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Posts tagged: employment law toronto

Does an Unpaid Suspension Constitute a Constructive Dismissal? Sometimes

By , September 11, 2018 10:06 am

Employers are increasingly suspending employees when allegations of misconduct are made against an employee. This includes allegations of sexual or workplace harassment and allegations of financial improprieties. If such a suspension constitutes a wrongful dismissal then these suspensions can expose employers to significant legal liability.

General Rule

According to Ontario’s Court of Appeal, an unpaid administrative suspension generally triggers a constructive dismissal “unless it (is) an express or implied term of the contract that the employer (can) suspend an employee without pay.”

A Case Study

A recent court case considered the suspension of a security supervisor at a casino. The employee needed to maintain a valid gaming registration from a government agency as a condition of employment. The casino’s Security Department was responsible for managing the casino’s lost and found processes, which include the collection of property and money from the casino’s facilities. The government agency that issues the required gaming registrations told the security supervisor that he was under investigation for theft in relation to the lost and found department but noted that no criminal charges had been laid.

One of the policies in the casino’s handbook stated:

Investigative Suspension may be used as part of the coaching and counselling process to verify allegations of misconduct.  During an investigation, the Associate may be prohibited from working. If a decision is made to separate the Associate’s employment, he or she may not be reimbursed for time spent on Investigative Suspension.

The casino immediately suspended the employee without pay.

The employee was subsequently charged criminally and the casino suspended its investigation into the allegations against the employee until the criminal charges were concluded. About 15 months later, the employee surrendered his gaming registration. Shortly thereafter, the casino wrote the employee and told him that in light of the requirement that he maintain a valid gaming registration, “his employment was at an end since he had surrendered his gaming registration.”

Is an Unpaid Suspension Legally Permitted? The Legal Test

The trial judge concluded that the employee’s suspension was clearly justified in the circumstances. The issue to decide was whether the casino could justify an unpaid suspension.

When considering this issue, the court applied the following test:

… absent express language in the employment contract stipulating that any suspension would be without pay, the burden rests on the appellant to establish that a suspension without pay was justified.  If the appellant cannot justify a suspension without pay, then taking that step amounts to a unilateral change in the employment relationship that constitutes a breach of the contract of employment.

Can a Paid Suspension be Converted into an Unpaid Suspension?

The court also discussed at what point a paid suspension can morph into an unpaid suspension.

While there might have been a point later in time when the suspension of the respondent without pay could have been justified, depending how matters unfolded, there was an insufficient foundation for a suspension without pay on December 19, when the respondent was told he was suspended and escorted out of the premises.  In my view, when the appellant suspended the respondent without pay on December 19, it made a unilateral change to the employment relationship and breached the implied term of the employment contract that the power to suspend without pay would not be exercised unreasonably.

The trial judge and the appeal court concluded the unpaid suspension constituted a constructive dismissal in this case and awarded the employee damages in lieu of reasonable notice of termination.

Lessons to Be Learned:

  1. An employer does not generally have an implied right to suspend an employee without pay during an investigation.
  2. An employer should therefore include a term in its employment contract giving it the right to suspend an employee with or without pay during an investigation.
  3. An employer should not impose an unpaid suspension unless there is evidence of employee misconduct. Accordingly, absent extraordinary circumstances, an employer should generally investigate the misconduct allegations that trigger the employee suspension promptly. If evidence of misconduct is found to exist, an employer may be able to quickly convert a short paid suspension into an unpaid suspension.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

The MacLeod Law Firm’s 2018 Employment Law Seminar: A ½-Day of Ford, Cannabis & Human Rights

By , August 28, 2018 9:52 am

Subscribers to this blog receive a brief description of a new employment law development every two weeks.

Some topics however deserve more than a cursory discussion. We have selected three such topics to cover in a ½ day seminar on October 23rd in Toronto and on October 24th in Barrie.

Here is a brief summary of the three topics we will be discussing at this seminar:

The legalization of the cannabis

On October 17, 2018, Canada is scheduled to become the second country on earth to legalize cannabis. The federal government could have simply decriminalized cannabis use but it went further and established a framework for the legal sale of cannabis. Each province will decide how to distribute cannabis, how to amend impaired driving laws, and set the price of cannabis.

It is important that each employer understand its rights and obligations under the new cannabis legislation and to set and enforce expectations with respect to cannabis use and impairment in the workplace including employees who have been prescribed medical marijuana.

