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Posts tagged: Doug MacLeod

Proposed Changes to the Canada Labour Code – Bill C86

By , November 14, 2018 12:23 pm

On October 29, 2018, the Federal government introduced the omnibus Bill C86 titled “A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures”.  If passed, Bill C86 would introduce changes to the Canada Labour Code (“Code”) that would have a significant impact on federally regulated employers.

Some of the changes proposed in Bill C86 include:

1) Scheduling and Hours of Work

Employers would be required to provide employees with a 30-minute unpaid break after 5 consecutive hours of work and would be entitled to a minimum rest period of 8 hours between shifts.

Employers would also be required to provide employees with at least 96 hours written notice prior to scheduling a shift, without which employees have the right to refuse this work.

Employers would be required to provide unpaid breaks needed for medical reasons or for nursing.In the case of medical breaks, employers would be permitted to request a written medical certificate.

2)Expenses

Employers would be required to reimburse employees for reasonable work-related expenses.

3) Vacation

Vacation time and pay entitlements would be increased for employees:

o Employees with 1 year of service: 2 weeks’ vacation and 4% vacation pay;

o Employees with greater than 5 years of service: 3 weeks’ vacation and 6% vacation pay;

o Employees with greater than 10 years of service: 4 weeks’ vacation and 8% vacation pay.

3) Leaves of Absence

Employees will be entitled to up to 5 days of annual personal leave. After 3 months of continuous employment, the first 3 of these days will be paid. Employees will be eligible to take this leave for personal illness or injury, responsibilities relating to the health care of family members, responsibilities relating to the education of family members under the age of 18, to address urgent matters concerning themselves or family members, to attend their citizenship ceremony or for any other reason prescribed by regulation.

The sick leave provisions would provide employees with up to 17 weeks of “medical leave”, including for personal illness or injury, organ or tissue donation or medical appointments during working hours.

4) Termination

The Proposed Act would provide employees with at least three months of service with:

  • two to eight weeks’ written notice of termination;
  • two to eight weeks’ pay in lieu of notice at their regular rate of wages for their regular hours of work; or
  • a combination of the two, equivalent to at least two to eight weeks depending on length of service.

This would not apply to employees whose employment was terminated for just cause or as part of a group termination of employment.

5) Pay Equity Act

Bill C-86 would also introduce new legislation known as the Pay Equity Act. The Act would require all federally regulated employers with 10 employees or more to provide men and women employees with equal pay for work performed which is of equal value, and to establish and maintain a pay equity plan.

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.

Valuing Employee Pensions in Wrongful Dismissal Cases: A Boring but Important Issue

By , November 6, 2018 10:18 am

A long service, older worker is terminated. Under the terms of the individual’s pension plan, the employer is not permitted to continue his participation in the pension plan. So the question arises: when calculating wrongful dismissal damages, how do you calculate damages for pension benefits?

A recent case considered this question.

The Facts

Imperial Oil Ltd. terminated Donald Dussault’s employment after 39 years of service when he was 63 years old. Imperial Oil immediately discontinued Mr. Dussault’s participation in its pension plan and Mr. Dussault decided to start collecting his pension benefits.

A judge concluded that Mr. Dussault was entitled to compensation in lieu of 26 months’ notice of termination. One component of his compensation was his pension.

Commuted Value of Pension

Imperial Oil called an expert witness who concluded that Mr. Dussault’s pension was worth $189,117 more than if Imperial Oil had kept him in its pension plan for the 26-month period after his termination. Mr. Dussault did not call an expert witness of his own on this issue.

Employee Claim for Damages for the Employer’s Contributions to his Pension During Notice Period is Denied

Since Mr. Dussault would have been enrolled in the pension plan if Imperial Oil had provided him with 26 months’ notice of termination, and since Imperial Oil would have made contributions to his pension during this notice period, Mr. Dussault sought damages equal to these contributions. The court concluded that the value of his pension was higher than if Imperial Oil had continued paying into his pension plan until the end of the 26-month notice period. However, the court refused to order the requested damages because Mr. Dussault could not prove any damages.

