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Posts tagged: barrie employment lawyer doug macleod

The Perils of Dismissing a Disabled Employee

By , July 12, 2016 1:08 pm

On June 30, 2016 the Ontario Court of Appeal (the “OCA”) released its decision in a case involving the dismissal of a disabled employee who earned about $ 22 000 per year. I wrote about the trial decision in April (see here for my blog post).

The OCA increased the damages the employer was ordered to pay from about $ 110 000 to about $ 245 000 which was basically the amount the person claimed in her Statement of Claim. One wonders if the OCA would have ordered the employer to pay more damages if the employee had sought more damages.

This decision is an evolution of the OCA’s 2014 Walmart decision which awarded an employee significant damages in addition to traditional wrongful dismissal damages. I have also written about the Walmart decision (see here).

The Facts

Ms. Strudwick worked for an employer that recruits individuals to participate in focus groups. She was paid $ 12.85 per hour and her duties involved data entry, and instructing recruiting staff.

In 2010, Ms. Strudwick became deaf. According to the trial judge: “…her employer’s attitude towards her and treatment of her became unconscionable. The plaintiff deposed she was constantly belittled, humiliated and isolated.” Among other things, the employer refused to accommodate her disability.

Damage Award

Wrongful Dismissal Damages

At the time she was terminated, Ms. Strudwick was 59 years old, had worked for almost 16 years, and held an administrative position. The trial judge ordered the employer to pay her a total of 24 months’ pay in lieu of notice and about $ 6000 in lieu of lost benefits during that time. This included twenty months pay in lieu of reasonable notice of termination and 4 months pay for bad faith termination or Wallace Damages. The OCA applied the traditional Bardal Factors and deferred to the trial judge and upheld the 24 month damage award which is the unofficial cap on wrongful dismissal damages.

Human Rights Damages

The judge awarded her $ 20 000 in general damages under the Ontario Human Rights Code. The OCA looked at court cases and Ontario Human Rights Tribunal cases including one of our cases and increased the damages to $ 40 000.

Damages for Intentional Infliction of Mental Stress

The judge concluded that the employer’s conduct caused Ms. Strudwick to suffer an adjustment disorder with mixed anxiety and depressed mood which required psychological treatment and ordered the employer to pay almost $ 19 000 for the cost of this treatment. The OCA increased this damage award to $ 35 294 including $ $5,000 to address Ms. Strudwick’s pain and suffering, and loss of enjoyment of life.

Aggravated Damages

The trial judge awarded Ms. Strudwick no aggravated damages. Taking all of the abuse Ms. Strudwick endured, the OCA decided to award her $61,599.82 damages after deducting the Wallace Damages she was awarded.

Punitive damages

The judge ordered $ 15 000 in punitive damages because he did not think the other damage awards adequately accomplished the objectives of “retribution, deterrence and denunciation.” The OCA increased this amount to $ 55 000.

I expect this decision will hasten the trend for employee side lawyers to claim non-traditional damages in wrongful dismissal cases. The OCA’s decision to increase the damage amount in four of the damage claims will likely mean that employee counsel will be seeking higher settlements in the future.

I will be interested to see if the employer appeals this decision to the Supreme Court of Canada (the SCC”) and if the SCC grants leave to appeal how the SCC will view this case in light of its 2008 decision in Honda.

Lessons to Be Learned

  1. Disabled employees have additional legal rights. Accordingly, employers should make themselves aware of these rights. For more information on the rights of disabled employees, click here.
  2. Any request for accommodation should be taken very seriously and failure to do so can result in significant legal damages. For information on the duty to accommodate, click here.
  3. Trying to force an employee to quit – especially a disabled employee – can result in additional legal damages.
  4. Judges have the discretion to order an employer to pay a sympathetic employee many different types of damages. For more information on different types of wrongful dismissal damages, click here.
  5. Always consult with an employment lawyer before terminating a disabled employee.

How to Get Away with Drug and Alcohol Testing in the Workplace

By , May 5, 2016 9:00 am

The federal government has announced that there will be marijuana legislation in place by next spring, which should fulfill a campaign promise to legalize marijuana. Marijuana would no longer only be legal for medicinal purposes, but also recreationally. Federal Health Minister Jane Philpott has said that “[w]hile this plan challenges the status quo in many countries, we are convinced it is the best way to protect our youth while enhancing public safety.” So what does this mean for employers? Some may be concerned about employees being impaired by marijuana during working hours.

