseases, and it is suspected that an employee has been exposed, the employer does not need to report the incident unless the employee tests positive or requires treatment.

A workplace fatality or other critical incident also requires employers to:

  • Contact the police and ambulance services immediately.
  • Immediately contact by telephone, telegram or fax, the local office of the Ministry of Labour and the employee's union (if applicable).
  • Notify the Ministry of Labour in writing of the circumstances of the incident within 48 hours.

The WSIB can provide a Crisis Intervention Counselor to help the employer and employees deal with the incident.

If the worker is absent due to a work-related injury or disease, the employer is required to continue making contributions to regular employment benefits such as health insurance, life insurance, and pensions for at least one year. If an employee usually contributes to any of these benefits, they will be required to continue contributing during the absence, or the employer is no longer obligated to provide the benefit.

Return to Work and Accommodation Obligations

Employers also have certain responsibilities and obligations under the law when an injured employee is ready to return to work:

Workplace Safety and Insurance Requirements

Under s. 41 of the Workplace Safety and Insurance Act (WSIA), the employer is obligated to re-employ the injured worker if:

  • The employer employs 20 or more workers;
  • The worker was unable to work because of the work-related injury; and
  • The worker has been employed by the accident employer for one or more years of continuous service at the time the injury occurred.

This re-employment obligation lasts until the earliest of:

  • Two years from the date of injury;
  • One year after the worker is medically fit to do the essential duties of the job; or -the date the worker turns 65.

The employer is required to:

  • Offer the worker his/her pre-injury job if he/she can do the essential duties of that job, or comparable work;
  • Offer the worker suitable work, if it's available; and
  • Provide accommodations in the workplace (not to the workplace) to the extent that it does not cause undue hardship to the employer.

Under the law, employers are required to reinstate a worker after they have recovered, unless the employer regularly employs less than 20 people, or the worker has not worked continuously for at least one year before taking the time-off. If the worker's job is unavailable, the employer is required to give them a job that is comparable in responsibility and pay. If the worker cannot perform the essential duties of the worker's job, then the employer is required to offer them the first vacant position that is suitable to their skills and physical ability. Worker re-employment and re-instatement rights last for two years from the day of the injury or one year from the date the worker is able to return to pre-injury employment, whichever comes first. If a worker turns 65, the employer is no longer obligated to re-employ the worker.

The WSIB will decide when the worker is ready to return to work. Workers and employers must co-operate with each other in the effort to return the injured worker to work as soon as is safely possible. If an employer gives a partially disabled worker suitable work and cannot accommodate the worker to perform the essential duties of the worker's pre-injury job, and then a job comes up that is more similar to the worker's original position, the employer must offer this job to the worker—Or, if the worker's condition improves while she or he is employed in another job, and the worker becomes able to return to pre-injury employment, the employer must offer the worker their original position or one that is comparable.

If the employer is unable to re-employ an injured worker, the WSIB will determine whether the worker needs further help to return to the labour market. If so, a Labour Market Re-entry (LMR) Plan will be designed to provide the worker with the skills, knowledge, and abilities needed to successfully gain employment.

If an employer does not comply with the return to work obligations of the legislation, penalties will be levied by the Board. If an employer terminates an injured worker within six month's of their returning to work, the employer must prove that the termination was not because of the injury or the compensation claim.

However, the Ontario Employment Standards Act (ESA) does not take away an employer’s right to dismiss an employee. The Act does require that an employee be given working notice, severance pay (if applicable) or a combination of the two. An employer can terminate the employment of an employee who has been employed continuously for three months or more if the employer has given the employee proper written notice of termination and the notice period has expired.

The WSIA allows the employer to prove that the termination was not related to the worker's injury, i.e. downsizing. Before terminating or laying off an injured worker, check with the Ontario Employer Advisor (OEA) for advice. The Employer Adviser can be contacted at 1-800-387-0774, or in Toronto at 416-327-0020. The Office of the Employer Adviser (OEA) has been serving the employer community since 1985. The OEA is an independent agency of the Ontario Ministry of Labour, the OEA is in business to help employers manage and reduce the cost of injuries in their workplaces

Human Rights Code Requirements

In addition to any WSIA and WSIB requirements, employers are also subject to requirements in the Human Rights Code when a disabled or injured employee returns to work. Under Human Rights legislation, even if the employee is receiving WSIB benefits the employer still has a duty to accommodate the disabled employee and help them return to work as soon as possible. This duty to accommodate also covers personal illness not related to the job.

The duty to accommodate under human rights legislation implies that the employee has a right to return to work in his or her pre-disability job or a similar job if the employee can fulfill the essential duties of the job after accommodation. If the employee cannot fulfill the essential duties of the job, despite the employer’s effort to accommodate short of undue hardship, there is no right to return to work. The employer either accommodates the employee to the point of undue hardship so he or she can return to his or her job as soon as possible; or, if the employee cannot return to his or her job or alternative job despite the best effort of the employer to accommodate the employee, the employer can terminate with reasonable notice or pay in lieu of notice.

For an employer dealing with a disabled employee, the first step is to have a doctor provide a prognosis of impairment, to determine how long the employee will need to be on a leave of absence from work, how long his or her impairment is for (permanent or temporary), and also how the employer can accommodate the impairment.

An employee with a disability should be assessed in terms of his or her ability to perform essential duties on the job, and cannot be judged incapable of performing them until efforts have been made to accommodate him or her up to the point of undue hardship. The first step to accommodation is to distinguish the essential from the non-essential duties of the job (although courts and other decision-making bodies have provided little guidance on how to do this). Where possible, non-essential duties should be reassigned to another person.

