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Posts tagged: ministry of labour

Top 10 Employment Law Developments in 2017

By , December 4, 2017 1:43 pm

In 2017, the provincial legislature and Ontario judges continued to change Ontario’s employment laws. These changes resulted in higher payroll costs and a more regulated workplace. This blog briefly identifies 10 employment law developments from the past year.

1.Changes to the Employment Standards Act. Many changes were made to this law in November. Most of these changes take effect on January 1, 2018 which doesn’t give employers much time to change existing practices and policies. We offer a fixed fee service for employers who need help complying with these changes.

2.Ministry of Labour inspectors are visiting more Ontario workplaces. In the past, most inspections were the result of an employee complaint. Now the MOL is getting more proactive. For the last several years, the MOL has initiated strategic inspection blitzes. In 2017 the MOL announced it is hiring 175 additional ESA enforcement officers. This means your organization is much more likely to be inspected for compliance with Ontario’s employment laws including the many changes to the ESA that take effect January 1, 2018.

3. Accommodating employees with mental disabilities may be the fastest growing area of human rights law.  We recently devoted ⅓ of our employment law conference to this topic. It seems as if more and more employees are debilitated by depression and anxiety, and often an employee’s interaction with their supervisor triggers a mental disability. It is a complex area fraught with legal uncertainty. The duty to inquire about a person’s health when there are objective signs that the person may have a mental disability is one such issue.

4. Damages for employee terminations are going up. In the past, the sole issue in most wrongful dismissal cases was how much pay the employer owes the employee in lieu of the notice of termination that the employee should have received.  Now employees routinely seek several kinds of additional damages. A 2017 decision considered the termination of a 44-year-old female supervisor with 9 years’ service shortly after filing a sexual harassment complaint. The trial judge awarded her 10 months pay in lieu of reasonable notice, $ 60 000 in moral damages because of the way she was terminated, $ 25 000 for the way the employer handled her human rights complaint,  interest, and about $ 425 000 in legal fees. The Court of Appeal increased the damage award. In another case, a trial judge awarded a terminated employee, among other damages,  $ 100 000 for the intentional infliction of mental stress and the tort of harassment which I believe was recognized as a legal cause of action in the employment context for the first time.  

5. Termination clauses in employment contracts continue to be successfully attacked. We have written several blogs on this issue. Some judges are refusing to enforce termination clauses whereas others do, so there is considerable legal uncertainty in this area. I’m hoping the Supreme Court of Canada will provide some guidance in this area. In the meantime, we suggest that employment contracts be reviewed periodically – especially termination clauses.We provide this service for a fixed fee

6. Changes to AODA. The Employment Standards under the Accessibility for Ontarians with Disabilities Act came into effect for all employers in 2017. Did you know this law imposes 9 new obligations  on all employees, and 2 additional obligations on organizations with more than 50 employees? Also, did you know that organizations with more than 20 employees must file a report with the government by December 31, 2017? We offer a fixed fee service  for employers who need help complying with these obligations.

7. Sexual harassment. The Harvey Weinstein story shone a light on this issue – again. Changes to Ontario’s health and safety law in late 2016 amended the definition of “workplace harassment” to include sexual harassment. Employees now have the right to have complaints investigated by a trained person, and be told the outcome of the investigation and whether the alleged harasser was disciplined. We offer a fixed fee service for employers who have not complied with the new obligations imposed on employers including the obligation to implement a written workplace harassment investigation procedure.

8. Pregnancy and parental leave extended to 18 months. The federal government and provincial government have amended laws to make this happen. As written about in our blog, now employees can take 12 months EI benefits over an 18 month period. 

9. Drug testing. The federal government plans to regulate the sale of marijuana and it won’t be limited to people who need it for medical purposes. Recently some judges have found that drug testing is permitted in certain circumstances. I predict that more and more employers will be implementing drug and alcohol policies in 2018.

10. Employee bonuses. Is an employee entitled to the bonus they would have earned if they had received notice of termination? This often turns on how to  interpret the term “actively employed”. The Alberta Court of Appeal and Ontario Court of Appeal seem to be taking a different approach to this issue. Accordingly, it looks like the Supreme Court of Canada will have to decide this issue. In the meantime, we suggest that bonus clauses in employment contracts be updated.

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. 

OHSA in Wonderland: Through the Looking Glass

By , May 15, 2017 9:20 am

Section 50 of the Ontario Occupational Health & Safety Act (“ OHSA ”) prohibits an employer from disciplining an employee who has sought enforcement of this law.

Guilty until Proven Innocent

If an employee alleges a violation of section 50 of OHSA then the employer must prove there has been no violation. This is called a reverse onus clause which means an employer must prove it did not violate OHSA.

