The next AODA reporting deadline is just around the corner. For organizations with 20 or more employees, an AODA compliance report must be filed.
Employers should be aware that the Accessibility for Ontarians with Disabilities (AODA) next compliance… Click here to read the rest of the article
This article continues the discussion on HR quarterly reporting and how to be prepared and effective in your reporting.
Over the past two months we’ve talked about HR Reporting and offered some tips on how to make your reporting as effective as it… Click here to read the rest of the article
In order for employment contracts to be binding they require consideration – something of value that is transferred from the employer to the employee. Often time’s employers run into legal trouble when they have employees sign new contracts mid… Click here to read the rest of the article
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On October 27, 2017, the federal government introduced Bill C-63, Budget Implementation Act, 2017, No. 2, which contains a number of changes to scheduling… Click here to read the rest of the article
Reinstatement is the practice of re-installing an employee to his or her position as it existed prior to termination, or to the fullest extent possible, which may include the preservation of their pre-existing seniority, pension and other… Click here to read the rest of the article
Bill 148 passes on November 22, 2017, with last minute significant amendments that will affect HR policies and practices.
On Wednesday, November 22, 2017, the Government of Ontario passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017.… Click here to read the rest of the article
*Updated November 28, 2017
Statutory holidays, also known as public holidays and stat holidays, are days designated by government to mark special occasions or events. In Canada, there are several statutory holidays. Some are national and every… Click here to read the rest of the article
Two recent Small Claims Court cases demonstrate the courts’ willingness to sanction employers for improper just cause allegations. These cases highlight the fact that employers need to be cautious in asserting just cause. If employers make a just… Click here to read the rest of the article
Ontario Bill 148 passed on November 22, 2017, enacting new employment and labour laws for the province. Employers will require assistance on when schedules in Bill 148 are being implemented. The article provides a link to a whitepaper on how Bill… Click here to read the rest of the article
Articles may require log in credentials to HRinfodesk.
The Canada Pension Plan (CPP) rates are released in early November each year.
Effective December… Click here to read the rest of the article
What can employers do to prevent negative employment references from turning into defamation actions?
A fear of defamation actions has prompted many employers to shy away from providing references for former employees or if they do provide a… Click here to read the rest of the article
With the new Fair Workplaces, Better Jobs Act, 2017 coming into force, new provisions have been put into place. One such provision is the right to request a change to work schedule or location. What are an employer's obligations under this provision?
The post What is a right to request under employment standards? appeared first on First Reference Talks.
Join Stringer LLP and First Reference at the Centre for Health & Safety Innovation in Mississauga on June 20, 2017 at the Ontario Employment Law Conference to Learn the Latest® on the following topics from top Ontario employment law experts:
Plus, you can take part in one of three specialized small group breakout sessions:
Click here for more details and to register!
The Ontario Employment Law Conference is your opportunity to Learn the Latest® in employment and labour law from Stringer’s experts, and for a limited time you have the opportunity to save up to $80 per person with our early-bird rates!
Register today and we’ll make sure you leave the conference well-informed and ready to manage the tough issues you can expect to face in 2017 and beyond.
The post The agenda for the 2017 Ontario Employment Law Conference is now available appeared first on First Reference Talks.
A business’ obligations to its workers will depend on whether the workers are employees or independent contractors. However, a recent decision reminds us that, even where a worker is a true independent contractor, this distinction may not preclude a business being liable to third parties, such as customers, when the worker does something wrong.
In Chieffallo v Ghuman o/a Appleseed Snowblowing Service, the employer ran a snow removal business. The plaintiff alleged that a snowblower operator assaulted her by intentionally hitting her with the snow and slush discharge from his snowblower, and using a highly offensive racial slur against her.
The plaintiff sued the employer, rather than the snowblower operator, in small claims court. The plaintiff did not allege that the employer itself had done anything wrong; the only issue at trial was whether or not the employer was vicariously liable for the actions of the worker.
The trial judge found that the operator was an independent contractor, not an employee, and that the operator’s actions were not “connected to the work for which he was contracted”. As such, the judge found that the employer was not liable for the operator’s actions.
