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Posts tagged: human rights code

Are All Employment & Labour Lawyers Created Equal?

By , April 4, 2018 8:47 am

Are there many employment & labour lawyers in Ontario?

There are many employment & labour lawyers working in Ontario – especially in large urban centers like Toronto. I go to a Christmas party each year that is attended by about 150 employment & labour lawyers and it is always sold out. Every employment and labour lawyer, however, is unique. Your challenge is to find the lawyer that best suits your needs.

What does an employment lawyer do?

Some lawyers practice a subspecialty within employment law like workers compensation or pay equity. The lawyers at the MacLeod Law Firm are not specialists; we are employment law generalists.

What kind of services does an employment law generalist provide?

Most employment law generalists draft employment contracts and employment related policies and can make sure employee handbooks comply with Ontario’s employment laws.

It will come as no surprise that most employment lawyers advise on employee terminations and draft severance packages. If necessary our lawyers appear in court or at administrative tribunals like the Ontario Human Rights Tribunal on behalf of our clients.

Helping employers comply with new employment laws has been increasingly important in recent years as the provincial government imposes more and more statutory obligations on employers. The MacLeod Law Firm has a fixed fee service to help employers comply with these new obligations.

Employee protection under the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act has been extended in recent years so most employment lawyers have a good understanding of the province’s human rights laws. We provide human rights advice to a myriad of clients each year – especially on an employer’s obligation to accommodate a disabled employee.

Employee protection under the Ontario Health & Safety Act has also been extended in recent years so most employment lawyers can advise on an employer’s obligations under this law. The MacLeod Law Firm  represents employers who have been charged under OHSA.

What is a labour lawyer?

A labour lawyer provides advice and representations to unionized employers.

What kind of services does a labour lawyer provide?

A labour lawyer can recommend that an employer adopt certain practices and policies that will make employees less inclined to want to join a union.

If a union tries to unionize a workforce then a labour lawyer can respond to the Union’s certification application at the Ontario Labour Relations Board on behalf of the employer.

If a union is certified to represent an employer’s workforce then a labour lawyer can negotiate a collective agreement with the Union on behalf of the employer.

If a union files a grievance under a collective agreement then a labour lawyer can represent the employer at an arbitration hearing.

The MacLeod Law Firm provides all of these services to our unionized clients.

The MacLeod Law Firm – Our Value Proposition

We give an employer confidence and peace of mind on employment law and labour law issues because we quickly and competently deal with workplace issues in a way that makes business sense.

We understand that every client has unique legal needs and each client has a different legal risk tolerance. We get to know our clients and their businesses so the advice we give makes business sense.

If you require the services of an employment and labour lawyer and want to see whether the MacLeod Law Firm is a good fit for your organization, please contact our Managing Partner, Doug MacLeod. For over 30 years he has been advising employers on all aspects of the employment relationship. You can contact Doug 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.

 

Restaurant who refuses to serve customer with a service dog ordered to pay $ 2500 in general damages

By , May 31, 2016 9:59 am

Obligations to Train Employees On Human Rights Issues

We often represent employers and employees who have human rights issues. It is a rather complex area of the law, especially cases involving individuals with disabilities. For more blogs on the rights of disabled employees, click here.

An employer has obligations towards disabled employees under the Ontario Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act  (“AODA”) including mandatory training. For more information on an employer’s obligations under AODA, click here.

A recent case illustrates what can happen if an employer doesn’t properly train its employees on human rights issues.

The Facts of the Case

An autistic person, his mother and a service dog were refused service at a restaurant because they wanted the service dog to accompany them. The mother called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre which said they did not have the resources to intervene in the immediate situation, but told them how to file an Application. After calling these places and getting no assistance, they left the restaurant and filed an application under the Code four days later.

The Law

The Human Rights Tribunal of Ontario (the “Tribunal”) found that autism spectrum disorder is a “disability” within the meaning of the Code

The Tribunal concluded the restaurant did not accommodate the son’s disability and in this regard quoted a section of a regulation under AODA, which states: “If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.”

The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer.

