Month: September 2020

3 BASIC RIGHTS OF WORKERS IN ONTARIO-WHAT YOU MUST KNOW

Every person employed in Ontario has the right to work in a safe environment. The Occupational Health and Safety Act (“the Act”) has established safety procedures for employees in the workplace and entitled them to three fundamental rights. These includes the right to know about workplace health and safety hazards, the right to participate in making decisions about workplace health and safety and the right to refuse work in an unsafe environment. Our  wrongful dismissal lawyer Stacey R. Ball has compiled a list if worker rights you should be aware of, in Ontario.

Right to Know

Pursuant to the Act, employers are obligated to inform their workers about known or potential safety hazards in the workplace. Before the work begins, workers have the right to know about all these hazards and to be provided with information, instructions, and supervision necessary to protect their health and safety.

Employers can provide workplace safety information in the form of product labels, safety data sheets or safe work procedures. The Workplace Hazardous Materials Information System (WHMIS) is one example of the right to know. Workers get to know more about the chemical and biological material hazards on the job through the use of this system.

Right to Participate

Workers have the right to make recommendations about workplace health and safety. They should be allowed to provide input on the steps taken by the employer to ensure health and safety.

The right to participate can be achieved in a number of ways, such as raising issues and making suggestions to the employers about workplace health and safety. One of the most effective ways to get involved is to become a health and safety representative or a member of Joint Health and Safety Committee (JHSC). These workers assess, identify and control workplace hazards and are responsible of reporting them to their employers.

Right to Refuse

Workers have the right to refuse work in an environment that they believe will endanger their health or safety. Employers cannot fire or discipline their workers by using this right. In Ontario, the right to refuse process involves several steps. The Act sets out a specific procedure that must be followed in any work refusal.

Procedure for a Work Refusal

First Stage:

• 1. The worker considers work is unsafe;
• 2. The worker stays in a safe place and reports work refusal to their supervisor or employer. They may also wish to advise their worker safety representative and/or management representative.
• 3. The employer or supervisor investigates the work conditions in the presence of the worker or the worker safety representative.
• 4. Either
  • a. Issue resolved. The worker goes back to work.
  • b. Issue not resolved. The investigation proceeds to the second stage.

Second Stage

• 1. The worker continues to refuse work and remains in a safe place based on reasonable grounds to believe work is still unsafe. The worker, employer or someone representing the worker or employer calls the Ministry of Labour (MOL).
• 2. The MOL investigates the working conditions in the presence of the worker, safety representative and supervisor or management representative.
• 3. The inspector gives decision to the worker, management representative/supervisor and safety representative in writing.
• 4. Changes are made if required or order. The worker returns to work.

The Act provides workers with protection from reprisals from their employers, should they decide to refuse work or sought enforcement of the Act. If you are experiencing occupational health and safety issues, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

5 SIGNS YOU ARE IN A POISONED WORKPLACE

All employees have the right to work in an environment free from discrimination and harassment. However, in the circumstances that an employee is subject to pervasive insulting or degrading offensive actions that make the workplace hostile or unwelcoming, a poisoned or toxic work environment is created.

Things that Constitute a Poisoned Work Environment

1.   Verbal Abuse

Abuse comes in a variety of forms, not all of which are physical. Verbal abuse occurs when an employee is subject to repeated verbal attacks from their coworkers or employers. Consider it a red flag if you often get insulted or humiliated in your workplace. If you frequently get yelled or screamed at for no reason, it is another sign that you are subject to verbal abuse.

2.   Insulting or degrading comments based on personal characteristics

The Ontario Human Rights Code states, “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offense, marital status, family status or disability”. If your coworkers or employer often make unwelcome or insulting comments based on the aforementioned personal characteristics, this amounts to the creation of harassment in the workplace and hence a poisoned work environment.

3.   Unwelcome sexual remarks or contact

Sexual and gender-based harassment takes on a number of forms, which includes but is not limited to unnecessary physical contact, leering or inappropriate staring, sexually suggestive remarks or innuendo, display of sexual pictures or images and spread sexual rumours. These unwelcome behaviours of a sexual nature, if allowed to continue, could create a hostile work environment for the recipient.

