Workplace Sexual Harassment

by Stacey R. Ball| January 6, 2020August 9, 2023 | Sexual Harassment

This article will examine the steps that follow after harassment has been investigated and reported by the complainant, an employer’s obligations under the OHSA, and the necessary elements required to establish the tort of harassment.

Obligations under the OHSA and Steps After Investigation

The Occupational Health and Safety Act places an obligation on workplaces to institute harassment plans and policies to address and prevent workplace harassment when it occurs. When harassment is reported, employers must investigate. In a large organization this is sometimes done with internal investigators or hiring external investigators to gather the facts and evidence before a decision is rendered by the employer on next steps. The procedures and steps in an investigation depends on the facts of the complaints and ultimately, the investigation will help determine whether the allegations are substantiated.

Once it is determined that harassment has occurred, the employer will have to decide on what they will do with the harasser. Again, depending on the facts of the complaint, it could mean a warning and some anti-harassment training, an apology and in serious cases, a termination for cause.

Furthermore, it should be noted that section 10 of the Ontario Human Rights Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”, which creates both objective and subjective elements to the definition. Section 7(3) also establishes a right for lower level subordinates to be free from unwelcome advances where there is an authority that can grant or deny them a benefit.

Victims of Harassment and the Tort of Harassment

Allegations of harassment often are brought up once a victim leaves their workplace. They could also come to an employer’s knowledge through a demand letter asking for compensation for the victim. In 2017, the Ontario Superior Court in Merrifield v. The Attorney General, 2017 ONSC 1333, officially recognized the tort of harassment. In that case, the Plaintiff was awarded $100,000 related to harassment he experienced at work. The test one must meet to establish the tort requires the following:

(a) The conduct of the defendant towards the plaintiff was outrageous;

(b) The Defendant intended to cause emotional distress or had a reckless disregard for causing the plaintiff to suffer from emotional distress;

(d) That the outrageous conduct of the defendant was the actual and proximate cause of the emotional distress.

It is important that employers deal with workplace sexual harassment adequately and create policies with remedial measures that input employee knowledge about the repercussions of workplace sexual harassment.

If you are a victim of workplace sexual harassment, or you are an organization that is being held vicariously liable for the conduct of an employee against another employee, contact Stacey Reginald Ball, an experienced Toronto employment lawyer to ensure your rights and reputation are protected. Contact us at 416-921-7997 extension 225.

Short Term Disability, Long Term Disability and Frustration of Contract

by Stacey R. Ball| January 4, 2020August 9, 2023 | General

Employers can offer short-term disability coverage which makes employee’s income more secure if they cannot work due to a short term disability. It is expected that after employee’s return from short-term disability, they will be put back into the same or comparable job their previously held. It is in limited situations where an employer will be justified to terminate an employee’s employment after they return. This article will discuss when an employer may be justified in terminating you if you are disabled and will provide some information on LTD and STD benefits.

Frustration of Contract

If there is a high likelihood that an employee will not or cannot return to work due to their disability after a reasonable period of time, an employer will be justified in termination. This type of termination is not rooted in “just cause” termination, but, the notion of “frustration” of contract.

Sometimes, wrongful dismissal damages may be claimed in circumstances where there is a frustration of contract. If your employer failed to consider all surrounding circumstances including an employee’s prospect of recovery, damages may be claimed. However, it should be noted that under the Ontario Human Rights Code, employers only have an obligation to accommodate workers disabilities to the point of undue hardship.

Roskaft v. RONA Inc., 2018 ONSC 2934, established a standard of analysis to conduct when determining if a frustration of contract has occurred due to disability in the employment context. First the court decided the issue of whether at the time of the plaintiff’s termination, there was no reasonable likelihood that the plaintiff would return to work in a reasonable time. Afterwards it examined the “totality of evidence” which was whether the plaintiff qualified for LTD benefits, the plaintiff’s representations of being “totally disabled” as per insurer policy and the plaintiff’s continued receipt of LTD benefits. Based on the evidence, the court held that the defendant was justified in terminating the plaintiff given that there was “no likelihood” of the plaintiff returning to work in a reasonable period of time. Thus, the plaintiff’s termination was not wrongful ultimately as the evidence the defendant had suggested that the plaintiff was totally disabled and could not return to work.

