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Category : Resources And Articles

Changes to the Employment Standards Act of Ontario

Ontario has made significant and controversial changes to workplace legislation.  The bulk of these alterations came into effect January 2018.  Below is a summary of the changes to the Employment Standards Act as a consequence of the Fair Workplaces, Better Jobs Act,

Mitigation Damages: Not every dollar earned reduces damages

Esther Brake may be the hardest working person in Ottawa.  She was sixty-two years old and Managed a Kanata McDonald’s while simultaneously holding down a part-time position as cashier at Sobey’s.  Ms. Brake was constructively dismissed when her Employer demanded she accept a demotion to First Assistant or leave.  After refusing the demoted position because it would be embarrassing and humiliating her  employment was terminated.

Letters of Reference

Job references – how do you find work without one?  Employers know the best way to predict performance is past conduct.  References are fundamental to the hiring process.  

The Myth of the Probationary Period

The letter of offer or employment contract must set out the purpose of a probationary period including how performance will be evaluated; what happens if the Employee is unsuccessful;  and what will be paid on termination of employment?

Rectification

Bad or poorly worded termination clauses will only be rectified under exceptional circumstances.  Rectification is a discretionary remedy applied where there is clear and unambiguous evidence demonstrating the parties to an agreement made a mutual mistake when drafting the contract. 

Unjust Dismissal

An employer cannot contract out of subsection 240(2) “the unjust dismissal” clause of the Canada Labour Code.  On the contrary, the Canada Labour Code states that the legislation sets minimum requirements which cannot be diminished by custom, contract, or arrangement (see subsection 168(1) of the Canada Labour Code).

Illness and the Workplace

The obligation to accommodate an employees’ legitimate absence from work because of illness is legislated in the Ontario Human Rights Code. While Employer’s have an obligation to accommodate illness a worker has a similar obligation to participate in their return to work plan.

Contracts Uncovered

Limiting an employees’ entitlement to notice on termination of employment requires a carefully worded contract. Some general rules exist. If an employer wants to limit an employees’ entitlement to reasonable notice under the common law – the contract must clearly specify what the notice period is. The contract must comply with the Employment Standards Act. If the termination clause does not meet or exceed the minimum requirements of the employment standards legislation it is unenforceable.

When Big Brother Goes Too Far: An Employees’ Right to Privacy

Intrusion on seclusion protects the individual right to privacy protected without the requirement to establish “damages” from disclosure of the information. In order to establish an invasion of privacy one must prove, The conduct was intentional or reckless; Private affairs were unlawfully invaded; and A reasonable person would regard the invasion as highly offensive which could cause distress or humiliation.

The Pitfalls of Facebook

Employees are entitled to an opinion about their colleagues and the employer they work for. However, where thoughts resurrect into statements they may be reason for termination of employment.

No Benefit Continuation? No Contract!

The Employment Standards Act, 2000 of Ontario details entitlements to notice pay, severance pay, and benefits on termination of employment. While employers can minimize their financial responsibility to a dismissed employee through a well-drafted employment contract it is important that the agreement comply with the minimum requirements.

The Canada Labour Code Uncovered

Section 240 of the Canada Labour Code (“Code”) provides protection to non-unionized, non-management, federal employees against termination of employment. Under the legislation employees cannot be terminated “unjustly”. Similar to unionized workers, under the Code a federally regulated employee has job protection and can only be terminated because of lack of work, discontinuance of a function, or cause.

Undefined Time Limits are Fatal to Restrictive Covenant

Despite their frequent use restrictive covenants are difficult to enforce. The Canadian economy benefits from open competition free from encumbrances. Recently, the Court of Appeal demonstrated its distaste for these types of clauses by refusing to enforce overly broad restrictive covenants indicating they were unreasonable (see Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72).

Mobbing in the Workplace

A form of bullying gaining recognition in Canada is known as “mobbing”. Mobbing is the insidious conduct of a group of employees towards another employee or a superior. The desired result of this harmful treatment is to put pressure on the employee or superior, often with the intention of inducing them to leave employment. Victims of mobbing have valid grounds for claiming constructive dismissal cases.

Constructive Dismissal: When is an Employee Required to Remain with the Employer?

Economic uncertainty does not give an employer the right to reduce an employees' compensation and change their work. Assessing whether an employee is constructively dismissed is fact specific. Courts’ will examine each situation and determine whether the new position is substantially different, whether the employee can perform the new work, and whether the job is demeaning.

Discrimination and Family Care Obligations

The obligation to accommodate family status was initially viewed narrowly. An employer couldn’t discriminate because a worker was a parent. A woman with eight (8) children was equally entitled to be promoted as a man with a stay-at-home wife. Over the years the term family status has matured not only to include the freedom from discrimination because of being a parent but also to include accommodation of parental care obligations.

Contracting out of Wrongful Dismissal Damages

The Employment Standards Act sets out an employees’ minimum entitlement to notice and severance pay on termination of employment. Courts have long held that the Employment Standards Act, 2000 are minimum entitlements only. According to the Courts, an employer is obliged to pay damages to the dismissed employee during the time it will take to replace the lost employment.

Choosing an Employment Lawyer

Choosing an employment lawyer to trust with your concerns is a very important decision. Ask questions! Make sure your lawyer has the knowledge an expertise to properly understand your situation. Lawyers' who have good trial records are better able to negotiate packages as they send a message to the employer that they are ready to fight for the best resolution.

Commission Calculations Must be Fair

Yes! I am entitled to commissions on termination of employment. If I lose my job, what happens to the commissions on the jobs I’m working on…do they have to pay me some of that? It only makes sense that employees who receive commissions be entitled to damages for the loss of opportunity to earn this variable compensation when their employment is terminated.

Civility within the Workplace

Civility within the Workplace? “He can call me a liar, whore, slut, bitch, but when he called me a thief, that’s crossing the line.” Employers behaving badly by demeaning and belittling their employees has become a systemic problem.