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Posts tagged: Barrie Employment lawyer

Will the Pay Transparency Act Narrow the Gender Pay Gap? Bill 57 Halts our Chance to Find Out

By , December 28, 2018 10:38 am

Despite pay equity and anti-discrimination laws, female workers in Ontario earn less than their male counterparts. To address this gender wage gap, shortly before 2018 provincial election the Liberal government passed the Pay Transparency Act (“PTA”), putting the onus on employers to publicly report gender pay to build fairer workplaces. It was scheduled to take effect on January 1, 2019.

The PTA would have created numerous requirements for employers regarding compensation disclosure and filing pay transparency reports with the government. Specifically, the PTA prohibited all employers from either directly or indirectly asking job candidates about past compensation. It also would have required that employers post a compensation rate or range for all publicly advertised job postings, while prohibiting employers from reprising against employees who make inquiries about compensation practices.

Shortly after the election however, Premier Ford halted the coming into effect of the PTA by way of Bill 57.

On December 6, 2018, Bill 57, the Restoring Trust, Transparency and Accountability Act, 2018, received Royal Assent. It delayed the implementation of the Pay Transparency Act, 2018 (“PTA”) from January 1, 2019 to “a day to be named by proclamation of the Lieutenant Governor.”

What is the Status of Ontario’s Pay Transparency Act?

It is not known when the PTA will come into force. If I were a betting person I would say not while Doug Ford is Premier.

Since the PTA has been postponed, employers are currently not required to create pay transparency reports and may limit their employees’ ability to disclose their compensation information.

Further, employers do not have to determine a compensation range before posting a job; they can continue to determine compensation rates based on a variety of factors such as the candidate’s experience and qualifications.

For more information on an employee’s pay transparency obligations, contact an employment 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.

Will Changed Workplace Laws Increase Competitiveness for Ontario Businesses?

By , December 27, 2018 12:32 pm

“We’ve heard loud and clear from businesses across Ontario that job growth starts with cutting the burdensome, job-killing red tape that is driving jobs and investment out of our province … We are making Ontario open for business.” 

Premier Ford in his closing speech this October at the annual Ontario Economic Summit.

Less than 2 months later,  the Ontario government tabled Bill 66, Restoring Ontario’s Competitiveness Act, 2018.

Bill 66, an omnibus bill, is part of the Ontario Open for Business Action Plan and announces over 30 actions to make it easier for businesses to create jobs.

Bill 66 at Schedule 9 outlines, among other things, the proposed changes to Ontario’s Employment Standards Act, 2000 (“ESA”).

How Bill 66 Proposes to Amend the ESA

The changes Bill 66 makes to the ESA are intended to reduce regulatory burdens on businesses. Firstly, Bill 66 amends section 2 of the ESA so that employers no longer must display a poster that provides information about the ESA and its regulations in the workplace. However, the requirement to provide a copy of the most recent version of this ESA poster to each employee is retained.

Second, Bill 66 would remove the requirement for employers to obtain approval from the Director of Employment Standards for excess hours of work and overtime averaging. Specifically, Bill 66 would amend Part VII of the ESA so that a Director’s approval would no longer be required for employers in order to make an agreement that allows their employees to exceed 48 hours of work in a work week.

Further, Bill 66 proposes to amend Part VIII of the ESA to remove the requirement to obtain the Director’s approval for employers to make agreements which allow them to average their employees’ hours of work for the purpose of determining the employees’ entitlement to overtime pay. This means that for the purposes of overtime entitlement, an employee’s hours may be averaged over a period that does not exceed 4 weeks,  in accordance with the terms of an averaging agreement between the parties.

Bill 66 also proposes that existing averaging agreements be deemed to have met the requirements set out in the ESA. Therefore, such agreements would continue to be valid until it is revoked by the employer, employee, or the Director.

As a result of these changes, employers would no longer be required to apply to the Ministry of Labour for approval of their employees’ excess weekly hours of work and overtime averaging. Employers are for these changes because it provides for increased flexibility to manage employee shifts. Employee groups oppose these changes, believing that they could result in more hours and less overtime pay for workers.