Long Term Disability Entitlements

To qualify for long-term disability benefits (“LTD”), claimants aka employees bear the onus of proving that they are completely disability as per the policy definition provided by the insurer. Commonly, the majority of disability policies in Canada provide that a claimant will be deemed completely or “totally disabled” during the first two years of their disability if they cannot perform substantial job duties of the job they previously held. This is usually termed the “own occupation” definition.

After the two-year mark, policy definitions are altered to encompass a broader job framework from “own occupation” to “any occupation”. The latter definition means that one must be prevented by their disability from engaging in any occupation under which they may be qualified for whether by training, experience or education. At this point, LTD insurers usually require claimants (as per their policy) to apply for CPP disability benefits. If there are enough CPP contributions, an income benefit paid on a monthly basis is available from the federal government to compensate for disabilities that prevent one from working at any job regularly. If CPP disability is approved, the LTD insurer will receive that payment, as “double dipping” is prohibited.

Short Term Disability Benefits

Waiting period for STD can range from one day to one week. They are determined under the insurance policy. STD benefits are usually paid weekly and the duration of pay can range from 15 to 52 weeks. It is important to carefully read your policy to determine at what point you may qualify for LTD benefits. STD benefits are based on a percentage of an employee’s weekly earnings. This percentage is set out in the insurance policy and benefits can range from 50% to 100% of weekly pay. Some employers allow a “top up” coverage that increases the percentage of weekly pay an employee may get if they go on short-term disability.

It should be noted that establishing frustration of contract during STD is more difficult given the relative foreseeability of short-term disability as opposed to long-term disability. Again, the nature of the job is important. If one if a senior employee with extensive responsibilities, frustration of contract is a higher possibility.

Ultimately, if you were off work on STD or LTD and your termination did not rise to the level of frustration of contract or your employer failed to accommodate you, contact Toronto employment lawyer Stacey Ball at 416-921-7997 extension 227.

Remedies Available in Human Rights Claims

by Stacey R. Ball| January 4, 2020August 9, 2023 | Employment Law

All human rights legislation across Canada provide for compensatory damages. Furthermore, human rights legislation empowers tribunals with the ability to reinstate terminated employees if there is discrimination on “prohibited grounds”. This article will discuss reinstatement, pecuniary and non-pecuniary damages that are available in human rights claims.

Reinstatement

One of the most significant remedies is reinstatement with back-pay given the inability to institute this remedy under a normal wrongful dismissal action. Reinstatement is the process of putting the terminated employee back into his former employment or comparable employment such that an employees pre-existing seniority and compensation is not significantly compromised.

Reinstatement was a remedy that was rarely awarded in applications before the Human Rights Tribunal of Ontario in the 1990’s and early 2000’s. It was until the Tribunal’s decision in Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 and the Ontario Court of Appeal decision that upheld the Tribunal’s award, that reinstatement began to be used again. This decision established that where reinstate is a viable remedy, it should be awarded unless the employer can show undue hardship.

It is important to note that Adjudicators may attach conditions to reinstatement and can refuse to award reinstatement where there has been a significant break-down in the relationship between the complainant and their employer. Reinstatement will not be granted in situations where a company has gone bankrupt or the job no longer exists.

In Ontario if there has been discrimination or a violation of Code rights, a Plaintiff may add the human rights claim to their wrongful dismissal action. In deciding whether to reinstate, the tribunal will look to labour arbitration jurisprudence to support their decision that reinstatement is the best remedy.
Pecuniary and Non-Pecuniary Damages

Employees and complainants are entitled to be compensated for losing other employment benefits such as health and dental and pension losses. The difficulty arrived when determining the period of time to calculate for lost wages and benefits. The purpose of compensation under human rights legislation is to ultimately put complainants in the position they would have been but discrimination not occurred.

Non-pecuniary damages are those damages that compensate for losses to dignity and self respect. They are often difficult to quantify. Section 45.2 of the Ontario Human Rights Code allows the Tribunal to make an order…”directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.” The Federal equivalent has a cap at $20,000. In awarding damages for non-pecuniary loss the tribunal will consider hurt feelings, loss of self respect and self esteem, victimization and bullying of the complainant and seriousness and frequency with which the discriminatory acts occurred.

If you are looking for a Toronto employment lawyer to advise you on your eligibility for filing a human rights complaint, contact Stacey Ball at 416-921-7997 extension 225.