In upholding the trial judge’s decision, the appeal court noted that employers are more likely to be found vicariously liable for the actions of employees as opposed to those of independent contractors. This is because employers exercise more control over employees by the very nature of the employment relationship. However, the employee/independent contractor distinction is not the end of the inquiry.
If the employer’s business creates or enhances a risk, and the wrong in question flows from that risk, then vicarious liability is more likely to be appropriate. Courts will also consider two policy objectives: ensuring a just and practical remedy for the party injured party, and deterring future harm. Courts have held that, generally, the risks of operating a business should be borne by the business, and not by employees, contractors, or the public.
In the case at hand, the appeal court agreed with the trial judge that clearing snow from driveways did not create or enhance the risk of such an assault. Further, the court noted that the employer’s policy prohibited operators from interacting with customers, and customers were told to communicate any complaints to the head office, and not directly to operators.
There is no hard and fast rule for when vicarious liability will be imposed on an employer for the wrongful actions of one of its workers; it will depend on the particular facts and circumstances of each case. It will not be determined solely by the independent contractor/employee distinction, although this can be an indicator.
Employers should consider whether there are any risks created or enhanced by their business, and should take steps to mitigate such risks by instituting appropriate policies, training workers, and using progressive discipline where appropriate.
To learn more about the factors courts use to decide whether a worker is an employee or independent contractor, and the way in which this can impact your business, register to Learn the Latest® at the Ontario Employment Law Conference.
The post Using independent contractor not a “get out of jail free” card appeared first on First Reference Talks.
“Employers who are not careful to ensure that resignations are voluntary and final could face significant damages awards if the resignation were found ineffective, particularly for long-service employees.”
Has an employee who hands over his keys and company cell phone to his employer and declares “I’m done” resigned their employment? The Newfoundland and Labrador Court of Appeal has said that, in at least one case, the answer is no.
A resignation is only effective where the resignation is clear and unequivocal. The resignation must objectively reflect an intention to resign or conduct evidencing such an intention.
In addition, courts have been lenient with employees who resign from employment in a moment of heated passion. Courts have found that, unless an employer detrimentally relies on an employee’s resignation, the employer ought to provide an opportunity for an employee to rescind their resignation within a reasonable period.
If a resignation is ineffective, the employment contract remains in force. This means that employer actions, such as refusing to allow the employee to return to work, may constitute a dismissal.
The employee in Avalon Ford Sales (1996) Limited v Evans was responsible for inventory at a car dealership. Due to a mistake for which he was responsible, a car was sent directly to a customer and the dealership was not paid for several months.
Even though the dealership was ultimately paid and the mistake was fully corrected, a meeting between the employee and management concerning the situation became extremely tense and confrontational. During this meeting, the employee had what doctors later termed an “acute stress reaction.” He left the dealership, handed his keys and cell phone to a manger, and told the manager “I’m done.” Calls from the manager to the employee went unanswered.
Eventually the employer and the employee had a meeting where the employee provided a medical note supporting a stress leave claim. Management tore up the note, and told the employee to leave the premises and not to speak to anyone. The manager accused the employee of abandoning his position.
The question before the Court ultimately came down to whether the employee had resigned his employment. The Court of Appeal found that the decision to resign was made while the employee was under significant stress. The stress was particularly acute because of what the Court said was the “sensitive” disposition of the employee.
As a result of these circumstances, the resignation could not be truly said to be voluntary, an essential element of a valid resignation.
The Court of Appeal also commented that given the circumstances, the employer could not reasonably conclude that the employee had resigned. This was for two reasons.
First, it may not be reasonable for an employer to conclude that a resignation has occurred when the statements are made in the heat of the moment. In such a case, the employer has an obligation to seek clarification.
Second, and relatedly, the Court found that where there has been a lengthy employment of an employee who has what the Court found was a “sensitive disposition”, an employer cannot reasonably conclude that the intention of the employee was to resign by simply using words such as “I quit.” Again, further clarification is needed to confirm the employee’s intent to resign.
In the circumstances of this case, the Court found that the employee’s resignation was invalid, and that by purporting to accept an invalid resignation, the employer had dismissed the employee. The employee was awarded damages as a result.