After a brief summary of the remedies that are available to employees under section 50 of OHSA, this blog discusses three recent cases.

Remedies

  1. Reinstatement for Non-Union Employees

If an employer cannot prove that it did not violate section 50 then the presumptive remedy is the employee’s reinstatement. Normally non-union employees do not have a right to reinstatement.

  1. Douple Dipping: Damages for Lost Wages & Damages for Loss of Employment

If the employee does not want to be reinstated then an employee can be awarded (i) lost wages that can far exceed wrongful dismissal damages, and (ii) damages for lost of employment. Some people do not understand why an employer can be ordered to pay an employee damages for lost wages and separate damages for the loss of employment.

  1. Aggravated damages

Even though OHSA does not state that the Ontario labour Relations Board (the “OLRB”) has the power to award aggravated damages the OLRB has ordered this kind of damages in at least two cases.

Three Cases

In a 2014 decision, an employer was ordered to pay an employee with 3.5 years’ service: (i) 21 weeks pay for lost wages which was the time between the termination and the date of the hearing plus an additional 6 weeks pay and (iii) $ 7500 in aggravated damages. The employee in this case was terminated after the employer learned she had filed a health and safety complaint with the Ministry of Labour (“MOL”) in connection with a workplace accident where she was injured.

In a 2015 decision, an employer was ordered to pay an employee with 19 weeks’ service (i) 31 weeks pay for lost wages (less part-time income earned during this period); (ii) 6 weeks pay for the loss of employment; and (iii) special damages for job search costs. The employee in this case was terminated after the employer learned that the employee asked the MOL about the non-existent workplace health and safety committees at the workplace.

In a 2017 decision, an employer was ordered to pay an employee (i) 33 weeks’ pay for lost wages and (ii) $5000 as compensation for the harm inflicted on her by the employer’s flagrant breach of her statutory rights. The employee in this case was terminated shortly after complaining that a co-worker had threatened her.

Lessons to Be Learned

  1. An employee has the right to file a complaint with the Ministry of Labour claiming he or she has been terminated for raising a health or safety concern including a workplace harassment complaint. The employer must prove the employee’s decision to seek enforcement of OHSA had nothing to do with the termination; otherwise, the presumptive remedy is reinstatement.
  2. There is no cost to file a complaint and the employee need not hire a lawyer. If the complaint is not successful then the employee will not be ordered to pay any of the employer’s costs. The legal cost to defend such a complaint can easily amount to several thousand dollars.
  3. If the complaint is successful then the employee can be awarded significant damages; in some cases, significantly more than wrongful dismissal damages.
  4. An employer should take all health and safety complaints seriously including workplace harassment complaints and other alleged violations of OHSA and investigate them promptly.
  5. An employer terminates an employee for calling the Ministry of Labour about OHSA violations at its extreme peril.

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 [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.

Employer Alert: What to Do When the Ministry of Labour (MOL) Comes Calling

By , April 18, 2017 11:25 am

We often get calls from employers who are the subject of a Ministry of Labour (“MOL”) Inspection.

Sometimes the employer is a target of one of the MOL’s pro-active enforcement blitzes. For information on the MOL’s 2017-2018 blitzes, click here.

And sometimes an employee has called the MOL and lodged a complaint and an investigator has been assigned to investigate the complaint.

Why Are The Number of MOL Orders Increasing?

Several new obligations have been imposed on employers in the last couple of years and in our experience the MOL inspectors usually confirm whether or not an employer is in compliance with these new obligations regardless of the reason for the visit to the workplace. For information on some of these new obligations click here, here, and here.

The Results of a Recent MOL Investigation

This blog discusses a group of orders that a MOL inspector recently imposed on a small employer after an employee complained that she had been harassed at work.

Ironically, even though the employer had complied with the law that was the subject matter of the complaint, the MOL issued several orders against the employer for infractions of the Ontario Health and Safety Act (“OHSA”) including the following:

  1. The employer had not posted a copy of OHSA with the applicable regulation in the workplace
  2. The employer did not have a health & safety representative selected by the workers
  3. A health & safety representative had not inspected the physical condition of the workplace
  4. The employer did not provide basic occupation health & safety training to employees
  5. The employer did not have a health & safety policy posted in the workplace
  6. The employer did not have a workplace violence policy posted in the workplace
  7. The employer did not have a workplace harassment policy posted in the workplace
  8. The employer did not institute best practices for simple but dangerous activities

I suspect that a MOL inspector would issue these orders against many (if not most) Ontario small employers because most small employers are not aware of these obligations.

Penalties a MOL Inspector Can Impose

A MOL inspector has broad powers. If the employer co-operates with the inspector and the violations are minor then the inspector may simply issue an order with a deadline for compliance.

