Higher wages, more vacation, more protected leave – what’s not to like?

On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017.

Employment-LawAccording to its summary, these changes were brought about because of a recognition that the economy is changing and many workers struggle to support their families on part-time, contract or minimum-wage work, and many more don’t have access to time off due to illness.

The changes brought about by the new law are significant and include the following:

·     An increase in minimum wage from $11.40 to $14.00 in 2018 and to $15.00 in 2019;

·     Three weeks’ vacation for employees who have worked five years or more;

·     Ten days of Personal Emergency Leave for all employees (not just those working in a business with 50 or more employees), two of which must be paid and in respect of which a medical note cannot be required by the employer;

·     An increase in Compassionate Care Leave from 8 weeks to 27 weeks; and

·     A new method of calculation of public holiday pay.

Many of the changes are effective January 1, 2018.  Other changes, including rules regarding scheduling of shifts, and payment for being on call, will come into play in January 2019.

It is difficult to argue with the idea of higher wages, more paid vacation, higher paid public holidays, and more job-protected leave time. These changes are consistent with the idea of building a caring society where people are paid fairly for their work and can enjoy some leisure time.  Looking at the changes strictly from the employee’s perspective, there is little not to like.

From the employer’s point of view, these new rules likely appear less rosy. While many people associate “employer” with large corporations, public institutions and successful companies with ample resources, the fact is that in 2015,  87.3 % of Ontario’s population was  employed by small and medium sized businesses. 1 While some of these small and medium sized companies may have little trouble adapting to the new changes, a study by the Canadian Center for Economic Analysis on the potential impact of this new legislation cautions that those small businesses with 20 or less employees may be particularly negatively impacted by the sudden significant increase in costs.2 There will also be the demands associated with compliance with the new rules which the Ministry of Labour has promised to vigilantly enforce through the hiring of more enforcement officers who will conduct more inspections, impose higher fines and publish the names of non-compliant businesses. 3

Some have suggested that rather than protect workers, the new legislation will encourage employers to adopt new technologies that will allow them to reduce their workforce.  It is also possible that some businesses will be forced to close because the costs are too much.  Each year thousands of businesses enter and exit the market place.  Over the coming years it will be interesting to track whether, in the wake of these legislative changes, there were a greater number of businesses exiting the Ontario market or an overall decline in jobs.

Developing ways to respond to the changing economy and fostering a caring and equitable workforce are positive initiatives.  It remains an open question whether this new law will be able to accomplish its goals.

Colleen Hoey is a partner at Mann Lawyers LLP and can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.

1 https://www.ic.gc.ca/eic/site/061.nsf/eng/h_03018.html#point2-1.

2 http://www.occ.ca/wp-content/uploads/2013/05/CANCEA-Analysis.pdf

3 https://www.ontario.ca/page/plan-fair-workplaces-and-better-jobs-bill-148

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Terminations during the Probationary Period: Three Common Assumptions

Many employers like to take the first few months of a new employee’s employment to decide whether their new hire is the right addition to the team.   Some like to call it a probation, others, a trial or evaluation period. Irrespective of what it is called I have noticed three recurring assumptions about this initial period that are worthy of attention by both employees and employers.   Employers relying on these assumptions may believe themselves better protected against claims for payment of reasonable notice than may in fact be the case. Employees for their part may assume that they have no recourse following a termination during their probation period which again, may not always hold true.

Assumption #1 – An employer can automatically terminate an employee during the first three (3) months of employment without providing the employee notice or pay in lieu.

The right to terminate without notice during the probation period is not automatic. Although the Employment Standards Act, 2000 (“ESA”) stipulates that an employee who is terminated within the first three (3) months of their employment is not entitled to notice or pay in lieu, a court will not simply infer that the employee has agreed to these terms.   Justice Lederman in Easton v. Wilmslow Properties Corp [2001] O.J. No 447 reasoned:

The existence of a probation period is a question of fact in each case. Since it takes away an employee’s usual rights, a probationary period must be expressly agreed to by the employee. It cannot be implied into the relationship…

Assumption #2 – In the absence of a clear probationary period clause, the amount of notice that a short service employee is entitled to receive is necessarily very minimal.  