It is not uncommon for employees who are under stress or have received negative performance reviews to make declarations to the effect of “I quit” or “I’m done.” Employers should be cautious about accepting these declarations at face value. As this case shows, courts are receptive to employees who attempt to step back from these emotional outbursts and rescind their resignation. Employers who are not careful to ensure that resignations are voluntary and final could face significant damages awards if the resignation were found ineffective, particularly for long-service employees.
To learn more about the factors courts use to decide whether an employee’s resignation is effective, register to Learn the Latest® at the Ontario Employment Law Conference.
The post The thin legal line: Resignation vs termination #learnthelatest appeared first on First Reference Talks.
Many employers include termination clauses in employment contracts to limit their liability when dismissing employees. When employers draft generous termination provisions providing for more than statutory minimums, they must follow through on that generosity when terminating employees. Failing to do so could leave employers exposed to full liability under the common law.
The employee in Holmes v Hatch Ltd. had been employed for almost 17 years as Project Manager and Senior Water Resources Engineer before he was terminated without cause. The termination provision in his employment contract was as follows:
In the event that we must terminate your employment for reasons other than cause, you will receive a termination package which takes into account your years of service, position and age. As a minimum the amount of combined notice and severance you will receive will equal 4 weeks plus one week for each completed year of service, or such greater amount as may be required by statute at the time of termination.
The employer noted that it had paid the employee his salary for approximately 25.5 weeks after his termination, and had continued his employment benefits for 8 weeks. It argued that this was more than the minimum prescribed by the second sentence of the termination clause, and that the employee had therefore received all he was entitled to.
Normally, when a party breaches a contract, it is required to perform no more than the minimum performance guaranteed under the contract. However, the clause in question promised the employee an appropriate termination package that complies with the Employment Standards Act (ESA) minimums and is based on a consideration of the listed factors. It treated consideration of the factors to arrive at a suitable termination package as an additional requirement, subject to the ESA minimums.
The court found that the termination provision explicitly incorporated several common law Bardal factors: years of service, position, and age. A proper interpretation of the provision required that these words be given meaning, and as such the employer was obligated to consider these factors when deciding on the content of the employee’s termination package.
The court found that the employer had not provided sufficient credible evidence to prove that it had indeed considered these factors when making its decision. As such, the court found that the employer had breached the employment contract, and thus could not rely on it to limit its liability. The court awarded 18 months common law notice to the employee, minus any notice payments already made by the employer and subject to mitigation.
Employers may choose to provide for more than the statutory minimums when drafting termination clauses for a variety of reasons. However, they should be aware that failing to provide compensation in accordance with these clauses could leave them exposed to liability under the common law, which can be significant. Employers should consult with employment law counsel when drafting termination clauses to ensure that they are promising what they intend to promise, and not more.
To learn more about how to draft enforceable termination clauses that suit your organization’s needs, register to Learn the Latest® at the Ontario Employment Law Conference.
The post Generous termination clauses: Think twice before making promises #learnthelatest appeared first on First Reference Talks.
Although the final report from The Changing Workplaces Review is not expected until later this year, the Ontario New Democratic Party (“NDP”) introduced a private member bill on April 4, 2017 aiming, among other things, to make it easier for workers to unionize their workplaces.
Currently in Ontario, the certification process for all industries other than construction involves a secret ballot vote. Bill 119, Fairness in First Contracts and the Right to Representation Act, 2017, aims to re-introduce card-check certification in all industries.
Supporters allege that the vote-based system gives employers too much time to dissuade workers from unionizing, although there is a dearth of evidence to support such an assertion. In reality, the “snap vote” is held (almost without exception) five business days after the date on which the union filed its application. In other words, employers who don’t see the application coming have very little time to campaign against certification, and unions already have absolute discretion to file at the most optimal time for them.
One of the express purposes of the Labour Relations Act is to “facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees” (emphasis added). It is difficult (for us humble employer-side counsel) to comprehend how making such an important decision, without hearing from both sides, would permit an employee to choose “freely”.
Given that the return of card-check certification is one of the options to be addressed in the final report of the Changing Workplaces Review, it seems that Bill 119 is premature. However, it should be noted that the NDP has repeatedly attempted to reintroduce card-check certification since it was abolished by the Conservative government in 1995.
