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Posts tagged: Employment Standards Act

How Important Are The Deadlines In Your Severance Package?

By , December 6, 2018 1:43 pm

You are terminated from your job and your employer offers you a severance package. They give you one week to sign the offer and ask that you sign a full and final release confirming that there will be no further payments. Are you obligated to sign and return the offer within a week?

We often receive this question from recently terminated employees who are scrambling to find legal advice within a few days while also dealing with the stress of their termination.

If we are first contacted close to the deadline we often advise employees to simply request an extension from their employer. In our experience, the vast majority of employers will consent to this request. It is important to remember that it is in your employer’s best interest to reach a reasonable deal with you.  Just because you do not sign and accept their severance package before the deadline, does not make their legal obligations to you disappear. Further, the deadline is only important if you are accepting the offer.

You should have your severance package reviewed by a lawyer before accepting it because, in many cases, it is possible to negotiate a better severance package. It is not unusual for employers to offer severance packages that barely meet the minimum standards set out in the Employment Standards Act. You may be entitled to considerably more pay than the minimum standard.  Even if have signed an employment contract with a legally enforceable termination clause, it is possible that you could be entitled to a large severance package because of conduct that occurred during your employment such as harassment and discrimination. Unless you are certain that their severance package is fair you should not sign a severance offer and release until you have consulted with a lawyer.

At least one Ontario judge has unfavourably viewed stringent deadlines requiring an employee to sign a severance package and release.  In Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 the Court found that even though an employee had signed a “release” shortly after his termination, the release was not binding. The Court found that the employee had not been given sufficient time to consider the offer.  Ultimately the Court awarded him significantly more notice than his employer had offered him.

Lessons for Employees:

  1. If you need more time to obtain legal advice ask your employer for an extension to sign the severance package, particularly if you are given less than 5 business days to consider the settlement offer.
  2. Always consider having your severance package reviewed by a lawyer because it is possible you could be entitled to a greater notice period. Especially if you are a long service employee. Remember: you don’t know what you don’t know.

If you would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us 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.

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.

A No Cost Process for Claiming Damages If You Are Fired for Asserting Your Employment Rights

By , August 25, 2017 11:54 am

If you are punished for asking your employer to comply with the Employment Standards Act there is a no-cost complaint process available to you. In particular, you can file a complaint with the Ontario Ministry of Labour and an Employment Standards Officer will investigate your claim at no cost to you.

Riverdale Hospitality Inc. v. Markos Tadesse Essayas, 2017 CanLII 8340 (ON LRB) is a recent case that provides a good example of how a short-term employee earning a low wage can pursue their rights through the Ontario Ministry of Labour instead of through the courts.

The Case

Markos Essayas was an employee for Riverdale Hospitality Inc, a valet and limousine service. He was hired on October 4, 2015 as a valet driver and earned $11.25 per hour. At the time he was hired he was told that he would be a full-time employee and would work approximately 40 hours per week. In October and November Mr. Essayas asked to be paid overtime and received a cheque for overtime pay within a week of his request. However, when Mr. Essayas asked for overtime payment in December 2015, his hours began to drop. His weekly hours from October 12 to December 27 were 40, 38, 48, 48, 47, 54, 48, 37, 48, 8, and 12.  When he asked for overtime in December 2015, he only received a cheque dated January 15, 2016 which was included with his letter of termination dated January 11, 2016. Mr. Essayas argued that the last two weeks were the period of reprisal, which ultimately led to his termination.

The Decision

Section 74 of the Employment Standards Act prohibits employers from penalizing employees who ask their employer to comply with the Act. Under Section 74, there is a reverse onus clause which means the employer must prove that they did not punish the employee. In this case, the employer did not discharge its onus that it acted without reprisal. The Board rejected the employer’s explanation for the dramatic reduction in Mr. Essayas’ hours. The Board refused to accept the employer’s evidence that Mr. Essayas was not a full-time employee, that he received two disciplinary warnings, and that he intended to quit when he did not attend a mandatory training program. The Board also rejected the evidence that the employer had a “seniority list” to determine which employees would be scheduled during slower periods of business.

The Board awarded Mr. Essayas $765.00 for his wage loss (i.e what he would have earned had he been scheduled for shifts in December). They also awarded Mr. Essayas $495.00 for lost income to search for new employment and $500.00 for the breach of the reprisal provisions of the Act. The Board declined to award damages for pain and suffering.

In this case, it would not have made any economic sense for Mr. Essayas to commence a legal action as legal costs and disbursements would likely have exceeded the amount recovered.

Filing a complaint under the Employment Standards Act is not the best legal option in all cases. In some cases a better option is to commence a legal action in the courts.

If you are not sure of your legal rights and what legal options are available to you then you can speak to an employment lawyer about your case.

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 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.”

 

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.”

Is My Termination Clause Good?

By , March 6, 2017 9:34 am

A termination clause in an employment contract states how much notice of termination an employer is required to provide an employee. The employer can provide working notice of termination or pay instead of working notice, but almost all employers provide termination pay instead of working notice.

A termination clause that is poorly written will not be enforced by a court. If the clause is not enforceable then the employee is usually entitled to a longer notice period (or more termination pay).

A recent decision by the Ontario Court of Appeal (“OCA”) has found that a termination clause was not enforceable. The Court ordered the employer to pay the terminated employee almost double the termination pay she would have received under the termination clause.

Wood v Fred Deeley Imports Ltd.

In this case, the Employer terminated an 8-year Employee after it sold its assets to Harley-Davidson. The Employer provided the Employee 13 weeks’ working notice, where it paid her salary and benefits. After the working notice, the Employer provided the employee with 8 weeks’ termination pay. The Employer took the position that the 13 weeks’ notice and 8 weeks’ termination pay was what it owed the employee pursuant to her termination clause.

In the initial decision, the judge found that this termination clause was enforceable. Despite not expressly mentioning that the Employer would continue contributing to the Employee’s benefit plans, the judge found that it was enforceable as it provided more than the minimum payment under the Employment Standards Act. The judge also noted that the Employer continued its benefit contributions throughout the notice period. The Employee appealed to the OCA.

The OCA overturned the motion judge, finding that the termination clause was not enforceable. There were two main reasons why the OCA concluded this clause was not enforceable.

First, the termination clause did not include that the Employer would contribute to the Employee’s benefit plan during the notice period. Because the Employment Standards Act requires benefit continuation during the notice period, the termination clause was unenforceable.

Second, the termination clause did not properly include severance pay. The Employment Standards Act also requires that certain Employers provide severance pay upon termination. Because the termination clause was unclear on severance pay, the clause was found unenforceable.

Lessons for Employees

  1. If you have not signed an employment contract with a termination clause, then you are generally entitled to reasonable notice of termination which can be one month termination pay (or more) for each year of service.
  2. If you have signed an employment contract with a termination clause, this clause may not be legally enforceable. If not, you are entitled to reasonable notice of termination which is almost always more notice than most employees are entitled to receive under the employment contract.
  3. Many terminated employees are offered a severance package in exchange for signing a release which is an agreement not to sue an employer for more termination pay. If you are terminated, you can consult with an employment lawyer to determine whether the termination pay you are being offered is fair. If you have signed an unenforceable termination clause, you may be entitled to more termination pay than set out in your employment contract.

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 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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