Some employees who have had their employment terminated within the probation period (and who did not have enforceable probation clauses in their contracts) have been awarded some relatively lengthy notice periods. To give three examples: In the case of Easton, the plaintiff who was terminated after two weeks was awarded three (3) months’ notice because she had left a reasonably secure job to work for the defendant employer.   Likewise, in the case of Rejdak v.The Flight Network, the employee was awarded four (4) months of notice after eleven (11) weeks of work.   Similarly in Deacon v Moxey, 2013 CanLII 54099 (ON SCSM) the employee was awarded three (3) months of notice after working two (2) weeks.

Assumption #3Extending a probation period provides the employer a longer period within which they can terminate the employee without notice.

While an employer can stipulate a longer probation period (i.e. 6 months) in an employment contract, this does not automatically extend the window that an employer can terminate the employee without notice or pay in lieu. Employers will want to ensure that the probation clause is drafted to ensure that there are no violations of the ESA.

Whether you are an employee or an employer, if you have questions about drafting or the enforcement of a probation clause our employment lawyers would be pleased to assist.

The State Has No Place In The Bedroom Of The Nation… But Does Your Employer?

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In 1968, former Prime Minister Pierre Elliot Trudeau ushered in significant changes to the Criminal Code, which had until then criminalized homosexuality, with the following well-known pronouncement:

There is no place for the state in the bedroom of the nation. What is done in private between two adults does not concern the Criminal Code.

Although the state may be out of the business of regulating the conduct of its citizens in this private sphere, employers appear to be taking a heightened interest in what is going on in the bedrooms and private lives of their employees.

Consider the recent media storm that surrounded the firing of Jian Ghomeshi, the former CBC Radio Host, after allegations of non-consensual and unorthodox sexual practices came to light.  Or the media attention received by Shawn Simoes, the former Hydro One worker who was terminated  after shouting sexual obscenities at a TV reporter at a Toronto FC soccer game.  In the varied reaction to each of these stories, there was an element of surprise that an individual’s conduct in non-work related contexts was not only of immediate concern to their employers, but directly relevant to their continued employment.

These media stories appear to be reflective of wider trends.  Over the past year, individuals whose names have appeared on the Ashley Madison list, employees who have had intimate photos taken of them and people who engage in “non-mainstream” sexual practices have increasingly been seeking legal advice because their off-duty conduct has come to the attention of their employers and they are concerned that their employment could be terminated as a consequence.

In reviewing employment contracts in my own practice, I have noticed an increased focus on employees’ private lives.  On a number of occasions, clients have asked me to review new employment contacts because what could be described as a “morality clause” caught their attention.  These clauses tend to run along the following lines:

The employee recognizes and agrees that at all times his/her conduct and character, both in and out of the workplace, must be in accord with the high standard of moral and ethical character that all employees at Company X abide by.  Consequently, any acts of questionable moral or ethical character could cause the immediate termination of this agreement.

One of the employees who recently consulted me about such a clause pointed out that it was not so long ago that her same-sex relationship could have been captured by such a clause.  Seen in this light, there is a real possibility that including such a morality clause could have the effect not only of alienating prospective employees, but potentially also of leading to claims of discrimination.

Although this flurry of “off-duty conduct” cases may be prompting some employers to think it is necessary to include a morality clause in their standard employment contracts, the case law has, in fact, long-recognized that employers are entitled to terminate an employee for off duty conduct provided they can demonstrate that at least one of the following circumstances applies:  that the employee’s conduct harmed the employer’s reputation or product; that the impugned conduct rendered the employee unable to perform his/her duties satisfactorily; that the employee’s conduct interfered with the employer’s ability to properly carry out its function or efficiently manage its operations and/or workforce; that the employee’s behaviour lead to the refusal, reluctance or inability of other employees to work with him/her; or that the employee has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees.  These circumstances are set out in the 1967 Ontario decision of Re Millhaven Fibres and Oil, Chemical and Atomic Workers I.U. Loc 9-670, which has been followed in a number of recent “off-duty” conduct cases, including the recent decision in Canadian Union of Public Employees, Local 4400 v Toronto District School Board, 2015 CanLII 24478 (ON LA, http://canlii.ca/t/ghh50).In order to determine whether any of these circumstances apply, it will always be necessary to examine the particular facts and context at issue.