Probationary Period Rights in Ontario

by Stacey R. Ball| January 2, 2020August 14, 2023 | Employment Law

This article will explore the meaning of “probationary period” that employers often use in their employment contracts and answer some of the most common questions that you may have about this period.

Q: What is a probationary period?

A probationary period refers to the period that employers utilize to evaluate whether a new employee is a proper fit for a job. Employers can terminate the employee during this period without proving any notice or pay in lieu. It generally runs for three months, but could be longer.

Q: Is there a mandatory three-month probationary period under the Employment Standards Act?

No. Under the Ontario Employment Standards Act, 2000 (“ESA”), there is no statutorily defined term. Thus, probationary periods are creations of employment contracts rather than being statutorily mandated. Employers must insert a probationary period clause in the employment contract to rely on this.

Although the ESA does not impose a requirement on employers for payment of mandatory termination pay during the first three (3) months of employment, it is not deemed as a probation period.

Q: Is a probationary clause always enforceable?

No. If a probationary clause in the employment contract provides less than minimum entitlements under the ESA, it is not enforceable.

According to the ESA, employers shall not terminate an employee without providing notice or pay in lieu if they have been continuously employed for three months or more. Therefore, within the first three months of hire, employers are allowed to terminate the employee without providing any notice or pay in lieu.

If there is a probationary period longer than three months under the contract, employers must provide at least the ESA minimum notice or pay in lieu if they terminate the employee without cause after three months during this period.

Q: There is no probationary period clause or the clause is ambiguous in my employment contract. What am I entitled to if I am terminated by my employer?

Where the employment contract does not have a probationary period or any explicit language regarding notice entitlements in the period, you are entitled to reasonable notice or pay in lieu, even if you are terminated within the first three months of your employment.

Q: What is the standard for dismissal of a probationary employee?

The standard for dismissal of a probationary employee is suitability. In Nagribianko v. Select Wine Merchants Ltd. 2017 ONCA 540 at para 6, the Court noted,

“the status of a probationary employee has acquired a clear meaning at common law. Unless the employment contract specifies otherwise, probationary status enables an employee to be terminated without notice during the probationary period if the employer makes a good faith determination that the employee is unsuitable for permanent employment, and provided the probationary employee was given a fair and reasonable opportunity to demonstrate their suitability.”

Under the common law, employers must act in good faith throughout the employment relationship. The employer’s conclusion must be a reasonable one and properly motivated. They may take into consideration factors such as character, compatibility and an ability to meet the present and future production standards expected by the employer.

It is improper for employers to reach its conclusion to dismiss an employee before the employee has been given a fair opportunity to demonstrate his or her ability.

Q: Can an Employer Extend the Probationary Period?

Yes, if stipulated in the contract of Employment.

Employers usually extend an employee’s probationary period if they do not feel comfortable with the employee and require more time to assess the suitability of the employee. Generally, employers extend the probationary period if they believe: (a) the performance requirements expected of the employee are not being met, or (b) the employee’s behaviour (i.e., attendance) does not conform with the employer’s requirements, or (c) the employee does not hold the values of the employer.

The extension of the probationary period, like the probation period, is not automatic. The right to extend the probationary period must be set out in the original contract of employment. If an employer attempts to “extend the probationary period” without this right being stipulated in the original contract of employment, then this may constitute a constructive dismissal of the employee and may attract damages.

If the right to extend the probationary period is set out in the original contract of employment, then this provision, like the probationary period provision, must be exercised in good faith. Notably, if the employer extends the probationary period for an additional ninety (90) days, the Employer will be obliged to pay the mandatory notice or pay in lieu, under the ESA.

Probationary periods are not clear-cut and simple. Employers should consult an employment lawyer prior to dismissing an employee. Employees who may have been dismissed without the applicable severance may want to consult an Employment lawyer to understand the potential remedies that may be available to them.

Q: What is the probationary period advice for employers?

If you wish to provide a probationary period to employees with reduced or zero obligation to provide notice or pay in lieu during the initial three months, this should be clearly set out in the employment contract.

For this clause to be effective in court, the agreement should describe the length of the probationary period. It should also determine the notice period or pay in lieu that will be provided if the employee is terminated.

If you need help with probationary periods, Top Toronto employment lawyer, Stacey ball can advise you on your legal options. Please call us at 416-921-7997, extension 227.