Employer Claim to Reduce Employee Damage Award by the Value of the Pension Benefits he Received During the Notice Period is Denied

Mr. Dussault collected pension benefits during the 26-month notice period. Imperial Oil asked the judge to deduct this amount from Mr. Dussault’s wrongful dismissal damages. However, the judge refused to do, concluding that pension benefits are a benefit employees have earned for their years of service and are not meant to be an indemnity for the loss of employment.

Lessons to Be Learned

  1. Every employer should require all employees to sign an employment contract with a legally enforceable termination clause. In this case, Imperial Oil could have reduced a 26-month common law reasonable notice period to as little as 8 weeks’  termination pay and 26 weeks’ severance pay. This is another case where a judge concluded that the common law notice period was more than 24 months.
  2. For long-service employees who are entitled to a lengthy common law reasonable notice period, damages for a reduced or an enhanced pension can be significant. I have represented clients who have not taken pension benefits during the notice period and the value of lost pension value (as opposed to an enhanced pension value in this case) has been significant.
  3. When valuating pension benefits, it is important to retain an expert. A slight change in actuarial assumptions can result in significant differences in a pension’s valuation.

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.

Bill 148 (aka Wynne government changes to the Employment Standards Act) Bites the Dust

By , October 25, 2018 9:31 am

On Tuesday afternoon, the Ford government tabled legislation Bill 47 – Making Ontario Open for Business Act, 2018 which will repeal some of the recent changes to Ontario’s Employment Standards Act, 2000 and eliminate new statutory obligations that are scheduled to be imposed on employers on January 1, 2019.

Although Bill 47 must go through the legislative process, the Ford government has a majority of seats in the Ontario legislature so I expect the changes will take effect on January 1, 2019 when many of the Bill 148 changes are scheduled to become law.

Roll backs

The two paid personal emergency leave days that were introduced by the Wynne government in the past year will be eliminated.

The public holiday pay calculation for part-time employees that was in effect before Bill 148 will become law again.

Equal pay for equal work for substantially the same work regardless of employment status will be repealed. So there will generally be no obligation to pay part-time employees the same rate as full-time employees for performing substantially the same work.

The prohibition for asking an employee for a doctor’s note to prove sickness will be repealed.

The presumption that a person is an employee as opposed to an independent contractor if an individual claims he or she is an employee will be eliminated.

Pending laws that will not take effect

The minimum wage will not increase to $ 15 per hour on January 1, 2019, as scheduled, and there will be no cost of living increase in the minimum wage until October 2020.

The new scheduling rules will not take effect.

The new on call pay rules will not take effect.

An employee’s right to request changes in work hours or work location will not take effect.

An employee’s right to refuse scheduling changes with less than 4 days notice will not take effect.

The requirement to provide an employee with 3 hours pay if a shift is cancelled with less than 48 hours will not take effect.

Changes to the Employment Standards Act

The ten days personal emergency leave will be eliminated under Bill 47 and replaced with three days Sick Leave, three days Family Responsibility Leave, and two days Bereavement Leave for a total of eight days. These eight days are unpaid.

Bill 47 also includes changes to the Labour Relations Act, and the Ontario College of Trades and Apprenticeship Act.

A bill is often sent to a committee after Second Reading and Bill 47 could change after that process, but I doubt there will be any changes to this bill. But stay tuned; I will provide updates on this proposed employment law as we get closer to January 1, 2019.

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.

Cannabis Legalization: Behind the Smoke and Mirrors

By , October 17, 2018 9:44 am

Whether you’ve been looking forward to this day – October 17, 2018 – or whether you’ve been dreading it, the legalization of recreational cannabis in Canada is officially here.

Although employers have had over a year and a half to prepare for legalization, a recent Ipsos poll found that managers and employees are not on the same page when it comes to their respective expectations concerning the use of recreational cannabis in the workplace.

