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Posts tagged: employment law

How to Spot a Resignation

By , July 31, 2017 10:16 am

Contrary to popular belief, it is not always easy to know when someone has resigned. Even if an employee uses words such as “I quit,” a court may still find that the employee has not truly resigned. An employer in Alberta learned this lesson the hard way. 

Carroll v Purcee Industrial Controls Ltd. (“PIC”) 

Mr. Carroll worked for the defendant first in Calgary, Alberta. He then moved with his family to Madagascar, where he continued to work for PIC. In 2012, business was in decline and the relationship between Mr. Carroll began to deteriorate. In August 2012, Mr. Carroll tendered his written resignation and requested a fair severance package. PIC rejected his resignation and urged Mr. Carroll to take his planned holiday. Mr. Carroll continued to work for PIC after he returned from his holiday. 

The relationship between Mr. Carroll and PIC became increasingly strained. In May 2013, Mr. Carroll again suggested they should terminate his employment “on professional terms”, and outlined his proposed terms of severance. One of the owners told Mr. Carroll that he would be ready to discuss the matter in a few days. Mr. Carroll responded that he planned to move back to Canada with his family in July. 

Mr. Carroll’s employment ended on June 7, 2013, when PIC purported to accept his resignation. 

The Decision 

At trial, Mr. Carroll argued his employment was terminated without cause and he was entitled to pay in lieu of notice. PIC claimed Mr. Carroll voluntarily resigned from his employment, in which case he was not entitled to any damages. 

A resignation must be clear and unequivocal, which involves both a subjective and objective component. Subjectively, did the employee intend to resign? Objectively, viewing all the circumstances, would a reasonable employer have understood that the employee had resigned? The court looks at the employee’s words, acts and the surrounding circumstances. 

Despite the fact that all indications of severing the employment relationship were initiated by Mr. Carroll, the court found that he did not intend to resign from his employment. The court found that Mr. Carroll’s words, when viewed contextually, were “an emotional reaction.” Mr. Carroll’s resignations came from a place of frustration, even though they were not said in the heat of the moment. Furthermore, the fact that that the owner indicated he would be ready to discuss the matter in a few days was consistent with someone who was contemplating the proposal outlined by Mr. Carroll (i.e. he could not have considered Mr. Carroll to have resigned). 

More importantly, the court found it difficult to accept the resignation was clear and unequivocal when it was tied to a proposal for terms of severance. In the circumstances, the burden was on the employer to confirm with Mr. Carroll that he truly intended to resign. The court concluded that Mr Carroll was dismissed, and therefore entitled to seven months’ pay in lieu of notice. 

Lessons to be Learned 

The onus is on the employer to confirm an employee’s true intentions behind a purported resignation. Otherwise, the employer risks having to respond to a wrongful dismissal claim in the future. Therefore, even in situations where employees utter words typically associated with a resignation (such as “I quit”), it is important not to take such words at face value. In these circumstances, or any time an employee brings up the matter of a severance package, it is important to consult a lawyer. 

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 my organization implement a drug testing policy at the workplace?

By , July 24, 2017 10:24 am

If you’ve been following the news over the last few months, you know that the Ontario Superior Court of Justice refused to allow the union’s injunction against the TTC’s random drug and alcohol testing policy. More recently, the Supreme Court of Canada upheld the termination of an employee who was terminated for violating his employer’s drug testing policy. These developments have led to us answering many questions from employers (and news publications) about whether they can also test their employees for drugs and alcohol.

Despite the TTC’s success at court, employers should proceed with caution when instituting drug and alcohol testing at the workplace. Firstly, the issue before the court was not whether such a policy was discriminatory. Secondly, the court refused the union’s injunction because of both the safety-sensitive industry and the wide area in which the TTC operates. Furthermore, the caselaw preceding the TTC decision shows that there is a high evidentiary burden an employer must satisfy to justify random drug testing its employees.

Because addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code, drug and alcohol testing has human rights implications for people with addictions. For example, a human rights issue may arise where a positive test leads to automatic negative consequences for a person based on an addiction.

However, courts and tribunals recognise that it is a legitimate goal for employers to have a safe workplace, particularly in safety-sensitive industries. Therefore, there is caselaw that has recognised that a drug testing policy is justifiable if an employer can show that the policy is a bona fide (i.e. legitimate) requirement of the job. However, even if the policy is a legitimate requirement, employers should strive to minimise any potential discriminatory impact, and be prepared to accommodate employees with addictions who are negatively impacted by the policy.