We will discuss issues that should be addressed in a workplace drug policy.

The employment law landscape is changing under the new PC government

The Progressive Conservative government has stated that Ontario is open for business and we expect this will mean less regulation of Ontario workplaces and it may mean that certain legislation will not be implemented as expected. For example, during the provincial election campaign, leader Doug Ford stated that a $1 per hour increase in the minimum wage will not take effect on January 1, 2019 as planned. There are a number of planned amendments to the Employment Standards Act that are scheduled to take place in 2019 and we believe the PC government may delay or scrap some of these proposed changes.

We will discuss what laws the PC government has introduced as of mid-October and identify which laws will not be enacted in 2019 as originally planned.

The human rights landscape is changing

The Human Rights Tribunal of Ontario processes thousands of applications each year and issues decisions that affect all employers. These decisions can provide guidance to employers such as its decisions on what an employer must do to satisfy its duty to accommodate an employee with a disability. Did you know that an adjudicator recently concluded that a law which allows an employer to provide an employee over 65 years old with lesser health benefits than a younger worker was unconstitutional? Does your group health plan permit this kind of age discrimination?

We will discuss the most significant human rights decisions in the last year and what they mean to employers.

The cost of this seminar is $199 plus HST. To register, please email [email protected] or call 647-204-8107.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Can An Employee’s Off-Duty Behaviour Constitute Just Cause for Termination?

By , August 8, 2018 12:34 pm

We receive calls from employers asking whether they can terminate an employee for off duty conduct. Unfortunately there is not an easy answer. This blog discusses two cases of similar off-duty conduct. A judge found the employer did not have just cause to terminate in one case whereas in the other case the judge concluded the employer did have just cause.

Case Where Off-duty Conduct Did Not Amount to Just Cause

In a 2018 decision, a judge concluded that driving a Company vehicle while impaired was not just cause for termination.

Mr. Klonteig worked with the City of West Kelowna (“the District”) as a firefighter and later as the Assistant Fire Chief. He had an unblemished employment record and it was undisputed that he was an exemplary and valued employee.

After 13 years of employment with the District, Mr. Klonteig was terminated based on an off-duty incident of driving while impaired. Mr. Klonteig was driving home in the vehicle allocated to him as an Assistant Fire Chief. This vehicle was a pick-up truck and there were no policies restricting its personal use. The only indicator that it belonged to the District at all was a fleet number on its rear. Mr. Klonteig was pulled over for suspected impaired driving and failed two roadside breathalyzer tests. The District vehicle was impounded and Mr. Klonteig received a 90-day administrative driving prohibition.

That same day, Mr. Klonteig reported the incident to the District’s Chief and a human resources advisor. Mr. Klonteig was sent home and he believed he was simply suspended from work. However, once the District’s Chief Administrative Officer, Mr. Johnson, was informed of the incident, he exercised his discretion to terminate Mr. Klonteig’s employment. Mr. Johnson chose termination despite the advice of two senior managers because of his concern for potential liability and public safety.

Mr. Klonteig was provided with a cheque for his outstanding unpaid wages, a payout of his accrued vacation time, and a promise of a written reference letter.

The District alleged that the incident was serious enough to amount to just cause for termination, while Mr. Klonteig submitted that he was wrongfully terminated.

The BC Supreme Court agreed with Mr. Klonteig that his dismissal was wrongful and found that the District did not have just cause to terminate him.

Case Where Off-duty Conduct Amounted to Just Cause

The facts of the Klonteig case can be contrasted with a 2012 Ontario case we previously discussed  here.

In this case, Mr. Dziecielski was an employee of the Company for 13 years and had no history of misconduct or performance issues. Mr. Dziecielski borrowed a company vehicle without permission and crashed it while under the influence of alcohol. The vehicle was destroyed and the employee sustained life-threatening injuries. Based on the test that judges apply when deciding whether just cause for termination exists, the judge found the employer was justified in terminating the employee for just cause.

The Test for Determining Whether Just Cause Exists

A judge will adopt a contextual approach when determining the degree of misconduct that will justify summary dismissal. One must look at both the circumstances surrounding the misconduct and the nature of employment relationship. Further, the principle of proportionality is vital; balance must be struck between the severity of the employee’s misconduct and the sanction imposed.

Judges have found that in order for off-duty conduct to amount to cause, the conduct must be or be likely to be prejudicial to the interests or reputation of the employer.