Only 18% of non-management staff say that management has communicated clear expectations on the use of recreational cannabis in the workplace. This number is at odds with manager expectations: 55% of managers believe employees clearly understand management’s expectations.

Leaving employees to self-educate on the changes that follow legalization is not a good idea. Only 16% of those non-management employees polled said they are “very familiar” with the changes and with where they are allowed to consume cannabis. Most others are only somewhat familiar (52%) or not very familiar (24%). Finally, 17% of working Canadians believe it is possible to use recreational cannabis before going to work or during work hours (including lunch and coffee breaks), while another 6% definitely believe it is permissible to do so after October 17, 2018.

Given the disconnect between managers and employees’ expectations, it is important to communicate these expectations through workplace policies. If you already have a policy, here are a few other questions to consider.

  • Does your current policy simply refer to illegal drugs? With the legalization of cannabis, such language will not cover recreational cannabis. Also, impairment can come from various sources, including prescribed, legal medication.
  • Does your current policy include a distinction between recreational and medical cannabis?
  • Does your current policy define the workplace? What if an employee travels for work, or attends many after-hour functions? Does your current policy state under which circumstances cannabis consumption is not permitted as an employee?

There is no one size fits all drug policy. It should be tailored to the needs of your business. We suggest that all employers develop a policy, and then communicate it to employees and provide any necessary training. We are hosting seminars in Toronto and Barrie next week and one of the topics we will be covering is some of the components that should be included in a drug policy. Click here for more information on this seminar, or call Judy Lam at 647-204-8107

For over 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.

“We’re Getting Rid of Bill 148”, says Premier Ford

By , October 3, 2018 10:34 am

After two years of public consultations, the Liberal government introduced many changes to the Employment Standards Act in November 2017 but delayed implementing several of these changes until 2019. The changes were contained in Bill 148.

During the election campaign, Premier Ford said he would stop the $ 1 an hour increase in the minimum wage that is currently scheduled to take place on January 1, 2019. But based on statements he made in the legislature yesterday, it looks like he may be rolling back other Bill 148 changes.

This is yet another example of a government changing the legal landscape at Ontario’s workplaces. Judges and administrative tribunals also impose new obligations on employers each year.

Every two weeks I blog about a recent employment law development but every year I pick three issues that I believe deserve special, in-depth attention.

Our Annual Employment Law Seminar

On October 23rd and October 24th, the MacLeod Law Firm will cover three important workplace issues at half-day seminars in Toronto and Barrie.

What Topics Are We Covering This Year?

(i) The Impact of Legal Recreational Cannabis in the workplace

In about two weeks, the federal government is legalizing the sale of recreational cannabis. Each province is going to decide how to sell cannabis and introduce laws that will prohibit a person from ingesting more than a prescribed amount of cannabis and driving. In the last week, Ontario has introduced such a law. We will discuss the components of a workplace policy that addresses recreational cannabis use.

(ii) Rolling Back Bill 148

Yesterday, Premier Ford signalled that legislation is coming that will roll back some parts of Bill 148. We will discuss the fate of the proposed increase in the minimum wage, recently introduced paid personal emergency leave days, and new scheduling, on call, and pay transparency laws that are scheduled to take effect on January 1, 2019.

(iii) Ontario’s Human Rights Minefield

The Human Rights Tribunal of Ontario has released a number of decisions this year which could significantly impact your employment practices. One decision may force employers to extend group extended medical benefits to employees who are over 65 years old. Another decision will force some employers to change the way they hire employees from different countries. We will discuss what these decisions mean to you.

Click here for more information on this seminar.

Who Should Attend Our Seminar

If you are responsible for HR issues at your workplace or you have to deal with employment issues as part of your job or you are ultimately responsible for paying monies to settle employee complaints, then you will benefit from attending this seminar.

The cost of this seminar is $199 plus H.S.T. To register, please email [email protected] or call 647-204-8107.

For over 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.

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