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Posts tagged: Katelyn Weller

Keeping Safe At Work

By , April 28, 2016 9:21 am

Today, April 28, is a National Day of Mourning across the country for workers who have been killed, injured or suffered illness as a result of work related incidents.

For many of us, we spend the majority of our time at work. Five out of seven days a week are spent working. That’s a lot of time and it’s important that we stay safe at work.

Each province has its own health and safety legislation. In Ontario, its called the Occupational Health and Safety Act (OHSA).

As workers, you should know your rights and duties under OHSA.

Your Rights as a Worker

  • Right to participate in identifying and resolving health and safety concerns. OHSA requires a Joint Health and Safety Committee or representatives depending on the number of employees.
  • Right to know about hazards. For example, under OHSA, the employer is required to properly identify and provide information about toxic substances.
  • Right to refuse work that you believe is dangerous.
  • Right to be free from workplace harassment. If you feel that you are being harassed then you can file a complaint under the employer’s workplace harassment policy. Most employers are required by law to have a written complaint process.

Your Duties as a Worker

As per section 28. (1), you should:

  • Work in compliance with the provisions OHSA and its regulations;
  • Use and wear equipment, protective devices or clothing that the employer requires to be used or worn
  • Report to your employer or supervisor the absence of or defect un any equipment or protective device which you are aware and which may endanger you or another worker
  • Report to your employer or supervisor any contravention of OHSA or its regulations or the existence of any hazard which you know of

If you are a supervisor in the workplace, you have additional duties and responsibilities and could be held personally liable for not complying with these duties. For more information, see our blog about supervisors and OHSA.

If you are concerned about health and safety at your workplace, or if you have any questions about your rights and duties under OHSA, one of our lawyers would be happy to talk to you. Please contact us at 647-204-8107 or by email 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.”

Non-Competition and Non-Solicitation: Assessing your risk

By , April 18, 2016 8:32 am

We often get calls from employees who are thinking about leaving their employment, have left their employment, or have been terminated, and are considering working for a competitor or starting their own business. They are often concerned about non-competition and non-solicitation clauses contained in their employment contract and whether such clauses are enforceable.

Non-Competition Clauses vs. Non-Solicitation Clauses

A non-competition clause is a provision which prohibits an employee from working for a competitor of a former employer, or opening up his or her own business in direct competition with the former employer.

A non-solicitation clause is a provision which prohibits an employee from encouraging the employer’s clients or staff to join the employee at a new business.

Enforceability

Typically, the courts have said that they will not enforce a non-competition clause where a non-solicitation clause would effectively protect the employer’s interests. The courts have said that there is a public interest for free trade and a non-competition interferes with that public interest.

The Courts will generally enforce a non-solicitation clause if the length of time it applies and the scope of the clients concerned are considered reasonable.

No Employment Contract with Non-Competition or Non-Solicitation Clauses

Even if an employee does not have an employment contract that contains a non-competition clause or a non-solicitation clause, it’s possible that he or she could be found to owe a fiduciary duty to the employer to not solicit clients. Where an employee held a position of senior management or could be described as a “key” employee, he or she may be precluded from exploiting that position to benefit his or her own business. There are a variety of factors that the courts will look at when determining if someone was a “key” employee.

The Costs of Breaching a Non-Solicitation Clause

If an employee breaches a non-solicitation clause, the employer will typically have to prove damages (i.e. the amount of money that was lost as a result of the solicitation).

If the employee is found to owe a fiduciary duty, there are two different approaches taken by the courts for awarding damages:

  • The amount of benefits that were wrongfully acquired because of the breach, which focuses on the employee’s gain as a result of the breach.
  • Restoring the employer to the position it would have been in if the breach had not occurred, which focuses on the employer’s losses.

If you are currently employed and thinking or starting your own business or moving to a competitor, or if you’ve been terminated and are considering either of those options, one of our lawyers would be happy to review your obligations under your employment contract and any possible fiduciary responsibilities. Please contact us at 647-204-8107 or [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.”

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.”

What’s in a name – Employee or Independent Contractor?

By , March 21, 2016 10:00 am

Have you been recently terminated and the company did not provide notice or pay-in-lieu of notice because you are an “independent contractor”?

Sometimes organizations believe that it is more advantageous to categorize the working relationship as one of independent contractor in order to avoid making payroll remittances and to permit termination of the relationship without notice or pay-in-lieu of notice.

