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Workplace training programs that develop human capital can make a significant contribution to the performance of individual firms, industries and the overall economy, according to a report published by the Canadian Policy Research Networks. While some employers voluntarily send new employees on training courses prior to commencing work, there are certain areas, like in health and safety, where regulations require employers to do certain kinds of training-or at least ensure employees have essential training, before putting them to work. Recent Court decisions and Human Rights Commission guidelines have made discrimination and harassment prevention training so essential that it is almost mandatory. Quality workplace training can also help employers prevent disputes or resolve those that arise more quickly. Although there are not many court cases in Canada that have dealt with this topic, this article will examine employer liability areas under the law with regard to training.

While the Courts and governments' have broadened the topics on which training is mandatory, the essential meaning of "mandatory" can vary by industry sector or legislative requirement. For example, mandatory training in employment practices means that the courts are saying that lack of training may give rise to your liability where a claim has been filed, but it does not mean that you could be fined for not having performed the training. However, in other areas, such as those under Occupational Health and Safety legislation and regulations, mandatory means that you can be fined or penalized for not having performed the training-even though an injury claim has not occurred.

There are several areas of liability for an employer in the law of training:

Liability may also arise from materials collected and retained from training courses. Training sessions or courses may also subject a company to hours of work claims under the Employment Standards Act unless the training meets certain conditions.

The two key areas where employers need to ensure the management team and employees receive proper training are:

Employment Standards Act

The Employment Standards Act does not directly or specifically require employers to provide training to new or current employees or their management staff. It does however deal with when to pay for job orientation and/or training, and the implication of failure to provide proper and adequate training in the dismissal of employees for poor performance or misconduct.

The Employment Standards Act also defines when a person receiving training is an employee. An individual receiving training from a person who is an employer is an employee of that person if the skill in which the individual is being trained is a skill used by the person's employees, unless all of the following conditions are met:

This definition helps the employer define what rules or entitlements are allowed under the Employment Standards Act to employees receiving training such as hours of work and overtime rules.

Pay and Cost of Training

If the employer directs an employee to attend such orientation, training or meetings, the employee is considered at work and the employer is required to pay for the time-spent training. Where an employer requires an employee's attendance on the employee's regular day off, the employee may be eligible for overtime, minimum daily pay, or other entitlements under the Act.

The employer has to bear the cost of the training.

Failure to Provide Training in Employment Practices

Not all problems with employees are related to personality. In fact, most problems businesses face relate to the inability of the business to train employees for the tasks for which they are responsible.

Proper and adequate training in employment practices include issues that may prevent unfavorable employment situations from occurring, such as:

For instance, in many companies supervisors and managers make hiring and firing decisions, with little or no training on these issues.

Recent court decisions confirmed that an employer is not entitled to dismiss an employee for mere dissatisfaction with the employees' job performance. There are specific steps an employer must take before an employee can be dismissed for poor job performance. An employee with substandard performance must be given proper warning that his or her job is in jeopardy, and the opportunity to correct any deficiencies. Only if the substandard performance persists can steps be taken to dismiss the employee. Proper training is one of the opportunities employers must provide to employees to correct any deficiencies.

When hiring a new employee, an employer should make any expectations and performance standards clear at the time of the job offer and should ensure prospective employee understands the job offer is conditional upon meeting those expectations and standards. The law requires the employer to give the employee a notice of dissatisfaction with job performance and a remedy period for meeting the performance standards, in order to defend a dismissal due to poor job performance. If the employer fails to do so, the employee is considered improperly dismissed.

Human Rights and Training

The Supreme Court has essentially ruled that punitive damages cannot be assessed against an employer who has taken all the preventative steps in discrimination and harassment. Thus, training has become a necessity for organizations in order to prevent problems from happening, and to avoid liability.

Nearly every sexual harassment charge and lawsuit challenges the employer's training practices on one of three points:

Likewise, a common component of sex discrimination lawsuits is a charge of disparate training opportunities along gender lines.

All employers must provide their employees harassment prevention training for the following reasons:

Organizations that provide harassment prevention training may:

The critical factor is the quality of the material the employer is presenting. The employer must make sure it is customized enough to cover the company and the topic. You also have to have a record to show that the person has gone through the training. Most good training programs have a quiz or some other method to verify the employee has understood and assimilated the material provided. Once the employee has completed the program, this information should go to the HR department, or any other designated person, for inclusion in the employee's personnel file.

Where the number of participants warrant, this training should be available in the language most employees are comfortable with.

Health and Safety Training

Owners of successful businesses understand the importance of managing health and safety in the workplace. Maintaining workplace health and safety is both a legal requirement and good business practice. Business owners are required to provide a safe workplace. To operate safely, the business owner must train workers and supervisors and keep them informed, among other things. It is equally important for employers to send new employees on safety training for jobs that present a safety risk, prior to the first day of work.

Depending on the nature of the business and the number of employees, business owners may also be required to have a trained safety committee or a health and safety representative.

Specifically, in Ontario, the Occupational Health and Safety Act requires that at least one joint health and safety committee member representing workers and one representing management be certified through approved training. OHSA Subsection 9(12) requires most workplaces with 20 or more workers to have at least one worker and one management person serve as certified members of a workplace Joint Health and Safety Committee (JHSC). This certification involves training in health and safety law, and the identification, assessment and control of hazards.