Bill 119 also proposes to introduce broader access to first agreement arbitration, which is another topic being considered in the Changing Workplaces Review.
The proposed amendments would allow either party to make a request to the Minister of Labour. The Minister would be obligated to refer the matter to arbitration if the parties are unable to enter into a first collective agreement and 30 days have passed since the day on which the parties were in a strike or lock-out position.
The law currently provides that either party may apply to the Ontario Labour Relations Board to obtain an order directing first contract arbitration. But before it can do so, the Board must be satisfied that bargaining has been unsuccessful because of, (a) the refusal of the employer to recognize the bargaining authority of the trade union; (b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification; (c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or (d) any other reason the Board considers relevant.
These preconditions protect the parties’ right to negotiate their own collective agreement, absent misconduct that may thwart the process.
The proposed amendment would effectively grant unions unfettered access to first contract arbitration, without meeting these established preconditions. Free collective bargaining is the foundation of our labour relations scheme. Thus, this aspect of Bill 119 seems antithetical to the purposes of the legislation.
Stringer LLP is closely monitoring the progress of the Changing Workplaces Review as well as the status of Bill 119. To learn more, register to Learn the Latest® at the Ontario Employment Law Conference.
The post Private member’s Bill seeks union-favourable amendments, without waiting for the Changing Workplaces Review #learnthelatest appeared first on First Reference Talks.
It may seem fairly obvious when a worker breaks her leg “in the course of employment”. However, injuries and illnesses related to bullying and harassment have drawn significant attention in recent years, and decisions from various workers’ compensation tribunals across the country illustrate that determining the work-relatedness of such injuries is no simple task.
In the anonymized decision 2014-363-AD (Re), the Nova Scotia Workers’ Compensation Appeals Tribunal found that although a worker was sexually assaulted by her boss, the Post-Traumatic Stress Disorder (“PTSD”) that resulted was not compensable as it was not a work-related injury.
In that case, the worker received a call from her new supervisor while at home on her day off, telling her that he was coming over. She did not know him well, and had never interacted with him outside of work. She thought that she must have been in trouble at work. The worker testified that when he arrived, he sexually assaulted her. The worker subsequently filed a report regarding the PTSD that she alleged was caused by the assault. The Tribunal accepted that the worker’s PTSD was a result of the sexual assault.
The Tribunal denied the worker’s claim on the grounds that her injury did not arise “in the course of employment”. The Tribunal found that at the time of the assault, the worker was not doing something for the benefit of the employer, and her supervisor was not acting on the employer’s instruction. The supervisor did not go to her home for an employment-related purpose, despite the fact that she could not think of any other reason for him to come over at the time, and he was wearing his uniform when he arrived.
The Tribunal found that, “It was simply one person going to another person’s home. The fact that they knew each other from work did not create a work-related reason for the visit.”
In coming to its decision, the Tribunal reviewed various decisions from the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In one case, the WSIAT found that a worker’s stress-related disability that resulted from sexual harassment by a supervisor both inside and outside the workplace constituted an injury arising out of and in the course of employment.
In another case, a worker suffered anxiety, depression, and PTSD after being harassed by a co-worker at work, and stalked by him outside of the workplace. The WSIAT in that case, however, found that while some of the events took place at the workplace, the nature of the harassment was related to a pre-existing personal relationship between the two workers, and was not in the control or under the supervision of her employer.
This decision comes in the wake of another novel workplace compensation case from Prince Edward Island. In an unreported decision, the Workers’ Compensation Board of PEI awarded benefits to a widow after her husband’s death was linked to workplace bullying and harassment.
In that case, the worker had been subject to a pattern of bullying and harassment by his supervisor, and eventually died from a heart attack at home after having been off work on leave. Although we do not have the Board’s full reasons, it seems that once pre-existing cardiac conditions were ruled out, the Board had sufficient evidence to find that the harassment caused the heart attack, and that as a result the worker’s death was work-related.
These cases illustrate that workers’ compensation systems across Canada have been dealing with a number of novel issues arising from injuries related to bullying and harassment. The key issue is the work-relatedness of the injury in question; however, as illustrated by the cases reviewed here, that determination is extremely subjective when dealing with issues of bullying and harassment, as opposed to physical accidents and injuries.