Whether you are an employee or employer, the Employment, Labour and Human Rights lawyers at Mann Lawyers would be pleased to speak to you about any off-duty conduct issue that you might have.

 

 

 

 

 

Updated Workplace Legal Obligations

There have been developments in the laws regulating the workplace since we originally posted this article. With many of the changes coming into effect, including new Employment Standards Act, 2000 posting requirements, we thought it a good time to update and re-post this article.

In addition to reaching sales goals, managing expenses, marketing, and a myriad of other obligations, business owners have a number of legal obligations that they must meet in respect of the workplace.  Recognizing that time and resources are at a premium, we have put together a list of some of the key statutory obligations, along with free tools designed to assist Ontario employers meet those obligations. Depending on the type of work your company does, and the number of employees you employ you may have additional or different obligations but the following are good building block resources for Ontario employers.

1: The updated Employment Standards Act, 2000 poster must be posted and distributed

The Employment Standards Act (“ESA”) poster has been updated. All employers covered by the Employment Standards Act (“ESA”) in the province (excluding the Crown) must display this poster in the employer’s workplace where it is likely to be seen by employees. To find more information about this free poster, titled ”What You Should Know About the Ontario Employment Standards Act“, you can visit the Ministry of Labour website here for a free copy.  Key dates include the following:

  • May 20, 2015 employers must post the new ESA poster;
  • Beginning May 20, 2015 employers are required to provide any new employees with a copy of the new poster within thirty days of being hired;
  • June19, 2015 employers must provide all existing employees a copy of the new ESA poster.

2:  Occupational Health and Safety:

a) Employers need to post a copy of the Occupational Health and Safety Act

The Occupational Health and Safety Act is Ontario’s law that governs health and safety in the workplace and establishes legal duties and minimum responsibilities for employers, supervisors and workers. Employers are required to post a copy of the Occupational Health and Safety Act in a prominent placeA useful tool for employers is “A Guide to the Occupational Health and Safety Act

b) Employers must develop Health and Safety Policy

Employers with six or more employees must prepare and review at least annual a written Occupational Health and Safety Policy and must develop and maintain a program to implement that policy. An example of a Health and Safety Policy is available at www.labour.gov.on.ca

c) Employers must provide Health and Safety Training

As of July 1, 2014 the Occupational Health and Safety Act also requires employers to provide health and safety awareness training for every workers and supervisor and to document that training. Training program resources are available on line at www.labour.gov.on.ca. New Supervisors must receive the health and safety awareness training within seven (7) days of being hired. Employees must receive the training as soon possible after their hire date.

3:  Employers must have a Harassment and Violence in the Workplace Policy

The Occupational Health and Safety Act also requires all employers in Ontario to have a Harassment and Violence in the Workplace Policy. A useful resource called “Developing Workplace Violence and Harassment Policies and Programs: A Toolbox“ has been developed to help Ontario employers meet the Act’s requirements and is a great starting point for employers.

4: Employers must provide employees with proper training and protective equipment

The Workplace Safety and Insurance Act requires employers to provide specific first aid equipment and training for your workers. The following is a link to the First Aid Requirements brochure.

5: Employers must put up the WSIB Poster   

Employers are also required to post the WSIB Poster in a prominent place. The poster is available online or can be ordered in by calling 1-800-387-0750.

6: Employers must comply with the Accessibility for Ontarians with Disabilities Act 

As of 2012 all businesses in Ontario have new obligations under the Accessibility for Ontarians with Disabilities Act. In an effort to assist employers meet their obligations under this Act, the Ontario Ministry of Economic Development, Trade and Employment has put together a reporting tool as well as a the AODA Compliance Wizard which is designed to help employers know what they need to do to help them comply Ontario’s accessibility law.