Lesson To Be Learned

If Bill 66 becomes law employers should review their employment contracts to make sure employees agree to work excess hours if requested, and also make sure that employees agree that their hours can be averaged over 2 or more weeks for the purpose of calculating overtime pay. This will ensure that there are enough employees available to address surges in business, and reduce payroll costs in workplaces where there are ebbs and flows in hours of work. We would would be pleased to assist with this contractual review.

Although Bill 66 is not yet law, it is expected to proceed quickly through legislature, just as Bill 47 did. For more information on the impact Bill 66 will have on your business, contact an employment 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.

Doug’s Top 10 Employment Law Stories of 2018

By , December 27, 2018 9:36 am

In 2018 there were many new developments in the employment law world.

Here are my top 10 stories of the year:

1. Bill 148 Bit the Dust

Ontario’s Employment Standards Act received its last major update in 2000. During the last three years, the Liberal provincial government consulted widely and introduced comprehensive changes to this law by way of Bill 148. After this year’s spring election, the PC government reversed almost all of these changes. See here and here for blogs on the to and froing on changes to Ontario’s minimum employment standards law.

Bottom line: the time that employers, human resources consultants, and employment lawyers spent on this process was all for nought and a law that needed updating has not really changed.

2. The Ontario Government is Now Selling Recreational Cannabis

In October 2018, Canada became the second country in the world to legalize the sale of cannabis. When edibles start being sold by the Ontario government in 2019, it will be difficult to detect cannabis use or impairment in the workplace. As a result, we recommend that all employers introduce or update its substance abuse policy and we can draft one for you. Here and here are links to blogs on this issue.

3. #MeToo is Alive and Well

In 2018, several senior executives in a number of industries were fired for sexual harassment. The public and employers are keenly aware of this issue. So are employees and as a result the number of complaints have increased. Employees in Ontario can file a complaint at work or file an application with the Human Rights Tribunal of Ontario. See here and here for some of our blogs on this issue.

We recommend that every employer introduce a no-discrimination policy and we can draft one for you.

4. The Number of Workplace Harassment Complaints Has Skyrocketed

In the fall of 2016, Ontario’s health & safety law was amended to require Ontario employers to investigate any incident or complaint of workplace harassment and the investigator must be trained on how to investigate. Since that time, we have seen a significant increase in the number of complaints. Here is a link to a blog on this issue.

In 2018, the number of external, professional workplace investigators mushroomed and most are currently working at full capacity. We recommend that every employer make sure that one employee is trained on how to conduct a workplace investigation. We are offering a one day training session on February 14, 2019. For more information, contact Judy Lam at 647-204-8107.

5. The Uncertainty Around the Enforcement of Termination Clauses Continues

This story has been in my top 10 list for 3 years. Many wrongful dismissal cases involve a dispute as to whether or not the termination clause in the employee’s employment contract is enforceable. Despite numerous court cases on this issue (including several cases from the Ontario Court of Appeal) it is still difficult to predict whether a judge will enforce a termination clause in an employment contract. See here, here, and here for some of our blogs on this issue.

I sincerely hope our Court of Appeal will provide some clear guidance in this area in 2019. In the meantime, we can draft legally enforceable termination clauses for you.

6. Limiting Group Benefits for Seniors has Been Found to be Unconstitutional

There are provisions in Ontario’s human rights and employment standards legislation which permit employers to discriminate against employees who are 65 years old when it comes to providing coverage for some group benefits. Here is a link to a case which stated that these laws are unconstitutional.

We therefore suggest that you talk to your benefit provider to find out whether senior citizen employees are excluded from any of your group benefits.

7. Wrongful Dismissal Damages are Increasing for Older Workers

Since 1960, judges have been directed to take an employee’s age into account when determining the appropriate reasonable notice period. In 2006, mandatory retirement was eliminated in Ontario. Recently, a number of judges have suggested or implied that notice periods should be extended for employees over 60 years old and that these employees are not really expected to find alternative employment. Here is a blog on this issue.

8. Are Executives Entitled to Variable Compensation During the Applicable Notice Period?

Variable compensation makes up the majority of many senior executives’ compensation.  One issue that often arises when an executive is terminated is whether or not the employee is entitled to pay in lieu of this variable compensation during the applicable notice period. The employer says no because the employee has not done anything to achieve the results needed to trigger this compensation. However, Courts are not sympathetic to this kind of argument. See here, here, and here for cases where the employer’s argument was rejected by a judge.

