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Posts tagged: Employee Rights

Working Notice: When working more than 9 to 5 makes it hard to find a way to make a living

By , November 19, 2018 10:00 am

Sometimes, rather than receiving a severance package, employees are provided “working notice” that their employment is coming to an end. In other words, your termination date is set to a fixed date in the future and you are expected to work throughout this period.

While there is nothing inherently wrong with providing working notice, there are some circumstances where a court may find the employer should not get credit for this notice period, and therefore should provide pay in lieu of notice instead. The Ontario Court of Appeal has recently decided that there is a qualitative component to reasonable notice. In other words, that the quality of the reasonable notice is important in addition to the quantity of notice an employee receives.

Wood v CTS of Canada Co.

On April 17, 2014, CTS of Canada Co. (“CTS”) gave written notice to employees that it was closing its Streetsville plant and that their employment would terminate on March 27, 2015. It subsequently extended the termination date for most employees to June 26, 2015. A class action was brought on behalf of 74 former employees against CTS of Canada Company. On issue was the adequacy of the notice of termination given by CTS.

The motion judge concluded that CTS was not entitled to credit for working notice for any week in which an employee worked overtime contrary to the ESA, or in which the employee was forced to work overtime that had a significant adverse effect on the employee’s ability to look for new employment.

The motion judge noted that according to the Employment Standards Act, no employer shall require or permit an employee to work more than 48 hours in a work week (unless the employee has agreed in writing and the employer has obtained the approval of the Director of Employment Standards). There was evidence that a group of hourly paid production employees worked approximately 55 hours a week during the notice period, contrary to the Employment Standards Act. The evidence also showed that the employees were not pressured to work and actually wanted to make more money. However, there was also evidence that 18 key employees were forced to work up to 60 hours per week.

The motion judge found that an employer that had employees work 16 hours a day during their notice period could not claim credit for working notice. To do so would be tantamount to saying “You had 8 hours a day to look for new employment and if you frittered it away sleeping, that was your choice.”

CTS had the onus to prove that it provided reasonable advance notice of termination. The motion judge concluded that there is both a quantitative and a qualitative component as to what is reasonable. If the primary objective of reasonable notice is to provide the dismissed employee with an opportunity to obtain alternate employment, to look for work, an employee needs both a reasonable aggregate notice period and a reasonable amount of time in the week.

On appeal, the employer argued that the “quality of the opportunity” is not a relevant factor in the determination of reasonable notice. The Ontario Court of Appeal upheld the motion judge’s determination that credit for working notice is dependent on the quality of the opportunity given to the employee to find new employment. The appellate court noted that the mere fact that the employee is required to work during the notice period does not automatically lead to denying the employer credit for a portion of the working notice period. Although an employee provided working notice period may have less time to look for alternate work, in some circumstances the fact that an employee is employed while job searching can improve the employee’s position when approaching prospective employers.

However, exceptional workplace demands on the employee during the notice period that negatively affect the employee’s ability to seek alternate work may warrant disentitling an employer from credit for some or all of the working notice period provided.

Takeaway for Employees

If you have been terminated and provided working notice and you are not sure whether what is being required of you during the notice period is fair, you should speak to a lawyer. Even if you are not being forced to work overtime, similar considerations with respect to quality could apply if you are not provided with time to attend job interviews. We can be contacted at [email protected] or 647-204-8107.

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.

Being Terminated Before You Get Your Foot In The Door

By , September 22, 2017 9:48 am

From time to time, we get a call from a person who has accepted a job offer, quit their existing job, and then been told that the job offer has been revoked before the person starts work.

The person wants to know, “Can the offer be revoked” and if so, “Am I entitled to any damages?”

In a recent case, a judge ordered an employer to pay damages to an individual in this kind of situation.

Buchanan v Introjunction Ltd.

On October 16, 2016, Mr. Buchanan accepted an offer of employment from Introjunction and signed an employment contract. As he was expected to commence work on November 1, 2016, Mr. Buchanan quit his existing job. After he quit, on October 29, 2016, Introjunction revoked his offer of employment. Mr. Buchanan initiated a wrongful dismissal action, seeking four months’ pay in lieu of notice of termination of his employment.

Introjunction attempted to argue that Mr. Buchanan was not entitled to reasonable notice of termination because his employment contract contained a three-month probationary period which allowed Introjunction to terminate him without notice within the first three months of his employment.

