Legal blog by WARDS LAWYERS PC.

Featuring "Hard Labour" by Jason Ward


DID I JUST LEGALLY RESIGN FROM MY JOB? CAN I TAKE IT BACK? RESIGNATION FROM EMPLOYMENT – EXPLAINED AND FIVE BEST PRACTICES TIPS TO EMPLOYERS

HARD LABOUR – BY WARDSPC LAWYERS

DID I JUST LEGALLY RESIGN FROM MY JOB? CAN I TAKE IT BACK? RESIGNATION FROM EMPLOYMENT – EXPLAINED AND FIVE BEST PRACTICES TIPS TO EMPLOYERS

An employee who resigns, verbally or in writing, may ask to ‘take back’ his or her resignation. This creates an issue for the employer, of course, particularly if the resignation is a welcomed outcome to the relationship. Ontario law says that an employer may be obliged to allow an employee to withdraw or retract a resignation depending on the circumstances.

What is required by an employee to constitute a resignation from employment?

When is an employee entitled to resile, or take back, a resignation?

Firstly, to be a valid and enforceable (by an employer), an employee’s resignation must be clear and unequivocal. The resignation or conduct by the employee must, objectively viewed by a reasonable person in the surrounding circumstances, indicate an intention to resign. Resignations in a fit or state of anger, frustration or emotional upset, or in “a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness” may not qualify as true resignations and, therefore, not be enforceable by the employer.

If there is a clear and unequivocal notice of resignation (a valid and enforceable resignation) by the employee, he or she may be able to resile form the resignation, or take it back, until either: (a) the employer expressly accepts the resignation; or (b) the employer relies on the resignation to its detriment. If it is clearly accepted, showing detrimental reliance would not be necessary.

In Ontario, employers effectively have a duty to do more than accept a purported resignation at face value, particularly if it is given in heated circumstances or by an employee who may be experiencing a disability, such as a mental condition, for example. Verbal resignations can be problematic, of course. Employers should take the step of verifying with the employee, who verbally resigns, that he or she actually and truly wishes to resign, especially if the circumstances involve an emotional or heated situation. Employers should always document resignations in writing with the employee. However, even written resignations can be disputed as being involuntary, or given during undue stress or duress, for example. Generally speaking, if there are emotional circumstances at the time, a ‘cooling off’ period should be given by employers, to verify the true intention of the employee. Employers should also give formal (written) acceptance of any resignation, whether given verbally or in writing.

Five Best Practice Tips for Employers:

Employers faced with a verbal or written notice of resignation should consider:

1.   giving a ‘cooling-off’ period to an employee who resigns, or purports to resign, especially if there may be special circumstances, such as potential mental health-related issues, family issues or other potential sources of undue stress or pressure affecting the employee at the time;

2.   requesting that resignations be given only in writing, if possible; 

3.   respond to resignations (in writing, ideally) with written acceptances, but only after considering if any special factors exist or may be known by the employer that potentially may have unduly influenced the employee’s decision to resign (including potential mental health-related issues);

4.   avoiding any steps after receiving the resignation that may be viewed as non-acceptance of the resignation, like calling a meeting or telephoning the employee afterwards (or engaging in any verbal discussions with the employee); and 

5.   allowing an employee, if requested, to withdraw or retract a resignation, subject to further considering: a) the time that passed between the resignation and request to retract; b) any special circumstances regarding the employee; c) whether ‘detrimental reliance’ steps were already undertaken by the employer; and d) whether the resignation was accepted in writing previously.

Case References:

Johal v. Simmons de Silva LLP, 2016 ONSC 7835 (CanLII)

Gebreselassie v. VCR Active Media Ltd., [2007] OJ No. 4165

Bru v. AGM Enterprises Inc., 2008 BCSC 1680

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THE NEW RULES IN ONTARIO - WORKPLACE HARASSMENT – COMPLIANCE TIPS

HARD LABOUR – BY WARDSPC LAWYERS

THE NEW RULES IN ONTARIO - WORKPLACE HARASSMENT – COMPLIANCE TIPS

Since September 8, 2016, Bill 132 substantially upgraded Ontario’s Occupational Health and Safety Act and employers’ obligations for workplace (sexual) harassment. These sweeping changes impose new, proactive measures on all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • update the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the new law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • Tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.  

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED

HARD LABOUR – BY WARDSPC LAWYERS

THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED

Protecting workers from workplace violence is an increasingly important objective of the Ontario Ministry of Labour, the Court and both employers and employees.

Failure to do so can result in criminal prosecution of employers under the workplace violence section of Ontario’s Occupational Health and Safety Act (the “OHSA”). For example, recently an employer in Ontario was criminally fined more than $150,000 after workers were assaulted by a youth in care at the employer’s care facility.  

Generally, employers must “take every precaution reasonable in the circumstance for the protection of a worker” and “provide information, instruction and supervision to protect the health and safety of a worker.” The Violence and Harassment sections of the OHSA set out minimum standards expected of employers to achieve this general duty, including:

  • a mandatory, written workplace violence policy, which should be prominently and conspicuously posted in the common area(s) of the workplace and otherwise brought to all workers’ attention, as may be appropriate in the circumstances; and
  • a complementary program to implement and maintain the mandatory policy, including: “measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.”

The OHSA does not mandate a cookie cutter-style program suitable for every employer; rather, employers must devise their own policy and program based on their own workplace environment and individualized needs. Admittedly potential risks may be difficult to identify and assess in advance and, therefore, assessing whether a policy and program is adequate initially – nonetheless, employers must statutorily use their best efforts to do so, in consultation with everyone in the workplace ideally. Of course, any incident of workplace violence is likely to presumptively challenge whether the policy and program were adequately designed and implemented at the outset. Foreseeability of potential risk is, therefore, an important factor in effective workplace violence prevention. 

Generally, the OHSA, the Ministry and even the Court promote the minimization of workplace violence by requiring employers, supervisors and workers to proactively and collaboratively consider and identify potential risks, to address them by open and constructive communication and to react properly and with certainty when any risk materializes.

If a criminal prosecution arises, the standard of proof is beyond a reasonable doubt. Employers may assert a due diligence-type of defence, if desired. What remains uncertain is the scope of the measures employers may need to take to establish this defence successfully. For example, removal of a potentially risky person in the workplace may create other legal issues, such as wrongful termination (if a worker), duties owed to patients (in a health care environment) and potential grounds of discrimination under Ontario’s Human Rights Code.  

The best practice is to develop and implement a thoughtful, thorough and collaborative violence policy and complementary program to detect, prevent and minimize incidents of workplace violence. The policy and program should be regularly reviewed, revised, if appropriate, and certainty modified to address any incident of violence in the workplace. These practices will not only minimize incidents, but also assist employers to establish due diligence if a prosecution ensues due to any incident. 

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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ACCESSIBILITY - SMALL BUSINESSES MUST ALSO COMPLY WITH THESE NEW RULES AS OF JAN. 1, 2017 – ACCESSIBILITY FOR ONTARIONS WITH DISABILITIES – COMPLIANCE TIPS

HARD LABOUR – BY WARDSPC LAWYERS

ACCESSIBILITY - SMALL BUSINESSES MUST ALSO COMPLY WITH THESE NEW RULES AS OF JAN. 1, 2017 – ACCESSIBILITY FOR ONTARIONS WITH DISABILITIES – COMPLIANCE TIPS

The Accessibility for Ontarians with Disabilities Act (AODA) applies to both large (more than fifty employees) and small businesses in Ontario as of January 1, 2017. Some federally-regulated employers are exempt, but most of Ontario’s employers must now comply with the AODA’s Employment Standards regulations, being Part III of the Integrated Accessibility Standards, including a broad and extensive set of rules designed to minimize, if not eliminate, workplace barriers potentially encountered by those with disabilities in Ontario.

KEY COMPLIANCE TIPS:

Employers should:

  1. develop and implement a written policy addressing the accessibility, accommodation and other requirements of the Integrated Standards of the AODA, including for the employer’s recruitment, orientation, selection and hiring process;
  2. inform all employees and the public about the availability of accommodation in the employer’s recruitment procedures, such as in all job/position advertising and the employer’s Web site and social media outlets, including by providing contact information for the employer’s representative(s) to discuss accessibility and accommodation for illness or disability during the recruitment process;
  3. inform job candidates about the availability of accommodation for illness and disability during the selection and assessment process;
  4. identify the availability of accommodation in every offer of employment and refer to the employer’s AODA written policy;
  5. notify all employees and job candidates of the employer’s workplace policy(ies), if any, with respect to: encouraging and supporting employees with disabilities, including respecting the need for accommodation and accessibility needs due to disability;
  6. if requested, provide any information that an employee or successful job candidate may reasonably require to perform the position in an accessible format and, if possible, communicate and collaborate with the employee to identify and establish an effective accessible format suitable to that employee’s needs; and
  7. if requested, provide any information that is generally available to employees in an accessible format and, if possible, communicate and collaborate with any employees to identify and establish an effective accessible format suitable to the employee’s needs.

IAPs - HANDLING REQUESTS FOR ACCOMMODATION AND RETURN TO WORK:

The Employment Standards of the AODA also require employers to develop and implement a written policy (or process) for creating individualized accommodation plans (“IAPs”) for employees with disability who request accommodation or are returning to work following an absence due to any disability. This requirement is arguably technical and complex for many employers, particularly small businesses without experienced human resource personnel. Smaller employers, or those without human resource expertise, should consider obtaining assistance from a qualified employment lawyer or consultant, although there is some guidance available online for employers prepared to navigate this myriad of technical obligations.

IAPs must address, among other things:

  1. how accommodation may be requested;
  2. how employees will participate in the development and maintenance of the employee’s IAP;
  3. how the employee may be assessed on an individual basis;
  4. how the employer may request and obtain an assessment or evaluation by a third party, such as an external medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, the nature and scope of the accommodation;
  5. how an employee can obtain assistance from a collective bargaining unit, co-worker or other third party suitable in the circumstances with respect to the employee’s IAP;
  6. how personal information will be kept and protected;
  7. how and when IAPs will be reviewed and updated, as necessary;
  8. the process required for the denial of any IAP;
  9. how IAPs are to be presented to employees with consideration to the employee’s accessibility needs;
  10. how accessible formats and communication supports will be provided to the employee, as may be necessary;
  11. how emergency workplace response information will be provided to the employee; and  
  12. all the specific and well-defined accommodation or accessibility needs of the employee.

The Integrated Standards also require employers to establish a written return-to-work policy for employees absent from work due to an illness or disability and who require accommodation to facilitate the return-to-work. Often this policy will incorporate, if possible, the employee’s compensation, too – which is likely conjunctive with the return-to-work requirements imposed by the AODA. A return-to-work policy should specifically explain the return-to-work plan and process for the employee, including: (a) identifying the steps to be taken by the employer to facilitate the return to work of any employee absent because of disability; and (b) identify and refer to the use of the employee’s written IAP, if any.

ACCESSIBILITY REPORT:

All employers should determine if they are required by December 31, 2017 to file an Accessibility Report with the Ontario government.

Accessibility and workplace accommodation is often fluid and subject to continuous change. To accommodate those with disabilities, employers must continue to consider and address properly every employee’s disability, if any, accessibility needs and any applicable IAP needs, particularly in the hiring process, performance management, career development and enhancement and redeployment – failure to do so may violate the AODA.

The Integrated Standards are not the only obligations imposed on employers by the AODA. Additional obligations will continue to be imposed in future, such as for customer service, employee training and online accessibility.

The objective of these initiates is to foster an inclusive workplace, free from barriers that may negatively impact those with disabilities in Ontario. However, the specific requirements of the AODA can be complex, confusing and difficult to manage. Accordingly, employers should obtain assistance, such as from a qualified employment lawyer, specialized consultant or, at the very least, the Ontario government directly.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYERS TERMINATING IN GOOD FAITH? PUNITIVE OR AGGRAVATED DAMAGES MAY NOT BE ORDERED EVEN THOUGH THE EMPLOYER MAINTAINS “CAUSE” FOR TERMINATION UNTIL THE VERY END, BUT FAILS TO PROVE IT

HARD LABOUR – BY WARDSPC LAWYERS

EMPLOYERS TERMINATING IN GOOD FAITH? PUNITIVE OR AGGRAVATED DAMAGES MAY NOT BE ORDERED EVEN THOUGH THE EMPLOYER MAINTAINS “CAUSE” FOR TERMINATION UNTIL THE VERY END, BUT FAILS TO PROVE IT

Employees who sue for wrongful termination often claim additional punitive or aggravated damages based on, for example, the employer’s alleged bad faith manner of termination, breach of its duty to perform the contract honestly or tactically alleging cause to gain an advantage, when it did not truly hold the belief that cause existed.

In Ontario, the Courts are increasingly awarding punitive or aggravated damages when it would be appropriate to do so in the specific case, which usually involves bad faith, poor conduct or strategic, one-sided plays by the employer, like asserting cause to gain a tactical advantage in an early settlement with the terminated employee.

Cause for termination is a very high threshold for employers to prove in Ontario. If they terminate for cause, are sued and fail to prove cause at trial, it is more likely they are exposed to paying additional punitive or aggravated damages, in addition to the damages for the pay in lieu of notice arising from the actual dismissal.

However, if an employer can establish that it alleged cause, which it subsequently failed to prove at trial, without bad faith, but rather in good faith, a new British Columbia case establishes that punitive or aggravated damages would not be awarded.

The key issue, then, is the conduct of the employer. If bad faith, poor conduct or tactical plays were not engaged in, this new case suggests the employer should not pay these special, additional damages, even though it improperly alleged cause at the time of termination, which it continued to assert during the lawsuit, but ultimately failed to prove in Court at the trial, the end of the lawsuit process.   

In this case, the manager employee hired a third party to do work for the employer, but before he arranged the appropriate permits. He was terminated. After his termination, the employer discovered other errors by the employee and, therefore, asserted these as cause for the initial termination, too.

The Court held the employee had made a serious error in judgment and engaged in unacceptable conduct, but did not intend to deceive or mislead the employer. Therefore, cause for his termination did not exist. Rather, progressive discipline and a punishment less than abrupt termination for cause would have been appropriate. The employer, as a result, alleged cause, asserted that throughout the lengthy case and ultimately failed to prove it. The employee was awarded damages at common law for pay in lieu of notice. 

The Court refused to order punitive or aggravated damages, though, because: (a) the termination was conducted in a respectful manner; (b) the issue of cause effectively arose after termination; and (c) the employer had conducted a fair and reasonable investigation to support its allegation of cause.

In other words, punitive or aggravated damages will not automatically be awarded against an employer that maintains a cause position until the very end, but fails to prove it. Rather, this case establishes that those damages may not be given when there is fair dealing with the employee in the manner of termination and the employer behaves in a fair, reasonable way when investigating employee misconduct and in the manner of termination.  

Case Reference: Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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BEING FORCED TO QUIT YOUR JOB AND YOUR ABILITY TO STILL CLAIM SEVERANCE PAY. CONSTRUCTIVE DISMISSAL - WHEN QUITTING IS NOT REALLY QUITTING. NEED-TO-KNOW TIPS FOR BOTH YOU AND YOUR EMPLOYER

HARD LABOUR – BY WARDSPC LAWYERS

BEING FORCED TO QUIT YOUR JOB AND YOUR ABILITY TO STILL CLAIM SEVERANCE PAY. CONSTRUCTIVE DISMISSAL - WHEN QUITTING IS NOT REALLY QUITTING. NEED-TO-KNOW TIPS FOR BOTH YOU AND YOUR EMPLOYER

Employment in Ontario is constantly changing. Businesses are changing, for various reasons. Workforce need may vary during the year for many businesses. Employers are regularly trying to improve efficiency, reduce costs and improve the bottom line. This may involve lay offs, downsizing, reducing overhead (including payroll) and reorganizations.

These economic realities for many employers may lead them to try to modify their employment relationships.

While employers are generally entitled to change the nature of an employee’s position, if the change is fundamental to the relationship, certain protections arise for the employee; namely, the remedy of constructive dismissal. Fundamental changes unilaterally imposed by employers, such as to pay, availability of work or benefits, for example, unless the employee consents, may constitute a constructive dismissal of the employee. If so, the employee may be entitled to reject the change, refuse to continue to work and claim damages for being terminated, constructively.

DEFINITION – CONSTRUCTIVE DISMISSAL:

The definition of constructive dismissal is: when an employer makes a unilateral and fundamental change to a term or condition of an employment contract, without providing reasonable notice of that change to the employee. This action amounts to a repudiation of the contract of employment by the employer, regardless if that was intended, and deemed refusal to continue the employment relationship. Therefore, the employee may consider the contract wrongfully terminated and quit or resign which, in turn, gives rise to an obligation by the employer to provide damages in lieu of reasonable notice, similar to an outright, wrongful termination.

THE FOUR CATEGORIES OF CONSTRUCTIVE DISMISSAL:

Generally, if a fundamental change is made by the employer, the Court will categorize the change into one of four, different scenarios to assess if it constructive dismissal.

Firstly, if the new term is imposed by the employer immediately (without notice), but with the employee’s consent, there is no constructive dismissal and the relationship continues, subject to the new term.

Secondly, if that occurs, and the change is fundamental to the employee’s job terms, who does not consent, there will be a constructive dismissal.

Thirdly, if the new term (or fundamental change) only becomes effective after reasonable notice of that change is given by the employer, there will be no constructive dismissal, even if the employee does not consent to the change. The amount of notice required to be given by the employer depends on several factors, such as age, length of employment, nature of the position, the terms of the written employment agreement, if any, and other factors generally considered by the Court in wrongful termination cases to assess pay in lieu of notice.

Lastly, if the employee does not accept the new term and, as a result, the employer does not impose it, there cannot be a constructive dismissal. 

If a constructive dismissal occurs, the employee has a duty to mitigate his or her damages, which may include an obligation to return to the same job from which the employee has been constructively dismissed (with the change), depending on the facts of the specific case and whether the employee can demonstrate that he or she could not reasonably be expected to mitigate damages by returning.

“POISONED” WORK ENVIRONMENT

In an employee faces discrimination or other negative workplace experiences that may create a “poisoned” work environment, it may also create a constructive dismissal situation, even if no specific change was made by the employer. Generally, discrimination, harassment, and loss of dignity or self-respect do not need to be accepted by employees – they have a remedy; namely, a possible claim of constructive dismissal.

SIGNS OF POTENTIAL CONSTRUCTIVE DISMISSAL:

Common indicators that you have been constructively dismissed include:

  • reduction or elimination of compensation such as salary, bonuses, commissions, benefits, or pension entitlements;
  • being temporarily laid off;
  • a shift or scheduling change that cause significant hardship, such as to childcare and other family obligations or religious beliefs, or otherwise have a substantial impact on either personal or work life, or both, to the extent they are unfair or unreasonable;    
  • being transferred to another territory or business location;  
  • being demoted, or having responsibilities reduced, or being placed in a substantially different position; and/or
  • being required to work in a ‘poisoned’ workplace environment.

TIPS TO BOTH EMPLOYERS AND EMPLOYEES:

Any unilateral change by an employer to the terms of employment do not automatically constitute constructive dismissal - an employer has the right and ability to decide the terms of employment it wishes to offer its employees, but it cannot change existing terms of employment, if they are fundamental in nature, without giving an employee appropriate notice of the changes. If that appropriate notice is given, the employee must either accept or reject the changes and, if the latter, quit or resign, as opposed to insisting on the terms of employment he or she wishes to have;

The notice to the employee should be express, clear and unequivocal (and ideally in writing) – if there is any uncertainty in the notice, or whether the employee’s job would end if he or she did not accept the change (at the end of the notice period), the uncertainty is likely to be resolved in favour of the employee. Therefore, if the employer is not clear with the employee, or otherwise acquiesces to the employee’s rejection of the change, the notice of the change may be “voided” and not protect the employer from constructive dismissal liability. The notice must be clear, reaffirmed and followed-up on the employer to avoid liability. The employer should expressly make it clear to the employee that if, at the end of the notice period, the employee does not accept the change, the employee will be terminated as of that time. Ideally the employer will conduct this in writing, including following-up with the employee during and at the end of the notice period by affirming that a termination will happen if the employee rejects the change. The employer should also carefully avoid simply informing the employee he or she will be terminated at the end of the notice period – this may cause the employee “stress and trauma” (or an ability to assert this impact) and void the notice. Accordingly, the notice must effectively balance the objective of giving it against avoiding any undue “stress and trauma” to the employee; and

The position must remain the same during the notice period the status quo must be maintained, including compensation. If any change, even a different change, occurs during the notice period, it may potentially void the notice for the intended change.