Another requirement for a drug and alcohol testing policy to be found justifiable is that it must measure impairment, as opposed to drug or alcohol use. For example, while alcohol testing is able to measure a person’s impairment quite accurately, because drugs can remain in a person’s system for quite some time after their use, drug testing is less accurate at measuring impairment rather than drug use. For this reason, alcohol testing tends to be more permissible than drug testing. Similarly, testing after an accident or a “near-miss” is more justifiable than random testing.

Lessons to be Learned

As we get closer to marijuana being legal in Canada, questions around workplace safety and the permissibility of drug testing are bound to increase. We will continue to publish additional information as more relevant cases are released. In the meantime, if you are considering implementing a drug and alcohol testing policy at the workplace, you should consult an employment lawyer to find out whether such a policy would survive the scrutiny of a court or tribunal.

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.

Employer Alert: Ontario Government Moving Quickly to Introduce Employee Friendly Changes to the Employment Standards Act

By , June 26, 2017 10:02 am

The Ontario government is quickly moving Bill 148 through the provincial legislature.

Some Proposes Changes to the ESA

As discussed in a previous blog, Bill 148 proposes changes to the Employment Standards Act (the “ESA”) including a $ 15 minimum wage by January 1, 2019, an additional week vacation after 5 years service, and two paid personal emergency leave days for absences caused by, among other things, illness and bereavement leave. In addition, if Bill 148 becomes law an employer would no longer have the right to ask an employee to provide a medical note to verify an illness.

Public Hearings to Consider Proposed Changes

On June 1, 2017 Bill 148 was ordered Second Reading and referred to the Standing Committee on Finance and Economic Affairs (the “Committee”).

Public hearings on Bill 148 are scheduled for June and July.

There are a number of ways you can provide the government with feedback on Bill 148’s impact on the Ontario labour market:

  • Attend one of the public hearings being held in Thunder Bay, North Bay, Ottawa, Kingston and Windsor-Essex during the week of July 10, 2017. A contact name, mailing address, phone number and email address must be provided to the Clerk of the Committee by July 4, 2017 for anyone wishing to attend the hearings during the week of July 10, 2017. The Committee’s Clerk, Eric Rennie, at 416.325.3506 or by e-mail at ERennie@ola.org.
  • Additional public hearings will occur during the week of July 17, 2017 in London, Kitchener-Waterloo, Niagara, Hamilton and Toronto. A contact name, mailing address, phone number and email address must be provided to the Clerk by July 4, 2017 for anyone wishing to attend the hearings during the week of July 17, 2017.
  • Provide written submissions to the Committee no later than July 21, 2017 at 5:30 pm.

When Proposed Changes Expected to Take Effect

I expect these public consultations will be completed by September 11, 2017 when the legislature resumes. Bill 148 could be passed shortly thereafter and if so I expect many of the changes to the ESA will take effect on January 1, 2018.

Bill 148 is Just One of many Changes to Ontario’s Employment Laws

Ontario’s employment laws are constantly changing and Bill 148 is just one example. In recent years, the government has also introduced mandatory employee training, mandatory written policies, mandatory postings, and mandatory workplace harassment investigations.

Compliance rates are low for these new laws and the Ontario government recently announced it intends to hire 175 additional workplace inspectors and the Ministry of Labour intends to inspect 10% of Ontario workplaces each year. Bill 148 proposes increased fines for non-compliance with the ESA.

Feeling Overwhelmed?

Many small and medium size employers have a hard time keeping up with these new employment laws.

In October 2017, the MacLeod Law Firm is holding seminars in Toronto & Barrie which will discuss three important developments in Ontario’s employment laws. One of the topics we will address are the new obligations imposed on employers under Ontario’s employment laws including the likely changes to the ESA as a result of Bill 148 and what to do when a Ministry of Labour inspector comes calling.

For more information on these seminars click here.


 

For over 25 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 doug@macleodlawfirm.ca

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.

Wrongful Dismissal Update: The Number of Damage Claims Being Awarded By Trial Judges are Going Up

By , January 17, 2017 8:45 am

Once upon a time, employees did not sign employment contracts with termination clauses and employment lawyers fought over the appropriate “reasonable” notice period.  In 2017, employees now often claim, among other things, wrongful dismissal damages, human rights damages, moral or Wallace damages, punitive damages, and damages for the intentional infliction of mental stress.

By way of example, this blog discusses a recent case decided by a judge of Ontario’s Superior Court after a 27-day trial.

Doyle v. Zochem Incorporated, 2016 ONSC 3199

In this case, a 44-year-old female supervisor with 9 years’ service was fired without any notice of termination. She earned a salary of about $ 85 000, worked in a male dominated workplace, and her termination came shortly after filing a harassment complaint. After her termination, the employee spiralled into depression. She applied for short-term disability benefits but even though the employer’s doctor supported the claim the Company denied it.