The Decision

The court disagreed with Introjunction’s position. The court found that even if the probationary clause applied, such a clause required that the employer assess Mr. Buchanan’s suitability for the role. Because Introjunction had revoked Mr. Buchanan’s employment offer before he began work, suitability could not have been a factor in the decision to terminate his employment. The court also found that by retracting the job offer, Introjunction demonstrated a clear intention to not honour the employment contract. Having repudiated the contract, Introjunction could not rely on any provision in the contract. Therefore, it was liable to provide reasonable notice of termination of the employment contract, in this case six weeks’ pay.

Lessons to be learned:

  1. Make sure you ask a potential new employer enough questions to satisfy yourself that there is very little chance that the job offer will be revoked. For example, is it a new position? Is the employer experiencing any financial problems?
  2. If you are leaving a secure position to accept a new job then try to negotiate a termination clause that provides for a minimum notice of termination.

An employment lawyer can assist you by reviewing each term of an employment contract and suggesting changes to the offer that benefit you, such as a change to the termination clause. If you have an employment contract that you would like reviewed, a lawyer at MacLeod Law Firm would be happy to assist you.  If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The Rights of Unionized Employees

By , August 14, 2017 8:20 am

Are you a unionized employee? Have you been terminated or have you experienced mistreatment in your workplace on the basis of your age, race, religious views, gender, sexual orientation or any other ground? It is important to remember that the rights and recourses available to unionized employees are different than those available to non-unionized employees. There are three areas in particular which present notable differences between the rights of unionized and non-unionized employees.

Unionized Employee

Union and Collective Agreement

If an employee believes that the employer has not complied with a term of their employment, a unionized employee is generally not allowed to commence a court proceeding in relation to a topic that is addressed in the Collective Agreement. Instead, a unionized employee must generally file what is known as grievance under the Collective Agreement. The Union and the employer are the two parties to a Collective Agreement, so the Union has carriage rights of any grievances that are filed. Typically, this means that the Union decides whether to bring a grievance on behalf of the employee and will file a grievance with the employer on behalf of the employee. If the Union has filed a grievance on behalf of an employee, the employee may be prohibited from asserting their rights elsewhere.

Employment Standards Act (ESA)

If the employer failed to comply with the ESA,  a unionized employee cannot bring a claim to the Ministry of Labour unless the Director of Employment Standards consents. The Union may file a grievance for the employee.

The Collective Agreement may have sections about notice or pay in lieu of notice if an employee is terminated without cause.  If it does not, then the employee is entitled to the notice and payments set out in the ESA. The ESA sets out the minimum amount of notice or pay that an employer must provide an employee if terminated without cause. It has two main sections in this regard: termination and severance. An employer can provide notice of termination or payment instead of notice. The ESA calculates the termination amount as roughly one week per year of service with the employer, up to a maximum of eight weeks. Under the ESA, severance pay is provided as a lump sum payment and is only available to employees with five years of service or more who worked for an employer with a payroll of $2.5 million or more. They can be provided with severance pay for a maximum of up to 26 weeks.

Human Rights

The Ontario Human Rights Code prohibits harassment and discrimination in employment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. It also prohibits sexual harassment or sexual solicitation.  The Human Rights Code applies to your employment even if you were unionized. If you have a claim because the employer has breached the Human Rights Code you could be entitled to lost income and additional damages.These additional damages are called ‘general damages’ and they are to compensate for injury to dignity, feelings and self-respect. If you have a human rights claim, you can file an application with the Human Rights Tribunal of Ontario or your union can file a grievance. You cannot do both. You have one year from the date of discrimination to commence the legal process about your human rights’ violation.

If you have any questions about your rights as a unionized employee, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

“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.”

Getting terminated during a medical leave

By , August 11, 2017 9:00 am

Generally speaking, if an employee is terminated without just cause they are entitled to receive “reasonable notice” of termination unless they have agreed to accept a specific amount of notice of termination. An employer can provide working notice or termination pay in lieu of this notice.

What happens when an employer provides working notice of termination and the employee cannot work due to medical factors? A recent decision from the Ontario Superior Court of Justice confirmed the principle that for disabled employees, working notice does not generally start until after the employee is medically able to work.