Case References:

Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 (CanLII)

Nufrio v. Allstate Insurance Company of Canada, 2016 ONSC 2791 (CanLII)

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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BAD FAITH BY EMPLOYERS WHEN TERMINATING AN EMPLOYEE – TYPES OF MISBEHAVIOUR BY EMPLOYERS CAUSING HIGHER (PUNITIVE) DAMAGES FOR WRONGFUL TERMINATION – KNOW YOUR RIGHTS

HARD LABOUR – BY WARDSPC LAWYERS

BAD FAITH BY EMPLOYERS WHEN TERMINATING AN EMPLOYEE – TYPES OF MISBEHAVIOUR BY EMPLOYERS CAUSING HIGHER (PUNITIVE) DAMAGES FOR WRONGFUL TERMINATION – KNOW YOUR RIGHTS  

Employers in Ontario have a well-established duty at law to, among other things: (a) perform their employment contracts with their employees fairly and honestly; and (b) act in a reasonable and fair manner when terminating an employee, not in bad faith.

If an employer breaches either duty when terminating an employee, not only is it exposed to damages for pay in lieu of notice, depending on the case, but also special damages, known as punitive or aggravated damages.

In a fairly recent case, Justice Bruce Glass ordered an employer to pay an additional $100,000 in punitive damages due to the employer’s bad faith and “terrible” misconduct when it terminated an employee. The employer had, among other things: only alleged cause to try to gain a tactical advantage over the employee to secure a favourable, early settlement, without paying its legal obligations; effectively fabricated, after termination, more, unsubstantiated allegations of cause, which it maintained until the trial in the case at the very end; and treated the employee in a very demeaning and insensitive manner through the termination process and afterwards. 

Justice Glass used words like: “mean and cheap” and “outrageous” when describing the employer and its conduct at the trial.

There is no limit on what type of misconduct or misguided maneuvering by an employer may raise the ire of the Court, but a few common examples, based on the cases in Ontario, are:

POST-TERMINATION CHANGE OF POSITION:

Employers are not permitted to allege new allegations against an employee after they were terminated, such as terminating for “restructuring reasons”, but subsequently alleging performance reasons to try to justify cause for the initial termination.

FALSE ALLEGATIONS OF POOR CONDUCT:

Advancing false, unsubstantiated or unfounded allegations of misconduct or poor performance to try to justify cause, or save money on a termination, is improper. If cause for termination is asserted, employers must complete a fair and reasonable investigation before the termination and should provide specific reasons for the termination at the time, particularly if serious allegations of misconduct are made against the employee, such as theft, fraud or dishonesty. Fabricating a basis for cause and then failing to prove it will be very costly for every employer.  Employers should not terminate for cause without having a solid, substantial and well-founded basis for doing so, which should be documented and communicated to the employee. 

WITHHOLDING MONEY:

Withholding money from an employee (business expense reimbursements, vacation pay, overtime pay, bonuses, etc.), refusing to provide a letter of reference (or letter of employment, at least) or failing to provide a Record of Employment, for example, may also trigger these special damages. These tactics cannot be utilized to coerce an employee, particularly if he is or she may be facing financial hardship due to being fired, to accept less than the employee is entitled to at law. Negotiation between employers and employees is effectively presumed not to be a level-playing field. Employers are assumed to have a better bargaining position and, if they misuse it, is likely to raise the spectre of punitive or aggravated damages.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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CHRISTMAS BONUSES AND HOLIDAY GIFTS BY EMPLOYERS – ENROLLMENT IN THE ‘JELLY-OF-THE-MONTH’ CLUB THIS YEAR? READ THIS BEFORE KIDNAPPING YOUR BOSS ON CHRISTMAS EVE

HARD LABOUR – BY WARDSPC LAWYERS

CHRISTMAS BONUSES AND HOLIDAY GIFTS BY EMPLOYERS – ENROLLMENT IN THE ‘JELLY-OF-THE-MONTH’ CLUB THIS YEAR? READ THIS BEFORE KIDNAPPING YOUR BOSS ON CHRISTMAS EVE

Holiday bonuses (and gifts) are commonly appreciated, morale-boosting and an opportunity for employers to express gratitude to employees collectively at the end of the work year.

However, if expectations are not met, they can also cause strife, conflict and, in some cases, litigation. 

Bonuses are not legislatively governed in Ontario; rather, they are considered a contractual matter between employers and employees. There is no legal requirement for an employer to pay a holiday bonus, unless contractually required to do so. However, if a bonus paid to an employee on a year-over-year basis evolves into part of that employee’s overall compensation, the employer may by law be required to pay it the employee in future, including during a reasonable notice period following a termination without cause.  Employers may also adopt a workplace policy regarding bonuses, which typically govern availability, amount and other criteria. 

Generally, if employers pay a holiday bonus, or an amount beyond employees’ regular pay, it is either:  

  1. a fixed, recurring holiday bonus annually, usually of a fixed amount, not typically based on work performance or the financial success of the employer’s business;
  2. a pre-determined bonus amount, usually based on either, or both, the employee’s and the business’ performance, often based on set criteria pursuant to a workplace policy; or   
  3. a purely discretionary bonus, decided by the employer each year.

If an employer pays a holiday bonus historically, but changes its mind this year, like Mr. Shirley, an employee’s employment contract should be considered. If the holiday bonus is an important term, the employee may legally be entitled to the bonus. If there is no employment contract, the holiday bonus may have formed a part of the employee’s annual compensation, giving the employee a potential claim to the holiday bonus.

Before employers change their holiday bonus policy or traditional practice, they should review their employment contracts and workplace policies and, if they do not require payment of the holiday bonus, notify employees in advance of the decision to pay no, or a significantly less, holiday bonus. How much notice should be given will likely vary between employees, depending on their duration of employment, nature of their position and even age. 

If an employee is terminated without cause, the employee may be able to successfully claim payment of a holiday bonus as part of the wrongful termination damages. It will depend on the terms of the employee’s employment contract and, if none, whether the bonus would be considered a recurring part of the employee’s annual compensation. If the holiday bonus has been purely discretionary by the employer, it is likely the employee’s claim would not be successful. 

Generally, in Ontario employment law, if an employer gives an employee a holiday gift (not a payment of money), it is considered by the Court to be discretionary, gratuitous and not binding on the employer in future.

However, a workplace governed by a collective bargaining agreement may be different. In a recent case in Quebec, an arbitrator dismissed a grievance of the employer’s unilateral decision to stop giving employees a $50 gift card at Christmas. It was considered a discretionary decision in this case, based on the specific language of the collective bargaining agreement. However, a different outcome may have been reached for different collective bargaining terms. 

For example, other arbitral decisions in Quebec have held that Christmas gifts by employers were determined to be conditions of employment and, therefore, protected by the ‘vested-rights’ clauses in those collective bargaining agreements. Employers that unilaterally stopped these holiday gifts faced a costly and unfavourable grievance process.

Therefore, if you get a “Jelly-of-the-Month Club” card this year, like Clark W. Griswold, when you were expecting much more based on years past, you may have a claim against your employer, but it will depend on your employment contract, if any, past practices by the employer, and whether your historically-received holiday bonus was recurring, not governed by any workplace policy and not nominal in value.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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HARASSMENT AND VIOLENCE IN THE WORKPLACE: WHEN THERE IS NO WITNESS – CORROBORATION OF YOUR POSITION IS NOT REQUIRED – FEAR OF ‘HE SAID/SHE SAID’ SHOULD NOT DISCOURAGE YOU FROM REPORTING

HARD LABOUR – BY WARDSPC LAWYERS

HARASSMENT AND VIOLENCE IN THE WORKPLACE: WHEN THERE IS NO WITNESS – CORROBORATION OF YOUR POSITION IS NOT REQUIRED – FEAR OF ‘HE SAID/SHE SAID’ SHOULD NOT DISCOURAGE YOU FROM REPORTING   

Employees who experience sexual or other harassment or violence in the workplace should not be discouraged from reporting to their employer simply because no one else witnessed the harassment or violence. He said/she said concerns are no reason to avoid making a complaint to ensure the harasser is properly investigated and, if appropriate, punished.

Under the new anti-workplace harassment and violence laws in Ontario, effective January 1, 2017, incidents of harassment in the workplace must be investigated by employers. The outcome of the investigation must also be reported to both the victim and the harasser. Confidentiality must be maintained at all times.  

However, these changes to Ontario’s Occupational Health and Safety Act, designed to minimize, if not eliminate, workplace sexual and other harassment, do not require that a complaint’s evidence of the harassment be corroborated before a finding of harassment can be made.

Similarly, the Courts and Human Rights Tribunal in Ontario do not require corroboration before a finding of harassment can be made. The law recognizes that often this type of conduct, particularly sexual harassment or violence, occurs in a private setting, often where no witnesses are present.

For example, the Supreme Court recognizes that:  

Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed, may not be available, especially where alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.”

Ontario’s Human Right Tribunal also recognizes that:

There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.

This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.”

Accordingly, while corroborative evidence will, in most cases, be helpful in the factual investigation, it is not necessary. The Court or other decision-maker should properly consider the veracity, credibility and reliability of the evidence of the victim, alleged harasser and others who may have knowledge of the circumstances.

Merely because a victim cannot corroborate what he or she experienced at the hands of a harasser is certainly no reason to avoid reporting the sexual harassment or violence to ensure the investigator, Court or other decision-making body properly examines the circumstances and makes the necessary findings.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THERE’S NO APP FOR THAT - CALCULATING SEVERANCE PAY FOR WRONGFUL TERMINATION. BE WARY OF ONLINE TABLES AND TOOLS – THEY MAY LEAD YOU TO ACCEPT LESS THAN YOUR ENTITLEMENT.

HARD LABOUR – BY WARDSPC LAWYERS

THERE’S NO APP FOR THAT - CALCULATING SEVERANCE PAY FOR WRONGFUL TERMINATION. BE WARY OF ONLINE TABLES AND TOOLS – THEY MAY LEAD YOU TO ACCEPT LESS THAN YOUR ENTITLEMENT.

In Ontario, a wrongfully dismissed employee with no employment contract specifying severance entitlement is entitled to damages at common law. These damages are commonly calculated based on a reasonable notice period and pay in lieu of not being provided that reasonable notice of termination. Dismissed employees also have a duty to make reasonable efforts to seek and obtain similar employment to offset these damages (i.e., a duty to mitigate).

The seminal case in Ontario, Bardal v. The Globe & Mail Ltd., establishes the basic test to determine an appropriate notice period for an employee who has been terminated without cause.  The Bardal test effectively requires the Court to undertake a very contextual analysis of the case, with special attention to certain factors, including the character of employment, length of service, age and availability of similar positions. These factors are generally examined on a case-by-case basis and they are weighted in each, specific case by the Court to calculate a reasonable notice period. Employers may also be forced to pay more damages if the manner of dismissal was unfair or in bad faith.

Many employers, employees and even some lawyers are confused by, or do not fully understand, the factors that are to be applied to determine a reasonable notice period and, therefore, how to calculate a dismissed employee’s potential severance pay. 

Some lawyers may refer to the ‘one month per year of service’ approach – this is incorrect and not the law in Ontario. In fact, there is no cookie-cutter, mathematical formula to calculate severance pay; rather, these several factors must be examined contextually in each case and weighted based on their importance in the specific case.

DURATION OF EMPLOYMENT:

Length of service is only one factor to consider. While generally, the longer the length of service, the longer the reasonable notice period will be, this is not true in every case. Employees terminated after a relatively short period of employment may be entitled to a comparably longer notice period and, therefore, disproportionately more severance pay, depending on the other factors in the case. 

Duration of employment, on its own, should not determine severance pay entitlement – it is a factor only, albeit a potentially important one in the case.

AGE:

Generally speaking, older employees are entitled to more reasonable notice and, as a result, more severance pay. This is so to reflect the increased challenges older employees are likely to face in re-entering the workforce verses their younger counterparts.

However, again, age is not determinative of reasonable notice and younger employees should not assume they have no entitlement to severance pay – that is very likely not the case.

NATURE AND TYPE OF POSITION HELD:

Historically senior, managerial, supervisory or employees with specialized skills, training or responsibilities are likely entitled to more reasonable notice. However, a trend is emerging in Ontario to focus less on the position held on termination in favour of paying more attention to the availability of comparable opportunity to the employee and any challenges the employee may face in securing that alternative employment.

In any event, it is still the case in Ontario that an employee with more responsibility is generally entitled to more severance pay – it remains an important factor to consider. 

OTHER FACTORS:

In addition to the Bardal factors for calculating severance pay, other factors may also arise to amplify reasonable notice entitlement depending on the specific case, such as:

  • if the employee was effectively lured away from an existing position, recruited or induced to accept employment with the terminating employer;
  • if the employee is faced with non-competition, non-solicitation or other limitations or restrictions on his or her ability to find suitable, alternative employment (which typically arise in an employment contract);
  • if the employee suffers from a physical, emotional or mental health-related disability or condition, or has special family status obligations, for example, creating special challenges for the employee to mitigate his or her termination and resulting severance pay; and/or
  • if the employer alleges cause for the termination, refuses to provide a reference, or otherwise alleges justification for terminating the employee, making it more difficult for the employee to find alternative employment.

THERE’S NO APP FOR THAT:

Severance pay tools, apps and calculators are increasingly appearing online in Ontario, mostly developed and posted by employment lawyers.

However, there is no specific formula available to calculate severance pay entitlement – every case will be different, based on the specific circumstances of that case. Generally, lawyers and the Court will consider awards in other, possibly similar cases, but no two cases are ever the very same.

Terminated employees should, therefore, be wary of relying on online tools to calculate entitlement to reasonable notice damages and severance pay. Truly, the best and most reliable way to determine your potential entitlements if you are wrongfully terminated is to speak to a qualified, experienced employment law lawyer.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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ENTITLEMENT TO SEVERANCE PAY IF YOU ARE TERMINATED – WHEN, HOW AND WHY. “WORKING NOTICE” EXPLAINED AND THE IMPORTANCE OF YOUR EMPLOYMENT CONTRACT, IF ANY.

HARD LABOUR

[BY WARDS PC LAWYERS]

ENTITLEMENT TO SEVERANCE PAY IF YOU ARE TERMINATED – WHEN, HOW AND WHY. “WORKING NOTICE” EXPLAINED AND THE IMPORTANCE OF YOUR EMPLOYMENT CONTRACT, IF ANY.   

If you are terminated by your employer and:

firstly, there is no “just cause” for your termination; and

secondly, you do not have a written employment agreement or, if you do, there is no clause restricting you to only the statutory notice of termination required by the Employment Standards Act, 2000 of Ontario (the “ESA”) (or, if there is a such a clause, it is not enforceable against you – refer to the checklist in our earlier blog about this),

then, in addition to your statutory entitlements on termination under the ESA, you are likely entitled to “common law” reasonable notice of termination.

An employee’s termination entitlements at “common law” generally are significantly more than those required by the ESA. 

COMMON LAW” REASONABLE NOTICE - EXPLAINED:

Employment in Ontario is purely contractual between the employer and the employee. Employers can terminate employees at any time – they do not need a reason. However, if they do terminate, the obligation of giving “reasonable notice” is imposed by the law of Ontario, both by the ESA and ‘judge-made’ law, subject to any written employment entered by the employer and the employee that varies or changes the general law of Ontario applicable to employment terminations.

Unless the employer and employee agree otherwise in their written employment agreement, the law in Ontario imposes an obligation on employers to give reasonable notice before terminating an employee generally. Either an employer must give this reasonable notice before terminating or, if they do not, they will have to pay to the employee an equivalent amount for that reasonable notice that was not given. Employees must give reasonable notice before resigning, too, but that notice is generally much shorter.  

Generally, “common law” reasonable notice by employers is: (a) determined by the Court, often in wrongful termination lawsuits commenced by employees; and (b) determined based on multiple factors in each case, such as the employee’s age, position, responsibility, years of service, compensation received and ability to find alternative employment.   

Effectively, an obligation to give reasonable notice is designed to lessen the impact of a termination, particularly for the employee. The employer has the opportunity to take the necessary steps to replace the employee and the employee can seek and obtain comparable, alternate employment.

If an employer terminates without providing reasonable notice, but had an obligation to do so, the employer has breached the parties’ employment relationship and will likely have to pay damages equivalent to the amount of reasonable notice that should have been provided to the employee.

These damages are commonly called “pay in lieu of notice” and are calculated based on all, or the global, compensation and benefits the employee would otherwise have earned had he or she actually continued to be employed during the reasonable notice period. Generally, this calculation will include salary, pension contributions, bonuses, commissions, equity grants, if any (such as stock options, etc.), corporate vehicle use and other taxable and non-taxable benefits, if they formed part of the employee’s regular and recurring compensation during employment.

These damages also incorporate and include the statutory notice required by the ESA. However, an employer must actually pay to the employee any statutory severance pay required by the ESA, by lump sum, based on a specific formula set out by the ESA, unless the employee agrees otherwise. In other words, the employer cannot satisfy its statutory severance pay obligation by giving notice of termination to the employee – rather, it must actually be paid.

There is no ‘golden rule’ to accurately predict the amount of reasonable notice for each case of termination. It is difficult to predict, often. Some lawyers use the ‘month-per-year’ rule of thumb, but that is not the law. Every case is different, generally, and must be analyzed based on the specific circumstances of the case. Generally, however, it is reasonably safe to assume that the longer the years of service, older the employee and more responsibility the employee had, the longer will be the reasonable notice period in the case. 

Reasonable notice rarely exceeds two (2) years, but there are a few cases in which the Court exceeded this commonly accepted maximum for reasonable notice in Ontario. Generally, an employee’s entitlement to reasonable notice will be dependent on that employee’s specific factors, all of which must be considered together in that particular case. 

WHAT IS ‘WORKING NOTICE?  

If an employer decides to give reasonable notice of termination before terminating (i.e., during the relationship), it is commonly referred to as ‘working notice’. Employers often use ‘working notice’ to avoid paying an amount to the employee for reasonable notice after termination – it can significantly reduce the liability of the employer. This way, they derive more value, too, because the employee will continue to work for the employer during the reasonable notice period (as opposed to being terminated abruptly, in which case the employer will likely have to pay the equivalent amount for the reasonable notice that was not given to the employee).  

During the working notice period, the employee continues to work ordinarily and the employer continues to pay the usual compensation and benefits – effectively, a status quo arrangement. The employer may progressively discipline the employee during the working notice period and, if proper “just cause” arises, may terminate the employee without compensation. Generally, the employee will be entitled to some time away from work, reasonably, for the purpose of searching for and obtaining alternative employment, such as attending job interviews, etc.

If the ‘working notice’ period is equal to or more than what the Court would determine to be reasonable notice of termination, the employer will not have to pay the employee terminated-related compensation when the working notice period ends. If the working notice is too short, the employer may still have to pay common law reasonable notice at the end of the working notice period. Every case has to be analyzed based on the specific circumstances.

CONCLUSION – HAVE A WRITTEN EMPLOYMENT AGREEMENT:

Most employers wish to avoid having to deal with “common law” reasonable notice – it is both unpredictable and very expense, especially if the employee sues the employer for wrongful termination alleging insufficient notice was given or paid to the employee.

In order to avoid the “common law” being applied to the employment relationship, there must be a written employment agreement properly entered by the parties before the relationship starts. If so, the employer can avoid the uncertain and potentially expensive outcome the common law may impose.

Therefore, from an employer’s perspective, at least, there should always be a written employment agreement entered, which clearly and simply outlines the employee’s entitlements in the event of a termination without cause, particularly if they may be less that what the “common law” may award to the employee. In addition to minimizing costs, enforceable termination provisions also offer more certainty to both parties if the relationship ends.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYMENT AGREEMENTS - SOME BASICS FOR BOTH EMPLOYEES AND EMPLOYERS

HARD LABOUR

[BY WARDS PC LAWYERS]

Employers and employees should enter written employment agreements.

They define the employment relationship, the role of the employee, compensation (salary, benefits, bonus, pension, etc.), expectations and ideally how the relationship would end, if necessary.