The inability of an employee to perform the essential duties of a job should not be reached without actually testing the ability of that person. It is not enough for the employer to assume that the person cannot perform an essential requirement; rather, there must be an objective determination of that fact. The most appropriate accommodation is the one that meets individual needs; best promotes the employee’s integration into a full participation in the workplace, and ensures dignity and confidentiality. According to the policy, Integration in this context means inclusiveness—taking steps to facilitate the employee’s equal participation in the workplace as opposed to creating a separate system to accommodate the employee’s needs.

However, employers also have rights. An employer can deny a disabled or impaired person a job if the disability or impairment would interfere with the person's ability to successfully perform the duties of the job or would pose a direct threat to property or to the safety of other people. An employer cannot fire a person merely on the basis of a disability, but can fire or otherwise discipline someone for good cause, or if the disability creates a burden on the employer’s ability to conduct business or to guarantee the employee's safety or the safety of other people.

With respect to leave of absence, there is no fixed rule as to how long a disabled employee may be absent before the duty to accommodate has been met. The Human Rights Commission indicates that this depends on the ability of the employee to perform the essential duties of the job, considering the unique circumstances of every absence and the nature of the employee’s condition. Factors that must be considered are: predictability of absences both in regards to when it will end and if it may recur; the frequency of the absence; the employee’s prognosis and length of absences (it is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence); and, the nature of the business and/or the operational needs.

However, if an employer alleges cause, it must exist and be true (not fabricated). It must also be proven when required by WSIB and/or the courts. An employer does not have to give working notice, or pay severance (if applicable) to an employee who is dismissed for just cause, but, it is up to the employer to show that just cause exists. Dissatisfaction with work performance is not sufficient grounds to justify depriving an employee of the entitlement to compensation. The employer must be prepared to show that the employee’s behaviour or conduct was so unacceptable that it is not only cause for dismissal, but dismissal without compensation or notice in lieu of compensation. The employer has to show that the employee was warned of performance problems and that dismissal was the outcome for failure to meet reasonable performance standards.

Functional abilities information is determined by the health care professional treating the injured/ill employee and tells the employer what kinds of activities the employee’s illness or injury allows the employee to carry out safely. Employers should investigate the situation and should retain a doctor or the services of an agency that will assess the employee's functional abilities and require the employee to go be assessed.

The employer should also communicate with the claims representative at the WSIB and discuss the employee’s claim and any issues. If the results of the test differ from what the employee's doctor says, the employer can submit this to the WSIB and contest the employee's claim. If the WSIB confirms the employee's claim, at least the employer knows the ailment is real and can decide if they can further accommodate the employee without incurring undue hardship. If after the employer’s best effort it cannot, the employer has to make the decision to dismiss the employee and provide reasonable notice of termination or pay in lieu of termination.

For more information on return to work, go to the WSIB---Return to Work website.

Accumulation of Vacation and other Entitlements

Whether or not the employee’s entitlement to vacation time or sick days will accumulate while he or she is off on WSIB insurance benefits will depend on if there is a workplace policy, an employment contract or collective agreement in place to which the employee is subject. If so any obligation on the part of the employer will be found in the employment agreement or collective agreement. Where there is no employment agreement or collective agreement which governs the situation, the provisions of the Workplace Safety and Insurance Act (WSIA) will apply.

The WSIA does not provide for the accrual of sick credits, vacation credits or seniority while a worker is off on WSIB benefits. However, under the Employment Standards Act, an employee is entitled to at least two weeks’ vacation time after each 12 months of employment, whether it is active or inactive employment. Under the WSIA the employer is simply required to continue the employee’s employment benefits for the first year following the worker’s injury. This is, of course, provided the employer was making such contributions when the worker was injured and the worker maintains any contributions he/she is responsible for making during that period.

Employment benefits include payments made by the employer for: health care (such as extended health coverage, whether for the worker, his/her spouse or same-sex partner or dependent); life insurance; and pension benefits including RRSP contributions. However, vacation credits, sick credits and seniority are not considered employment benefits for the purposes of the WSIA. So it is at your discretion as an employer.

Thus, the employer can state in their workplace policy in a WSIB claims policy that vacation and paid holiday credits do not accrue during a period of WSIB absence; and vacation credits and statutory/paid holidays (lieu days) are paid out if an employee who has been on WSIB leave returns to work at a time during the year that vacation credits and lieu days cannot reasonably be scheduled.

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By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk- Canadian Payroll and Employment Law.

HRinfodesk is a service that is published by First Reference which includes legislative updates, a Library of Articles, FAQs, a Calendar of Events, Important Dates and an HR Internet Directory for expanded research. Our search tools will help you to quickly find results by jurisdiction, topic, date and keyword.

First Reference is a publisher of Canadian employment law reference manuals that are comprehensive, updated and practical.

Publications include The Human Resources Advisor, Human Resources PolicyPro and the HRinfodesk Bulletin and website.

For more information or to purchase one of our publications, go to www.firstreference.com.

This article offers general comments on legal developments of concern to businesses. Every effort has been made to ensure the accuracy and timeliness of this information. These publications are written for informational purposes only and should NOT be relied upon as legal advice. The reader should always obtain legal advice from a qualified lawyer or other qualified professional which will be responsive to the case or circumstance of the individual

©1999-2004 First Reference Inc.

Yosie Saint-Cyr was called to the Quebec bar in 1988 where she practiced employment and labour among other fields till 1999. She is a researcher, policy analyst, and content provider with an extensive background in employment and labour law across Canada. She also obtained a Certificate in Technical & Professional Writing from York University---Glendon in 2003. She is currently the Editor at HRinfodesk.com a Canadian online information service that provides subscribers with a single access point to find answers and solutions to employment and labour law questions across Canada.



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