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Posts tagged: Hina Ghaus

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.

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.

Keeping you Posted on Mandatory Postings in the Workplace

By , November 20, 2018 8:39 am

As an employer, there are several documents that you must post in your workplace. Some postings are mandatory for all workplaces, while others depend on the nature of the business and the hazards present in the workplace.

This blog describes some of these mandatory postings and provides you links to some of these required postings.

Please note that posters that are sold by private companies do not comply with the legal posting requirements, so please make sure that the workplace posters you use are the official and most recent versions.

Employment Standards Act (“ESA”)

All workplaces that are covered by the ESA are required to put up a poster called Employment Standards in Ontario. Developed by the Minister of Labour, this poster provides a high-level summary of employers’ obligations and employees’ rights.

Employers must post the latest version of this poster in an area where it is likely to come to the attention of employees. Further, all employees must be provided with a copy of this poster within 30 days of when they begin working.

Note, this poster is provided in several languages so if English is not the majority language of the workplace, then the poster must also be posted in the majority language –  if made available by the Minister of Labour. Multilingual material can be found on the Ministry of Labour’s website.

Occupational Health and Safety Act (“OHSA”)

Employers that are covered by the OHSA must display this poster titled “Health & Safety at Work: Prevention Starts Here” on the rights and duties of workers and employers. This poster also includes the contact number of the Ministry of Labour that is to be used for reporting work refusals, critical injuries, and fatalities.

Employers must also post a copy of the OHSA in the workplace. This Act contains safety regulations and outlines employee rights and responsibilities. It can be downloaded for free online here or hard copies can be purchased from ServiceOntario for $8 each.

In addition, under OHSA, employers must place the names and locations of their workplace Joint Health and Safety Committee members in a conspicuous place so that it is easy for employees to find. For example, a good location may be the a lunchroom. A committee is required in each workplace that employs 20 or more workers.

If your workplace has more than 6 regularly employed workers, then you must prepare and post policies on health and safety, workplace violence, and workplace harassment. We can help you develop these policies.

If your workplace has fewer than 6 regular employees workers, then there is no obligation to post the above three policies in writing unless ordered to do so by an inspector.

Workplace Safety and Insurance Act (“WSIA”)

Employers that are covered by the Workplace Safety Insurance Act must display the “in case of injury” poster that outlines steps workers need to take if there is an injury at work. The link above is to the newest version of the poster, released September 17, 2018. Although there is no date as to when employers must post this version, it is recommended that employers switch to this new version.

Smoke-Free Ontario Act (“SFOA”)

Employers that have an enclosed workplace or other smoke-free and vape-free places mentioned in the SFOA must post enough individual signs regarding tobacco  and e-cigarettes or the combined version of the tobacco and e-cigarette signs. These signs must be placed at every washroom, entrance, and exit to make sure that all are aware that they cannot smoke tobacco or cannabis or vape anything in these areas.

Areas where individuals are prohibited from holding or smoking lighted tobacco, lighted cannabis, using an e-cigarette, or consuming a prescribed substance in a prescribed manner include an enclosed workplace, enclosed public place, a school, a building of the grounds surrounding the building of a private school, a child care centre, and indoor common areas in buildings or university residences. Indoor common areas include, but are not limited to, elevators, hallways, parking garages, entertainment rooms, laundry facilities, and exercise areas. However, there are exemptions listed in the SFOA that allow a person to smoke or hold lighted tobacco or cannabis or an e-cigarette in an indoor room in a residence that also serves as an enclosed workplace if certain conditions are met.

Other Recommended Posters and Information to Have at the Workplace

Employers who use or store hazardous products at their worksites have additional duties under the OHSA such as ensuring that hazardous products are labeled and obtaining material and safety data sheets for hazardous products. For instance, safety data sheets should be made available in the workplace in order to provide training and instruction for workers.

Finally, to comply with the Accessibility for Ontarians with Disabilities Act (“AODA”), employers with 50 or more employees must develop a Customer Service Policy and an Accessibility Plan. This Policy and Plan are to outline what actions the employer is taking to comply with AODA as well as so employees (and others) know what to expect regarding accessibility.

This Policy and Plan can be posted in the workplace or on the employer’s website or in such a place as is reasonable.

Conclusion

You now have the tools to download, print, and post some of the posters that must be posted in your workplace. Others may be required at your workplace.

If you would like more information on posting requirements about your specific workplace, 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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