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Posts tagged: Occupational Health and Safety Act

Employment Law Update: Mid-Year Report

By , June 26, 2018 3:34 pm

In this blog, as we enter the dog days of summer, I will review five current trends and developments in Ontario’s employment laws.

1.  A New Sheriff is in Town: The PC party has replaced the Liberal party as Ontario’s governing party

I anticipate this change in government will result in less government regulation of Ontario’s workplaces. During the election campaign, Doug Ford promised not to increase the minimum wage from $ 14.00 to $ 15.00 on January 1, 2019. I will let you know in a future blog whether he keeps this promise.

In the meantime, two laws the Liberal government introduced are scheduled to take effect on July 1, 2018 and January 1, 2019.

One law changes the way public holiday is calculated. Bill 148 changed the way public holiday pay was calculated, however, effective July 1, 2018, public holiday pay will once again be calculated using the formula that applied prior to the coming into force of Bill 148. In other words, the employee’s public holiday pay for a given public holiday will be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

The second law will require an employer to provide salary information to job applicants and prohibit employers from asking job applicants about their salary history. In particular, on April 26, 2018 the  Pay Transparency Act was passed. Unless Doug Ford repeals this law, on January 1, 2019 all employers will be prohibited from either directly/ indirectly asking candidates about past compensation, they will be required to post a compensation rate or range for all publicly advertised job postings, and they will be prohibited from reprising against employees who make inquiries about compensation practices.

Last year, the Liberal government announced it was hiring 175 employees to make sure Ontario employers are complying with the Employment Standards Act. Many of these people have now been hired, and trained and are conducting inspections of Ontario’s workplaces. The government has stated it intends to inspect 1 in 10 Ontario workplaces each year.

For more information on how we help employers comply with the Employment Standards Act, click here

2.Cannabis Use Will Be Legal On October 17, 2018

The federal government has announced that cannabis use will be legal on October 17, 2018. In the meantime, the Ontario government must decide how to regulate the sale of cannabis in Ontario. Employers need to decide whether or not to introduce or amend a drug and alcohol use policy. An employee who is impaired at work can be a health and safety problem particularly if the employee is working in a safety sensitive position. Drug testing to address this issue is, however, an extremely controversial and complex legal issue. In fact, a number of drug testing cases have been appealed to the Supreme Court of Canada.

To assist employers with this issue, we can draft a drug use policy for a fixed fee.

3. It Is Increasingly Difficult To Predict Whether The Courts Will Enforce A Termination Clause

I have been writing about this issue for a number of years. Despite numerous Ontario court cases including several Court of Appeal decisions I still cannot predict with any degree of certainty whether a termination clause will be enforced. In 2017, the Court of Appeal in North v. Metaswitch Networks Corp. basically overturned its 2016 decision in Oudin v. Centre Francophone de Toronto on the same issue. In the 2018 decision in Nemeth v Hatch Ltd, the Court of Appeal  found that the following clause was enforceable:The Company’s policy with respect to termination is that employment may be terminated by either party with notice in writing. The notice period shall amount to one week per year of service with a minimum of four weeks or the notice required by the applicable labour legislation. Most employment lawyers including myself were surprised by this decision.

We will review and draft needed changes to your employment contract including the termination clause for a fixed fee. For more information on our employment contract service, click here

4. Notice Period For Older Senior Managers May Be Trending Upwards

Since 1960, Ontario judges have been applying the Bardal factors when determining the appropriate reasonable notice period in wrongful dismissal cases. The age of an employee and the employee’s position are two factors that are taken into account.

A couple of 2018 decisions suggest that Ontario judges may be increasing the notice period for older, senior, relatively short service employees. In Chambers v. Global Traffic Technologies Canada Inc a 57 year old general manager with 2.5 years service was awarded 9 months pay in lieu of reasonable notice. In Hale v. Innova Medical Ophthalmics Inc. a  59 year old President with 6 years and 8 months of service was awarded 18 months termination pay. To reduce the litigation risk associated it is a good idea to require these kinds of employees to sign an employment contract with a termination clause – if you can figure out how to draft an enforceable termination clause!

5. The Cost Of Health & Safety Violations Is Likely Going Up

The Ministry of Labour investigates most “critical injuries” as that term is defined under Ontario’s Occupational Health & Safety Act (“OHSA”) and the Ministry often charges an employer for a violation of OHSA in connection with such an accident. Fines for relatively minor injuries often exceed $ 50 000. On December 17, 2017,  the maximum fine for a breach of OHSA increased from $ 500 000 to $ 1 500 000. The Ontario Court of Appeal has stated that deterrence and the size of an employer are two factors that trial judges should take into account when determining fines under OHSA. In the future, I therefore expect the Ministry of Labour will be looking for larger fines from large profitable employers when negotiating plea bargains.

We help employers comply with OHSA. For more information on our fixed fee service, click here

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.

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.

 

Doug’s Year End Rant

By , December 19, 2017 8:46 am

Earlier this week I concluded that the rule of law no longer applies in many Ontario workplaces. The epiphany hit me when I was meeting with the Managing Director of a boutique law firm.

When I use the expression “rule of law” I mean the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced.

The fact is many employers are unaware of many of the laws that apply to them, and the Ontario government is not enforcing many of them.

You would think that a law firm would be aware of the laws that apply to it but the reality is that most small and medium size law firms do not have a dedicated HR person and do not have an employment lawyer on staff.