Employers should take note of the potential expansion of the types of claims processed by the workers’ compensation regime, and review their policies and procedures accordingly.
To learn more about the legal implications of injuries related to workplace harassment and bullying, register to Learn the Latest® at the Ontario Employment Law Conference.
The post Is it work-related? Novel workers’ compensation decisions deal with harassment and assault #learnthelatest appeared first on First Reference Talks.
A recent case from Nova Scotia illustrates that as laws and social attitudes concerning marijuana change, employers may be burdened with previously unexpected costs.
As Canada moves toward decriminalization by July 2018, the stigma associated with lawful use appears to be diminishing. Even before the Liberals ran on a platform to decriminalize, Health Canada estimated that the number of registered medical marijuana users would increase 10-fold – to 450,000 people by 2024.
In Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, the Nova Scotia Board of Inquiry (the “Board”) found that an employee was discriminated against when the trustees of his employee benefit plan refused to cover his medical marijuana “prescription”.
The employee was an elevator mechanic who had been involved in a car accident while working. He suffered from chronic pain, anxiety, and depression after the accident, and had used prescription narcotic pain medication and anti-depressants for several years with little effect. He eventually obtained the necessary license and prescription to obtain medical marijuana[1], and saw a drastic improvement in his symptoms.
The employee approached his employee benefit plan about covering his prescription marijuana. The benefits plan only covered drugs “obtained by prescription” from a licenced pharmacist, physician, or other authorized healthcare practitioner. His request was denied by plan trustees because marijuana is not covered under the Food and Drug Act, and does not have a Drug Identification Number.
The Board noted that although medical marijuana is not listed in the Food and Drug Act, it can be “prescribed” by physicians. Further, the Board noted that the trustees had discretion under the plan to grant coverage for drugs not included in the plan.
The Board held that the plan created a distinction; the employee was denied his special request for coverage of his medically-necessary prescription drug, while such requests were granted to other beneficiaries in regard to other drugs. This created a disadvantage for the employee, as his chronic pain had gone unmanaged.
The Board determined that the employee’s disability was a factor in the trustees’ decision to deny his request for coverage, and as such a prima facie case of discrimination was made out. The respondent failed to establish that covering the medical marijuana would lead to undue hardship. As such, the Board ordered the respondent to provide coverage for the employee’s medical marijuana.
This case illustrates that as societal attitudes change, a greater proliferation of medical marijuana may have far-reaching, and sometimes unexpected effects on Canadian workplaces. Employers should stay abreast of changes to the law, and review existing policies to keep pace.
To learn more about the workplace issues surrounding medical marijuana, register to Learn the Latest® at the Ontario Employment Law Conference.
[1] Prior to 2014, a license was required. Presently, only a doctor’s prescription is required.
The post Medical marijuana: A high cost to employers? #learnthelatest appeared first on First Reference Talks.
The provincial government is acting quickly to implement the recommendations of the Changing Workplaces Review.
Join Minister Flynn on June 20 at the Ontario Employment Law Conference to hear about the newly tabled The Fair Workplaces, Better Jobs Act and the Ontario government’s other plans for the 173 recommendations from the Changing Workplaces Review final report. This special luncheon presentation will be followed by a short question and answer period for conference attendees.
Proposed by the provincial government on June 1, 2017, Bill 148 aims to make significant amendments to Ontario’s Employment Standards Act and Labour Relations Act. If enacted, some of the legislative changes include:
At this point, employers should start to understand and learn about the potential changes to employment and labour laws.
Employers may also want to begin the process of modifying their HR policies and workplace practices soon. If Bill 148 passes as expected, many of the legislative changes to employment standards will come into force on January 1, 2018, while legislative changes to labour relations will come into effect six months after the Act comes into force.
Don’t miss out on this special opportunity to hear about the government’s initial response to the Changing Workplaces Review from the Ontario Minister of Labour in person. Register today to Learn the Latest® at the 2017 Ontario Employment Law Conference so you can be prepared when the government moves forward with these recommendations.
You can see the full agenda for the conference here.
The post Minister of Labour Kevin Flynn to join the Ontario Employment Law Conference #learnthelatest appeared first on First Reference Talks.