It seems to be a concern that is on the mind of the TTC as the TTC Board has approved a random alcohol and drug testing policy. This policy is opposed by the Union and we expect the Union will grieve this policy under the applicable collective agreement.

As an employer, if you are considering implementing a random alcohol and drug testing, you should know that except in exceptional circumstances such a policy is generally illegal in Canada. In order for a random testing policy to be acceptable, an employer must show:

  • It is a safety sensitive workplace;
  • There is evidence of a pervasive substance abuse problem which can be tied to the safety of the workplace;
  • Other measures to deter substance abuse have failed; and
  • Testing must assess current impairment

Accordingly, an employer has the burden of meeting a very high evidentiary threshold that is extremely difficult to do. The Courts have stated that the unless an employer can show that there is a pervasive drug problem affecting safety that random testing is generally too invasive and harmful to an employee’s privacy rights; the potential harm outweighs the potential good.

However, an employer can generally have a drug and alcohol policy that requires an employee to submit to drug and/or alcohol testing following a significant incident, accident, or near miss, where it is important to identify the root cause of what occurred. In addition, random drug and/or alcohol testing is generally permissible as part of an employee’s rehabilitation plan provided that it is for a specific duration – typically not longer than two years.

 Lessons for Employers

  1. If you have a safety sensitive work environment, you may want to have a drug and alcohol testing policy that allows for testing after a significant incident, accident, or near miss.
  2. Keep in mind that as employer, you have a duty to accommodate employees with substance abuse problems to the point of undue hardship.  If someone tests positive after an incident, accident or near miss, then you need to consider whether there is a substance abuse problem, which would be considered a disability under human rights legislation.
  3. It is unlikely that a random drug and alcohol testing policy will be permissible unless you can show a persistent drug problem in the workplace which can be tied to safety concerns in the workplace.

If you would like to speak to one of our lawyers about a current drug and alcohol policy or implementing such a policy, please contact us at [email protected] or 647-204-8107.

“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.”

How much Notice of Termination is a Probationary Employee Entitled to Receive?

By , April 26, 2016 9:00 am

I draft employment contracts for most of my employer clients. When doing so I always ask whether the employer wants to include a probationary period clause in the contract.

A recent case highlights some of the issues that arise when there is a probationary clause in an employment contract.

In this particular case, an employee who had been lured from secure employment signed an employment contract with a six-month probation clause. The question was whether he was entitled to “reasonable” notice of termination?

What is Probation?

According to the judge hearing this case, “Probation is a testing period for the employer to assess a probationary employee’s suitability. It offers the employer an opportunity to determine if the employee will work in harmony with the organization, if hired permanently. Suitability includes considerations of the probationary employee’s character, ability to work with others, and ability to meet the employer’s present and future standards.” … “Probationary employment, on its face and by its nature, is inconsistent with any inducement or promise of long-term employment.”

What are an Employer’s Obligations During Probation?

According to the judge hearing this case,A probationary employer must extend to the probationary employee a fair opportunity to demonstrate suitability for permanent employment. However, in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons.”…” “All that is required is that the employer show that it acted fairly in determining whether the probationary employee was suitable and that he/she was given a fair opportunity to demonstrate his/her ability.”

Judge’s Decision

Justice Sanderson concluded: “Since the employer was entitled to terminate the probationary employment in good faith during the probation period, it is not necessary for this Court to determine the period of reasonable notice.” It appears the judge concluded that the employee was entitled to the one week notice of termination he was entitled to receive under Ontario’s Employment Standards Act as opposed to the 4 months termination pay the trial judge had awarded the employee. We do not know whether this decision has been appealed.

Lessons to Be Learned

  1. This case states that an employer has the onus of proving that a probationary employee was provided with “a fair opportunity to demonstrate suitability for permanent employment.” What does “fair opportunity” mean? Does it mean that the employer is required to monitor a probationary more closely than a non-probationary employee?
  2. In situations where the employer wants the right to terminate an employee without notice during the first three months of employment there is no need for a probationary clause if the employer has a without cause termination clause which gives the employer the right to terminate an employee’s employment by providing the minimum notice of termination required under Ontario’s Employment Standards Act.
  3. In situations where the employer wants a probationary period in excess of three months then the employer can consider including an early termination provision in the probationary clause.

For over 25 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 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.”

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]

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