Application of the Test in the Klonteig Case

Mr. Klonteig was found not to be representing his employer when he was stopped for impaired driving. The vehicle he was driving was essentially unmarked and his conduct was not considered to be of the same high moral reprehensibility as some of the cases cited by the District. Further, the court pointed out that Mr. Klonteig’s role was more administrative so he was not the public face of the Fire Department, nor was the public aware of his administrative suspension.

Based on the fact that Mr. Klonteig’s conduct did not cause his fellow firefighters to lose confidence in him, the court concluded the public would be unlikely to do so either. All in all, Mr. Klonteig’s off-duty conduct was not incompatible with faithful discharge of his duties, nor was it prejudicial to the interests or reputation of the District.

Application of the Test in the Dziecielski Case

The employee in the second case was charged with a number of criminal offences related to drunk driving. The judge stated that the employee was guilty of serious misconduct and discussed the problem of drunk driving in our society. He noted that the employee’s conduct was prejudicial to the employer’s business as the employer’s goodwill and reputation could have been significantly affected. Further, the employee had signed an Employee Handbook that made it clear consuming alcohol on the job could result in termination of employment because it is a violation of a serious workplace rule. Based on the context of this case, the judge concluded that this single act of drunk driving was enough to constitute just cause for dismissal.

What These Conflicting Cases Mean for Employers

The differing outcomes in these two cases show how important it is for employers to thoroughly assess the circumstances surrounding misconduct in its entirety before terminating an employee for just cause for off-duty conduct.

As can be seen from the cases discussed in this blog, although the test applied by the the courts is consistent, outcomes are determined on a case-by-case basis. Driving a company vehicle can amount to just case in some cases but not others.

If you are considering disciplining or terminating an employee for off-duty conduct, you can reach one of our lawyers at [email protected] or 647-204-8107.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

A Benefit of Working Past 65: Employee Benefits Must Continue

By , July 31, 2018 12:21 pm

A recent human rights decision may result in Ontario employers paying higher premiums for group employee benefit plans.

Mr. Talos was a secondary school teacher and decided to keep teaching after he turned 65 years old even though he could retire and receive a pension and other government benefits. He was financially motivated to continue working because he needed the health benefits. These benefits paid for medical and other expenses in connection with his wife’s serious illness. In this regard, his wife had no employer sponsored benefits and, as she was younger than 65 years old, she did not qualify in her own right for various government income supports like Old Age Security and Ontario Disability Drug Benefits Plan.

When he turned 65, Mr. Talos’ employer terminated his membership and its extended health, dental and life insurance benefits plan pursuant to section 25(2.1) of the Ontario Human Rights Code and section 44(1) and a number of regulations under the Employment Standards Act (collectively referred to as the “Age Exemption”).

Mr. Talos filed an application under the Human Rights Code claiming the Age Exemption violated section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) and was not saved by section 1 of the Charter.

In this regard,  Section 15(1) of the Charter states:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

And, section 1, that provides both a guarantee of rights and freedoms and justification for limitations on those rights and freedoms, states:

1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The adjudicator appointed under the Ontario Human Rights Tribunal agreed with Mr. Talos.

He concluded:

The impugned provisions (i.e. The Age Exemption) could have been better tailored to preserve the viability of workplace benefit plans without the “carve out” that left older workers vulnerable to a lessening of their compensation based solely on their age, and not their ability, performance or any other bona fide qualification.” The adjudicator also stated: For greater clarity, this decision does not address long term disability insurance, pension plans and superannuation funds.”

Although the Tribunal’s decision does not address long-term disability insurance, pension plans and superannuation funds, there may be similar challenges in the future to such employee benefits.

We note that the merits of this case have yet to be determined as this is an interim decision. We will keep you updated as this case progresses.

Lessons to be Learned:

  1. The cost of group employee benefit plans may be going up. Employers should therefore speak with their group insurers to find out how much extra it will cost to extend group benefits to employees over 65 years of age.
  2. Depending on the size of the increase in premium costs, employers should start thinking about whether group benefits need to be restructured if Mr. Talos wins his case on the merits and the decision is not overturned on appeal.
  3. I would not be surprised if similar challenges are made to long-term disability insurance and pension plans. If so, employer associations should try to intervene in these cases. The cost of obtaining and presenting expert evidence is expensive and beyond the means of most individual employers. Cases are decided based on the evidence before the decision maker and social science evidence is critically important when considering whether or not “reasonable limits prescribed by law (such as the Age Exemption) … can be demonstrably justified in a free and democratic society.”