7: Employers must have a Privacy Plan

The Personal Information Protection and Electronic Documents Act (“PIPEDA”) requires organizations to take reasonable steps to safeguard the personal information in their custody or control from such risks as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction. The Office of the Privacy Commissioner has prepared an online tool to assist small and medium sized business develop a Privacy Plan as well as a self-assessment tool for organizations to evaluate how securely they protect individuals personal information.

8 (Voluntary): Employers should promote good mental health in the workplace

Described as a world first and entirely voluntary, the Mental Health Commission of Canada launched the National Standard, designed to help employers of all sizes, and in all sectors, promote good mental health and prevent psychological harm for every employee. It does this by providing the guidelines, resources and tools needed to build a mentally healthy workplace. You can download the one-page FAQ here.

9:  Other requirements include the obligation to develop an Emergency Procedures Policy and Fire Safety Policy for the workplace. 

The $10,000 wage recovery cap has been lifted

One of the key changes brought about by The Stronger Workplaces for a Stronger Economy Act, 2014 comes into effect today. Specifically, if an employer does not pay their employee for their work, the Ontario Ministry of Labour can now award employees for the full amount of their unpaid wages. Previously the Ministry was limited by a $10,000 cap on the amount of wages it could award to an employee for unpaid wages. The period of recovery for those unpaid wages has also been increased to two years.

While one may wonder why an employee would keep working if they were not getting paid, the situation can often be less straightforward. Alternative employment options are not always plentiful. An employer might promise an employee that they will be paid as soon as some funding comes through or payment on a big project is received. An employer may also make partial payments so that the employee is not without any income but, over time, the amounts can add up to well over $10,000 in unpaid wages.

One of the reasons behind these changes are to allow employees to bring a claim for the full amount of any unpaid pages without having to pursue their employers in the Courts.

The Act has brought into other changes with more to come including:

  • On May 20, 2015 employers will be required to provide their employees with copies of the most recent Employment Standards Act poster within 30 days of the day the employee becomes an employee.
  • On October 1 of every year starting in 2015 the minimum wage will be adjusted in accordance with the Consumer Price Index.

We will provide more information about these new changes and what they mean for employees and employers alike in the days and weeks to come.

You can also access the Act by going here

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=3010&detailPage=bills_detail_the_bill

Employer criminally charged over workplace safety obligation

On January 13, 2014, the Ontario Ministry of Labour released a decision regarding a death due to workplace safety violations. After two directors of the company pleaded guilty to safety violations in the workplace, the Ministry sentenced them to jail and fined the company. This serves as a sobering reminder to employers that they need to be on top of their obligations and responsibilities set out in the Occupational Health and Safety Act. If you would like to have a complete review of your workplace policies to ensure that your company is complying with all its obligations, please don’t hesitate to contact me here.

Here is the entire article published by the Ministry of Labour:

BRAMPTON, ON – New Mex Canada Inc., an importer and retailer of furniture and accessories, has been fined $250,000 and two of its directors, Baldev Purba and Rajinder Saini, have been jailed for 25 days each after pleading guilty to safety violations that led to the death of a warehouse worker. 

On January 18, 2013, a worker was moving merchandise in the workplace at 286 Rutherford Road South in Brampton, using a combination forklift/operator-up platform called an order picker. The order picker had been modified and had an additional platform supported by the forks that was tack-welded to the manufacturer-equipped operator platform. The added platform did not have a guardrail around it and the worker using it was not wearing fall protection or safety shoes.

The worker was found on the floor and was pronounced dead; the cause of death was later determined to be blunt force trauma to the head.

A Ministry of Labour investigation found multiple violations of Ontario’s Occupational Health and Safety Act and of Ontario Regulation 851, which covers industrial workplaces. There had been no health and safety training of the workers in the warehouse and workers indicated that they were not provided with fall protection equipment. Ministry of Labour inspectors saw more health and safety hazards in the workplace after the fatality occurred.