Written employment agreements should specifically address how each party may end the relationship in future, if necessary and, if so, what compensation will be payable to the employee on termination, if there is no “cause” for the termination.

In Ontario, the Employment Standards Act, 2000 (the “Act”) provides for the basic rights of employees on termination, such as termination pay and severance pay, if payable. It is important to know that these are the basic, statutory entitlements, which must be paid by employers in Ontario (with a few, limited exceptions). However, employees are generally entitled to reasonable notice or pay in lieu of notice beyond the basic requirements of the Act. An employee’s entitlement to this additional compensation is determined by cases in Ontario (i.e., by the Courts and judicial system, or the “common law”), often in the context of wrongful termination claims by employees.

Ontario law provides that employers may terminate any employee without paying termination damages (unless there is a fixed period of employment), even in the absence of “cause”, if the employer provides reasonable notice of the termination or pay in lieu of that notice. This “common law” reasonable notice obligation, which is generally greater than the minimum requirements of the Act, can be reduced or limited by the employer by a properly-worded employment agreement that is negotiated and entered by the parties at the beginning of the relationship. Therefore, often very costly termination litigation is avoided when both parties mutually agree at the outset how the termination will be governed, which offers certainty and clarity to both.   

In Ontario, if an employer wishes to reduce or limit the “common law” reasonable notice to which an employee may be entitled on termination, here are few tips to consider:  

1.       employment agreements purporting to limit common law notice must be entered before the employment begins, not after, unless there is “fresh consideration” given to the employee, which cannot be continuing employment. Often employers offer more compensation or a promise of promotion, for example – in any event, an employee must receive a new benefit if the employer wishes to enter an employment agreement with the employee after the employment relationship has begun;  

2.       you cannot ‘contract out’ of the minimum requirements of the Act – you can only modify the common law notice requirements. For example, during a period of notice, an employee is entitled to continue to receive his or her benefits coverage, if any, for at least the minimum statutory notice period. If the termination clause is ambiguous, or does not clearly provide for benefits during at least the minimum statutory notice period under the Act, the entire termination clause may be of no effect or protection to the employer. Similarly, if an employer wishes to limit an employee’s right to a bonus on termination, the employment agreement must contain carefully worded language to reflect this, or that clause will not be enforced by the Court. Commonly clauses provide that bonuses will only be payable if the employee is employed at the time the bonus is to be payable. If that takes place during the notice period, generally the employee will be entitled to the bonus payment and, if the employer wishes to limit that entitlement, the employment agreement must be very clear and contain specifically-intended language; and

3.       Courts tend to interpret employment agreements strictly against employers, particularly with respect to termination clauses that purport to limit notice to the statutory minimums of the Act. Specific language needs to be incorporated to do so and employers often elect offer more generous terms than the statutory minimums when negotiating notice in employment agreements beyond the minimum requirements of the Act – doing so will generally increase the likelihood that their employment agreement would withstand judicial scrutiny if challenged by the employee.  

Employers should always try to use written employment agreements, especially if they do not wish to be exposed to common law notice requirements. If they do, they should also ensure they use carefully-created clauses and they should review their employment agreements periodically, as the law is evolving and what is enforceable today may not be enforceable tomorrow.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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YOU TOLD YOUR EMPLOYER YOU WERE GOING TO SPEAK TO A LAWYER - YOU'RE FIRED AFTERWARDS - CLAIMING REPRISAL

HARD LABOUR

[BY WARDS PC LAWYERS]

Under Ontario’s Employment Standards Act, 2000 (the “Act”), an employer cannot terminate or otherwise punish an employee who asserts his or her rights under the Act. This is known as “reprisal” by the employer and, generally, will cause the employer to be punished itself by the Ontario Ministry of Labour and, possibly, the Ontario Labour Relations Board.

The case:

Zongping (Peter) Luo v. Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

Mr. Luo was terminated by his insurance company employer about one month after informing them that he “might get legal help” regarding a dispute in the workplace.

He made a complaint to the Ontario Ministry of Labour, including alleging reprisal against Economical. The case was escalated to the Ontario Labour Relations Board (the “OLRB”), which decided that Economical did not engage in reprisal in this particular case.

Reportedly Mr. Luo did not specifically mention the Act when he asserted that he “might get legal help” – a factor. The OLRB concluded this statement by Mr. Luo could conceivably encompass a fairly broad range of potential actions, not only limited to those available to him under the Act.

Mr. Luo also admitted in the hearing that he was unaware of the Act when he made his statement – that did not help his case, either. Not long after he was terminated, Mr. Luo also sent an e-mail to the employer referring to wrongful termination and discrimination, but nothing about reprisal.

Ultimately, the OLRB held:

There are no ‘magic words’ required for an employee to invoke the protection of s. 74 of the Act [the reprisal provision of the Employment Standards Act] so it is not necessary for an employee to refer specifically to the Act . . . However, where the background facts do not appear to raise issues of the enforcement of the Act and the employee makes only a generalized threat to seek legal assistance – as in this case – the protection of s. 74 of the Act cannot be engaged.”

Therefore, according to this case, making generalized assertions or threats to your employer, including that you may speak to a lawyer, may not support a claim of retaliation against your employer, if you believe you were punished for doing so. You need to be specific, ostensibly. Specifically make a request for your employer to comply with the Act or the other health and safety legislation that applies to your workplace, such as Ontario’s Occupational Health and Safety Act (which also addresses harassment in the workplace). Effectively, you will need to seek to exercise your rights very specifically under the Act or other legislation, or you will not likely succeed in a complaint of reprisal against your employer. 

In addition to a reprisal claim, an employee may still have a claim for wrongful termination and other damages that may be available, depending on the circumstances. 

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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LEAVING A TIP? COUNTING ON TIPS FOR YOUR PAY? KNOW THIS - THE NEW DEAL IN ONTARIO

HARD LABOUR

[BY WARDS PC LAWYERS]

So-called “tip theft” in Ontario will be no more, much to the delight of employees and the concern of businesses in industries that rely on tips and gratuities.

Ontario’s Protecting Employees’ Tips Act, 2015 (“Bill 12”) is now passed and will be the law in Ontario as of June 10, 2016. Bill 12 will change and update Ontario’s Employment Standards Act, 2000 (“ESA”). There will be a new Part V.1 of the ESA, called Employee Tips and Other Gratuities.  

Effectively, Bill 12 will disallow employers from withholding, making deductions from or collecting tips and other gratuities from employees, unless otherwise authorized to do so. There is similar legislation already in effect in other provinces.

Under Bill 12, “tips and other gratuities” will include:

  • voluntary payments made by a customer to an employee that could reasonably be inferred as intended by the customer or an employee to be kept by the employee or shared among other employees
  • voluntary payments made by a customer to an employer that could reasonably be inferred as intended by the customer or an employee to be redistributed to an employee or employees
  • payment of a service charge or similar charge that could reasonably be inferred as intended to be redistributed to an employee or employees
  • other payments (that are specifically set out by legislation)

However, Bill 12 exempts “such charges as may be prescribed relating to the method of payment used, or a prescribed portion of those charges” and any other exempted payments as specified by regulation. So far, there has not been anything enacted or published by the Ontario government to give any guidance about the types of other or additional payments by customers that would be included in, or exempted from, the definition of “tips and other gratuities”.

There could potentially be an issue about service charges that credit card companies charge to businesses, mostly on a per transaction basis. Based on Bill 12, if, for example, if a customer uses a credit card and leaves a payment exceeding the cost for the meal (i.e., an additional 15%), the full excess amount will have to be re-directed to the employee server, notwithstanding that the restaurant business may have to pay a service fee to the credit card company on that excess amount (often 2.5%). This is likely to cause an issue with Bill 12 and will likely be addressed by the regulation(s) that will form part of the new law in the ESA. However, as of today, the employer business appears to be responsible for absorbing this hidden expense under Bill 12.   

If a workplace is governed by a collective bargaining agreement, that will prevail over Bill 12 until the collective bargaining agreement must be renewed and, if an acceptable tips and gratuities process is not negotiated as part of the renewal, Bill 12 will take effect and govern.

If employers “pool” the tips received in the workplace, based on a current policy in place, the amounts must be paid out to the eligible employees in the pool ultimately. Employers, however, will generally not be able to share in the pooled tips, except in very limited circumstances. This may include an owner who actually does the same, or very similar work, to the employees in the place of business (i.e., also serving customers).

There remains some uncertainty about how Bill 12 will work in Ontario, but it is likely some of this uncertainty may be addressed by the regulations that will accompany the changes to the ESA or, alternatively, by case law decided after it comes in into effect.

Employers will hope for specific exemptions for credit card transactions and often other related fees that often are charged in special services, such as for banquets or special event services. 

Employers should also be familiar with this new law and update or create their workplace policies to reflect these changes, subject to these uncertainties that will have to be clarified and sorted out.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYERS CANNOT MAKE AN EMPLOYEE SIGN A WAIVER OF LIABILITY FOR WORKPLACE INJURY - THEY CAN STILL SUE

HARD LABOUR

[BY WARDS PC LAWYERS]

Workers’ comp’ is governed in Ontario by the Workplace Safety and Insurance Act, 1997, SO 1997, c. 16 and its regulations (the “Act”).

Employers Required to Register (Covered by the Act):

The Act contains lists of types of industries; namely, Schedule 1 and Schedule 2.  A worker employed in an industry or business listed in Schedule 1 or Schedule 2 of the Act is covered by the Act and the employer must be registered.

Schedule 1 Industries include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades and construction. Different types of service-related industries are also covered by the Act, including temporary agencies, hospitality and full-time domestic workers.  

Schedule 2 Industries include (but are not limited to):  provincial governments; railways and telephone companies licensed by the federal government.  Although municipal governments are listed in Schedule 2, many have opted to become Schedule 1 employers. 

Some employers can make an application to the Workplace Safety and Insurance Board (the “WSIB”), the governing body administering the Act, to be considered a covered industry. The WSIB is effectively an independent trust agency that administers compensation and no-fault insurance for Ontario workplaces. The WSIB provides wage loss benefits, medical coverage and assistance for workers to return to the workplace.

“By application” industries include (but are not limited to):  financial institutions; health care practitioner practices; trade unions; private day cares and travel agencies, for example. 

Employers that are uncertain if they are covered by the Act should review the complete list of Schedules in Ontario Regulation 175/98 of the Act. They could also contact the WSIB for this information.

Most Ontario employers that employ workers (including family members and sub-contractors) must register with the WSIB within ten (10) days of hiring a full-or part-time worker. Registering with the WSIB provides workplace insurance coverage for those workers, including access to healthcare practitioners.

Employers Not Required to Register (Not Covered by the Act):

There are a few industries that do not have to register. Some employers considered not to be a “covered business or industry” include (but this is not an exhaustive list):

  • Banks, trusts and insurance companies
  • Computer software developers
  • 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 directing and embalming

Generally, the Act specifically does not cover certain workers. These include: 

  • persons employed casually by an employer to do work other than for the purposes of the employer’s industry (for example, if you are hired on a very irregular basis to mow the lawn of a company). 
  • outworkers, or a person to whom work is given to be done in their own home or on other premises not under the control of the person who gave out the work. 

The Construction Industry:  

Employees of construction related firms are covered by the Act and can claim benefits and services from the WSIB if they meet the definition of a “worker” in the Act.  

As of January 1, 2013, these four categories of people who work in the construction industry are also considered “workers” under the Act: 

  • independent operators
  • sole proprietors
  • partners in partnerships
  • executive officers in corporations 

These people are “deemed workers” and, therefore, are entitled to claim benefits from the WSIB if they get injured at work. They are also “deemed employers,” even if they do not hire another worker. This means they must register under the Act unless they fall within a few, limited exemptions.

Even if an employer is not required to register, the employer can apply to obtain this insurance for its workers through the WSIB.

Employers Not Required to Register – You Cannot Make an Employee Release His or Her Rights to Sue You About an Injury in the Workplace:

So, if an employer is not required to register and does not voluntarily do so, can the employer make the employee sign a release of liability if the employee is injured in the workplace?

No – it is contrary to public policy in Ontario. In fact, employees cannot contract out of their protections under the Act, either, or be requested by employers to do so.

The case:

Fleming v. Massey, a January, 2016 decision of Ontario’s Court of Appeal.

This case means that employees, who are employed by businesses that are not required to register under the Act, may sue the employer when the employee is injured in a workplace event, even if the employee may have signed a waiver of liability to the employer previously.

Therefore, excluded employers who have employees sign a release or waiver for personal injury liability for, for example, corporate events or outings may not actually be protected from a claim if the employee is injured.

Effectively, the case determines that Ontario’s public policy for the Act does not allow an employee to ‘contract out’ of the legal protections available to that employee. Here, at the employer’s request, the employee had signed a waiver of liability releasing the employer from liability for damages sustained by the employee in the course of the employment. The employee initially sued the employer based on accident injuring the employee on a go-cart track. The employer successfully relied on the waiver at the trial level to have the claim summarily dismissed. The employee appealed, arguing that he was an employee under the Act and that the waiver should not be effective because it is contrary to the underlying principles and intent of the Act.

The issue raised for the Court was if the employee could legally “contract out” of his right and ability to sue the employer under Part X of the Act and, therefore, if the employee had (inadvertently) voluntarily assumed the risk of injury in his workplace. The Court of Appeal did not support the waiver signed by the employee and, in doing so, clearly affirmed that the Act constitutes a “categorical rejection” of the notion that employees voluntarily assume workplace risks. 

The Court of Appeal held the employee was an uninsured employee under the Act, including because the WSIB categorizes go-kart tracks as “non-covered”.  To be insured under the Act, the event or facility must voluntarily apply for coverage under the Act and for that coverage to be approved by the WSIB, which the employer in this case had not done. As a result, Part X of the Act, which applies to employees working in industries not required to be registered under the Act and, in particular, sub-section 114(1) of Part X applied, which gives uninsured workers the right to sue employers in certain circumstances.  That section reads:  

“A worker may bring an action for damages against his or her employer for an injury that occurs in any of the following circumstances:

  1. The worker is injured by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises used in the employer’s business or connected with or intended for that business.
  2. The worker is injured by reason of the employer’s negligence.
  3. The worker is injured by reason of the negligence of a person in the employer’s service who is acting within the scope of his or her employment.”  

The employee successfully argued that he had a statutory right under the Act to sue his employer.

Once that was settled by the Court, it had to decide if the employee had “contracted out” of that right by signing the waiver given to him by the employer. After reviewing the historical law in this area, the Court of Appeal, largely based on a public policy perspective, ultimately changed the law and held that the Act was designed and intended to assure compensation to employees injured in the workplace, regardless of fault. In exchange for this coverage, employees gave up the ability to sue their employer for workplace injury. For those limited number of employees not employed by an employer covered by the Act, the Act gives them a statutory right to sue their employer for workplace injuries, which is embodied in Part X of the Act currently.  

Therefore, uninsured employees are not permitted to contract out of their protections under the Act any waiver to the contrary will not be effective.

Because of this case, employers should reconsider their use of waiver of liability by employees for workplace injury and also consider voluntarily applying for insurance under the Act, if they are not already required to be registered. This would prevent lawsuits from employees for workplace injury and cause any such injuries to be dealt with solely under the Act.   

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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ONTARIO'S NEW RETIREMENT PENSION PLAN - IT AFFECTS EVERY BUSINESS AND EMPLOYEE - WHAT YOU NEED TO KNOW

HARD LABOUR

[BY WARDS PC LAWYERS]

The Ontario Retirement Pension Plan (the “ORPP”), is soon to be a provincially-run plan that, similar to the federal Canada Pension Plan, will be funded by equal contributions from both employers and employees.

What Is It and When Does It Take Effect?

Basically, the ORPP is a compulsory Ontario-managed pension plan intended to give employees a more certain, predictable income structure in retirement. It is intended to improve the retirement position of Ontario employees who do not have an established, secure workplace pension plan.

To that end, the ORPP requires that every employee participate in either the ORPP or in a “comparable” workplace pension plan by 2020. While “comparable” is not fully certain, “comparable” workplace pension plans will include registered plans that comply with federal and provincial pension legislation and that have minimum contribution requirements, including defined benefit plans and defined contribution plans. The effective difference between these two types of plans is that the former plans are generally held and managed by the employer, but the latter allows the employee to manage the investment.

The ORPP will be in effect on January 1, 2017. The Ontario Government will be releasing more information and guidance on how to comply with the new plan going forward. Employers should pay attention and keep updated on the plan requirements.

How Does It Work?

The ORPP will roll-out in four “waves”, based on the number of employees of an employer and the type of registered workplace plan currently in place.

The largest employers will be affected firstly. 

Contribution rates by employees and employers will be implemented when the business is enrolled.

Both employers and employees will make equal, graduated contributions to the ORPP. The rate will start at 0.8 percent by each (1.6 per cent in total). The rate will be capped at 1.9 per cent by each (3.8 per cent in total) based on the employee’s annual earnings up to a maximum of $90,000.

When contributions take place at the maximum rate, they will continue to contribute at that rate. Earnings by an employee that exceed $90,000 annually will be exempt from ORPP contributions. 

The mandatory enrollment and contribution schedule is basically:

  1. Wave 1 - Large employers (with 500 or more employees) without registered workplace plans. Contributions start January 1, 2017 at a rate of 0.8 per cent. This rate will increase to 1.6 per cent in 2018 and continue or remain at 1.9 per cent as of 2019 for both the employer and employees.
  2. Wave 2 - Medium employers (with 50-499 employees) without workplace plans. Contributions start January 1, 2018 at a rate of 0.8 per cent. This rate will increase to 1.6 per cent in 2019 and continue or remain at 1.9 per cent as of 2020 for both the employer and employees.
  3. Wave 3 - Small employers (with 50 of fewer employees) without registered workplace plans. Contributions start January 1, 2019 at a rate of 0.8 per cent. This rate will increase to 1.6 per cent in 2020 and continue or remain at 1.9 per cent as of 2021 for both the employer and employees.
  4. Wave 4 - Employers that have registered plans, but which do not meet comparability threshold test. Contributions will start and remain at a rate of 1.9 per cent as of January 1, 2020. An employer that has already has a registered pension plan existing as of August 11, 2015, or that has already initiated the process of registering a plan, will be Wave 4. If it is a “comparable” plan as of January 1, 2020, there will be no requirement for the employer to enroll in the ORPP‎. In addition, any employer not having a workplace pension plan, but which establishes a “comparable” plan prior to that employer’s Wave coming into effect will not be required to enroll in the ORPP. 

 What Do I Do?

Get ready. Contact the Ontario Retirement Pension Plan Administration Corporation (the “Corporation”) for more information to plan for this new workplace requirement. If you do not already have a workplace pension plan, the ORPP will require your business to make these mandatory contributions soon.

You should determine what Wave will apply to you, so you comply with the deadlines for enrolment.

If you have a registered workplace pension plan, or will have a plan before your Wave takes effect, you should determine if it qualifies as a “comparable” plan. If it does not meet the threshold, you will need to decide whether to change your registered plan or be enrolled in the ORPP.

The Corporation plans to contact employers soon about their current registered plans and to assess coverage and whether ORPP enrollment is required, but it is best to get a head start and start planning for this workplace change that is coming very soon. 

___________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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MYTH - THERE IS NO "CAP" ON YOUR DAMAGES FOR WRONGFUL TERMINATION - THEY CAN EXCEED 24 MONTHS' PAY IN LIEU OF NOTICE

HARD LABOUR

[BY WARDS PC LAWYERS]

Despite what you may have heard, damages for wrongful termination in Ontario are not ‘capped’ at the equivalent of two years (24 months) reasonable notice. In other words, in special (although rare) circumstances, a terminated employee can be entitled to more than the equivalent of 24 months’ of compensation if the employee is wrongfully terminated.

The high-water mark for reasonable notice damages in Ontario, to my knowledge, is the equivalent of 30 months’ pay in lieu of notice, which was awarded in a 1999 Ontario case.

Generally, exceeding this so-called “cap” on damages is only done by the Court in “exceptional circumstances”, which are not clearly defined by the law in Ontario.