The good news is that it is possible to draft contractual language that precludes an executive from receiving any variable compensation after his or her last day of active employment. Please contact me if you want to discuss how this can be accomplished.

9. Secretly Recording Conversations at the Workplace

Michael Cohen secretly taped Donald Trump and more and more employees are taping conversations in the workplace. In this age of social media and the use of a cell phone as a person’s appendage, I think this trend will continue. Depending on your perspective, doing so undermines the trust needed between employees and employers or is evidence that such trust does not exist. Managing this possible scenario is tricky. Here is a blog on this topic.

10. The Number of Employment Standards Act Audits is Increasing

In 2017, the Liberal government announced it was hiring 175 Employment Standards officers who would randomly visit 1 in 10 Ontario workplaces each year to make sure the employer is complying with the Employment Standards Act. As a result of the PC government’s hiring freeze not all of these people have been hired, however, these audits have begun on a more limited scale. A number of our clients have been randomly selected for an audit. If you receive notification that your organization has been selected for an audit we can help you prepare for the audit.

Fun Fact: In 2018 the MacLeod Law Firm was nominated as one of Canada’s top employment and labour law boutiques by the Canadian Lawyer Magazine and by the Canadian HR Awards.

For almost 30 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 directly at 416-317-9894 or at [email protected]

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.

Arbitrator Finds Undue Hardship for Employer to Hire an Employee with a Medical Cannabis Prescription in a Safety-Sensitive Workplace

By , December 4, 2018 11:14 am

With the recent legalization of recreational cannabis across Canada, employers are increasingly worried about its impact on safety-sensitive workplaces. Even though medical cannabis has been legal in Canada since 2001, similar concerns continue to exist about how to accommodate an employee where they hold a safety-sensitive position.

In a 2018 arbitration decision, Arbitrator Roil dealt with this very question of how to accommodate an employee’s medical cannabis use in the construction industry.

International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. and IBEW, Local 1620 (Tizzard)

Facts

The Lower Churchill Project involves the development of a hydroelectric facility and related infrastructure in order to carry power to consumers. Numerous contractors were responsible for construction of the transmission lines in what is known as “the Project.” One major contractor was Valard Construction LP ( “Valard”).

In 2016, Mr. Tizzard applied for a labourer job and was accepted for employment, subject to a satisfactory drug and alcohol test – a normal requirement for work at the Project. Mr. Tizzard has a prescription for the use of cannabis for the management of pain arising from osteoarthritis and Crohn’s disease. He is permitted to consume up to 1.5 grams of cannabis with a THC level of 22%, which he consumes by vaporization each evening. Mr. Tizzard informed the Union about his cannabis authorization which requested that his doctor fill out a questionnaire. When Mr. Tizzard’s doctor had finally done so, the original position Mr. Tizzard had applied for had been cancelled.

In February 2017, Mr. Tizzard applied for the position of Assembler, but he was turned down for this position and it was requested by Valard that he see a Substance Abuse Specialist. Despite clarifying that he had a prescription and not an addiction, Mr. Tizzard became frustrated as he needed employment and stopped taking his medical cannabis for 5 weeks so that the THC would clear from his body. He was hired by another subcontractor to The Project as a general labourer. However, at the last minute, Mr. Tizzard received a call in which he was told not to report for work. According to Mr. Tizzard, he had been “red-flagged” due to his medical cannabis use and nobody was allowed to hire him to work on The Project.

The Law

Ontario’s Human Rights Code is not like other laws – it is considered “quasi-constitutional,” meaning that it prevails over all other provincial legislation. It is to be interpreted broadly, and its protections apply even in the pre-hiring stage. For example, a job applicant’s needs related to Code grounds must be accommodated for any part of the hiring process. The hiring process must be fair and employers cannot screen out applicants based on any protected grounds.

During the employment relationship, an employer has the duty to accommodate an employee’s disability up to the point of undue hardship. Courts have held that assumption of some risk in the workplace is acceptable within the accommodation process. Therefore, in accommodating a person with a disability, it is not required that all risk be eliminated from that person’s work.