Section 85(a) of Regulation 851 (known as the Industrial Establishments Regulation) requires that workers who may fall more than three metres must wear a safety belt or harness (also known as fall protection equipment). The Occupational Health and Safety Act requires employers to ensure that the safety measures prescribed by Regulation 851 are carried out in the workplace.

Purba and Saini were both charged with failing as  directors of New Mex Canada to take reasonable care that the corporation complied with the Occupational Health and safety Act and with Regulation 851. Both pleaded guilty and each was ordered to serve 25 days in jail by Justice of the Peace C. Jill Fletcher, to be served on weekends. Both were ordered to take a health and safety course within the next 60 days. 

New Mex Canada Inc. pleaded guilty to failing to provide information, instruction and supervision to a worker regarding fall protection and/or working from a height. The company also pleaded guilty to failing as an employer to ensure the safety measures required by law were carried out, and was fined $250,000.

In addition to the fine, the court imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

-Source: Ministry of Labor website

Letters of Reference – bad idea?

Hand writingEarlier this fall there was a program on the CBC’s “The Story From Here” which ran a segment about a woman named Jo who, during a job interview, learned that her former employer had refused to provide her with a reference.  Her former employer had adopted a “no references policy”.

Jo explained that she felt quite embarrassed by the experience.  The refusal seemed to suggest that she was not a good employee.  The prospective employer seemed to share that perception – she did not get the job.

The issue of whether to offer letters of reference to departing employees is one that employers sometimes struggle with.  According to the interview, there is a growing trend among employers towards the “no-reference policy” which is reportedly more common in the United States.

Reasons that employers do not want to provide letters of reference appear to be varied and include:

  • Not having anything good to say about the employee;
  • Concern that by providing a positive letter the employer will misrepresent the skills of the employee to others within their industry to the detriment of their own reputation; and
  • Fear of law-suits.

The law-suit fears seem to be based on two potential scenarios.  In the first, the employee sues their former employer for giving a false or malicious reference.   Employees could potentially also sue their former employer if the employer divulged confidential information that they were not authorized to disclose.

The other situation is one where the new employer sues the former employer for negligent misrepresentation.  For example, one could imagine a new employer being rather put out if the former employer had told them that the jeweller they were thinking of hiring was very trust worthy when in fact they were fired for theft.

A cursory examination of the case law did not turn up any recent cases in Ontario where one employer was suing another for a false reference. If other people know of any cases I would be interested in seeing them.

While some letters may be easier write than others, as a general rule I think a well-crafted letter of reference that is mutually agreed upon at the time of an employee’s departure is more likely to help than hurt both the employer and departing employee.

For an employee, receiving a positive letter of reference can help take some of the sting out of a termination and assist in transitioning to a new job.    From an employer’s perspective, an employee who is working elsewhere has less incentive to bring or maintain a claim for wrongful dismissal, particularly if the salary is the same (or better).  An employee who finds another job is said to have mitigated their losses.  Furthermore if it is a letter both parties sign off on and provided directly to the employee the risk that the employee will claim it was false or negligent would presumably be reduced.

A reference letter need not be long and it must be truthful but in most cases an employer can at least confirm the dates of employment, relate some of the specific job related tasks that the person performed in the course of their job and if possible, comment on a positive accomplishment or contribution the employee made to the company.

Treating a departing employee in a courteous and professional manner that enables them to transition more smoothly is in everyone’s interest.

This blog was adapted from an earlier article published in Faces Magazine’s November 2013 issue. Read the original here.

Three new job-protected Leaves of Absence take effect October 29, 2014

Today, three new job protected leaves of absence come into effect under the Employment Standards Act: (1) Family Caregiver Leave, (2) Critically Ill Child Care Leave, and (3) Crime-Related Child Death and Disappearance Leave.

We have been actively following the progress of Bill 21, the Employment Standards Amendment Act (Leaves to Help Families), 2013, since March 2013 when I wrote about what job protections are available when a family member gets sick and you need to take leave from work, and again when I wrote in September 2013 about how the Bill passed second reading.

What you need to know about the 3 new leaves:

The new leaves of absence allows caregivers to focus their attention on what matters most: providing care and support to their loved ones without the fear of losing their job.