Here are some of the employment laws that apply to a small firm:

As of December 31, 2017 the Law Society of Upper Canada  – soon to be the Law Society of Ontario – requires: all lawyers to adopt a statement of principles acknowledging their obligation to promote equality, diversity and inclusion, and: all law firms with 10 or more lawyers to develop a human rights/diversity policy dealing with recruitment, retention and promotion. There is much uncertainty relating to the required contents of these documents.

As of December 31, 2017 an employer with 20 or more employees must file a compliance report under the Accessibility for Ontarians with Disabilities Act (“AODA”). By 2015 about 65 % of employers had not complied with the 2012 reporting obligation. In addition, nine new obligations were imposed on small employers under AODA earlier this year including the obligation to notify job applicants that accommodations for disabilities will be provided on request.  

On November 22, 2017 the government passed a myriad of significant changes to Ontario’s employment standards law. Some of the changes became effective immediately and many of the changes will take effect on January 1, 2018.

Although a law firm office is not a particularly dangerous place to work, all employees are required to receive mandatory health & safety awareness training under the Occupational Health & Safety Act and mandatory customer service training under AODA. In addition,  employers with more than 5 employees must prepare, post & review annually a health & safety policy, a workplace harassment policy, and a workplace violence policy. Furthermore, all employers are required to appoint a trained investigator to investigate an incident of workplace harassment, and the employer must have a written complaint and investigation process. The employee need not file a complaint; the obligation is to investigate incidents and formal complaints. If not, the Ministry of Labour can appoint an external investigator at the employer’s expense. 

The list of new obligations that have been imposed on Ontario employers in recent years goes on and on.

You would think a small or medium sized law firm would know about all of its legal obligations and comply with them but I doubt all or even most of these law firms are in compliance.

When reputable, well intentioned small to medium size law firms do not follow the rule of law how can we expect less knowledgeable employers to do so.

So I ask the Ontario government: Will you stop introducing new laws that are not being followed or being enforced, and start educating employers on their obligations? When this education process is complete will you start enforcing these laws?

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.

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.

Damages for Reprisal under Occupational Health and Safety Act

By , January 20, 2017 2:25 pm

It should be common knowledge that changes were made to the Occupational Health and Safety Act (“the OHSA”) that have been in effect since September 8, 2016 (and if it’s not common knowledge, you haven’t been reading our previous blogs on the subject). One of these changes allows employees who have been sexually harassed at work to file a complaint under the OHSA.

Prior to September 8, 2016, an employee’s only recourse to address sexual harassment at work was to file an application at the Human Rights Tribunal of Ontario. Now employees may choose where to bring their complaint. Because of how recent the changes to the OHSA are, there are no reported cases where an employee has been terminated in connection with a workplace sexual harassment complaint. However, the example below still illustrates the consequences an employer may face if it terminates an employee for making a sexual harassment complaint.

Facts

In Thompson v 580062 Ontario Inc., a restaurant employed Ms. Thompson as a night manager. Ms. Thompson accused the restaurant owner of calling her rude names and making profane statements on November 8, 2014. Ms. Thompson also accused the owner of grabbing her and pushing her toward the door. Ms. Thompson reported the incident to her manager on the same evening.

Two days later, Ms. Thompson attended the restaurant to check her work schedule and found she was not scheduled to work. The manager told Ms. Thompson that the owner had requested that she not be scheduled. Ms. Thompson then reported the incidents of November 8, 2014 to the Ministry of Labour.

On November 18, 2014, Ms. Thompson sent the owner an email complaining of workplace harassment and violence, and requested a copy of the restaurant’s workplace violence and harassment policies. On November 21, 2014, the owner advised Ms. Thompson that the Ministry of Labour had commenced an inspection under the OHSA. The owner never provided the requested policies to Ms. Thompson, and she was never scheduled to work again despite repeated requests.

Decision

As mentioned above, the OHSA has provisions on workplace harassment, workplace violence and the duties of employers to protect workers and prepare policies with respect to workplace harassment and violence.

The OHSA also has reprisal provisions that prohibit employers are also prohibited from dismissing, disciplining, imposing a penalty upon a worker or intimidating a worker because they have sought enforcement of the OHSA. In order for there to be a breach of these reprisal provisions, there must be the exercise of rights by a worker, a prohibited action on the part of the employer and a causal connection between the two.

The adjudicator was satisfied that at least part of the employer’s reason for ceasing to schedule Ms. Thompson was connected to the fact that she raised health and safety issues in the workplace.

Damages awarded

The remedy for a reprisal is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement. Depending on how backlogged the Ontario Labour Relations Board is, those wages could add up.

If the employee does not wish to return to work for the employer, which will usually be the case where the employee has complained of workplace violence or harassment (including sexual harassment), the complainant is entitled to damages for loss of employment in lieu of reinstatement. These kinds of damages are meant to compensate for the loss of the job itself. Additionally, employees are also entitled to damages for loss of wages (i.e. to compensate for the wage loss experienced as a result of the termination, subject to the duty to mitigate). Despite the clear overlap between these two kinds of damages, adjudicators have been known to award both kinds of damages, which could lead to a steep award. In one case, a two-year employee was awarded 8 months’ pay.

Lessons to be learned

  1. Make sure you have a written policy to investigate workplace harassment complaints, which has been a requirement under the OHSA since September 8, 2016. For information about our fixed fee service, click here.
  2. Investigate all workplace harassment complaints promptly.
  3. If an employee raises health and safety concerns, be very careful about taking any disciplinary action, even if the decision to discipline the employee in question precedes the employee’s concerns.

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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