For uncooperative employers, repeat offenders, or serious violations of OHSA, the inspector can issue a ticket with a fine of approximately $ 295, or charge the employer with offences under Part I (maximum fine of $ 1000 per offence) or III (maximum fine of $ 500 000 for third offence) of the Provincial Offences Act. For more information on a MOL inspector’s powers, click here.

Lessons To Be Learned

You should try to stay up to date on changes to Ontario’s employment laws. We distribute this blog every two weeks as a public service to give you an idea of some of the changes in Ontario’s employment laws. We do not blog about all of these changes.

To help employers comply with Ontario’s employment laws we offer a fixed price compliance service that is tailored to your organization’s specific needs.

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 [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.

 

 

 

OHSA Update: The Cost of Firing an Employee for Filing a Complaint with the Ministry of Labour Just Went Up

By , April 7, 2015 2:24 am

Each year in Ontario, over 10,000 workers file a claim with the Workplace Safety and Insurance Board (WSIB) because they’ve been injured on the job to the extent that they cannot return to work the day after the injury. So, employers be wary: workplace accidents are very common and you can incur large costs if they are not handled appropriately. As we will see below, these costs are on the rise.

An employer was recently ordered to pay a former employee 27 weeks pay plus $ 7500 in damages for causing her mental stress in connection with a workplace injury. To my knowledge, this is the first time an adjudicator has ordered an employer to pay damages for mental stress in connection with this kind of complaint.

The Facts

Brenda Bastien worked as a manager at the ProHairlines hair salon.

One day she unplugged her cell phone charger from an electrical outlet. She received a serious electrical shock, which caused electric burns. She provided her employer with a medical note, which stated she could not work because of the electrical burns. The employer did not report the accident to the Workplace Safety & Insurance Board. The employer then refused her request for a leave and ordered her to work reduced hours. Ms. Bastien eventually took a sick leave. While on this sick leave she filed a complaint with the Minister of Labour (the MOL). When the employer found out about the complaint it terminated Ms. Bastien after 3.5 years of employment. The employer refused to issue Ms. Bastien a Record of Employment.

The Complaint

Ms. Bastien filed a no cost complaint under section 50 of Occupational Health and Safety Act claiming she was terminated because she filed a complaint with the MOL. In this kind of complaint, the onus is on the employer to prove it did not violate section 50; that is, it must prove it did not fire the employee for filing the complaint. This is called a reverse onus clause.

The Hearing

The employer did not show up at the hearing so the only evidence before the decision maker was Ms. Bastien’s evidence. Not surprisingly the adjudicator concluded there was a violation of section 50.

The Cost of Non-Compliance

The employer was ordered to pay Ms. Bastien 27 weeks pay for lost wages. She received lost wages up to the date of the hearing, plus an additional 6 weeks pay.

The employer was also ordered to pay Ms. Bastien $ 7500 for causing her mental stress (or about 12 weeks pay).

Lessons to be learned

  1. Report it: When an employee is injured at work the employer should immediately report the accident to the Workplace Safety and Insurance Board.
  2. Attend it: If an employee files a complaint with the MOL and a hearing is scheduled then the employer should always attend it. For another example, of what can happen if you decide not to attend a hearing, click here.
  3. Keep the MOL out of it: In some cases, an employee can obtain more damages from the MOL than in the courts. In this case, an employee with 3.5 years service obtained almost 10 months pay.

For the past 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]

 

Ontario’s Occupational Health and Safety Act (OHSA): Everything you wanted to know but were afraid to ask

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By , February 12, 2014 9:38 am

Mandatory health and safety awareness training is the latest obligation being imposed on Ontario employers under OHSA.

All employees must complete training by July 1, 2014. The Ministry of Labour will exempt employers who have already provided equivalent training to its employees. For more information on this new training requirement, click here.

Under Bill 168, a 2010 amendment to OHSA, employers were required to create workplace harassment policies and programs, as well as completing a workplace violence assessment.

It is difficult for an employer to keep up to date on its health and safety obligations. Certain policies and posters must be posted in the workplace. Certain policies have to be updated annually. Health and safety representatives must be elected from the organization’s workers.  The list goes on and on. For 7 things you should know about OHSA, click here.

If there is a “critical” injury an employer has certain reporting obligations to the Ministry of Labour.  When there has been a critical injury, the MOL often files charges against the employer for violating the OHSA. The courts will impose fines of up to $ 500 000 plus a 25% victim surcharge. Fines in connection with relatively minor injuries often exceed $ 50 000. For 5 things to keep in mind if there has been a workplace accident, click here.

If you have any questions about the Occupational Health & Safety Act, please contact our managing partner, Doug MacLeod, at 416 317-9894 or at [email protected]

 

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