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Don’t Let Cannabis Laws Leave You Dazed and Confused

By , July 17, 2018 11:03 am

In October, smoking or ingesting cannabis will be legal in Canada. Does your business have policies and procedures in place to handle this transition?

The federal government has passed legislation that will make cannabis legal, giving the provinces power to control how it will be used and sold.

This historic change is likely to lead to a significant increase in cannabis consumption. Prudent employers should be ready to handle the presence of cannabis in the workplace.

Federally, The Cannabis Act

Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Cannabis Act”) is scheduled to take effect on October 17, 2018. It creates a legal framework for the sale and possession of cannabis in Canada.

The underlying purpose of legalizing cannabis is to deter criminal activity, prevent young persons from accessing cannabis, and to protect public health and safety.

The Cannabis Act will allow adults to possess up to 30 grams of cannabis.

Provincially, Ontario’s Regulations

The Ontario government will be responsible for regulating the distribution of cannabis. Most provinces plan to use their liquor agency as the main distributor of recreational cannabis. Ontario has passed laws about where, how, and who can consume recreational cannabis. The minimum age to possess or use cannabis in Ontario will be 19.

After province-wide consultation, Ontario passed Bill 174, Cannabis, Smoke-Free Ontario, and Road Safety Statute Law Amendment Act, 2017 (Bill 174). This omnibus legislation enacts

  • the Cannabis Act, 2017 (Schedule 1),
  • the Ontario Cannabis Retail Corporation Act, 2017 (Schedule 2), and
  • the Smoke-Free Ontario Act, 2017 (Schedule 3).

Bill 174  repeals the Smoke-Free Ontario Act and the Electronic Cigarettes Act, 2015, and makes amendments to the Highway Traffic Act including driving with drugs or alcohol present in the body (Schedule 4).

Bill 174 prohibits the use of tobacco or cannabis in many locations including

  • Any public places
  • Motorized vehicles
  • The workplace

How Bill 174 Affects Employers

Consuming recreational cannabis in the workplace remains illegal. The term “workplace” is given the same broad definition as in the Occupational Health and Safety Act (“OHSA”). This means that an employee cannot use cannabis at work, during lunch breaks, or at work events. However, it is not prohibited to bring cannabis into the workplace, absent an employer policy. It will remain the responsibility of employers to enforce these prohibitions.

Further, Bill 174 has specific provisions affecting particular industries. For example, there are provisions protecting home healthcare workers from second-hand smoke and prohibiting the use of cannabis while operating a motor vehicle.

The Maze of Employer’s Obligations

With marijuana legalization around the corner, there are a minefield of issues facing employers. First and foremost, the law does not authorize employees to be impaired at work and employees do not have a right to smoke cannabis at the workplace. This is particularly important in safety sensitive workplaces, as employers must continue to meet their obligations under the OHSA.

A tricky issue facing employers is the detection of cannabis impairment in the workplace. A thorough drug and alcohol policy can assist employers in this regard. Introducing drug and alcohol testing however is very controversial and often leads to litigation.

The duty to maintain a safe work environment must be balanced with an employer’s obligation under human rights legislation to accommodate an employee with a disability. As most employers already know, medical use of marijuana has been legal in Canada since 1999. It is currently regulated under the Access to Cannabis for Medical Purposes Regulations.

It is important for employers to note:

  • employees who use medical marijuana have a right to be accommodated, to the point of undue hardship
  • an addiction to marijuana can fall under the definition of disability
  • an employer’s drug and alcohol policy should distinguish between recreational and medical marijuana. 

Employers will have the power to develop policies on the possession and use of recreational cannabis in the workplace. Policies can outline acceptable employee behavior while maintaining employee privacy.

Be Proactive! Steps Employers Can Take

To manage expectations in relation to cannabis use, an employer can create a drug and alcohol policy before Bill C-45 comes into force in October. If a drug and alcohol policy already exists, it can be updated to reflect the legislative changes regarding cannabis. This policy making process can take time. Further, employees need training to understand what is expected of them at work.

The intersection of issues surrounding cannabis at the workplace including health and safety considerations, the duty to accommodate, and the complex area of drug testing can result in the need for professional advice on how to create a reasonable and enforceable drug and alcohol policy. MacLeod Law Firm offers a fixed fee to prepare such a policy, taking into account the nature of the business to ensure the policy suits your needs.

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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