In a recent case, the Ontario Court of Appeal awarded 26 months’ damages and, in doing so, spoke of “exceptional circumstances” in this way:

“[30] Canac asks this court to set aside the trial judge’s award of damages of 26 months of notice. Canac founds its position on this court’s decision in Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No 13 (C.A.). At para. 11 of Lowndes, this court stated that while the reasonable notice period is a case-specific determination and there is no absolute upper limit on what constitutes reasonable notice, generally only exceptional circumstances will support a notice period in excess of 24 months. Canac says that the trial judge erred in principle by failing to make a finding of exceptional circumstances before awarding damages for reasonable notice in excess of 24 months. Consequently, it submits, this court can set aside the award. It urges this court to make an award of between 16 to 18 months but, in any event, not greater than 24 months.

[31] I agree that the trial judge failed to expressly make a finding of exceptional circumstances. I note that as part of the agreed statement of facts, the parties presented an agreed damages calculation that included figures for up to 26 months of notice. This may explain why there is no explicit finding of exceptional circumstances as it clearly indicates that an award beyond 24 months was in the contemplation of all parties. In any event, however, given the Keenans’ ages and lengths of service, and the character of the positions that they held, I would not interfere with the award.

[32] Lawrence Keenan and Marilyn Keenan worked for Canac for approximately 32 and 25 years respectively. Together, their average length of service was 28.5 years. They were 63 and 61 years of age at the time of termination. They held supervisory, responsible positions in which they oversaw the installation of Canac’s products and met with Canac’s customers as its representatives. For over a generation, they were Canac’s public face to the outside world. Over a period of approximately thirty years – the entirety of their working lives – the Keenans’ income had come from Canac and they relied on that income to support themselves and their family. Even during the approximately two years that they provided some services to Cartier, a “substantial majority” of the Keenans’ work continued to be done for Canac. These circumstances justify an award in excess of 24 months and I see nothing wrong in the trial judge’s finding that 26 months’ notice was reasonable.”  

Therefore, if the circumstances are right, an employee who is wrongfully terminated is not subject to the “cap” of 24 months’ pay in lieu of notice. More can be available, but only in fairly rare and exceptional circumstances.

An employee may also be entitled to additional damages, such as for breach of human rights, failure by the employer to perform the employment contract honestly and punitive or aggravated damages, but each case is different and each must be assessed on an individual basis. 

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYER WINS THIS ONE - HOW TO SHOW "JUST CAUSE" FOR TERMINATION

HARD LABOUR

[BY WARDS PC LAWYERS]

Proving “just cause” for termination is a challenging task for employers. Employers must properly and diligently document a progressive discipline process before terminating the employee generally, including documentary evidence of successive written warnings, cautions and opportunity to rectify the improper conduct by the employee. 

However, if these steps are taken, the Court will recognize “just cause” and support an employer’s position in a lawsuit by an employee for wrongful termination.

Here is an example: Cotter v. Point Grey Golf and Country Club, a recent British Columbia case. In fact, the evidence of effective progressive discipline was good enough that the Court allowed for a summary trial to be held.

The sixteen-year employee was an accountant and comptroller for the employer. Effectively, the employer refused to acknowledge and sign-off as management to a resolved property tax assessment dispute of the employer. The dispute has been resolved fully, but the employee would not sign-off on it to the employer’s auditors.

The employee effectively ignored two written warnings from his manager not to continue to discuss the matter with anyone without the knowledge or consent of his manger. He continued to do so.

The property tax assessment issue was reviewed several times by management, the Board and the employer’s auditors, all of which determined there was no issue and no problem for the employer. But the employee still refused to sign the audit documentation.

He was terminated by the employer, for cause.

The Court allowed a summary trial and held that:

  • the matter was not complex and the case law in the area was settled;
  • the documents "spoke for themselves" and removed many issues of credibility; and
  • the issues the employee raised were not relevant to the issue of whether his employment had been terminated for cause.

Ultimately the Court found that the employee had been willfully disobedient, unreasonably refused to take direction and effectively ignored the repeated warnings given to him by the employer. 

His willfully insubordinate behaviour and communication with third parties, contrary to his management’s direction, were inconsistent with the employee-employer relationship.

The employee’s claim was dismissed. He was awarded nothing and had to pay costs to the employer. 

This case demonstrates the importance of creating and maintaining good written records of warnings and employee discipline.

If the employer can show this type of documentary evidence effectively, it will increase its chance of succeeding in a ‘for cause’ termination.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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MAKING A COMPLAINT ABOUT HARASSMENT OR SAFETY IN YOUR WORKPLACE - YOUR RIGHTS AND PROTECTION

If you complain about harassment or safety issues in your workplace, what protection is available to you?

The Ontario Labour Relations Board will reinstate you, presumptively, or, alternatively, award you lost wages and pay if your employer punishes you for doing so by terminating you or taking away your worktime.

In a recent case, a restaurant employee had made a complaint about harassment in the workplace to her employer. She also asked the employer for a copy of its workplace harassment policy, which is now mandatory in Ontario under the Occupational Health and Safety Act (the “OHSA”).

The employer did not provide the employee with a copy of its harassment policy.

After the employee made a complaint to the Ministry of Labour, it began an inspection under the OHSA. The employer told the employee it wanted her to meet with its ‘health and safety committee’, to which she agreed. She again requested a copy of the policy – it was not provided.

The employer did not contact her again and, what’s more, cut her employment time after the Ministry inspection was initiated, even though the employee had requested several times to be scheduled to work.

Therefore, the employee filed a reprisal complaint under the OHSA with the Ontario Labour Relations Board. The employer failed to attend the hearing, not surprisingly.  

The Board held that, at least in part, the employer’s reason for not scheduling the employee to work was because she had raised health and safety issues in the workplace.

The Board said: “The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.”

Ultimately, the employee told the Board she did not wish to return to work, given the treatment she had received.

As a result, the Board decided that, “Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances.  I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment.”

In the end, the Board awarded the employee damages of $7,437.16 for “loss of employment and loss of wages”.

The case:

Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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RECENT MINISTRY OF LABOUR BLITZ - EMPLOYERS ARE NOT COMPLYING WITH THE LAW

HARD LABOUR

[BY WARDS PC LAWYERS]

The Ontario Ministry of Labour often conducts a compliance ‘blitz’ by inspecting employer businesses across Ontario.

They recently completed a blitz of 304 businesses for general compliance with the Employment Standards Act, 2000 of Ontario.

The result - 232 businesses were not compliant and received compliance orders, notices of contravention, etc.

Most businesses were non-compliant with the ESA requirements for: public holiday pay, overtime pay and vacation pay.

Many were also non-compliant with their record-keeping and ensuring that their employees were working the proper hours of work.

The Ministry says that nearly all employers in Ontario voluntarily comply with compliance-related orders made to them by the Ministry, but the problem is that the orders had to be made in the first place. The Ministry also indicates that most of the non-compliance is due to employers’ lack of knowledge or understanding about the requirements of the ESA, rather than a deliberate effort to circumvent those requirements.

Therefore, most employers are not intentionally falling short of the law, but are doing so because they do not understand fully what the law requires them to do.

The ESA in Ontario is somewhat complex and difficult to understand and implement effectively. While the Ministry Web site provides very good explanation and guidance for compliance with the ESA, employers should consider reviewing their employment practices with a qualified employer lawyer to ensure steps are taken to be compliant.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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HARD LABOUR - EMPLOYMENT AGREEMENTS - DO'S AND DONT'S

HARD LABOUR

[BY WARDS PC LAWYERS]

General tips and information about employment law:

WRITTEN EMPLOYMENT AGREEMENT NOT MANDATORY, BUT ESSENTIAL:

Employment agreements need not be in writing, but they should be. If they are not, the general law in Ontario will apply for termination, including implied terms at law (which can be modified by a written agreement, often to the employer’s benefit). A written employment offers clarity and certainty to both parties. Both are better served by a written agreement and it is highly recommended.   

IMPLIED TERMS:

Generally, even for written employment agreements, there is an implied term at law that employment can be terminated abruptly and summarily for cause (which is a judicially-determined test and a fairly high onus on employers, requiring proper progressive discipline steps prior to termination).

Employment in Ontario is not ‘at will’, like in many jurisdictions in the United States. In Ontario, if there is no cause for termination, an employer can terminate a non-union employee’s employment only if reasonable notice of termination is provided, or compensation equivalent to that reasonable notice.

Sometimes an employer may make fundamental changes to the employment and, if so, it may give rise to a potential ‘constructive’ dismissal, which is different from ‘wrongful’ dismissal (because there is no outright termination). It is generally implied that an employer cannot unilaterally alter or change the employment relationship fundamentally, without consent by the employee.

These types of implied terms can be modified or overridden by a written employment agreement, being another reason they should be utilized, particularly from an employer’s perspective.

Employees also have implied duties for employment, such as confidentiality and loyalty generally. Employers must behave in “good faith” generally – an implied duty. Both parties have a duty to deal honestly with each other during the performance of the employment relationship. If an employer does not, it can give rise to additional claims by an employee and damages payable by the employer in certain circumstances.

MEDIATION AND ARBITRATION CLAUSES:

Typically clauses requiring mediation or arbitration in employment agreements are enforced by Ontario Courts, subject to certain conditions that existed when the employment agreement was entered. Ontario’s Arbitration Act, 1991, governs arbitrations in Ontario. Mediation is generally governed by mediation agreement signed by the parties who are mediating. Arbitration is a common out-of-Court procedure utilized for employment termination in a unionized setting. Mediation is a common tool utilized by the parties to try to voluntarily settle their termination issues as an alternative to litigating them.

ALTERING OR CHANGING EMPLOYMENT AGREEMENTS DURING EMPLOY:

Generally, employers should incorporate into a written agreement a right to make changes to a non-union employee’s duties, role, responsibilities and compensation. If they do not, any such changes could amount to a ‘constructive’ dismissal. Even if that right is reserved by the employer, if the change imposed is fundamental, the employment agreement may not offer the protection envisaged by the employer – it depends on the circumstances. Changes that are minor in nature, or at least not fundamental to the relationship, can often be made by employers without risk of being sued (or at least losing, if sued), even if a written employment agreement is not entered. Fundamental changes must generally be agreed to by the employee or, alternatively, the employer must terminate the existing employment relationship and attempt to negotiate a new employment contract, creating risk to the employer in terms of wrongful termination. It is wise for both parties to consent to fundamental changes in the employment relationship before they take effect. 

Changes to a written agreement for employment, during the employ, are generally unenforceable unless “fresh consideration” is given to the employee, which can take different forms, but often is a payment of money or increase in the employee’s compensation.

Employers must be careful in using short-form letters offering employment, if they intend to have the employee subsequently sign a more fulsome employment agreement (often limiting the employee’s rights or modifying the existing law in Ontario). Generally, the employer will be held to the terms of the initial offer letter, rather than the employment agreement signed afterwards and during employ, unless “fresh consideration” is satisfactorily given to the employee. 

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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HARD LABOUR - NEW WORKPLACE NOISE RULES

HARD LABOUR

[BY WARDS PC LAWYERS]

There will be new noise rules in Ontario workplaces as of July 1, 2016, pursuant to Ontario’s Occupational Health and Safety Act [Regulation (381/15)]. These new rules will apply to many employers in Ontario, including:

  • construction
  • health care
  • schools
  • farming
  • fire services
  • police services

Notable new rules that will be in effect:

  • “all measures reasonably necessary in the circumstances to protect workers from exposure to hazardous sound levels”
  • noise-protection must “include the provision and use of engineering controls, work practices” and, where required (and permitted), hearing protection devices
  • “no worker is exposed to a sound level greater than an equivalent sound exposure level of 85 dBA, Lex,8”, without making workers wear hearing   protection measures
  • hearing protection devices are secondary (not primary) noise-protection measures and will be permitted in only certain circumstances
  • warnings signs are to be posted for areas where the sound level is greater than 85 regularly
  • appropriate hearing protection training must be provided

Here is the new regulation.

____________________________

Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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POSTING ABOUT YOUR JOB ON FACEBOOK/SOCIAL MEDIA - USE CAUTION; BE SMART

Employees can be subject to discipline based on social media posts about an employer.

The law in this area is evolving, but there are more and more cases about this in Ontario.

Many employers are developing and implementing social medial policies, but many still do not have those in place, leaving it uncertain what expectations there are in the workplace about employees referring to their job or workplace on social media.

Employees should use caution if they post anything about their job on social media – it is increasingly widespread and often comes to the attention of the employer.

This is especially important if there is a termination of employment – both employees and employers should be very cautious about posting any comments on social media expressing negative feelings about the termination or each other generally. Often these types of posts can surface as evidence in Court cases and impact the outcome.

Another recent example of an employer trying to discipline an employee for social media posts – Centre de la petite enfance Allo mon ami c. Le Syndicat de la Nouvelle Union (CSQ), 2015 QCTA 749. This is a Quebec arbitration, but the principles are consistent with Ontario’s approach to this area of employment.

In that case, the employer both reprimanded and suspended the employee briefly because the employee had “liked” a comment on the employee’s own Facebook page that arguably was negative towards the employee’s employer.

The Arbitrator in the case (the employee grieved the disciplinary suspension) held the suspension was inappropriate, but agreed that a written reprimand was appropriate by the employer (which forms part of the employee’s employment record).

Think carefully before using social medial to express comments about your employer, particularly if they are negative in nature. Generally, social media is not the best forum to air issues about employment, even if they are passing, innocent comments by an employee, not intended to be negatively perceived. On social media, posts can take on a life of their own, which may not be controllable by the employee and may snowball into disciplinary consequences.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

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DON'T EVEN HOLD YOUR PHONE IN YOUR CAR - THE LAW IS CLEAR (AND STRICT)

Distracted driving in Ontario is now the most common cause of accidents on the road, including fatalities.

Increasingly you notice the vehicle ahead of you does not promptly move forward on the green light (because a mobile device is being used). Alternatively, you  regularly see the driver beside you using a cell phone while stopped at a red light or during very aggravating stop-and-go gridlock on the 401. You likely also see drivers still talking or texting on their phone while actually driving.

Even holding your mobile device while operating a motor vehicle is a criminal office in Ontario. Yes, that includes while stopped in frustrating traffic and while waiting for the traffic light to turn green.

In Ontario, "[n]o person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages."

Of course, there has been litigation about the scope and meaning of this, including what it means to be holding your mobile device in your vehicle.

Effectively, Ontario Courts have strongly affirmed a total prohibition against even holding your device in your vehicle if you are operating your vehicle at the time for any purpose.

Case in Point:

R. v. Kazemi, a 2013 criminal case decided by the Court of Appeal. It was asked to consider what it means to hold or use a handheld device in the context of operating a vehicle.

A police officer noticed a driver with her mobile device in her hand while stopped at a red light. When she was pulled over, the driver told the police officer that her cell phone had been on the seat of her car, but that it had previously dropped to the floor when she braked for the traffic light. 

The driver claimed that when the officer saw her with the cell phone in her hand, she had only been picking it up from the floor while safely stopped at a red light. 

She was charged with distracted driving.

The Court had to decide whether her actions constituted a holding or using of a hand-held wireless communication device. 

Ultimately, after several lower Court’s decisions, the Court of Appeal convicted the driver for distracted driving, holding that the driver's actions did constitute the holding of a cell phone. 

Specifically, the Court of Appeal held: "[r]oad safety is best ensured by a complete prohibition on having a cell phone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving."

Employers – Take Note:

This has implications for employers in Ontario, too. Health and safety legislation in Ontario, such as the Occupational Health and Safety Act, requires employers to protect the health and safety of workers in their workplaces. A 'workplace' includes a vehicle used for work purposes. 

Therefore, employers need to take steps that their employees do not use or hold mobile devices in the course of employment while operating a vehicle.

Employers should have a policy governing the permitted use of hand held devices and give limitations or prohibitions on that use, particularly when driving, along with a statement that disciplinary action will be taken for violations of the policy. Employers should also make sure that employees are properly trained on the policy and reminded of it on a regular basis, like any other workplace policy.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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GOING IT ALONE - REPRESENTING YOURSELF IN YOUR COMPLAINT TO THE ONTARIO HUMAN RIGHTS TRIBUNAL - CAUTION

Any person in Ontario can apply to the Ontario Human Rights Tribunal to allege that an employer, for example, has discriminated against that person based on a protected ground under the Ontario Human Rights Code, such as disability.

Often these applications are made by employees who are terminated, but who allege that the employer discriminated against the employee by terminating him or her while that employee had a disability.

Increasingly, these applications are made and prosecuted by self-represented employees.

In fact, approximately 75% of applications to the Tribunal are made by self-represented parties.

This can create risk to the employee, but also be challenging for the responding employer (and its legal counsel) and the Tribunal itself.

Self-represented parties will be held to the same legal burden as those who are represented by counsel.

In reality, however, self-represented parties are given flexibility in procedural requirements and are regularly accommodated by the Tribunal, much more so than if that person were represented by a lawyer.

However, the recent Tribunal case of Luthra v. CAPREIT Limited Partnership (2015, HRTO 1658) is a good example. The applicant brought an application under the Code alleging the employer violated her rights. She lost, because she did not properly establish her case and meet the legal burden on her to succeed in a discrimination-based complaint.

The Applicant’s case was dismissed for a number of reasons, including because:

  • she alleged discrimination due to her “record of offences”, believing this meant her disciplinary record at work, when it actually means a criminal record under the Code;
  • she did not properly claim discrimination in her initial application and had to request the Tribunal to amend her documentation at the last minute (at the hearing, in fact) to plead that she experienced discrimination based on a disability;
  • she did not call proper evidence linking her alleged harassment and discrimination to her employer’s knowledge of her disability that she in fact suffered;
  • she gave evidence about her discussions with her employer at the hearing regarding her alleged disability, but never mentioned anything about her alleged disability in her initial application to the Tribunal;
  • she did not properly link the employer’s alleged misconduct towards her to an actual disability she suffered prior to being terminated by the employer; and
  • generally, she testified of unfair treatment of her in the workplace at the hands of the employer, but did not properly link that alleged misconduct by the employer to any protected ground under the Code, such as a disability.

Effectively, the applicant tried to use the Code to seek redress, but without any proper grounds for actually doing so or, if she did have grounds, she did not properly set them out and prove them in her case.

While lawyers are expensive and generally there are no costs awarded in Tribunal proceedings, they are time-consuming, lengthy and require significant resources.

Self-represented parties should consider this before bringing a Code application, including ensuring that his or her case is properly and adequately set out with the necessary legal and factual grounds to succeed.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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EMPLOYEE LEAVES, SUES AND WINS - CONSTRUCTIVE DISMISSAL

More employment cases are being decided in the Small Claims Court. It has a limit of claims of $25,000 or less.

Historically, it is challenging for an employee to successfully sue for “constructive dismissal”. This takes place when the employee feels the situation has been made intolerable by the employer, justifying the employee to leave employ and sue for damages as if the employee had been terminated.

To successfully win a case for constructive dismissal, an employee must typically prove:

1.   a fundamental breach of the employment agreement or relationship by the employer;

2.   the employee did not condone that breach; and

3.   the employee did not unreasonably refuse a return to employment or to ‘mitigate damages’.

The case: Janice Wiens v. Davert Tools Inc. (2015, Ontario Small Claims Court)

In this case, the employee succeeded. The Court found the employee had been constructively dismissed and awarded her 8.5 months of salary based on her 8.5 years of employment.

The employer had argued that she quit and that it had complied with its obligations under the Employment Standards Act, 2000 (i.e., it did nothing wrong).

Effectively, the Court found a constructive dismissal based on:

- several layoffs of the employee, even though they technically complied with the Act

- a change in the reporting structure for the employee

- a yelling incident (by the owner/boss)

So, it is possible to succeed in constructive dismissal claims, but due care must be given to the necessary things to prove before leaving your employ and claiming constructive dismissal.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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TERMINATING DUE TO BAD FINANCIAL TIMES - SORRY, EMPLOYEES STILL ENTITLED TO FULL PAYMENT

When assessing pay in lieu of reasonable notice in an employment termination case, Courts generally consider the employee’s position and responsibilities, length of service, age and the availability of other employment generally.

Ontario’s Court of Appeal has recently clarified the law in Ontario – an employer’s financial circumstances are not relevant to determining an employee’s entitlement to reasonable notice on termination – Michela v. St. Thomas of Villanova Catholic School (2015, Ontario Court of Appeal).

While it is often the employer’s poor financial circumstances that have created the need to terminate the employment relationship, it is important for employers to remember that the amount of notice an employee is entitled to is not affected by the amount the employer can afford. Employers should be cautious not to consider their own financial circumstances when estimating the reasonable notice entitlements of their employees. That said, employers are able to avoid significant court-ordered payments if employees accept severance packages that represent a reasonable and mutually beneficial compromise.