In an 82 page decision, the judge awarded the terminated employee three different types of damages.

Wrongful Dismissal Damages

The court concluded the employer should have provided the employee with 10 months notice of termination and ordered the employer to pay her over $ 80 000 in damages which was equal to the remuneration she would have received during this period (including pension contributions, and profit share) less the termination pay and severance pay she received after her termination.

Moral Damages or Wallace Damages

The judge ordered the employer to pay the employee $ 60 000 because of manner of the termination. The Company’s managers were extremely insensitive at the time of her termination; they were cold and brusque and she was not given a reason for her termination. In addition, the judge concluded, among other things, that the Company’s response to the short-term disability claim was insensitive.

Human Rights Damages

The judge ordered the employer to pay the employee $ 25 000 because of how it responded to her harassment claim, including a faulty one-day investigation into it.

Damages for the intentional infliction of mental stress

The judge concluded that even though a manager harassed and demeaned the employee knowing she suffered from depression, she did not intend to cause the employee mental stress and therefore he did not award the employee damages for this claim.

Lessons To Be Learned

  1. Employers should make a reasonable attempt to settle these kinds of cases before litigation is commenced. In this case, the employer made a six month “take it or leave it” offer which was clearly less than her wrongful dismissal damages. I shudder to think about the legal costs associated with a 27 day trial.
  2. Employers have an obligation to act in good faith including at the time of termination. There is no reason to be insensitive to an employee at the time of termination. Doing so will only open up the employer to unnecessary legal liability.
  3. Employers have an obligation to conduct an adequate investigation into a human rights or harassment complaint. An investigation into a sexual harassment complaint should be conducted by someone who is adequately trained. Failure to do so will only open up the employer to unnecessary legal liability.

 

For over 25 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 at 416 317-9894 or at doug@macleodlawfirm.ca

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.

 

 

Investigating Workplace Harassment Complaints: Get Ready for Changes to the OHSA

By , July 26, 2016 7:20 am

“Bob is harassing me.”

Your spidey senses should be tingling. Because some kind of investigation should be taking place soon. If not, consider what happened when an employee at CBC complained about Jian Ghomeshi and was ignored or when an employee at the TO2015 Pan American games complained about David Peterson and her complaint was allegedly not taken seriously.

Immediately after you are told about Bob the alleged harasser you should determine whether the person is alleging workplace harassment.

Under the Ontario Human Rights Code (the “Code”) harassment on any of the 16 prohibited grounds (like sex and race) is defined as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

Effective September 8, 2016, workplace harassment under the Occupational Health and Safety Act (the “OHSA”) will be defined as (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment.

An employee who has been harassed within the meaning of the Code can obtain damages from her employer from the Ontario Human Rights Tribunal or from the Ontario Courts. An employee who complains he has been harassed under the OHSA cannot claim damages.

Sexual Harassment: A Special Kind of Harassment

For reasons that I do not understand, the Ontario government has decreed that effective September 8, 2016 an employee who has been sexually harassed at work can file a complaint under the Code or under OHSA. Accordingly, an employee who has been sexually harassed will thereafter be able to commence legal proceedings in at least 3 legal fora; namely;

1. An application under the Code

The Code prohibits sexual harassment in employment and a person can file an application under the Code seeking damages. In a 2015 decision an adjudicator under the Code awarded a former employee who had been sexually harassed $ 150 000 in general damages.

2. A complaint under the OHSA

An employee can file a complaint and the employer must investigate the complaint and inform the person of the results of the investigation. The only obligation is to investigate and report back to the person.

3. An action in Ontario’s Superior Court

An employee can sue for damages for a breach of the Code and/or for damages for the tort of sexual assault. In a 2015 decision a judge awarded a former employee over $ 300 000 damages in connection with sexual harassment/assault in the workplace.

Lessons to Be learned

1. Make sure you have a written policy to investigate workplace harassment complaints in place by September 8, 2016. For information about our fixed fee service, click here.

2. Sexual harassment complaints can be more legally complicated than other kinds of harassment complaints.

3. Investigate all workplace harassment complaints quickly and tailor the investigation to the circumstances of the case. This includes: deciding whether to use an internal or external investigator; whether to permit employees to bring legal representation to meetings; whether the investigator can make recommendations; whether to write a report; whether to release a formal report (if one is prepared) to the parties, etc. Not all investigations need to be treated the same.

For over 25 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 at 416 317-9894 or at doug@macleodlawfirm.ca

“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.”

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