Further, each person with a disability must be considered, assessed, and accommodated individually. Such individualized accommodation has been referred to as the essence of accommodating people with disabilities. Any inquiry into accommodating a worker with a disability in a unionized environment entails a search of the various possible work options available for that worker. The employer has the primary obligation to consider accommodation but the union also plays a role.

Arbitrator’s Reasoning

In deciding whether Valard had failed to accommodate Mr. Tizzard’s disability by not providing him with employment, the arbitrator first assessed the labour positions of Utility Worker and Assembler, concluding that both were safety-sensitive and inherently hazardous for all those who attend the various job sites for The Project.

Since all positions were safety-sensitive, the arbitrator had to decide whether Mr. Tizzard could work in one of these safety-sensitive positions while consuming medical cannabis.

The Arbitrator reviewed medical and pharmacological evidence including medical literature and guiding documents from Health Canada, the College of Family Physicians of Canada, and the College of Physicians and Surgeons of Newfoundland and Labrador. He also reviewed a report by the Task Force set up to advise the Federal Government on cannabis legalization for the most recent independent information available about the measurement of impairment from the use of cannabinoids. Based on his review of these documents, and evidence from specialized witnesses, the Arbitrator reached the following conclusions:

  1. The regular use of medically-authorized cannabis products can cause impairment of a worker in a workplace environment. The length of cognitive impairment can exceed simply the passage of 4 hours after ingestion. Impairment can sometimes exist for up to 24 hours after use.
  2. Persons consuming medical cannabis in the evening may sincerely believe that they are not impaired in their subsequent daily functioning; they can, however, experience residual impairment beyond the shortest suggested time limits. The lack of awareness or real insight into one’s functional impairment can be a consequence of cannabis use. In that context, a person may not experience ‘euphoria’ (as mentioned in the Health Canada Guidance), yet still not function, respond or react normally while impaired by cannabis use.
  3. A general practicing physician is not in a position to adequately determine, simply grounded on visual inspection of the patient in a clinic and a basic understanding of patient’s work, the daily safety issues in a hazardous workplace. Specialized training in understanding workplace hazards is necessary to fully understand the interaction between cannabis impairment and appropriate work restrictions in a given fact situation.
  4. There currently are no readily available testing resources within the Province of Newfoundland and Labrador to allow an employer to adequately and accurately measure impairment arising from cannabis use on a daily or other regular basis.

Decision

The Arbitrator concluded that Mr. Tizzard’s impairment posed a safety hazard as there is currently no effective or practical way to measure his impairment from evening cannabis use. Further, he found that the safety hazard introduced by residual impairment could not be ameliorated by monitoring or remedial processes. Therefore, the Arbitrator erred on the side of caution and held that hiring Mr. Tizzard would amount to undue hardship for Valard.

Takeaway

This decision may provide some clarity as to the laws surrounding accommodating employees who use medical marijuana in safety-sensitive workplaces. Although the threshold of  undue hardship is a tough one to meet, in safety-sensitive workplaces where alternative positions are not available or residual effects of impairment cannot be ameliorated, other decision makers may also err on the side of caution as was done here.

For more information on whether accommodating an employee with a disability may amount to undue hardship in your workplace, contact an employment 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.

Disputes Over Bonus Entitlements: Two Decisions on the “Active Employment” Requirement for Bonus Payouts

By , November 27, 2018 10:23 am

Where an employee is terminated or resigns, what is the effect of a bonus plan that requires the employee to be “actively employed” at the time the bonus is paid out in order to receive it?  The Ontario Court of Appeal released two decisions, only one year apart, that reached seemingly opposite conclusions to this question.

2016 Case – Employee Entitled to Bonus after Termination

Mr. Paquette worked for his employer for 14 years, until he was terminated without cause. In each of the 4 years prior to his termination, he received bonuses and these bonuses were an integral part of his compensation. Upon termination, Mr. Paquette brought an action for wrongful dismissal and was awarded 17 months’ pay in lieu of reasonable notice. Damages were based on his salary and benefits but excluded any amount for the loss of his bonus through the reasonable notice period. During this notice period, Mr. Paquette would have been entitled to 2 more bonus payments had he remained employed. The bonus plan that Mr. Paquette participated in required that he be “actively employed” on the date of the bonus payout. Since the lower court denied Mr. Paquette’s claim for compensation for lost bonuses, Mr. Paquette appealed.