The Decision

The restaurant violated the autistic person’s right to be free from discrimination because of a disability by refusing to permit his service dog to enter the restaurant.

The restaurant was ordered to retain at its cost an expert in human rights to develop a human rights policy.

The restaurant was ordered to pay the son $2,500 as compensation for injury to dignity, feelings, and self-respect. This case can be contrasted to an earlier decision where a person with a service dog was denied access to a mall for about 5 minutes and was awarded $ 1000 in damages because a mall employee did not understand his right to bring the service dog into the mall. For more information on this case, click here.

Lessons to be Learned:

  1. Many employers have a positive obligation to train employees on human rights issues, particularly under AODA. Failure to train employees can result in an employer being ordered to pay for an employee’s unfamiliarity with the law.
  1. Employers who offer services to the public, like restaurants, are particularly susceptible to human rights claims. Many members of the disabled community are aware of their rights and will enforce them. In this case, the mother told the restaurant staff that her son had the right to bring a service dog into the restaurant before she and her son were denied service.
  1. Employers should participate in the application process under the Code. In this case, the restaurant did not send a representative to the hearing. It is possible that because the adjudicator did not hear both sides of the story the damage award was higher than it would have been otherwise.

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 [email protected]

“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.”

Doing Business in Ontario: Five Workplace Laws that Employers Need to Know

By , February 2, 2016 9:07 am

Doing Business in Ontario: Five Workplace Laws that Employers Need to Know

The employment relationship is heavily regulated in Ontario.

This blog identifies five laws that apply to most workplaces.

  1. Employment Standards Act. This law sets out the minimum terms and conditions of employment that are deemed to be included in all employment contracts. This includes minimum wages, statutory holidays, overtime pay, and termination pay. For more information on recent amendments to this law, exceptions to the general obligations, recent enforcement blitzes, and the penalties for violating this law, check out our other blogs.
  2. Workplace Safety and Insurance Act. Coverage under this law is optional for some workplaces but most workplaces are required to register under this law and pay premiums. The law applies to employees, unpaid co-op students, certain other learners, and trainees participating in a work placement in Ontario.
  3. Occupational Health & Safety Act. Numerous obligations are imposed on employers under this law including mandatory training, and employers are required to prepare and post a number of written safety policies in the workplace.  Employers must provide for the safety of employees and independent contractors. For information on recent amendments to this law, and penalties for violating this law, read our other blogs on this law.
  4. Ontario Human Rights Code. Employees and some self-employed individuals are entitled to protection under this law, which disallows discrimination on 16 prohibited grounds including gender, disability, religion and sexual orientation. For information on the cost of discriminating against pregnant and disabled persons, what can happen if an employer does not attend a scheduled hearing, and the quantum of damage awards issued by the Human Rights Tribunal of Ontario, read our other blogs on this law.
  5. Ontario Pension Plan. The Ontario government has introduced legislation that will require most employers to contribute to a pension plan for its employees. This law is expected to take effect in 2017.

 

If you have any specific questions about any of these laws, please contact Doug MacLeod at [email protected] or 416-917-9894.

Employee Terminations: The ABCs

By , January 18, 2016 11:24 pm

Today’s Job market

In this age of globalization and precarious employment most people change jobs many times in a career.

Changing jobs is a fact of workplace life for most people. Some people are terminated and other people voluntarily resign. Either way an employer should consider employee terminations to be a given and manage them.

Termination Clauses in Employment Contracts Are Common

One way to mange the costs associated with terminations is to require all new hires to sign an employment contract with an enforceable termination clause.

Even with an enforceable termination clause, however, some terminations can become litigious. This blog addresses three types of terminations that can become litigious.

Terminating a Pregnant Employee

Terminating an employee while she is pregnant, on pregnancy leave, or at the end of a pregnancy leave is fraught with legal danger. A person taking a pregnancy leave generally has the right to return to her job (or a comparable job if her job has been eliminated) at the end of the leave under Ontario’s Employment Standards Act. Similarly under Ontario’s Human Rights Code (the “Code”) an employer cannot discriminate against an employee because of sex which is defined to include the right to equal treatment without discrimination because a women is or may become pregnant. The Ministry of Labour and the Ontario Human Rights Tribunal (the “Tribunal”) can and have ordered employers to pay significant damages above the termination pay owing under a pregnant employee’s employment contract.