In addition to requiring basic training for certified members, the law also states that each workplace must determine its own specific training needs for certified members by conducting a hazard assessment. The second phase of the certification process requires that the basic certified members receive training in hazards specific to their own workplace. This assessment identifies all of the hazards in the workplace that may affect a worker's health or safety. Employers are responsible for conducting the assessment, in consultation with the joint health and safety committee.

Standards for this training are set by Ontario's Workplace Safety and Insurance Board (WSIB), in accordance with section 4 of the Workplace Safety and Insurance Act. The WSIB certifies JHSC members who complete approved training programs. Certification training is delivered by a number of approved providers.

The programs vary in length and cost. More information on certification training can be found on the WSIB's website. A list of training providers can be obtained by calling the WSIB's Certification Hotline at 1-800-268-2378.

Training programs should include the following topics (but the list is not exhaustive):

The Occupational Health and Safety Act Regulation 36/93 requires that all workers who work with, or are likely to handle, or be exposed to hazardous materials in their workplace, receive training and education in WHMIS. It also requires employers to obtain health and safety information about hazardous materials in their workplaces and to pass it on to their workers.

There are three ways in which the information is to be provided:

In WHMIS training, employees and supervisors should learn about the purpose and overall design of WHMIS, and the six hazard categories it incorporates. They should learn the relevance of Material Safety Data Sheets and product labels from their own workplaces. This program should also cover safe handling procedures, storage and disposal of hazardous materials, as well as emergency measures. Upon completion of this program, employees and supervisors should know how to locate and interpret any hazard information they encounter. Where the number of participants warrant, this program should be available in the language most employees are comfortable with.

These various health and safety training requirements assist in meeting the duty of care and due diligence with which all participants in a workplace are charged.

Safety should be part of all workplace training. Evaluate work procedures and ensure your training enables employees to work safely. Inform employee of their rights and obligations regarding health and safety. Keep training current and practical; whenever you change any equipment or parts of the work process re-evaluate your training.

Remember that training includes both formal and informal education; some of the most effective learning occurs during informal safety talks between supervisors and workers. Often, training is only considered for new employees. However, ongoing training for current employees helps them adjust to rapidly changing job requirements and skills. Poorly trained employees create more problems than just errors in their work product. They also become a drain on morale and can create problems with other employees, customers and vendors.

What if the training itself causes a legal issue-an employee is hurt, or, in harassment training, the discussion reveals something ugly or illegal?

It is critical that employee training be carried out by people who are both knowledgeable in the subject matter and are capable of training effectively. If no employees meet these criteria, then a trainer or trainers must be brought in from outside the organization.

There have been situations where people were encouraged by their trainers to role play as part of their training and things said and done in the training sessions have come back to haunt the company. This is another reason why employers need to understand what they're buying when providing or outsourcing training. There have been cases where training is not done well where companies have been found liable because of things said or done, or retaliatory actions, triggered by improperly conducted training sessions-especially in the area of discrimination.

To avoid these legal landmines, be sure to select highly qualified instructors and develop thorough, effective training programs. If you do not have the in-house expertise to develop and conduct certain training programs, retain an outside instructor, but carefully review the skills and experience of the candidates, verifying references and resumes. Given the potential for training-related litigation, consider the candidates' litigation experience in testifying or otherwise. Monitor all training, and be sure to follow-up on the effectiveness of the training immediately so that retraining can be offered if necessary. Document the attendance of employees at the training sessions.

At a minimum, there are three action items for every employer to ensure that they are complying with all mandatory training laws:

Tax Implication of Workplace Training

Generally, employer paid or reimbursed tuition for courses that primarily benefit the employer will not result in a taxable employment benefit when the employee agrees to continue employment for a reasonable period of time after the completion of the training. However, where an individual commences new employment and is reimbursed for such tuition costs incurred prior to commencing employment, the reimbursement by the new employer is a taxable employment benefit. Such courses are not taken for the maintenance or upgrading of employer-related skills, which is an essential requirement in determining whether the employer is the primary beneficiary of the training.

When training is taken primarily for the benefit of the employer, there is no taxable employment benefit related to employer paid or reimbursed tuition. For example, this would include courses in a field related to the employee's current or potential future responsibilities in the employer's business. This may also apply in respect of business related courses not directly related to the employer's business including, for example, courses for stress management, employment equity, and first aid and language skills.

Finally, it is the employer's responsibility to make the determination of whether or not paid or reimbursed tuition is a taxable employment benefit. Where the employer determines that the paid or reimbursed tuition is non-taxable, supporting documentation should be maintained. For more information on employer paid educational costs, refer to Interpretation Bulletin IT-470R (Consolidated), Employees' Fringe Benefits. The publications described herein are available on the Canada Revenue Agency (CRA) website at IT470R-CONSOLID - Employees' Fringe Benefits http://www.cra-arc.gc.ca/E/pub/tp/it470r-consolid/README.html.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk- Canadian Payroll and Employment Law.

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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.