McLeod v 1274458 Ontario Inc. – The Facts

Keith McLeod had been employed as a mover at 1274458 Ontario Inc. (Frontier Sales) for almost 20 years. On September 18, 2015, Mr. McLeod was involved in a non-work-related car accident. As he was unable to return to work, he was placed on an unpaid medical leave of absence. His physician provided a medical certificate supporting the fact that Mr. McLeod was experiencing both physical pain and PTSD as a result of the accident.

On January 31, 2016, shortly after Mr. McLeod had provided Frontier Sales with his doctor’s prognosis, he was sent a notice that his employment would be terminated effective July 31, 2016 as the retail business was shutting down. According to the company, the period between notification and the store’s closing date would be considered working notice.

Mr. McLeod provided a letter from his new doctor which corroborated his previous physician’s opinion. Frontier Sales believed the doctor’s letter was inadequate, and warned that they would terminate Mr. McLeod for just cause if more information was not provided by April 22, 2016. Frontier Sales took no action after April 22, 2016.

After his doctor cleared him for light duties on a part-time basis, Mr. McLeod returned to his job on July 27, 2016. On July 31, 2016, Frontier Sales shut down as planned.

The Decision

At trial, Frontier Sales argued that since Mr. McLeod was not capable of working between January and July 2016, he was not owed anything in damages for reasonable notice. The court rejected this argument. A previous decision from the Supreme Court of Canada found that the fact that an employee cannot work is irrelevant to the assessment of wrongful dismissal damages. Relying on this decision, the Ontario Superior Court of Justice awarded Mr. McLeod 9 months’ pay in lieu of notice (i.e. from January to October 2016, when he began his new job).

If you have been terminated while on a medical leave, it is important to consult an employment lawyer, whether or not you are provided some kind of notice from the employer. In addition to notice, you may be entitled to other kinds of damages, such as general damages for a violation of the Ontario Human Rights Code, or aggravated damages to compensate for the employer’s bad faith for terminating an employee during a medical leave.

 

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.

When can your Employer ask you for an Independent Medical Exam?

By , July 28, 2017 12:01 pm

Employees often work with disabilities. The health issues they experience do not seriously affect their ability to complete their job duties. But sometimes, illness or injury becomes too much and an employee requires time away from work. This can be a difficult period. Most people do not like being off work and want to get back as soon as they are well. They see their doctor and listen to their doctor’s advice about when to return and under what circumstances.

When is your own doctor’s advice not good enough?

In a recent decision, the Divisional Court reviewed the circumstances under which an employer can request an employee to visit a doctor of its choosing. This is called an independent medical exam (IME). Essentially, the employer wants a second opinion on what your doctor has recommended.

The Case

In Bottiglia v Ottawa Catholic School Board, Mr. Bottiglia was a Superintendent of Schools. He became depressed when he was passed over for the position of Director of Education. Due to his depression, he was off work for several months.

When he wanted to return to work, his doctor recommended a lengthy accommodation period.

Mr. Bottiglia’s employer had some concerns. His doctor had previously stated that his condition had been resistant to treatment and he would require an extended period of time off work. Then, it seemed to the employer that his doctor did an about-face on his medical assessment and stated Mr. Bottiglia could return to work. This return date also coincided exactly with the end of Mr. Bottiglia’s paid sick leave.

The employer requested Mr. Bottiglia visit another doctor for an IME. He initially agreed. But when he saw that the employer had advised the second doctor that it was concerned Mr. Bottiglia’s return was premature and based on the end of pay instead of health, he refused to attend the appointment.

Mr. Bottiglia resigned and brought a human rights application claiming that his employer had failed to accommodate his disability resulting in lost wages and damage to his dignity and self-worth.

The case made its way through the Human Rights Tribunal of Ontario and to the Divisional Court.

The Decision

Significantly, the Court held that the Human Rights Code gives employers the right to ask for an IME in certain circumstances. Previously, many believed an employee’s contract needed to state that an employer had the right to ask for an IME, otherwise the employer could not ask for one.

However, this do not mean an employer may always require an IME. It is only allowed if it will help the employer determine what is required to accommodate an employee. And, there must be a reasonable basis to request it. For example, when inadequate or conflicting medical information is provided by the employee. Employers must also be unbiased and neutral when requesting an IME from a doctor.

If you are off work with a disability and have been asked to attend an IME, you should speak to an employment and human rights lawyer. You may reach us at MacLeod Law Firm at [email protected] or 647-204-8107.

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.

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