Two Step Approach

The Court of Appeal found that the lower court erred by focusing too narrowly on whether the term “active employment” was ambiguous. Instead, this Court followed a two-step approach from a previous case. The court reiterated that the proper way to analyze an employee’s claim is:

  1. consider the employee’s common law rights to damage for breach of contract; then
  2. consider whether wording of the bonus plan unambiguously alters the employee’s common law rights.

The Court found that the the wording of Mr. Paquette’s bonus plan did not limit his right to receive compensation for his bonus during the reasonable notice period. Thus, Mr. Paquette had the contractual right to work and to be paid his salary and receive benefits throughout the entire notice period. The only reason Mr. Paquette was not “actively employed” on the bonus payout dates was because the employers breached his contract by terminating him without proper notice.

The Court found that a bonus plan requiring an employee to be actively employed when the bonus is paid is not sufficient, on its own, to limit entitlement to a bonus for an employee terminated without cause.

2017 Case – Employee Forfeited Bonus after Resignation

Mr. Bois worked for his employer for approximately 14 years, until he resigned in 2011. In both 2009 and 2010, he was awarded bonuses under his employer’s variable incentive plan (“VIP”). The VIP stated that a bonus awarded for a year was payable in equal installments over the 3 years following the calendar year for which the bonus was awarded.

The 2007 VIP stated that in the event that an employee’s “continuous Active Employment” terminates, the employee will immediately forfeit any entitlement to payments under this plan. Similar language was presented to Mr. Bois in a 2010 letter and an updated VIP in 2011. When Mr. Bois resigned, it was before the payout dates for the final installment of his 2009 bonus, and the two installments of his 2010 bonus. These future installments totalled nearly $115,000.

Parties May Contractually Agree to When Bonus was Payable

The lower court judge concluded that the VIP required an employee to be actively employed with the company on the date of a bonus installment pay-out in order to receive it. Therefore, if an employee resigned before that incentive payment date, they would not be eligible to receive payment. Further, the fact that Mr. Bois had notice of the active employment eligibility requirement on multiple occasions contributed to the conclusion that he ought to have known that he was forfeiting his entitlement to the bonus upon resignation.

On appeal, the Court upheld the lower court judge’s decision. Further, Mr. Bois unsuccessfully relied on sections 11(5) and 13(1) of the Employment Standards Act (“ESA“) to argue that he was entitled to his bonus.

The Court of Appeal agreed with the lower court as well as previous cases that it was open to the parties to agree how and when any bonus was declared, earned, accrued, and would be payable. Further, bonus payments were found not to fall under “wages” as they are not regularly scheduled wage payments in s. 13(1). Therefore, The VIP’s requirement that an employee be actively employed at the time of a future pay-out was found not to violate the ESA.

Can these Decisions be Reconciled? Maybe

These two decisions seem to reach opposite conclusions. However, the underlying question in both cases is, what would the employee have received during the common law period of reasonable notice had he continued to work through that period?

The general rule is that when an employer dismisses an employee without reasonable notice of termination, the employee is entitled to compensation for all lost pay during the appropriate notice period. However, bonus plans with language stating that employees must be “actively employed” to receive their bonus is meant to avoid having to pay out bonuses to terminated employees.

The Paquette case suggests that total compensation is generally the rule, especially where the bonus is an integral part of the employee’s compensation. Bois clarifies that the employers and employees have discretion to agree to a bonus plan which limits the employee’s common law right to have bonus awards included in their wrongful dismissal damages. There are some key differences between the two cases that may contribute to the different conclusions. For instance, Mr. Paquette was terminated without cause while Mr. Bois resigned. Further, Mr. Bois was made aware of the limiting provisions in his VIP on several occasions.

What does all this mean? Where a bonus plan exists, its terms will often be important in determining the bonus component of a wrongful dismissal damages award. For more information on whether your bonus plan effectively limits an employee’s common law right to bonus compensation in wrongful dismissal damages, you may contact an employment 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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