The Court clarified that the “character of employment” factor is concerned with the circumstances of the employee who was dismissed, not with the circumstances of the employer. The Court explained:

[…] An employer’s financial circumstances may well be the reason for terminating a contract of employment – the event that gives rise to the employee’s right to reasonable notice. But an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good. […]

It is important to emphasize, then, that an employer’s poor economic circumstances do not justify a reduction of the notice period to which an employee is otherwise entitled having regard to the Bardal factors. […]

While employer’s have argued economic downturns as justification for termination, Courts have historically disregarded this argument and, in fact, in some cases given more reasonable notice when employers have taken this position.

This new case brings more certainty to this area of law. Before this case, there are, that I know of, only two cases in Canada in which the Court has considered this position by an employer and given some credit for it.

They are:

Gristey v. Emke Schaab Climatecare Inc. (Ontario) - The Court discounted the reasonable notice period by one-third to reflect the economic condition at the time and the employer’s precarious financial circumstances at the time; and

Lederhouse v. Vermilion Energy Inc. (Alberta) – The Court gave some credit to the employer when the termination took place before the depression in the oil and gas industry in Alberta (but noted that, if the termination had taken place during the recession, no credit would have been given).

So, while there was some, limited authority in Canada for employers to try to reduce pay in lieu of notice due to economic conditions, the Court of Appeal has now confirmed this is no longer accepted in Ontario.

As usual, the best strategy for employers is to ensure there is a written employment in effect, at the outset of the employment, containing properly-constructed provisions limiting pay in lieu of notice on termination.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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OVERTIME PAY - DO YOU HAVE A CLAIM? THREE MISTAKES COMMONLY MADE BY EMPLOYERS

Overtime pay can be challenging and confusing, especially when an employee is not paid based on an hourly wage.

Ontario’s Employment Standards Act, 2000, Part VIII (the “Act”), sets out when an employee is entitled to overtime pay and the rate that is payable to the employee.

Employers who do not follow the overtime rules can be exposed to significant liability claims by employees, particularly if the problem is wide-spread throughout the employer’s business.

Employers often (unknowingly) do not comply with Ontario’s overtime pay law.

Three of the most common mistakes that employers in Ontario make are:

1.   If the employee is paid a fixed salary amount, this also covers overtime – Incorrect. Generally, salaried employees are not required to punch the clock, but a fixed salary or flexible work arrangement do not eliminate overtime pay. Employers must still calculate and pay overtime for non-managerial employees who work enough hours to qualify for overtime pay under the Act. Employers must have a system to keep track of and monitor overtime hours for all employees eligible for overtime pay, including salaried and flexible arrangement employees;

2.   If a fixed-salary employee chooses or elects to work more than 44 hours weekly, that is the choice of the employee and the employer is not responsible for overtime – Incorrect: Generally, when overtime is reviewed, the employee’s average work week will be considered (over a reasonable period of time). If the employee ultimately works, on average, more than 44 hours weekly, overtime is likely payable at time and a half. If the employee is consistently working more than 44 hours weekly, overtime liability is likely accumulating for the employer in the background (in addition to the base salary that is payable to the employee); and

3.   Very few employees realize this and, as a result, very few raise the issue or make a claim – Incorrect: Employees are more knowledgeable and aware of their rights generally, including under the Act. Employers are required now to post information about rights for overtime in the workplace, pursuant to the Act. If the employee is terminated, qualified employment lawyers now ask more questions about potential overtime that was not paid to the employee prior to termination.  

Recent cases in Ontario clearly indicate that employers run the risk of paying significant damages to employees if overtime is not paid properly to employees.

A good example is Baroch v. Canada Cartage, an Ontario class action that has been certified by the Ontario Court. In this case, 7,800 employees (of this trucking/transportation business) claim that their employer systematically failed to properly pay overtime to employees over several years (when the employees worked more than the threshold set out by the Act.

The Baroch case also makes it very clear, based on the Court’s initial treatment of the case, that employers must:

1.   have a written overtime policy;

2.   give clear directions in the workplace for employees to know how to apply the overtime rules and the thresholds; and

3.   implement a good system internally to track working hours for employees in order to identify and properly calculate overtime pay and entitlement.

The employer in Baroch did not have these in place – this had a significant impact on the Court’s decision to allow the case against it to proceed. Had the employer done these things properly, it likely would not have needed to face what will be a very substantial damages payment to its employees, plus very significant legal expenses.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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BREASTFEEDING AT WORK - SORRY, THAT'S A PERSONAL CHOICE, NOT A LEGAL ONE. THIS WILL CREATE SOME CONTROVERSY.

The New Case: Flatt v. Canada (Attorney General) (Federal Court of Appeal, 2015).

The Issue:

The employee was blessed with a new baby. She requested the employer to allow her to work from home (teleworking) on the basis that she wished to breastfeed her new baby. The employer said ‘no’. The employee then grieved, alleging discrimination against her on the grounds of sex and family status (because the employer refused her request and would not accommodate her).

The Decision:

Not discrimination. The employee’s request to telework to accommodate her plan to breastfeed was not granted. The Court determined that breastfeeding is a personal choice, not a legal one. Ultimately, the mother employee could not satisfy the Court on the points of law necessary to establish discrimination on this basis and, therefore, she did not succeed.

The Implication:

The case does not stand for the proposition that a mother cannot breastfeed a baby at or during work. Rather, it establishes that breastfeeding is a personal choice and, unless an employee can prove the required elements of discrimination based on sex or family status, employers can take this position with respect to breastfeeding.

Effectively, a mother employee will need to establish why her “choice” to breastfeed is truly necessary, not merely a personal choice by her. This may require, for example, medical or other evidence. The case does not close the door on discrimination-based claims based on breastfeeding in the workplace, but does make such future claims more challenging.  Accommodation in the workplace remains an important objective, but in this case not all accommodation is necessary.

While the Court lauded the mother’s choice to breastfeed, it is did not accept that it legally required accommodation by her employer. 

The case, undoubtedly, will create some controversy, beyond legal debate.

Also, this was decided at the federal level, not the Ontario level (such as, pursuant to Ontario’s Human Rights Code). This must be considered in terms of whether the same result would happen in Ontario. Likely that is the case, but possibly not. We’ll have to wait and see.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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WHAT IF I GET FIRED? AM I PROTECTED BY ONTARIO OR FEDERAL LAW? WHAT'S THE DIFFERENCE?

Most employers in Ontario are governed by Ontario employment law, including the Ontario Employment Standards Act, 2000 (the “Act”).

However, some employers are governed by the federal law of Canada for employment, being the Canada Labour Code. Typically banks, transportation and telecommunication companies, for example, are subject to the Canada Labour Code. Sometimes there is debate about whether the Act or the Canada Labour Code applies, but not usually. 

The common law (i.e., judge-made law, from cases) applies generally to both cases.

While there are similarities and overlaps between the two jurisdictions, there are also differences depending whether an employee is protected by the Ontario Act or the Canada Labour Code. The law is not the same, especially when there is a termination of employment.

Many employers and employees do not fully understand or appreciate this distinction.

Below is a basic summary of some of the key elements of the Canada Labour Code in terms of termination of employment – which applies to employees who are terminated from federally-related employers (for employment reasons).

Is Notice of Termination Required?

Yes. The Canada Labour Code requires employers to provide at least two weeks’ notice or pay in lieu of notice to employees with more than three months of employment, unless the employer has just cause. Severance pay is also required for employees with more than one year of service. Severance pay is calculated on the basis of two days’ pay per year of service, with a minimum of five days’ pay.

Common law notice also applies. Employees may be entitled to more reasonable notice or pay in lieu of notice than required by the Canada Labour Code (the statutory minimum amount). Generally, common law reasonable notice is calculated based on years of service, age, character or nature of employment and the availability of alternative employment.

Like in Ontario law, the employer and employee may agree, by written contract, to an express termination provision in advance, so long as it is not less than the statutory minimum requirements.

Layoffs:

Layoffs that are more than temporary may be termination of employment under the Canada Labour Code. Like in Ontario law, a layoff may be considered to be a termination of employment unless the employee’s employment agreement specifically allows for temporary layoffs.

The Canada Labour Code also requires an employer to provide notice to the government and a trade union that represents affected employees and post notices in the workplace if it intends to terminate 50 or more employees in a four-week period or less. Notice must be provided at least 16 weeks before the date on which the first employee’s employment will be terminated.

Employers may also be required to establish a joint planning committee which includes employee representatives. The purpose of the committee is either to eliminate the need for termination or minimize the impact of the termination on employees and assist those employees in obtaining other employment.

Employee Protection on Termination:

Generally, non-union employees are entitled to notice of termination and, in some cases, severance pay.

Non-union employees who are not managers and who have at least one year of employment are protected against unjust dismissal under the Canada Labour Code.

In addition, employees cannot be terminated based on any of the prohibited grounds of discrimination under the federal Human Rights Act.

There are also protected leaves under the Canada Labour Code, including pregnancy and parental leave.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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HIRING EMPLOYEES AND VOLUNTEERING - THE NEW RULES FOR CRIMINAL BACKGROUND AND VULNERABLE SECTOR CHECKS

As of December 1, 2015, the new Police Record Checks Reform Act, 2015, (the “Act”) is passed as law in Ontario.

This will affect how employers, for example, conduct criminal background checks for new and existing employees and the information that will be available for these checks.

The Act brings into law fairly sweeping and comprehensive standards across Ontario dictating the type of information that can be disclosed by police in response to record check requests.

The goal of the Act is to remove barriers to employment, suitability to hold a license or office, application to an educational program and participation in volunteer activities.

The underlying policy motive of the Act is to prevent inappropriate disclosure of: (a) non-conviction and non-criminal records, such as information obtained from street checks or “carding”; and (b) mental health information.

The Act imposes three new categories of record checks:

  • Criminal record checks;
  • Criminal record and judicial matters checks; and
  • Vulnerable sector checks.

For each of these, the Act both limits and standardizes the information that may be released by police agencies.

Generally, employers historically rely on criminal record checks in their screening of new, potential employees. Under the Act (section 9), the disclosure of “non-conviction information” is effectively prohibited (subject to a few exceptions) for criminal record checks, while “non-conviction information” is defined as including criminal offences for which an absolute or conditional discharge has been granted, criminal offences for which there are outstanding charges or warrants (such as, for example, outstanding charges for which no conviction has been entered), court orders made against individuals, and criminal offences that result in a finding of “not criminally responsible” due to mental disorder, for example.

Since vulnerable sector checks are historically done where the individual will be in a position of trust or authority over vulnerable persons, including children, the Act permits more extensive disclosure in response to this category of records checks. For example,  each of the kinds of “non-conviction information” identified above could be disclosed by a vulnerable sector check, subject to certain limitations (time period, etc.).

The Act also permits the “exceptional disclosure” of non-conviction information with respect to a vulnerable sector check if certain conditions are satisfied.

For all of these categories, convictions for which a pardon has been granted will generally not be disclosed, although there is an exception where disclosure is authorized under the Criminal Records Act (Canada).

Arguably the most important change brought about by the Act is, pursuant to section 12, that it requires that the individual at issue is entitled to initially receive and have an opportunity to review the information and, after doing so, consent to the disclosure. If there is potentially inappropriate non-conviction information included in a record, sub-section 10(4) of the Act allows the individual to request a reconsideration of the disclosure. Therefore, employers will only likely be provided the results of the checks they request disclosed to them by authorities, if the employee at issue has consented to the disclosure.

Accordingly, employers should know and understand the Act, because it will impact what back ground (criminal) information can be obtained about existing or potential employees in the hiring and screening process.

The Act is not yet formally in force in Ontario, but will soon be.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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EMPLOYERS - OFFERS TO NEW HIRES - MAKE SURE YOU GET IT RIGHT - THE COURT WILL NOT HELP YOU AFTERWARDS

The employer negotiated with the employee for a new job. Key terms of the position were discussed in the interview, such as position, start date, salary amount, vacation time and pay, probationary period and benefits, for example.

The employee was leaving an existing job to take this new position.

The employer presented a letter of employment to the employee after the interview. The same key terms were identified in the offer letter, but the employer made no mention of the employee having to sign a full employment agreement for the new position. There was brief mention of this in the e-mail by the employer to the employee delivering the initial offer letter.

The employee resigned from his existing job after receiving the offer letter by the employer.

Subsequently, the employer presented a fulsome employment agreement to the employee, which contained a clause limiting the notice of termination to the employee to only the minimum, statutory notice required by the Employment Standard Act, 2000 (i.e., contracting out of the common law reasonable notice obligation).

The employee signed the fulsome agreement, feeling he had no choice but to do so.

The employer terminated the employee within the year, relying on the fulsome employment agreement. The employee brought an action for wrongful dismissal, seeking damages based on common law reasonable notice, rather than the minimum amount set out by the employment agreement.

The Court decided that an employment contract was formed when the employer received the letter setting out the key terms of employment. The Court did not accept the employer’s argument that reference to "the contracts" in the email attaching the offer letter was a clear indication that the employment relationship would be governed by a comprehensive agreement. Therefore, it was not made clear that the employee’s employment was conditional on him signing the employer’s employment agreement and, because no new or additional consideration was given by the employer when the employee subsequently signed the employment agreement, the Court held that the agreement was unenforceable and did not limit the employee’s termination entitlements.

So, the common law governed the notice period and the Court awarded damages to the employee based on four months of compensation in addition to payment of his legal fees.

WHAT DOES THIS MEAN?

Employers are, of course, entitled to discuss key terms of employment with potential new employees, but care should be taken to ensure that an offer is not made to the employee that is sufficiently detailed to allow a Court to find that an enforceable contract was formed.

Offer and acceptance is the key – if an offer is made, and is accepted by the employee, it may form the contract, even if all of the terms requested by the employer are not identified.

Employers should ensure that any prospective hire is informed clearly that the offer of employment is conditional upon the hire signing a comprehensive employment agreement setting out the terms and conditions that will govern the employment relationship. This condition should be consistently confirmed in any subsequent communications with the hire and the only written offer that should be provided is the fulsome offer that the employer wants the employee to sign.

The case: Buaron v. AcuityAds Inc., 2015 ONSC 5774

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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USING YOUR WORK COMPUTER/DEVICE FOR PERSONAL EMAILS AND TEXTS - ARE THEY PRIVATE FROM MY BOSS?

You use a mobile device paid for your employer. You use your employer’s desk top computer all day long. You may even use a lap top supplied by your employer.

You likely send and receive personal emails on all of these – most of us commonly do. You might also even save personal documents or data on any of these, such as your personal financial information or family-related information.

In addition, many employers now have strongly-worded workplace policies prohibiting personal use of their hardware, technology, systems and domain name.

The question: Are your personal emails on your work computer/device actually private?

Historically the law in Ontario has been that if you use your work technology for personal matters, it is not private – your employer has the right to access and review it if it is saved on or forms part of the technology, such as your personal emails on the employer’s exchange server or outlook program.

The law has evolved. For example, with respect to your personal emails, an individual’s workplace computer is protected against unreasonable search and seizure by police – R. Cole, 2012 SCC 53. But that important case did not address what happens between employees and employers, for example, but rather only to police investigations of employees.

A new Saskatchewan arbitration case now suggests that even your employer cannot access and rely on your personal emails without having reasonable grounds to search your personal data.

Often this arises in the context of a termination. For example, you have sent or received a personal email or text that your employer determines violates its workplace policies, or is otherwise objectionable. You are terminated, without cause. In support of its position, when you allege wrongful termination, the employer produces and relies on your personal emails, texts or data accessible from the employer’s own system(s) or hardware.

In this Saskatchewan case, SGEU v. Unifor, Local 481, 2015, 255 LAC (4th) 353, the employer terminated the employee for allegedly being a member of a notorious motorcycle gang, based on emails the employer searched for and obtained through its own domain name. The employee grieved the termination and alleged it was wrongful and there was no cause for it. The employer, to support its position for cause, sought to admit the emails as evidence supporting its decision to terminate the employee at the arbitration of the grievance.  The employee objected on the basis that the employee had a reasonable expectation of privacy in the emails, relying heavily on the Cole decision. 

The employer claimed the employee had no expectation of privacy in the emails because the employer’s workplace IT policy made it clear that all messages sent using the employer’s system were property of the employer and that employees should expect that no communications were confidential or private.  Furthermore, the employer’s IT policy indicated that all IT resources were for work purposes only. Incidental use was neither expressly permitted nor expressly prohibited

The Arbitrator disagreed with the employer. The emails were not admitted into evidence. He agreed with the employer that its workplace policy clearly indicated that employees should not expect that anything on the system would be confidential or private. He also found that the IT policy went a long way towards reducing any expectation of privacy employees may have. 

However, the Arbitrator ultimately found that, because of the pervasiveness and ubiquitousness of email in society, it is impossible for some incidental, personal use of work email not to occur.  When finding that employees maintain a reasonable expectation of privacy in those personal emails on their employers system, the Arbitrator cited with approval comments in Cole that neither workplace policies nor ownership of the system are determinative of an employee’s expectation of privacy.

Because employees have a reasonable expectation of privacy in emails on an employer’s system, employers may only search those emails if it is reasonable.  In order for the search to be reasonable, it must be reasonable in the circumstances to request a search, the search must be conducted in a reasonable manner, and there must not have been reasonable alternatives available to the employer.

In this case, the Arbitrator found that the employer had cause to conduct an investigation.  However, the search was unreasonable because the employer did not consider less intrusive alternatives first, such as requesting additional information from third parties (like the police and investigating authorities, for example) or contacting other employees who may have relevant information.  If these less intrusive alternatives proved unsatisfactory, the Arbitrator acknowledged that the employer may have had grounds for searching the employee’s emails.

What Does This Mean?

Despite this is an arbitral, out-of-province decision, it is likely good law and will likely be followed or adopted in Ontario. Ontario Courts often apply arbitral decisions when considering whether an employer had cause to terminate an employee, even if it is a union-based matter.

Any employer who wants to rely on personal emails found on the employer’s system to justify its decision to terminate an employee for cause may have to first establish that its search of the employee’s personal emails was reasonable. 

While a strongly-worded IT policy may reduce an employee’s expectation of privacy in emails sent using the employer’s email system, such a policy is unlikely to eliminate the expectation of privacy entirely.

In the end? Employees have a reasonable expectation of privacy for their personal emails sent and received using their employer’s hardware and systems, but that privacy is not absolute and by no means should that expectation be relied on to insulate any employee from being terminated for cause in appropriate circumstances.  

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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I'VE BEEN TERMINATED - I STILL GET MY BONUS THIS YEAR, RIGHT? CAN THEY DO THIS TO ME?

In Ontario, 2015 has introduced new law about bonuses when an employee is terminated, specifically:

a)   if the employee is entitled to be paid bonus or incentive payments accrued as of the date of termination; and

b)   if the employee is entitled to loss of bonus during the reasonable notice period.

Typically, employers insert language into employment agreements to try to avoid paying bonuses (accrued and future) to employees that are terminated. Generally this language requires ‘active employment’ when the bonus decision is made in order to be eligible. Employers have in the past successfully avoided paying bonus compensation to terminated employees on this basis.

2015 ushered in change to this area.

Now, as a result of the cases this year, language contained in an employment agreement requiring the employee to be actively employed at the time a bonus payment is paid in order to be eligible for that payment can still be enforceable, if drafted properly, but the new (since 2014) general duty of good faith contractual performance can override that and help an employee defeat an otherwise enforceable clause in an employment agreement for no bonus entitlement on termination.

The important cases this year about bonus treatment on a termination of employment:

Lin v. OTPPB (2015 Ontario Superior Court No. 3494)

Paquette v. TerraGo Networks Inc. (2015 Ontario Superior Court No. 4189)

Kielb v. National Money Mart Company (2015 Ontario Superior Court No. 3790)

Styles v. Alberta Investment Management Corporation (2015 Alberta Queen’s Bench No. 621)

Another important case that is now being incorporated into the bonus issue is Bhasin v. Hrynew (2014 Supreme Court of Canada No. 71). In this case, the highest Court determined that parties to a contract must perform their contractual duties honestly, reasonably, in good faith and not capriciously or arbitrarily. This has now been incorporated into employment law, including in the context of whether a terminated employee is to receive compensation for loss of bonus, either as of the date of termination (accrued bonus) or for the reasonable notice period.