The existing Family Medical Leave

The act builds on the existing Family Medical Leave under the ESA: if a family member is terminally ill, an employee is entitled to 8 weeks of job-protected unpaid leave. An employee who takes Family Medical Leave is also eligible to apply for up to 6 weeks of Compassionate Care Benefits under the Federal Employment Insurance Act.

What has been added to the existing Family Medical Leave policy?

The new leaves of absence add additional unpaid job-protected leave for caregivers by offering:

  • Family Caregiver Leave: up to 8 weeks of unpaid, job-protected leave for employees to provide care and support to a family member with a serious medical condition.
  • Critically Ill Child Care Leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  • Crime-Related Child Death and Disappearance Leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child that has died as a result of a crime.

What this means for Employers:

Employers need to ensure that contracts with employees and workplace policies are updated to reflect the new changes.

What this means for Employees:

If you provide care and support to a family member with a serious medical condition or a critically ill child, or are the parents of a missing child or a child that has died as a result of a crime, the new leaves of absence apply to you. If your employer has not helped you understand the new policies and how they effect you, you should seek legal advice to make sure that your employer is complying with the new policy.

“Waiving” Goodbye: Can an employer waive the employee’s notice of resignation without paying any indemnity?

The Supreme Court of Canada is hearing a case today that could represent significant change for employers.

The Supreme Court of Canada is hearing a case today that could represent significant change for employers.

The Supreme Court of Canada is scheduled to hear the case of Asphaltes Desjardins c. Commission des norms du travail, 2013 QCCA 484 today, March 28, 2014. This case could represent significant change for employers in terms of employee resignations and notice period payments.

THE FACTS

This Quebec matter involved a gentleman by the name of Mr. Guay who worked for Ashphalte Desjardins Inc. (“Ashphaltes”) between the years of 1994 and 2008.  Mr. Guay initially worked as a surveyor and then became project manager. His duties included supervising and managing tenders; he had access to information Ashphaltes considered confidential.

On Friday February 15, 2008, Mr. Guay provided his employer with a letter of resignation which stated that he intended that his last day of work would be March 7 of that year.  The three weeks’ notice was, according to Mr. Guay, to help transition his responsibilities to his successor.  Mr. Guay disclosed that he intended to work for one of the respondent’s competitors.

When Asphaltes was unable to convince Mr. Guay to stay, it decided to terminate his employment immediately without providing any pay in lieu of notice.  Proceedings were started against Asphaltes.

THE LEGAL ISSUE

The central question before the court was whether an employer can waive the employee’s notice of resignation without paying any indemnity.

Until this decision, the case law in Ontario and Quebec suggests that when an employer receives a resignation, if they induce the employee to leave before their proposed resignation date, the employee will be considered “dismissed,” and the employer would have to pay severance.

In the present case, two out of the three Quebec Court of Appeal judges concluded that since the termination was initiated by Mr. Guay, the employer did not have a duty to pay severance or any other form of compensation.  In other words, the employer could waive the notice period without paying any indemnity. 

IMPACT ON EMPLOYERS

If the Quebec Court of Appeal decision is confirmed, this will represent a significant change for employers.  It would mean that employers could accept their employee’s resignation and send them home immediately without having to pay the employee during the notice period. For employers in a competitive market and who do not want the soon to be competing employee having continued access to their confidential information during the notice period, this decision may be particularly welcome.

IMPACT ON EMPLOYEES

For employees, this decision could represent a difficult change.  There is a duty on employees to provide reasonable notice of resignation.   An employee who, in good faith, finds a new job and negotiates a later start date may find themselves without work and without income if the employer waives the notice.

UP FOR DISCUSSION

If employees began to feel they may be “penalized” for giving notice, will they cease giving advance notice of their departure?

We will follow up when the Supreme Court renders its decision.

Colleen Hoey featured in the November edition of Faces Magazine Ottawa!

In case you didn’t see this month’s edition of Faces Magazine, my article “Starting a New Job? What to consider when reviewing your employment contract” was featured on page 33 of the business section in the magazine. Read the full article here!

Faces Magazine Feature