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Posts tagged: Employment Standards Act

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.

 

Can My Employer Terminate My Employment When I am on LTD?

By , November 11, 2016 2:03 pm

We often get calls from disabled employees, typically on LTD, who have been terminated about two years after starting a medical leave. It often means their health benefits, including prescription drugs, have been discontinued. They want to know if this is legal. This blog discusses this particular situation.

Why this Situation Arises

Typically, LTD policies require the insurer to pay benefits for two years after an employee becomes disabled as long as the employee is unable to perform the job they were doing when they became disabled.

After the two-year mark, the evidence must show that the employee is unable to perform any job for which they are reasonably suited in order to continue receiving long-term disability benefits. At this point, if the employee satisfies the LTD carrier that they can meet this stricter definition of total disability, then employers will sometimes take the position that the employment contract has been legally frustrated.

When is An Employment Contract Frustrated

An employment contract is frustrated when a contractual obligation has become incapable of being performed. Frustration can arise when, due to a long-term illness or disability, it becomes clear that an employee is no longer able to work. However, it is difficult to pinpoint this point in time and it does not necessarily mean simply waiting two years.

If an employer can prove the contract has been legally frustrated then it is not required to pay any termination pay to the employee under common law.

How much money are you owed if your contract has been frustrated?

If the frustration is caused by disability, however the employer is still required to pay the termination and severance pay that is required to be paid under the Ontario Employment Standards Act. These entitlements are usually far less than the termination pay an employer is liable to pay under common law.

What evidence is needed to prove an employment contract has been frustrated?

To prove a contract has been frustrated, it is not enough for an employer to simply show that the employee has not been able to work for over two years. Rather, the employer must present medical evidence which shows that it is unlikely an employee will be able to work in the reasonably foreseeable future.

In Naccarato v Costco, the employer, Costco, alleged Mr. Naccarato’s employment contract had been frustrated because he had been off work ill for five years and his doctor had indicated that his return to work could not be predicted.

The burden of proof is on the employer to prove frustration of contract. The court found that Costco had not provided sufficient evidence to show there was no reasonable likelihood Mr. Naccarato would not be able to return to work in the reasonably foreseeable future. The court agreed that the doctor’s comments did not provide a prediction for a return to work, but the evidence also showed that Mr. Naccarato was still receiving medication and weekly treatment, and was in the process of seeking further psychiatric treatment.

In these circumstances, Costco should have followed up with the doctor to further probe into the likelihood of Mr. Naccarato’s return to work.

Mr. Naccarato was awarded ten months’ pay in lieu of notice. Had the court agreed with Costco that the employment contract was frustrated, he would have only been entitled to less than six months’ pay under the Employment Standards Act.

If your employment is terminated while you are disabled, you should speak to an employment lawyer to find out how  much termination pay you are entitled to receive. 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.”

Keeping Tips in the Servers’ Pockets – New Protections Under the Employment Standards Act

By , April 12, 2016 11:19 am

For servers, tips generally form a significant part of their income. Pooling tips is a common practice in the restaurant industry whereby a server is required to contribute a certain portion of his or her tips into the “pool”. The tips are then redistributed to other employees. In some cases, the restaurant also takes a cut of those tips, which can seem unfair.

Under Bill 12, Protecting Employees’ Tips Act (“the Act”), which amends the Employment Standards Act (“ESA”), as of June 10, 2016, an employer is prohibited from withholding, making deductions from or causing an employee to return his or tips or other gratuities.

What are tips and gratuities?

Under the Act, “tip or other gratuity” means:

  • A voluntary payment left for an employee by a customer of the employee’s employer whereby a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees
  • A voluntary payment made to an employer by a customer whereby a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees
  • A payment of a service charge or similar charge imposed by an employer on a customer in such circumstances that a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees

New Tip Pooling Rules

An employer is permitted to pool tips and redistribute the tips to other employees, but the employer is not allowed to share in those tips; meaning that the employer can no longer take a cut of a server’s tips or gratuities. There are exceptions for sole proprietors, partners, directors and shareholders if they regularly perform to a substantial degree the same work performed by:

  • some or all other employees who are part of the tip pooling;
  • employees of other employers in the same industry who commonly receive or share tips or other gratuities.

If servers are unionized employees and these new protections conflict with the current collective agreement, the collective agreement will prevail until the expiry of that collective agreement.

If you have any questions about what your employer can and cannot require you to do with your tips, 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 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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