For example, in the Styles case, the employee was terminated without cause and with no explanation before he received payments he had accrued under a long-term incentive plan.

The Alberta Court held the exclusion clause in the employment agreement to be ambiguous – it was not enforced against the employee. The Court also held that although the employer did have the contractual right to terminate at any time without cause, the employer’s decision to exercise that right and its contemporaneous refusal to pay any of the long-term incentive grants constituted an unfair and unreasonable exercise of its discretionary powers.

The Court said:

“When an employment contract includes a condition for the receipt by an employee of a benefit under the contract and the employer has the discretion, pursuant to the terms of the contract, to frustrate the satisfaction of that condition, it becomes even more important for that discretion to be exercised fairly, reasonably and not arbitrarily.”

Where does that leave us?

Employers need to be very careful in drafting their employment agreements, if they wish to limit entitlement to bonus compensation on termination. If they do, and those clauses are successfully drafted and survive judicial scrutiny, they must be still be exercised in good faith, or they will be of no effect and the bonus will be payable (plus costs, presumably).

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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MAKING COMPLAINTS ABOUT SAFETY AND YOUR BASIC RIGHTS IN THE WORKPLACE - THE LAW DOES HELP YOU

In Ontario, employees are given protection for making a complaint about safety issues and conditions in the workplace. For example, the Occupational Health and Safety Act of Ontario contains a ‘reprisal’ section, effectively meaning that an employee cannot be terminated for making a complaint about a safety issue in the workplace. Similarly, for example, the Employment Standards Act, 2000 of Ontario has a ‘reprisal’ provision protecting employees from termination if they complain that their rights under that employment statute are not being followed by the employer.

A recent case in point: Leverton v. Roberts Onsite Inc. (2015 CanLII 80170 – Ont. Small Claims)

An employee, who worked for an electrical contractor that did work in schools, complained to the MOL that electrical panels in certain schools had been “wired incorrectly”.  He saw it as a safety concern.  An MOL inspector investigated and found no safety concerns.

The employee was eventually fired, and he sued in the Small Claims Court for wrongful dismissal.  The employer counterclaimed against him for allegedly filing a “false” safety complaint with the Ministry of Labour, costing the employer money to deal with the fallout from the MOL investigation.

In dismissing the employer’s counterclaim, the deputy judge stated:

“Moreover, I take judicial notice of the fact that the Ministry of Labour Health and Safety Contact Centre is set up by the province to permit reporting of, among other things, unsafe working conditions. It would be the worst kind of public policy to encourage people to report unsafe working conditions and then hold them liable in tort if it is determined that the conditions do not fall below the safety standards applied by the Ministry. Reporting to a government safety authority what is honestly believed by the reporter to be unsafe working conditions should enjoy a qualified immunity from tort liability except in cases of total fabrication or perhaps completely unreasonable opinions about safety. No such immunity is required in this case to defend against the Defendant’s Claim however, because all the grounds of liability pleaded by the Defendant require that the report be false.”

“Further, the employer had not proven any damages.  The employer’s claim for damages for hours spent by its employees dealing with the MOL after the complaint was rejected, with the deputy judge calling one piece of the employer’s evidence regarding its damages, “exaggerated, fanciful, if not downright false”.

In this case, the employer tactically made the error of counter suing the employee for making a complaint, even though the MOL determined there was no safety issue.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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TACKLING WORKPLACE HARASSMENT - THE NEW RULES ARE COMING - EMPLOYERS TAKE NOTE

The rules are changing for workplace violence and harassment. The Ontario government is re-prioritizing these issues, including imposing new duties and obligations on employers in Ontario if a workplace complaint is made concerning harassment or violence. These new changes will augment Bill 168 of the Occupational Health and Safety Act, the existing law in Ontario, which has been questioned and, often, criticized, for not requiring enough to address these issues in the workplace.

Carol S. VandenHoek and Evan Campbell of Miller Thomson LLP recently and helpfully summarized these pending changes (below), reproduced from Lexology.com:

“Employers in Ontario need to be aware of the continued evolution and expansion of their obligations relating to harassment in the workplace. The issues of sexual harassment and violence are high on the Ontario Government’s agenda. In March 2015, the Ontario Government released its report entitled, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.  In October 2015, the Government introduced Bill 132 as a legislative response to its report.

Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, proposes to expand employer obligations regarding workplace sexual harassment. Bill 132 expands on the changes implemented in Bill 168 to the Occupational Health and Safety Act (“OHSA”). As readers will recall, Bill 168 came into force five years ago and required employers to draft workplace violence and harassment policies/procedures, provide training to employees about the harassment policies and investigate complaints, among other things. 

Bill 132 proposes further changes to OHSA which expand an employer’s obligation regarding sexual harassment in the workplace. These changes include:

1) Definition of Workplace Sexual Harassment

The definition of “workplace harassment” in OHSA would be revised to include a definition of “workplace sexual harassment”, which would be defined as:

  • engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the person knows or ought reasonably know that the comment or conduct is unwelcome; or,
  • making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably know that the solicitation or advance is unwelcome.

2) Expansion of Workplace Harassment Policies/Programs

Bill 132 expands the obligations outlined in Bill 168 to require a workplace harassment program that specifies:

  • procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • how complaints will be investigated and dealt with;
  • that information obtained about an incident or complaint of workplace harassment will not be disclosed unless the disclosure is necessary for the investigation or corrective action; and,
  • how a victim and alleged harasser will be informed of the results of the investigation.

3) New Duties Added to OHSA

Bill 132 imposes statutory duties on employers which differentiates the proposed legislation from Bill 168. These duties under OHSA would require that: an investigation is conducted into complaints of sexual harassment; the victim and alleged harasser be informed in writing of the results of the investigation; and, that the workplace harassment program be revised annually.

Also of note, Bill 132 would provide additional powers to the Ministry of Labour (“MOL”). Specifically, MOL inspectors would be able to order an employer to investigate a workplace harassment incident and to hire an impartial party to investigate the incident at the employer’s sole expense. This authority provides significant discretion to an MOL inspector and would result in the employer losing control over the investigation process.

Bill 132 has only passed first reading and as such, is in the early stages of the legislative process. The current proposed date for the changes coming into force is July 1, 2016. We will continue to update you on the progress of this legislation in the coming months.”

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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FAILING TO CONDUCT A GOOD WORKPLACE INVESTIGATION BEFORE TERMINATING - JUST CAUSE NO MORE

The case: Fredricks v. The BTS Network Inc. (HRTO 2015, No. 1597).

Basic Facts:

The employee was a bus driver, who made a complaint alleging discrimination in the workplace related to harassment by another employee (involving racism). He was terminated no long after. The employee made a complaint to the Human Rights Tribunal, alleging reprisal for his complaint. The employer defended, alleging the employee was terminated because he continued to work part-time for another employer after he was allegedly told not to – the employee disputed this. An important issue in the case was the manner in which the employer handled the workplace investigation of the employee initially, before terminating the employee.

Outcome:

The employee was successful. The HRTO determined that the employer did not conduct a proper workplace investigation. At the hearing, the employer testified that it took the employee’s complaint letter very seriously.  The Adjudicator disagreed.  She noted that the employer’s “investigation” (the Adjudicator’s quotation marks) consisted only of obtaining a written response from the co-worker identified by the employee as the source of the racist behaviour. It did not speak to the employee about his concerns to understand them better, nor did it speak to the co-worker. Rather the employer simply sent a letter to the employee which contained the co-worker’s responses, augmented by the employer’s own responses. The employer’s letter to the employee was criticized by the Adjudicator.

The Adjudicator also noted that the employer’s attitude to the fact that the employee had made an allegation of discrimination was “made manifest by the way they reacted to his complaint”.  She added that “having asked him to put his concerns in writing, they appeared to be deeply offended by what they read”. She found the employer’s outrage was misplaced given the “short shrift” that the employer gave to the employee’s complaint.

Tips About Workplace Investigations:

  1. An important message of this case is that workplace investigations should not be done in a perfunctory fashion.  The investigator (whether internal or not) should not only review the written complaint, but meet with the parties, and any necessary witnesses, in an effort to obtain additional information. This information then needs to be considered in a meaningful way before the investigator makes his or her decision.
  2. Beware of the presence of bias, particularly when it is an internal investigator who conducts the investigation.  Here, the facts highlighted in the decision suggest that the employer had made up its mind vis-à-vis the allegations at the outset, and it went through the exercise of obtaining a response only in a pro forma fashion.
  3. Finally, as this case illustrates, an inadequate investigation can be successfully used by parties who wish to argue other aspects of a human rights case, in this instance, where the employee maintained that he was fired as a reprisal.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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BY JAN 1 - COMPLY WITH YOUR OBLIGATIONS UNDER THE NEW AODA RULES - THEY WILL BE ENFORCED

Employers - Remember there are upcoming deadlines for the new requirements imposed on your business and workplace under the Ontarians with Disabilities Act ("AODA"). These will apply to you as of Jan. 1, 2016. Your obligations depends on the size of your business (i.e., if you fewer than 50 employees, typically). The AODA and Human Rights Code training can be obtained from the Human Rights Tribunal by online module or by DVD. It is approximately 20 minutes to complete. The Ministry is posed to spot audit for compliance as of when the deadline arrives, so plan ahead. We have blogged about these new obligations (wardlegal.ca).

Here is an excellent summary of the incoming changes by Stephanie Young of Borden Ladner Gervais LLP on these looming obligations, reproduced from Lexology.com on Nov. 30, 2016. It is a helpful summary of the obligations you may have as of Jan. 1:

"The next phase of Accessibility for Ontarians with Disabilities Act (the “AODA”) compliance comes into effect on January 1, 2016. Private and not-for-profit organizations, and small and large public organizations will have to comply requirements under the Integrated Accessibility Standards Regulation (the “Regulation”) beginning in the New Year as follows:

  1. Small organizations (with fewer than 50 employees in Ontario) must ensure training is provided on the requirements of the standards set out in the Regulation and the Human Rights Code as it pertains to persons with disabilities. Training must be provided to all employees, volunteers, all persons who participate in developing the organization's policies, and all other persons who provide goods and services on behalf of the organization. Training must be appropriate to each individual's duties, and it must be provided as soon as practicable, and on an ongoing basis as changes are made to the organization' s accessibility policies.
  2. Small organizations must ensure processes for receiving and responding to feedback are accessible to persons with disabilities by providing or arranging for the provision of accessible formats and communication supports, upon request. Notice must be given to the public about the availability of accessible formats and communication supports.
  3. Small designated public sector organizations and large organizations (with 50 or more employees in Ontario) must provide or arrange for the provision of accessible formats and communication supports for persons with disabilities, upon request, in a timely manner that takes into account the person's needs, and at a cost that is no more than the regular cost to other persons. Organizations must consult with the person making the request in determining the suitability of an accessible format or communication support. Notice must be given to the public about the availability of accessible formats and communication supports.
  4. Large organizations must comply with various Employment Standards set out in the Regulation. There are a number of detailed requirements in this section of the Regulation, including with respect to recruitment; providing information to employees about accommodation; providing accessible formats and communication supports in relation to information needed for an employee's job, or information generally available in the workplace; documenting individual accommodation plans; developing return to work processes; and considering accessibility needs in performance management, career development and advancement, and redeployment processes/practices.
  5. Large designated public organizations must comply with requirements related to the design of public spaces that are newly constructed or redeveloped.

The Ministry of Economic Development, Employment and Infrastructure has been very active in monitoring compliance with the AODA over the last few months. We are seeing more enforcement efforts in respect of organizations that are not compliant to date, particularly in the form of spot audits, including a “retail blitz”, targeting large retailers over the last month.

In order to get ahead of any enforcement efforts and to ensure timely compliance, Ontario employers should already be thinking about these requirements and they should be taking steps to meet their obligations before the deadline rolls around."

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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MORE TIPS FOR YOUR OFFICE HOLIDAY PARTY THIS YEAR

Here are some additional tips for your workplace holiday party or event this year:

Location and Driving:

●    consider holding the event off-site at a licensed event venue

●    pre-arrange designated drivers;

●    provide taxi chits or a credit system with a local taxi service

●    hire a local transportation service, if not a taxi service

●    inform all employees not to personally drive to and from the event, unless that employee will consume no festive cheer at the event

●    arrange for a door supervisor to monitor if anyone leaves the event, after consuming any alcohol, and intends to operate a vehicle and, if there is a concern, for that supervisor to speak to a designated manager on site to intervene

Alcohol:

●    set a fixed time period when alcohol will be available or served

●    provide a set/controlled number of drink chits or tickets per guest

●    hire or use experienced, independent bartender(s) or server(s), with appropriate SMARTserve and training to identify, prevent and help manage over consumption

●    designate non-drinking employees or managers to monitor consumption at the event and identify any potential issues or concerns

●    offer and serve food and non-alcoholic options

Prevention – Discrimination and Harassment:

●    make sure the event is non-denominational

●    offer non-alcoholic alternatives and options to avoid any perception that the event is exclusionary or intended to apply only to certain staff/employees

●    consider setting a dress code for the event and communicating that to all employees/staff in advance

●    circulate your expectations about conduct in advance, in an effective way (mutual respect, professional workplace conduct, treatment of others)

●    ensure your discrimination and harassment policies are posted in the workplace in a common area and at the event

●    consider circulating your workplace discrimination and harassment policies in advance to all invited guests (employees/staff)

●    arrange for designated employee(s) to monitor the event and bring to your attention any concerns, so they can be addressed promptly, discretely and properly before any harm or embarrassment is caused

Happy holidays!

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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MAJOR CHANGES COMING FOR WORKPLACE VIOLENCE AND (SEXUAL) HARASSMENT - YOU NEED TO BE READY

New changes will be coming online in Ontario about sexual harassment and violence in workplaces. They are not yet in effect, but are expected to be the law in mid-2016.

Bill 132 -  the Sexual Violence and Harassment Action Plan (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015.

This new law is based on the recent Ontario government report early this year: “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.

Bill 132 will bring changes to Ontario’s Occupational Health and Safety Act (OHSA). They will impact every employer in Ontario, which will need to audit and review their existing policies for harassment and violence in the workplace.

The Current Law

Bill 168 is now in effect in Ontario. It means that employers, under the OHSA, must create and implement workplace violence and harassment policies and procedures, train employees on those, institute an employee complaint process, investigate complaints, conduct workplace violence risk assessments, warn employees of certain individuals if violence is an issue and undertake reasonable steps to protect employees from workplace (including domestic) violence.

Bill 132 is taking workplace violence and harassment another step.

What Will Change?

1.         The Definition of “Workplace Harassment”:

Bill 132 will change definition of “workplace harassment” to include “workplace sexual harassment”:  

  • engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or 
  • making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Bill 132 suggests that “reasonable” performance management and direction to workers will not be considered “workplace harassment”. This is the law in Ontario currently, but affirms that employers can take reasonable steps when facing frivolous harassment complaints from employees who claim a poor performance appraisal constitutes harassment.

2.         More Obligations for Workplace Programs and Policies:

Now, the OHSA requires that employers create a workplace harassment program that includes measures and procedures on reporting incidents and investigating and dealing with incidents. Bill 132 would require that the workplace harassment program be expanded to: 

  • include measures and procedures for workers to report incidents to a person other than his/ her employer/supervisor if that person is the alleged harasser;
  • set out how information obtained about an incident or complaint (including any identifying information) will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action or if required by law; and
  • set out how the alleged victim and perpetrator (if a worker) will be informed of the results of the investigation and of any corrective action that has been taken as a result of the investigation.

3.         New Specific Duties on Employers:

The OHSA does not currently impose specific duties on employers related to workplace harassment, other than creating a policy/procedure and training staff. This is different from the more detailed, specific duties related to “workplace violence” in the OHSA. This is considered to be a loophole in the law in Ontario.

Bill 132 is aimed at closing this loophold by specifying that in order to protect a worker from workplace harassment, an employer must ensure that: 

  • an investigation is conducted into incidents and complaints;
  • the alleged victim and harasser (if a worker) must be informed in writing of the results of the investigation and any corrective action taken as a result of the investigation; and
  • the workplace harassment program is reviewed at least annually to ensure that it adequately implements the employer’s workplace harassment policy.

4.         More Power to the Ministry of Labour (Ontario):

The Ministry of Labour (“MOL”) will be given more powers, including permitting inspectors to order an employer to investigate a workplace harassment incident and to engage an “impartial person” (who the inspector believes is qualified) to conduct the investigation and to issue a written report.

The inspector can order that the employer pay the costs involved of engaging the “impartial person”. This may mean inspector could effectively outsource an investigation to a third party and possibly make the employer pay for the expense to do so. There are no guidelines addressing this in the current version of Bill 132 – effectively it is up to the inspector. This is a very important change if Bill 132 is enacted.

What Does this Mean for Employers?

These changes, if passed, will be important.  

The definition of “workplace harassment” will be expanded - employers will need to amend their policies and procedures to specifically include “workplace sexual harassment”.

Existing workplace harassment policies, procedures and training will need to be audited and improved. Specific duties will need to be considered and, with the new MOL power to order an external party to investigate, this is a clear signal that harassment issues in the workplace must be taken seriously and be fully and properly investigated.

This also means sexual harassment is not only a human rights issue covered by the Human Rights Code, but also a workplace safety issue covered by the OHSA. Therefore, in addition to human rights liability, employers can be exposed to orders, fines and even prosecution. Employers can be charged for their pending and expanded obligations for workplace harassment.

If Bill 132 comes into force (which is expected to be in mid-2016), employers should be prepared by reviewing existing policies and upgrading and revising them to be compliant. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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HOLIDAY PARTY TIME! SOME TIPS TO EMPLOYERS THIS YEAR

It's that time again - holiday party!!!!!!!

With the fun comes the responsibility (and potential liability to employers).

Benjamin T. Aberant and Shana Wolch, lawyers at McCarthy Tetrault LLP offer this very helpful blog about tips for office holiday parties (Lexology, Nov. 6, 2015):

"The holiday season is a jolly-busy time to be an employment lawyer. Not only do we get to spend time with our friends and families, but we are also often asked to help our clients deal with the fallout of the infamous alcohol induced holiday party incident.  Of course, an ounce of prevention is worth a pound of cure and here are some tips to planning and hosting a successful and (hopefully) incident free holiday party.

  1. Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes. Consider limiting the in-take of alcohol by guests by: setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); providing a controlled number of drink tickets per guest; hiring an independent bartender; and, serving lots of delicious food so guests don’t only drink.

  1. Location & Transportation

Consider holding the party offsite. Consider safe transportation options that are available for employees when leaving the party. Pre-arrange designated drivers or transportation with a local company; ensure that there are taxis on standby and/or provide taxi chits to employees; or use a licensed operator to drive the individual and his/her vehicle home.

  1. Discrimination

Given the abundance of faiths, religious denominations and practices with which employees may affiliate themselves, ensure that holiday parties remain non-denominational in nature. Consider the possibility that alcoholics or those recovering might be attending and ensure that there are tasty non-alcoholic alternatives.  Ensure that employees don’t feel excluded and eliminate the likelihood of a human rights violation.

  1. Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party.  Ensure that employees are mindful of their actions toward others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged.  Consider inviting spouses/partners – it might help keep behaviour in line.

  1. Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities. Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback.

Assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities."

So, enjoy the blow out, but practice good pre-planning and management of your holiday party.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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WORKPLACE DRESS CODES - DO I REALLY HAVE TO WEAR THAT? WHAT AM I ALLOWED TO WEAR?

Effectively, there needs to be a reasonable and proved link between the dress code and the workplace.

For example, a bar/restaurant may find it difficult to justify requiring female servers to wear short, sleeveless dresses and boots or heels, especially if their counterpart male servers wear something more conservative. Certainly the Bier Markt in Toronto may be experiencing this now, while it responds to a complaint under the Human Rights Code for discrimination on the basis of sex related to its female server dress code.

There are not many cases in Ontario about this, but there are some.

Some examples:

a) a Hospital was not permitted to require employees to avoid wearing piercings and to cover tattoos in the workplace – this policy was found not to address reasonable workplace concerns and was based on unsubstantiated assumptions and stereotypes; and

b) a policy prohibiting jeans and shorts in the workplace was held to be invalid – it was not proved to negatively impact the employer’s reputation or image and, therefore, unjustifiably infringed the employees’ own choice of apparel in the workplace.