However, whether you are truly an independent contractor depends on a variety of factors. The Courts have established a category between employee and independent contractor called dependent contractor. Dependent contractors are entitled to reasonable notice, similar to an employee, upon termination.

Keenan v. Canac Kitchens

In a Keenan v. Canac Kitchens, 2015 ONSC 1055,  two dependant contractors were awarded 26 months’ reasonable notice each.

Canac Kitchens manufactured and sold kitchen cabinets. At the time Canac terminated Mr. and Mrs. Keenan, they had worked there 32 years 25 years respectively as delivery and installation supervisors. They were originally hired as full-time employees, but in or about 1987, Canac told them that they would become contractors and they were given an agreement to sign reflecting this arrangement.

The Keenans continued working under this agreement until their termination in 2009. Canac did not provide them with any notice or pay-in-lieu of notice as they were considered contractors and thus not entitled to such notice. The Keenans brought wrongful dismissal claims alleging that they were in fact employees and as such entitled to reasonable notice of termination. The Court concluded that they were dependent contractors and awarded them 26 months’ notice each.

This decision was recently upheld by the Ontario Court of Appeal. See Keenan v. Canac Kitchens Ltd., 2016 ONCA 79.

Factors Considered by the Court

  • Exclusivity of Services
  • Control
  • Ownership of Tools
  • Participation in risk and opportunity for profit
  • An assessment of the question – who business is it?

These factors are rarely black and white. The Courts will consider each factor contextually when making a decision. If the company exerts considerable control over the terms of how you provide services or if a majority of your income is derived from that one company, it’s possible that you are a dependent contractor.

If you have been terminated and the company has not provided reasonable notice or pay-in-lieu of notice because it considers you an independent contractor, you may be entitled to notice if you are a dependent contractor. One of our lawyers would be happy to meet with you to discuss your situation to see if you’re likely to be considered a dependent contractor. Please contact us at 647-204-8107 or by email 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.”

As a supervisor, are you at risk for lackluster health and safety at your company?

By , March 14, 2016 10:00 am

Employees are generally happy to be promoted to a supervisory role. It typically means more money, more prestige and future career advancement. However, it also means more responsibility. This includes responsibilities related to health and safety in the workplace. As a supervisor, you are at risk if one of your employees is injured on the job.

Occupational Health and Safety Act (“OHSA/ the Act”)

Under s. 27(1) of the OHSA, a supervisor shall ensure that a worker,

  1. Works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and
  2. Uses or wears the equipment, protective devices or clothing that the worker’s employer requires to be used or worn

27(2) sets out additional duties of supervisors including:

  1. advising a worker of the existence of any potential or actual danger to the heath or safety of the worker of which the supervisor is aware;
  2. where prescribed, providing a worker with written instructions as to the measures and procedures to be taken for protection of the worker; and
  3. taking every precaution reasonable in the circumstances for the protection of a worker

An individual who contravenes the Act can be fined up to $25,000 and/or sentenced to up to 12 months in prison.

Criminal Code (“the Code”)

Similarly, the Criminal Code imposes duties on supervisors to ensure the safety of workers. Section 217.1 of the Criminal Code states:

“Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”

Charges under s. 217.1 of the Criminal Code are rare. A supervisor is more likely to be charged under OHSA. However, on January 11, 2016, Vadim Kazenelson, became the first person to be convicted and sentenced to prison for criminal negligence causing death under section 217.1.

On Christmas Eve 2009, Mr. Kazenelson was the project manager when an overloaded suspended platform, carrying himself and five other workers who were repairing exterior balconies of a high-rise apartment in Toronto, collapsed killing four of the workers and severely injuring the fifth. There were only two lifelines available on the suspended platform, but in fact only one worker was actually secured. For more information on this case, please see: R. v Vadim Kazenelson, 2015 ONSC 3639 and R. v Vadim Kazenelson, 2016 ONSC 25.

As a supervisor, it is important to remember that you are responsible for the safety of the workers under your supervision. Therefore, you need to make sure that your employer provides you with adequate training; otherwise, you will be exposed to legal liability.

If you have any questions about your legal duties and responsibilities as a supervisor, or if you have been charged under OHSA, one of our lawyers would be happy to meet with you. Please call 647-204-8107 or email [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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