Overtime Pay in Ontario for Salaried Employees

by Stacey R. Ball| January 2, 2020August 10, 2023 | General

Employment Standards Act

Section 22(1), under Part VIII of Ontario’s Employment Standards Act, 2000 (“ESA”) states that “an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week or, if another threshold is prescribed, that prescribed threshold.” Non-managerial and non-supervisory roles are subject to overtime payment provision under Ontario’s – Employment Standards Act. Employees who work over 44 hours per week are owed overtime pay. However, there are some situations that may lead to confusion on how to calculate overtime pay.

Who is Entitled to Overtime Pay?

While there are exceptions, most employees are entitled to overtime pay after they have worked forty-four (44) hours in a work week. This includes full-time workers, part-time workers, student worker, casual workers, etc. It does not matter whether an employee is paid on hourly rate or has a fixed salary, they are entitled to overtime pay. There are some workers who are excluded from the ESA overtime provisions. These employees include, but are not limited to:

Managers or supervisors if the work they are doing is managerial or supervisory. Managers and supervisors may be entitled to overtime pay if the work they are doing is not managerial or supervisory, but this will vary on a case-to-case basis and will depend on the details of the situation;
People who are employed as superintendents, janitors, or caretakers of a residential building in which they reside;
An Information Technology (IT) professional;
Duly qualified practitioners of architecture, law, professional engineering, public accounting, etc.

A full list of employees who are excluded from the ESA overtime provision can be found in Ontario Regulation 285/01. One method of calculating pay is by giving an employee a yearly salary divided by the amount of pay periods within the year without set weekly hours. If this is the case, overtime pay will be subject to provisions of the Employment Standards Act (ESA). Weekly earnings are then divided by 44 and overtime pay will end up being one and one half (1.5) times that amount.

Alternatively, if an employee has set hours and is paid in weekly installments, employers will have to make adjustments to comply with the legislation. If your set hours are 42 per week, hours worked above 44 hours will be paid at one and one-half times your weekly salary, divided by 42. For hours worked between 42-44, employees will be given their average hourly rate. If an employee is making an hourly rate plus commission, the overtime worked will have to reflect this amount.

Averaging Periods for “Overtime”

Generally, overtime is calculated on a weekly basis. However, this can be changed by agreement between the employee and employer. While sometimes this will allow overtime to be earned on a daily basis, it is much more likely that the agreement will be for overtime to be calculated over a longer period of time than a week using an averaging agreement. The averaging period can be for two or more weeks, up to a maximum of four weeks. The employee’s hours over this period would be averaged per week, and they would qualify for overtime pay if the average hours worked per week exceeds forty-four (44) hours. For example, if an employee worked a total of ninety (90) hours over the two-week averaging period, they worked an average of forty-five (45) hours per week. This means that the employee is entitled to one overtime hour per week, or two overtime hours in total.

If your employer is requiring you to work over-time, ensure you are given an agreement in writing. Also ensure that you are provided with an information sheet about your hours worked and how overtime pay will be calculated. Furthermore, employers and employees can agree that instead of receiving over-time pay, they can get paid time off in lieu of overtime pay. This is usually called “banked” time. If an employee agrees to bank overtime hours, they must be given 11/2 hours of paid time off for every hour they worked overtime. It is important to note that paid time off must be taken within three months during the week that an employee earned overtime. Alternatively, if there is a written agreement, paid time off may be taken within twelve months. Lastly, if an employee is terminated before they took paid time off, they are entitled to receive payment for banked time. Employees must receive this no later than seven days after their employment end date or on the next pay day. Many categories of workers are exempt from overtime pay under the current legislation such as lawyers, high level managers, IT professionals and workers in health care.

If you are an employer, it is best to ensure that you address overtime and hours of work questions in employment contracts and in workplace policies. If you are an employee working regular overtime hours, ensure that you know your legal rights and entitlements to overtime pay. Overtime laws vary across Canada. It is important to be cognizant of the regulations that apply to you and your company.

Paid Time Off Instead of Overtime Pay

An employee and employer are allowed to have an agreement where the employee will receive paid time off instead of overtime pay. The employee must be given 1.5 hours of paid time off work for each hour of overtime worked. If the employment of a worker ends before they have taken their paid time off, they must receive overtime pay for their “banked” time.

Contact experienced Toronto employment lawyer Stacey Ball to set up a consultation. Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal. If you have questions regarding overtime pay, please consult a lawyer for advice. We can also be reached at 416-921-7997 extension 225.