If a dress code can be demonstrated to relate to an employer’s health or safety policies in the workplace, it can be successfully imposed. If, for example, a piece of safety equipment is a legitimate and bona fide health and safety requirement, it can be reasonable for the employer to impose it – example: a hard hat that had to be worn by a Sikh employee was held to be reasonable by the Supreme Court of Canada.

Generally, if a dress code or specific item is to be imposed, employers should give proper consideration to these questions and potential risk factors:

  • Is the dress code reasonable and relates in a verifiable way to the nature of the work?
  • Will the dress code adversely affect one type or group of employees, but not others?
  • Will the imposition of a dress code result in a significant change to the employee’s workplace and the nature and circumstances of that employment? [If so, consider if the employee refuses to comply and claims a constructive dismissal, in which case the employee may be entitled to damages for reasonable notice and other damages)?  
  • Does the dress code potentially offend the Ontario or Canada Human Rights Code, keeping in mind the different types of discriminatory grounds such on the basis of sex, gender, sexual orientation, creed (religion)?
  • Does the dress code potentially run afoul of health and safety requirements in the Occupational Health and Safety Act of Ontario and other applicable occupational health and safety regulations?
  • If there is unionization, is the dress code consistent with the collective agreement?
  • Is the dress code clearly defined and will it be consistently applied?
  • Who will be responsible for the cost of the required dress – it should likely be the employer?
  • Should reasonable, advance notice of the dress code to employees be provided, both at the commencement of the employment relationship and/or when a dress code is being imposed during employment?
  • Should the consequences of failing to adhere to the dress code be communicated to employees and, if so, when and how should that be done?

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

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EMPLOYERS - KNOW YOUR NEW ACCOMMODATION RULES FOR EMPLOYEES - EFFECTIVE JAN. 1, 2016 - THE AODA, 2005

More important changes will affect employers and employees in Ontario as of Jan. 1, 2016 as part of the AODA phase-in.

Requirement: Accessibility for Ontarians with Disabilities Act, 2005

Date of Requirement Below: Jan. 1, 2016

The AODA contains an Employment Standards section. Employers must establish new internal practices regarding the recruitment, accommodation and advancement of employees.

Among other things, employers with 50 or more employees must now, in writing:

A.       

Implement Individual Accommodation Plans – a written process that must include:

  1. the manner in which the employee requesting accommodation can participate in the development of the individual accommodation plan;
  2. the means by which the employee is assessed on an individual basis;
  3. the manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to determine how accommodation can be achieved;
  4. the manner in which the employee can request the participation of their bargaining agent, or other representative (if not unionized), in the development of the accommodation plan;
  5. the steps that will be taken to protect the privacy of the employee’s personal information;
  6. the frequency and manner in which the individual accommodation plan will be reviewed and updated;
  7. if an accommodation plan is denied, the manner in which the reasons for denial will be proved to the employee; and
  8. the means of providing the individual accommodation plan in an accessible format; and
  9. if requested or required, include information regarding the employees accessible formats and communication supports provided, individualized workplace emergency response information and any other accommodation measures provided.

B.       

Implement a Return to Work Process for employees who have been absent from work due to a disability and require disability-related accommodation in order to return to work, which must, in writing:

  1. outline the steps that the employer will take to facilitate the return to work of employees who were absent because their disability required them to be away from work; and
  2. use individual accommodation plans (as discussed above) as part of the process.

WSIB?

If an employee’s illness or injury is covered by the return to work provisions of the Workplace Safety and Insurance Act, this process is not required for that employee and the WSIB’s process will apply.

Overlap with Ontario Human Rights Code:

These new processes, in writing, should also be incorporated and aligned with the accommodation requirements of the Ontario Human Rights Code, too and the steps taken by employers to accommodate an employee for the Code.  

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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EMPLOYEE PROTECTION FOR MAKING LEGITIMATE COMPLAINTS ABOUT WORKPLACE SAFETY

The Case: Le Safecross First Aid Limited, a recent decision of the Ontario Labour Relations Board

The Issue:

The employee made a complaint to his company about safety conditions in the workplace. He complained the conditions caused him to suffer ongoing knee pain and discomfort. 

Shortly after, he was terminated by the company.

The company argued there were other reasons for his termination, but ultimately the Board concluded that those reasons were unjustified and, therefore, the true reason must have been that the employee made a complaint about the safety conditions in the workplace.

The company alleged that it has made a final, written warning to the employee about his poor performance before he made the complaint. However, the employee disputed this and, because the company did not call sufficient evidence about this, the Board concluded that the final warning actually meant that the company, shortly before the termination, must have believed that a further warning, rather than termination, was justified. Therefore, the company, in trying to establish other reason(s) for termination other than the complaint, actually prejudiced its own case. An interesting feature about the case. 

Pursuant to the reprisal provisions of the Ontario Occupational Health and Safety Act, the Board ordered the reinstatement of the employee and that the company had to pay him his lost wages for the period between his termination and the reinstatement date.

The Lesson:

Employers should be careful when terminating an employee and consider all of the information on hand. If termination for cause is alleged, particularly, due consideration must be given to the justification for doing so. In this case, the employer's own strategy backfired. Employees are protected to make legitimate safety-related related complaints about the workplace.

 

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SURE, YOU'VE LET ME GO FROM MY JOB, BUT YOU'D BETTER PAY ME MY BONUS THIS YEAR - RIGHT?

An employment bonus, or sometimes referred to as incentive payment, are voluntary and non-contractual payments if they are truly discretionary.

Bonuses, if they are to be paid, should be, but sometimes are not, specifically addressed in the employment contract. Many employers simply include a clause declaring that any bonus paid is purely "discretionary". These clauses may also contain restrictions on the payment of future bonuses, such as that the employee must be actively employed at the time the bonus would ordinarily be considered and given by the employer. Of course, on termination, this often causes a dispute, because the employee may be terminated prior to when a bonus might otherwise be considered and paid for that employment year. 

An important factor to consider is also whether the bonus was a recurring event - was it actually paid consistently over time, or was it a 'one-off' bonus? If it was paid consistently by the employer, there is more likelihood that a Court would find it was a recurring and important part of the employee's regular compensation, even if it is labelled "discretionary" in the employment contract.

When an employee is terminated, particularly without cause, employers often take the position that any bonus previously paid is not payable for the employee's reasonable notice period, because the bonus was "discretionary" by the employer, rather than required as part of the employee's regular compensation plan. 

However, simply calling a bonus "discretionary" in the employment contract does not insulate an employer from claims for bonus amounts by terminated employees.

Employers can limit bonus entitlement on termination by using clear, unambiguous contractual language. Therefore, if an employer uses bonuses in the workplace, employers should clearly address an employee's bonus entitlement in the event of resignation, retirement, termination with cause, and termination without cause.

If an employer does not intend to pay bonuses to employees during the reasonable notice period, this needs to be addressed directly in the employment contract and in any bonus plan. Any ambiguity most likely will be resolved against the employer.

To illustrate, in the Ontario case Grace v. Reader's Digest Assn (Canada) Ltd. [1995], the Court held:

"The case law is clear that ... where the employer seeks to rely on a term requiring the employee to meet certain conditions such as being on the payroll as of a certain date, the employer must communicate that requirement to the employee. If the employer has failed to do so, then the employee is entitled to claim the bonus."

If an employer pays a bonus in the workplace, the employer should ensure that: a) the rights and entitlements for the bonus are clearly and simply set out in the employee's contract; and b) it has a bonus policy enacted, which is brought to the employee's attention, that is consistent with the employment contract.

In Ontario these days, unless employers can point to clear, unambiguous language in the employment contract indicating that a bonus is not payable on a termination or resignation, most likely an employee will be able to successfully claim the bonus payment, including for a reasonable notice period on termination.

It is important, therefore, for employers to seek proper legal advice for their employment contracts, especially if bonuses are to be paid in the workplace. Simply declaring they will be "discretionary" is not likely sufficient.

Some important cases on this issue in Ontario:

Taggart v. Canada Life Assurance Co. [2005]

Grace v. Reader's Digest Assn (Canada) Ltd. [1995]

Jivraj v. Strategic Maintenance Ltd. [2014] (This is an Alberta case, but has been applied in Ontario)

Chandaran v. National Bank of Canada [2011]

Both employers and employees should seek qualified legal counsel before entering into an employment contract in Ontario, or potentially face unintended litigation about the consequences of the relationship breaking down. Clarity, simplicity and compliance with the current law in Ontario are necessary and effective for enforceable employment contracts. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

 

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HAVE I BEEN CONSTRUCTIVELY DISMISSED? HOW DO I KNOW? AND WHAT DO I DO?

What is “constructive dismissal”? The law in Ontario has been changing over the past year or so.

Generally, it may occur when an employer unilaterally makes a fundamental change to an employee’s terms of employment. This may be, for example, a pay reduction, a significant change to the employee’s duties or position, or even a job relocation. It can also potentially occur in the case of harassment in the workplace, for example. Unpaid suspensions can also trigger a constructive dismissal. Even a paid suspension from work can potentially cause a constructive dismissal, if it is found to be an unreasonable suspension (even with pay).  In Ontario, even a temporary lay-off (which is authorized by the Employment Standards Act of Ontario), can be a constructive dismissal if the employee did not expressly agree to this in his or her employment agreement.

Essentially, it is an action by the employer (or that occurs in the workplace) that makes it untenable and unreasonable for the employee to continue to be employed. Often employees will resign and bring a claim for constructive dismissal. However, that strategy should be carefully considered by employees in Ontario. 

Employers have to be careful before making these types of unilateral and fundamental changes in the workplace.

Similarly, employees have to be cautious in their decision-making. Now in Ontario, employers have the ability, if an employee makes a complaint about constructive dismissal, to invite the employee to continue to be employed during the notice period that the employee would otherwise be entitled to receive arising from the dismissal (i.e., the common law reasonable notice period).

However, there are pitfalls for both sides in a constructive dismissal matter. For example:

- Employers, if they offer continuing employment to the employee, must make this offer only after the employee has made a complaint of constructive dismissal, or the employer may not be protected from paying damages to the employee for the dismissal

- Employees must carefully consider any offer to remain employed by the employer, as employees have a duty to mitigate their damages arising from a dismissal and, if they refuse to agree to continue to be employed and it is found by the Court that it was reasonable for in the circumstances to have done so, the employee may not be entitled to any damages

- Employees must also make their complaint for constructive dismissal promptly when they believe it takes place, or the Court may find the change was accepted by the employee (meaning there was no dismissal and, therefore, no damages payable by the employer)

Employees should give careful consideration to their position before resigning and seeking damages on the basis of constructive dismissal. This is a tricky area and often heavily weighted by the facts in the specific case.

Similarly, employers need to tread carefully in making significant changes in the workplace and, if a constructive dismissal complaint is received, in reacting to it, legally.

Good advice from a qualified employment lawyer is essential to both the employer and employee if a constructive dismissal matter arises in the workplace.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYERS - OVERPAYMENTS TO EMPLOYEES SHOULD NOT BE DEDUCTED FROM PAY WITHOUT CONSENT

Even a mistaken over payment by an employer - it should be unilaterally deducted by the employer against future pay owed to the employee or against any other amount due and payable.

Most employers assume they can simply deduct it from wages payable, for example.

No so.

While the Employment Standards Act of Ontario, on its face, suggests that employer can deduct a mistaken over payment against regular wages, holiday pay or termination pay, for example, that is not likely the case. Even the Ministry of Labour's Policy and Interpretation Manual, which Employment Enforcement Officers use and follow to interpret and apply the Act, suggest that over payments can deduct without penalty. Often this arises in the context of employee's co-contribution to benefits coverage, for example, where the employer mistakenly does not deduct the employee's benefit co-payment from source at a regular pay day. 

However, in the case of Re All-Way Transportation Services, an Ontario arbitrator held otherwise. In that case, the arbitrator, relying on the power imbalance between employer/employee, ultimately held that the employer had no right to unilaterally deduct mistaken over payments (due to a payroll error) from wages of the employees.

Therefore, before doing so, you should speak with a qualified employment lawyer, if you, as an employer, propose to deduct any over payment to an employee from that person's regular wages, holiday pay or termination pay, directly or indirectly.

Chance are, you are doing do unlawfully.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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DOES ECONOMIC DOWNTURN/LOSS OF BUSINESS AVOID LIABILITY FOR TERMINATING AN EMPLOYEE? NO, NOT REALLY........

When assessing pay in lieu of reasonable notice in an employment termination case, Courts generally consider the employee’s position and responsibilities, length of service, age and the availability of other employment generally.

While employer’s have argued economic downturns as justification for termination, Courts have historically disregarded this argument and, in fact, in some cases given more reasonable notice when employers have taken this position.

There are, that I know of, only two cases in Canada in which the Court has considered this position by an employer and given some credit for it.

They are:

Gristey v. Emke Schaab Climatecare Inc. (Ontario) - The Court discounted the reasonable notice period by one-third to reflect the economic condition at the time and the employer’s precarious financial circumstances at the time; and

Lederhouse v. Vermilion Energy Inc. (Alberta) – The Court gave some credit to the employer when the termination took place before the depression in the oil and gas industry in Alberta (but noted that, if the termination had taken place during the recession, no credit would have been given).

So, while there is some, limited authority in Canada for employers to try to reduce pay in lieu of notice due to economic conditions, it is not generally accepted and is risky to rely on, especially if a case must proceed to trial.

As usual, the best strategy for employers is to ensure there is a written employment in effect, at the outset of the employment, containing properly-constructed provisions limiting pay in lieu of notice on termination.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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TIME TO VOTE - RIGHTS/OBLIGATIONS FOR EMPLOYEES/EMPLOYERS IN THE WORKPLACE FOR VOTING

This is a great summary of rights/obligations in the workplace for voting for the upcoming Oct. 19, 2015 federal election - for both employees and employers.

This article is by: Borden Ladner Gervais LLP - Dan Palayew, reproduced by Lexology.com

________________________________________________________________________________

"With the upcoming elections, we thought it would be timely to remind you of your obligations and employers with respect to employees taking time off to vote.

The Canada Elections Act requires employers throughout Canada to give their employees time off to vote in the upcoming October 19, 2015 federal election.

Everyone eligible to vote must have three consecutive hours to cast their vote on Election Day. If an employee ' s hours of work do not allow for three consecutive hours to vote during the electoral polling hours, the employer must give the employee time off to vote. The employee must be paid his or her regular wage during the time off for voting. Employers cannot require the employee to use a vacation day and are also prohibited from penalizing an employee in any way from taking time off to vote.

Two examples help illustrate when an employer is required to give an employee time off to vote.

1. Time off Required

An employee resides in a riding that has voting hours from 9:30 am to 9:30 pm. The employee's shift is 11 am to 7 pm.

This employee does not have three consecutive hours off work to vote when the polls are open because the employee is only off work during polling hours for 1.5 hours in the morning and 2.5 hours in the afternoon.

The employer, however, has the discretion to decide when the time off will be given and can require the employee to take 30 minutes off work to vote during the last 30 minutes of the employee's shift (rather than 1.5 hours off in the morning) since that will be least disruptive to the employer.

2. Time off not Required

A different employee with the same employer and in the same riding has a shift from 9 am to 5 pm.

This employee has more than three consecutive hours after work to vote during polling hours. Accordingly, this employee does not have to be provided with time off to vote during the work day.

Transportation Industry Exemption

An exemption applies if the employer is in the transportation industry. For the exemption to apply all four of the below criteria must be met:

  • The employer is a company that transports goods or passengers by land, air or water;
  • The employee is employed outside his or her polling division;
  • The employee is employed in the operation of a means of transportation; and
  • The time off cannot be allowed without interfering with the transportation service.

Penalties

Employers who fail to give employees time off to vote or fail to pay employees as required by the Elections Act are in breach of the Act. Employers could face a fine of up to $2,000, three months imprisonment, or both for each violation of the Act."

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A WARNING TO EMPLOYERS - THINK YOU HAVE CAUSE? THING AGAIN......THE HEAVY PRICE YOU MAY PAY

The September, 2015 Case: Gordon v. Altus Group Limited 2015 ONSC 5663.

The Outcome:

The employer alleged cause for termination. The Court held there was no cause for termination. The employer had to pay not only damages for failure to provide reasonable notice, but also $100,000 in punitive damages (for a failure to perform the parties’ employment agreement honestly) and reimbursement of the employee’s legal expenses.

The Reason:

The employer effectively launched a campaign of ‘trumped up’ allegations to try to establish cause for termination, effectively to intimidate the employee from making a claim for wrongful termination. They included: improper behaviour in the workplace, conflict of interest and, for example, hiring a friend (who allegedly had been a fraudulent person).

The employer failed to follow a progressive discipline process properly or procedurally. It should have, for example, held meetings with the employee to identify the concerns, provided written warnings and provide the employee opportunity and guidance to correct the alleged problems. The employer did not follow its own internal discipline policy. The Court also found the employer held ulterior motives in its conduct.

The Warning to Employers:

If you think you should fire an employee for cause, critically examine the existence of solid facts and solid evidence to substantiate the claim, as well as your motives.  Also consider whether you have followed the procedural steps required of you, such as providing the employee with a warning of the problematic behaviour before the termination occurs. There will be occasions when you may be able to terminate for cause with minimal risk because the problematic behaviour is very serious, has been documented, and the employee in question has been clearly warned that his or her job is in jeopardy.  In addition, there will be no extraneous circumstances that put into question your intentions. However, if you could be perceived as advancing “trumped up” allegations, or your position simply doesn’t pass the ‘smell test’, this case may persuade you to take a different course – it affirms and demonstrates the heavy cost you may pay if you proceed down the wrong path.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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EMPLOYEES - CLAIMING YOUR MISCONDUCT IS DUE TO A DISABILITY (MENTAL HEALTH, ALCOHOLISM, etc.) MAY NOT SAVE YOU

This employee made threats againt co-workers. He was terminated. He sued for wrongful termination, claiming that his conduct was due to his dependency on alcohol (which is a recognized mental health disability). He claimed the employer discriminated against him under the Human Rights Code on the basis of his disability.

The Court of Appeal disagreed. The Court found that:

1.            the employer did not know of his alcohol dependency when he was terminated; and

2.            the employer’s decision was not based on the employee’s alcohol dependency, but rather on his inexcusable conduct in the workplace – the employer did not act arbitrarily or discriminatory in its decision.

Specifically, the Court of Appeal adopted this:

“I can find no suggestion in the evidence that Mr. Gooding’s termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on his conduct that rose to the level of crime. That his conduct might have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee who suffered for the same misconduct.”

Therefore, it may not be enough for an employee to claim that a recognized disability caused, or contributed to, conduct in the workplace that would justify termination.

Case: Bellehumeur v. Windsor Factory Supply Ltd., 2015 ONCA 473 (CanLII)

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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SEVERANCE PAY UNDER THE EMPLOYMENT STANDARDS ACT - MUST BE BASED ON YOUR EMPLOYER'S GLOBAL PAYROLL, NOT ONLY ONTARIO

If you are terminated from your job, you may be entitled by law to "severance pay" under the Employment Standards Act of Ontario. One of the conditions may be that your former employer had a annual payroll of $2.5 million or more when you were terminated. 

Now, in Ontario, this test is based on your former employer's total, annual payroll around the world (globally), not only in Ontario.

Therefore, if you are terminated, especially by a company that operates outside of Ontario, you and your lawyer should consider if you may be entitled by law to severance pay under Ontario's legislation (which you do not need to sue to receive) and carefully review the conditions, including this one.

Helpful resources:

Employment Standards Act of Ontario

Paquette c Quadraspec Inc., 2014 ONCS 2431

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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TERMINATING AN EMPLOYEE FOR POOR PERFORMANCE - NOT IF YOU DON'T FOLLOW THE RULES

Before terminating an employee for unsatisfactory performance (especially if cause for termination is alleged), an employer must take proper steps to minimize the risk of liability for wrongful termination.

Generally, these steps, which sometimes are called ‘progressive discipline’, include:

  • the employee must be aware of the employer's expectations;
  • the employee's performance must be significantly unsatisfactory compared to that of the other employees;
  • the employee must have been warned that his or her performance is unsatisfactory;
  • the employee must have received the assistance and support needed to remedy the situation;
  • the employee must have been warned of the consequences that failing to improve would have on the   employment relation;
  • the employer's decision must not have been made in bad faith.