Terminating a Disabled Employee

Terminating an employee who is disabled involves navigating a legal minefield. The Code prohibits discrimination against disabled employees. The Code also requires an employer to accommodate an employee’s disability unless it results in undue hardship. The Accessibility for Ontarians with Disabilities Act imposes numerous obligations on employers. The courts and administrative tribunals like the Tribunal can and have ordered employers to pay significant damages to disabled employees who have been terminated.

Terminating an Older Employee

In 2008, mandatory retirement was abolished for most people in Ontario. In the same year the stock market crashed and many peoples net worth dropped dramatically making it more difficult to retire.

As a result, for financial (and other) reasons, many people are now working past age 65. This is causing problems in the workforce. Young people are having difficulty finding jobs, and some employers – particularly those in the manufacturing sector with physically demanding jobs – are required to address – for the first time – the physical and mental challenges that are experienced by some employees who are 70 or 75 years old.

Terminating a long-service employee who is over 55 years old can attract significant liability. This is one group of employees who often have not signed employment contracts and can be entitled up to 24 months notice of termination (or more) at common law. This kind of employee is also entitled to damages under the Code. Although an older employee is entitled to look for alternative employment to reduce wrongful dismissal damages I suspect few judges would expect a 70 year old to look very hard.

Lessons to be Learned

1. All new employees should be required to sign an employment contract with an enforceable termination clause.

2. Pregnant, disabled and older workers have special rights. It is possible to terminate these kind of employees by providing the person with notice of termination however we suggest that you consult with an employment lawyer before doing so.

 

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship including employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

An employee is an employee is an employee. Or is she?

By , November 3, 2015 10:00 am

Did you know that an individual is an “employee” or “worker” under some employment legislation, but not others?

As an employer, it is important for you to know whether an individual is an employee; otherwise, your organization may inadvertently not be complying with one or more of Ontario’s employment laws. Here is some information for you to consider when complying with five of Ontario’s employment laws:

  1. Employment Standards Act (ESA)

For the purposes of this law, an employee includes:

  • A person, including an officer of a corporation, who performs work for an employer for wages
  • A person who supplies services to an employer for wages
  • A person who receives training from a person who is an employer unless:
    • The training is similar to that which is given in a vocational school; and
    • The training is for the benefit of the individual; and
    • The person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained; and
    • The individual does not displace employees of the person providing training; and
    • The individual is not accorded a right to become an employee of the person providing the training.
  • A person who is a is a homeworker
  • A former employee
  1. Ontario Labour Relations Act (“OLRA”)

The OLRA provides that dependent contractors are considered employees. A dependent contractor is a person not employed under a contract employment, but is in a position of economic dependence and thus more closely resembles an employee.

  1. Human Rights Code (“the Code”)

The term employee is not defined in the Code; however, it has been interpreted broadly to include: employees, including probationary, casual and temporary employees; contractors; interns; and volunteers.

  1. Occupation Health and Safety Act (OHSA)

OHSA uses the terms “worker” instead of “employee” and the definition is quite broad and includes:

  • A person who performs work or supplies services for monetary compensation
  • A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board or under a program approved by a college of applied arts and technology, university or other post-secondary institution

Earlier this year the definition of “worker” was expanded to include an unpaid co-op students, certain other learners and trainees participating in a work placement in Ontario.

Unlike under the Code, OSHA does not include a volunteer who works for no monetary payment.

  1. Workplace Safety & Insurance Act (WSIA)

Like OHSA, WSIA also uses the term “worker”, but yet again, the definition is different. “Worker” means a person who has entered into or is employed under a contract of service or apprenticeship.

Should you have any questions about whether a person is an employee or worker in relation to a specific Ontario law, contact Doug MacLeod at [email protected] or 416-917-9894.

 

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