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Posts tagged: ontario employment standards act

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. 

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.

 

Ontario Government Employment Law Enforcement Blitzes

By , October 20, 2015 12:14 pm

Did you know that the Ontario government targets certain industries and types of employment for enforcement blitzes?

Occupational Health & Safety Blitz

For example, in July and August, 2015, Ministry of Labour inspectors visited various construction projects where trenches are being excavated across Ontario. Inspectors checked for hazards that could result in worker injuries or death. This included checking that employers are taking appropriate action to assess and address these hazards and are complying with Ontario’s occupational health and safety laws.

In addition, from October to November 2015, the Ministry of Labour is undertaking an enforcement blitz in connection with Heavy Equipment Operation in the construction industry.

AODA Blitz

On October 5, 2015 the Ontario government announced that for the balance of 2015 it will be targeting retailers with more than 500 employees to ensure that these employers are complying with the Accessibility for Ontarians with Disabilities Act (AODA).

Employment Standards Act Blitz

On October 14, 2015 the Ministry of Labour announced that employment standards officers will be visiting select workplaces especially in the GTA that are believed to have internship programs. These inspectors are checking for contraventions of the Employment Standards Act (ESA) involving interns and whether those individuals are employees under the ESA and, therefore, entitled to be paid. Did you know that interns should be paid at least the minimum wage unless certain conditions are met? For more information on interns, click here.

AODA Compliance

As far as AODA enforcement is concerned, inspectors will be checking to see whether the employer has complied with various obligations such as:

  • Creating and making public a multi-year accessibility plan that outlines the steps put in place to remove and prevent barriers for employees and customers.
  • Developing customized emergency plans for employees with disabilities.

AODA is perhaps the least understood law for Ontario employers. For more information on AODA, click here.

For information on our AODA compliance program, click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has advised employers on Ontario’s employment laws. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

Three Laws that Ontario Small Businesses Need to Know

By , August 25, 2015 5:41 pm

It is extremely difficult for small businesses to keep up to date on Ontario’s employment laws. This blog summarizes three laws that apply to Ontario workplaces.

Employment Standards Act

This law sets out minimum standards of employment like the minimum wage, when overtime must be paid, nine statutory holidays, termination pay and severance pay. This law also requires an employer to create and maintain certain records. For more information, click here.

There are exceptions to these requirements. For example, some employees are not entitled to overtime pay and/or termination pay. For more information on these exceptions, click here.

This law is being changed on a regular basis. For changes that took effect in 2015, click here.

Ontario Human Rights Code

This law prohibits discrimination on 16 prohibited grounds including gender, race, place of origin, and disability. Gender identity and gender expression were added to this list in 2014.

Typically, about 50% of all employment related complaints are disability related. For more information about discrimination on the basis of disability, click here.

About 20 to 25% of complaints are gender related and sexual harassment complaints are common. For a summary of two recent cases where an employer was ordered to pay employees $150 000 and $300 000 for sexual harrassment/sexual assault, click here.

Accessibility for Ontarians with Disabilities Act

Many small businesses are unaware of this law and according to media reports over 70% of businesses did not comply with the customer service regulation which required employers to, among other things, conduct mandatory training and, for organizations with more than 20 employees, file a report with the Ontario government. For more information on this law, click here.

The most onerous obligations that are being imposed on employers under this law are coming into effect on January 1, 2016 or January 1, 2017 depending on the size of the organization.

In my opinion, non-compliance with employment laws will increasingly become a problem in Ontario – particularly for small employers. The fact is that these employers do not have the time, expertise or resources to keep up to date on changes to the law.

For example, how many employers have provided a copy of a poster to employees as required by a recently enacted amendment to the Employment Standards Act?

Unless the Ontario government does a better job of educating employers on new laws and enforcing them then I am concerned the laws will increasingly be unknowingly ignored.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on Ontario’s employment laws. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

 

 

The Cost Of Terminating an Employee Who Has Recently Returned to Work Following a Pregnancy Leave

By , January 27, 2015 10:09 am

Pregnant employees have special rights under the Employment Standards Act and the Human Rights Code. And most judges are sympathetic to the problems that women face when they return to work following a pregnancy leave.

A recent case is a good example of what not to do when an employee returns to work following a pregnancy leave.

 

The Facts

Lee Partridge worked in a dental practice as an office manager working 9 to 5 four days a week. Originally she had been hired as a dental hygienist. Shortly before returning to work following a pregnancy leave the dentist told her that he would be scheduling her as a dental hygienist with fewer and different hours of work. After reminding the dentist of her legal obligations to reinstate her to the office manager position the dentist informed Ms. Partridge that she planned to schedule her to work after 5 pm as a hygienist which he knew would create child care problems for the returning employee. About a week after returning to work the dentist terminated Ms. Partridge’s employment after she refused to meet with the dentist unless a witness was present.

 

The Legal issues

1. Wrongful Dismissal

The dentist claimed she had just cause to terminate Ms. Partridge’s employment. The trial judge disagreed and concluded the employee was entitled to receive reasonable notice of termination. At the time of her termination, Ms. Partridge was 39 years old and had been employed for almost 7 years.  The trial judge awarded Ms. Partridge 12 months pay in lieu of reasonable notice. This is a longer notice period than one would expect in these circumstances. It is also surprising that a dental hygienist was unable to secure alternative employment for more than one year. In most labour markets, dental hygienists are in high demand however the judge concluded the employee’s job search was adequate.

2. Violation of the Employment Standards Act

The judge concluded there was a violation of Section 53 of the Employment Standards Act however the judge did not award any damages for this misconduct. Instead of filing a court action, Ms. Partridge could have filed a complaint under the ESA without the assistance of a lawyer and sought reinstatement, lost wages and damages for mental anguish but she elected to commence an action in the court instead.

3. Violation of the Human Rights Code

The judge concluded the dentist discriminated on the basis of family status because she scheduled Ms. Partridge to work until 6 pm on some days and awarded Ms. Partridge $ 20 000 in general damages for a violation of the Human Rights Code. This finding is a little surprising because Ms. Partridge’s kids did not have special needs, her husband was self-employed and he, extended family and neighbours could care for the children between 5 pm and 6 pm. In addition she could use paid childcare available during this time. The facts of this case were much different than the recent Federal Court of Appeal case the judge relied upon.

 

Lessons to Be Learned:

1. At the end of a pregnancy leave, an employee has the right to return to the position most recently held by the employee if it still exists or to a comparable position, if it does not. If the position still exists then an employer should generally obtain the employee’s agreement before assigning her to a different position.

2. Terminating an employee shortly after returning from a pregnancy is generally a very bad idea. The employee can commence no cost legal proceedings under the Employment Standards Act and the Ontario Human Rights Code. In addition, trial judges are generally sympathetic to new mothers and will often exercise their discretion to help these employees. When determining “reasonable” notice a trial judge has broad discretion. In this case, I suspect most employment lawyers would have advised Ms. Partridge that she was entitled to up to 7 months notice of termination particularly given her age and the availability of comparable employment given her education and experience. This trial judge awarded 12 months.

3. This is the second time – to my knowledge – that a judge has awarded general damages for a violation of the Human Rights Code in a wrongful dismissal case. The judge concluded the employer discriminated on the basis of family status. In both cases the amount was $ 20 000. In neither case did the judge give detailed reasons explaining how the judge arrived at this amount. In both cases, the court did not refer to or apply the case law that the Ontario Human Rights Tribunal has developed over the years when deciding on an appropriate damage award. I do not think most adjudicators would have found that there was a violation of the Code on the basis of family status.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees 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.”

 

 

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