In addition, employers must now be rigorous in their employee performance evaluation process. This includes :

- properly documenting all training and support given to the employer before termination

- conducting proper, documented performance evaluations

- having a good performance profile of the employee to conduct a fulsome evaluation of performance  

- avoiding termination based on unverified facts, impressions or opinions

- conducting serious and rigorous evaluation (and documenting it) before terminating

To minimize exposure to liability for wrongful termination, employers must establish a specific and supervised procedure that includes documentation and a performance profile on which an objective evaluation may be based, prior to termination.

Ultimately an evaluation should be grounded on verified or verifiable facts, not only on perceptions or opinions that have not been validated.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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IT'S THE LAW - HAVE YOU BEEN GIVEN YOUR ESA POSTER?

To help ensure that employers understand their obligations and that employees know their rights, the Minister of Labour has prepared and published an Employment Standards Poster entitled “Employment Standards in Ontario”.

This poster describes important rights and requirements under the Employment Standards Act, 2000 and must be posted in the workplace where it is likely that employees will see it. Employers are also required to give every employee a copy of the poster.

All employees in Ontario that are covered by the Employment Standards Act, 2000 must receive a copy of the poster from their employer.

Changes in the law that came into force on May 20, 2015 also require employers to provide employees who are covered under the ESA with a copy of the most recent version of the Employment Standards Poster.

Employers must provide all current employees with a copy of version 6.0 of the Employment Standards Poster by June 19, 2015. Any new employees hired after May 20, 2015 must be given a copy within 30 days of their date of hire.

Employers are required to post the most recent version (6.0) of the Employment Standards Poster published by the Minister of Labour in the workplace where it is likely to come to the attention of employees. Most workplaces covered by the Employment Standards Act, 2000 are required to post the poster. The poster must be displayed in English. If the majority language of a workplace is a language other than English, and the ministry has published a version of the poster in that language the employer is required to post a copy of the translation next to the English version of the poster.

An employer may provide the poster as a printed copy or as an attachment in an email to the employee. In addition, an employer may provide the poster via a link to the document on an internet database, but only if the employer ensures the employee has reasonable access to that database (i.e. must ensure the employee has access to a computer and is able to access a working link to the document) and ensures the employee has access to a printer and that the employee knows how to use the computer and the printer.

The Poster can be downloaded for free at: http://www.labour.gov.on.ca/english/es/pdf/poster.pdf

If an employee requests a copy of the poster in a language other than English and the ministry has published a version of the poster in that language, the employer must provide the translated version in addition to the English copy.

The earlier version should be removed from the workplace and replaced with version 6.0. An employer who is required to post the poster and who fails to post version 6.0 on or after May 1, 2015 would be in violation of the Employment Standards Act, 2000. This could result in an employment standards officer taking enforcement action.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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OVERTIME PAY - THE OFT-OVERLOOKED LIABILITY - NOT ANY MORE

Overtime pay can be challenging and confusing, especially when an employee is not paid based on an hourly wage.

Ontario’s Employment Standards Act, 2000, Part VIII, sets out when an employee is entitled to overtime pay and the rate that is payable to the employee.

Employers who do not follow the overtime rules can be exposed to significant liability claims by employees, particularly if the problem is wide-spread throughout the employer’s business.

Recent cases in Ontario clearly indicate that employers run the risk of paying significant damages to employees if overtime is not paid properly to employees.

A good example is Baroch v. Canada Cartage, an Ontario class action that has been certified by the Ontario Court. In this case, 7,800 employees (of this trucking/transportation business) claim that their employer systematically failed to properly pay overtime to employees over several years (when the employees worked more than the threshold set out by the Employment Standards Act, 2000).

The Baroch case also makes it very clear, based on the Court’s initial treatment of the case, that employers must:

1.            have a written overtime policy;

2.            give clear directions in the workplace for employees to know how to apply the overtime rules and the thresholds; and

3.            implement a good system internally to track working hours for employees in order to identify and properly calculate overtime pay and entitlement.

The employer in Baroch did not have these in place – this had a significant impact on the Court’s decision to allow the case against it to proceed. Had the employer done these things properly, it likely would not have needed to face what will be a very substantial damages payment to its employees, plus very significant legal expenses.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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HOLD ON - BEFORE TERMINATING AN EMPLOYEE - A CHECKLIST FOR EMPLOYERS

Terminating an employment relationship should not be decided without planning and consideration of potential obligations.

Liability for reasonable notice, or pay in lieu of notice, must be considered. 

Before any employer decides to terminate an employee, here is a checklist that will be helpful to review before a decision is made to terminate an employee.

This checklist will also help employees identify what potential obligations may be owing by the employer if the employee is terminated.   

1.   Review the employee's letter of employment or employment agreement.

2.   Review circumstances of the employee's hire. Was the employee recruited?

3.   Review significant changes in relation to the employee's position, role, salary, location, or other material terms of employment to determine if the substratum of the employment relationship has been amended materially and hence the employment agreement no longer reflects current terms.

4.   Determine the termination date and calculate, if possible, what is owing to the employee for all accrued remuneration to that date, including salary, vacation pay, commission, incentives and bonus, if any.

5.   Is the termination for "just cause" as a result of misconduct? If so, is there a sufficient documentary record of past issues and warnings? Have all of the relevant individuals been interviewed, and is there a record of those interviews? Has the individual been given an opportunity to respond and answer to any issues and allegations?

6.   Compile all relevant codes of conduct or policies applicable to the termination and ensure that the company has complied with its own policies. In addition, where applicable, ensure that the company has evidence that the employee was aware of the policies.

7.   If the termination is for performance reasons, is there sufficient documentation to establish (a) lack of performance, (b) progressive warnings related to failure or refusal to maintain performance at reasonable and objective standards and, (c) the consequences of failing to do so?

8.   Are there related medical issues that need to be considered and accommodated?

9.   Are there other human rights or statutorily-protected employment rights that need to be addressed (for example, return to work following maternity, parental, WSIB or emergency leaves)?

10. If the termination is not for just cause, what is the period of notice of termination required by agreement, by statute or implied by common law?

11. Will the notice period be worked by the employee in whole or part? If payment is to be made in lieu of notice of termination, will remuneration be continued or paid out?

12. Consideration of statutory and contractual obligation to continue benefits during notice periods and any conditions or exceptions to such obligations.

13. Will the termination offer be made subject to mitigation or not subject to mitigation?

14. Review all employee remuneration and specific terms. Are there any specific requirements related to pensions, RRSPs, LTIPs, stock options, etc.?

15. Are there any outstanding loans or advances to the employee?

16. Are there company supplies, documents, confidential information, computers, keys, FOBs, credit cards, automobiles, equipment or other property to be returned by employee?

17. Are there employee obligations post-termination, including solicitation of customers or non-competition?

18. Are there client or competitor lists that need to be identified with reference to non-competition provisions?

19. Determine appropriate timing for the meeting to provide notice of termination. Consider who should be in attendance at that meeting. Is any security necessary?

20. Consider issues relating to employment references and/or provision of confirmation of employment letter. Who will be responsible for post-termination employment references?

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYERS - TIPS FOR NAVIGATING EMPLOYEES' PRIVACY

Ensuring privacy in the workplace is increasingly important for employers in Ontario law. Employees are making more complaints. The Courts are focusing more on employee privacy in the workplace. Both the Ontario and the federal Privacy Commissioner seem to be adjudicating more employee complaints.

For example, cases are emerging about: a) posting employees’ photos in the workplace; b) employers installing ‘spyware’ on employees’ computers to monitor their online activities; c) employers tapping into employees’ corporate-issued mobile devices; and d) employees improperly access personal information of clients or other employees, creating liability (and headaches) for employers.

A good privacy policy for the workplace is essential these days.

Privacy legislation is evolving. The Personal Information Protection and Electronic Documents Act (federal) (PIPEDA) applies in Ontario to many private sector employers. It has been amended recently to deal more effectively with digital disclosure, consent to disclosure and the onus on businesses to ensure they properly obtain consent to post personal information online (Web sites, social media, etc.). Being familiar with and adhering to the continuously changing privacy laws is important for Ontario businesses and employers.

Managing employees’ personal information in the workplace can be challenging, especially for larger organizations.

Here are a few, basic tips that every employer in Ontario should consider:

  1. Determine which privacy legislation applies to your workplace: statutes apply to your organization: FIPPA and MFIPPA apply to municipal and provincial government organizations; PHIPA applies to health information businesses and PIPEDA likely applies to most private organizations, including those that are federally regulated
  2. Establish a good privacy policy for your business and appoint a “privacy officer” – a person responsible for ensuring that your business complies with the applicable privacy laws
  3. Notify your employees of any collection, use or disclosure of their personal information, including identifying the reason(s) the personal information will be used, collected and disclosed and always make sure that the general purpose for collecting the information is reasonable in the circumstances
  4. Ensure that the personal information you collect is necessary to achieve the purposes of its collection
  5. If you collect personal information, request and obtain your employees’ consent – which can be deemed, express or based on an opt out
  6. Educate and train your employees generally, especially those with access to other employees’ personal information, about their responsibilities under your business’ privacy policy(ies) and the obligations under the applicable privacy laws
  7. Keep an ongoing record of when you, or your appointed person, accesses or uses an employee’s personal information, including when and the reason(s)
  8. Review and audit fairly regularly all of the personal information you have, to verify it is legally collected, that it remains securely stored and that the purpose it was collected for remains reasonable and appropriate.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYERS - DID YOU THINK THAT RELEASE FORM WOULD PROTECT YOU FROM PAYING MORE? BE CAREFUL - MAYBE NOT

EMPLOYERS - Make sure you take care in your release form for the dismissed employee to sign.

The new case: Hutton v. ARC Business Solutions Inc., 2015 AHRC 7 (Alberta Human Rights Tribunal).

The employer paid a severance package in exchange for a release of liability being signed. The release form did not specifically address a human rights complaint by the employee. The employee received the severance package, but then brought an application against the employer for more damages. The employee was successful - the employer's release did not prevent the employee from suing for more.

The Tribunal considered these factors:

  • The explicit or implicit language of the release;
  • Whether there was an inequality of bargaining power between the parties;
  • Whether there was undue influence or coercion;
  • Whether the terminated employee obtained independent legal advice;
  • Whether the release was signed under duress;
  • Whether the employee knew of their right to file a human rights complaint, and whether the employer knew that a potential human rights complaint was contemplated; and
  • Other considerations such as lack of capacity to enter into an agreement, the timing of the complaint, mutual mistake, fraud, forgery, etc.

Lessons?

1. Be very specific in the release form.

2. Remember to keep in mind the presumed power imbalance between you and the employee when a severance is agreed to for a termination.

3. Ask your qualified employer to review your release form before you present it to the employee.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYEES - UNAUTHORIZED DEDUCTIONS FROM YOUR PAY IS NOT ALLOWED IN ONTARIO

EMPLOYEES - Your employer may be required by law to make deductions against your pay, such as income tax, employment insurance premiums, Canada Pension Plan contributions, union dues or other amounts authorized by a collective agreement. You can also agree to other deductions, such as health, dental or disability group insurance plans and payroll savings plans, as these provide a direct benefit to you.

However, the Employment Standards Act, 2000 in Ontario prohibits your employer from making deductions against your pay that are not legally required or agreed to by you.

Example: If you are a server, and your customer leaves without payment for the meal. Or if you damage your employer's equipment, causing a loss to the employer. Generally, the employer cannot deduct these losses against your pay, at least not without your express permission and, even then, it may still be unlawful for the employer to do so.

What's more, not only may this be prohibited by the legislation, but it may be a constructive dismissal of you by the employer.

A recent case in B.C. affirms this: Rotherberger v. Concord Excavating & Contracting Ltd. 2005 BCSC 729. The employee damaged (allegedly) the employer's equipment. The employer threatened to deduct it from the employee's pay. The employee disagreed. Eventually the employer sued for constructive dismissal and was successful.

Therefore, if your employer deducts, or threatens to deduct, anything from your pay that is not legally required or that you do not expressly agree to, you should speak to a qualified employer lawyer. Chances are, the employer is prohibited from doing so and, potentially, that may be a constructive dismissal of your employment. 

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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EMPLOYERS - AVOID LIABILITY - DO YOU HAVE A HEALTH/SAFETY COMMITTEE?

EMPLOYERS - An active Health and Safety Committee can protect you from liability under Ontario's Occupational Health and Safety Act:

"An Ontario court has dismissed charges under the Occupational Health and Safety Act after two incidents which the joint health and safety committee did not identify as posing a “high priority” safety concern.

The charges arose from two incidents on an assembly line at Magna Seating Inc. in which workers were struck by a partly-manufactured vehicle seat that had fallen forward from an upright position, “which is not unlike when someone releases the lever on a seat in an automobile and the seat falls forward due to the tension of the seat’s springs.”

The two charges were: failing to ensure that things were transported so that they would not tip, collapse or fall; and failing to ensure that a machine (the conveyor that transported the seats) was guarded.

The court noted that almost two million seats had been built on the assembly line with only two documented occasions in which a seat had fallen forward. In one incident, a worker’s lip had been cut; she required only a Band-Aid. In the second incident, the seat had struck a worker in the chest; she was taken to the hospital but was released two hours later with a prescription for painkillers.

The Justice of the Peace noted that the Joint Health and Safety Committee, comprised of management and workers, were aware of the two incidents but had not considered the seat falling forward issue to be of high priority; also, the possibility of guarding being implemented was still being investigated by the joint health and safety committee.

Ultimately, the charges were dismissed because the Justice of the Peace decided that the conveyor was not a “machine” within the meaning of that term in the regulation, and Magna had taken all reasonable care to ensure that workers were not injured from seats falling forward.

The case shows that having a well-functioning and active joint health and safety committee can actually help an employer defend against Occupational Health and Safety Act charges. If the committee was aware of and considered a safety issue and determined there was no – or a minimal – hazard, that is evidence that can assist an employer to show that it acted with due diligence.

Ontario (Ministry of Labour) v. Magna Seating Inc., 2015 ONCJ 7 (CanLII)"

Credit: Dentons, Adrian Miedema, reproduced without permission from Lexology, Feb. 19, 2015

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MY SUMMER LONG WEEKENDS - WHAT ARE MY RIGHTS?

Long weekends - loved by all, but what are my rights? The Employment Standards Act, 2000 of Ontario applies. What both employees and employers need to know:

 

What is Public Holiday Pay and When is it Paid?

Public holiday pay is given to employees regardless of whether they work on a public holiday.

On a public holiday, employees have two options:

  1. Work: most employees have the right to refuse to work a paid holiday, but if an employee agrees in writing to work, s/he must be paid premium pay plus holiday pay OR s/he must be paid regular pay and given another day off as a substitute.

  2. Do not Work: where an employee does not work a public holiday s/he is entitled to paid holiday pay.

 

Who Qualifies for Public Holiday Pay?

In order to qualify for public holiday pay an employee must:

  1. Satisfy the First and Last Rule: employees must not miss (without reasonable cause) the next day before and after the holiday that they are scheduled to work

  2. Work the entire shift (if choosing to work the holiday): the employee must work the agreed-upon time unless there is reasonable cause

Note: Reasonable cause is generally established where work is missed because of an event that was beyond the control of the employee; employees bear the burden of proving a reasonable cause

  1. Not be exempt: Some industries are exempted from holiday pay; see the Ontario Ministry of Labour’s website for more information on which employees do not qualify for holiday pay

 

How is Public Holiday Pay Calculated?

Holiday pay is calculated by taking the regular wage (not including overtime or premium pay) payable to the employee for the previous four weeks divided by 20. The four weeks is based on the work weeks completed by the employee not based on calendar weeks. Premium pay is calculated by multiplying regular wage by 1.5.

See the Ontario Ministry of Labor’s website for a calculator that can be used to determine employee holiday pay.

 

Other Issues

Public holiday pay can be confusing where an employee fails to meet all requirements. For example:

  1. If an employee is on vacation or doesn’t usually work on the holiday: the employee is entitled to either a substitute holiday day plus holiday pay or public holiday pay instead of the substitute day.

  2. If an employee fails to work the holiday: based on what was originally agreed to the employee is entitled to a substitute day off with holiday pay OR the employee is entitled to holiday but is only entitled to premium pay for the hours they actually worked.

 

This BLAWG is general and informational only. It is not legal advice and not intended to be. Your circumstances may require specific/more information.

 

More information: jason@wardlegal.ca  www.wardlegal.ca

 

 

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EMPLOYERS - A GOOD WORKPLACE INVESTIGATION IS CRITICAL - DON'T GET CAUGHT

Do you have to appoint an external investigator to investigate a complaint in your workplace? No, not necessarily. Conducting an effective workplace investigation of an employee or other complaint is essential. Courts increasingly scrutinize how employers handle complaints. A good workplace investigation can not only avoid liability for you, but effectively resolve the issue before you find yourself at the responding end of an Ontario Human Rights Code complaint - a place most employers would very much prefer to avoid.

An employer can do its own workplace investigation, if it has a person internally with the experience and skills to conduct an investigation competently, fairly and in a manner that will be legally defensible. Many complaints can be effectively addressed internally, if done properly.

A good example of this is this recent case: Zambito v. LIUNA Local 183 (May, 2015), a decision of the Ontario Human Rights Tribunal.

In this case, the employer completed a very good workplace investigation, including complying with the requirements of the Ontario Human Rights Code and, as a result, was successful in the employee's Code complaint against the employer. The employee made a complaint about discrimination in the workplace based on nationality and family. He was subsequently laid off by the employer. He then brought a complaint under the Human Rights Code, alleging the employer failed to properly investigate his complaint. The employer defended, taking the position that it had properly investigated.

The employer arranged for its own in-house lawyer to conduct the workplace investigation.

The Tribunal carefully examined the investigation and how it was completed. The investigator had:

  • Interviewed both the complainant and other affected parties, including the respondent;
  • Interviewed two eye witnesses to the exchange, and two other witnesses who saw the complainant's behaviour immediately after the incident;
  • Completed his interviews within two and a half weeks of the incident; and
  • Four weeks after the incident, had prepared (and saved) a written report that contained detailed findings of fact, an analysis and recommendations.

The Tribunal ultimately concluded that the investigation was: “the “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment”.

The Tribunal accepted that the employer had properly investigated, pursuant to the Human Rights Code. The Tribunal actually praised the investigator in this case:

" First, I found Mr. Evans to be a totally credible witness. He was a third party who had no interest in the outcome of the investigation. His testimony about the investigation process that he followed, including interviewing witnesses, making findings of fact, and making recommendations based on those findings, was straightforward, logical, internally consistent, and detailed. His testimony about the investigation process was not shaken in cross-examination."

Therefore, the employer was successful in this Human Rights Code challenge by the former employee.

The lesson? Conducting a workplace investigation is not only necessary, but must be done properly and effectively, based on the increasingly emerging cases about this area. The investigator, whether internal or external, needs a plan and the skills to act on that plan, to arrive at a reasonable conclusion.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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WORKPLACE (SEXUAL) MISCONDUCT - RECORD HIGH $220,000 DAMAGES AWARDED AGAINST EMPLOYER BY HUMAN RIGHTS TRIBUNAL

Providing a discrimination-free workplace is very important.

This recent case illustrates the importance of doing so: O.P.T. and M.P.T. v. Presteve Foods Ltd. and Jose Pratas 2015 HRTO 675.

The Ontario Human Rights Tribunal held these two sisters, temporary foreign workers, endured unwanted sexual solicitation, advances and discrimination at the workplace.

There is a trend emerging in Ontario - increasingly higher damages are being awarded by the Ontario Human Rights Tribunal for injury to dignity, feelings and self-respect.

The facts are disturbing, of course. They involve very sexually-charged and unacceptable conduct in the workplace.

The Tribunal awarded:

General Damages - One sister was awarded $150,000 as compensation for injury to her dignity, feelings and self-respect (also known as general damages) along with approximately $15,000 in prejudgment interest. This amount is three times greater than what previously had been the highest award awarded by the Tribunal. The other sister was awarded $50,000 in general damages along with approximately $5,000 in prejudgment interest.

The lesson for employers - You must promote and achieve a discrimination-free workplace. Understanding discrimination and harassment issues is essential, along with a good policy for this, which includes a complaint mechanism and training for everyone in the workplace. Training, communicating and understanding of the policy is also critical - for everyone in the workplace. The law in Ontario will not excuse ignorance or overlooking it.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

Ontario Human Rights Commission

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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