4.   Conduct that intimidates or humiliates employee

Conducts or actions that intimidate or humiliates employees into accepting poor treatment and violations of their rights constitute another form of workplace harassment. Violence is not necessary, as long as these intimidating behaviours impose a fear of harm on the victims. Bullying of this kind also consists of a hostile work environment.

5.   Targeting a particular employee with unjustified criticism or impossible goals

Targeted behaviors at a particular employee that consist of overly harsh criticism, excessive performance monitoring and unrealistic and unmanageable business goals could also create workplace bullying. Such behaviors have manifested bad faith on the part of the employer, which creates a poisoned workplace for the employee.

What an Employee Can Do

Once an employee feels that he or she has experienced a poisoned work environment, they should report any harassing or humiliating behaviors to the superior. There is an obligation on the employer to investigate and deal with the issue. Failing to do so will enable the employee to claim constructive dismissal, where the employer makes a fundament and unilateral change to the terms of your employment. Here, the employer fails to provide you with a workplace that is free from harassment and discrimination.

However, sometimes it is too quick for an employee to claim that their workplace is a poisoned or toxic one. In General Motors of Canada Limited v Johnson, 2013 ONCA 502, the Ontario Court of Appeal illustrated the principle that “workplace becomes poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated”. The court also clarified that the employee has to show that this behavior is persistent or has been repeated over time and a reasonable person in their position would have also felt the creation of a poisoned work environment.

The lesson here for employers is that if your employee reports to you about a poisoned work environment, you should conduct a thorough investigation. If you are an employee who has been exposed to a poisoned work environment and would like to file a constructive dismissal claim, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

List of Rules Which Apply to Ontario Employers in Cases of Mass Termination

Pursuant to section 58(1) of the Employment Standards Act, 2000 (“ESA”), a mass termination occurs when an employer terminates 50 or more employees at the employer’s establishment in the same four-week period. It is important to provide termination notice to avoid wrongful dismissal. However, this does not apply to a temporary layoff in Ontario due to the Covid-19 pandemic.

a.   Notice to Director of Employment Standards

Employers must submit Form 1 (Notice of Termination of Employment) to the Director of Employment Standards. Notice of mass termination will not be effective until the Director receives the Form 1.

b.   Notice of Termination or Pay in Lieu of Notice

In addition to posting Form 1 in the workplace, employers must provide each employee with individual notices of termination or pay in lieu of notice. Termination pay can be provided as a lump sum payment, which is equal to the employee’s regular wages for a regular work week, including a portion of unused vacation days.

c.   Severance Pay

Employers must provide their employees with statutory severance pay if they are entitled to it. When an employer has a payroll in Ontario of at least $2.5 million, employees with at least five (5) years of service are entitled to severance pay.

However, where employees with five or more years of service are dismissed en masse due to permanent discontinuance of business, they are still entitled to severance pay even if their employer does not have a payroll of 2.5 million or more.

d.   Notice Period Requirements

In mass termination, employers must abide by enhanced ESA notice requirements. In addition to statutory entitlements, employees may also assert a right to contractual or common law notice upon their termination of employment, which depends on the termination provisions of their employment contract. Employees who refuse an offer of reasonable alternative employment may be exempt from receiving notice of termination or termination pay under the ESA.

Enhanced Statutory Notice Period

In mass termination, employers must provide affected employees with enhanced statutory notice of termination, which is determined by the number of employees being terminated rather than the length of each employee’s service. Employers must provide:

• Eight (8) weeks’ notice if 50 to 199 employees are terminated;
• Twelve (12) weeks’ notice if 200 to 499 employees are terminated;
• Sixteen (16) weeks’ notice if 500 or more employees are terminated.

Form 1

The Form 1 (Notice of Termination of Employment) must be given to the Director of Employment Standards on the first day of the statutory notice period. Late delivery of the Form 1 notice will cause the employer to lose credit for statutory working notice given before the Form 1 is delivered. Despite that the Form 1 must be posted in the workplace throughout the statutory notice period, the employer still has the obligation provide each individual employee with written notice of termination.

Working After the Initial Termination Date

Employers are allowed to provide temporary work to employees without providing a further notice of termination, if this temporary work is within 13 weeks after termination date specified in the original notice. This exemption only applies to a single period of temporary work, not multiple extensions. A fresh notice is needed if temporary work exceeds 13 weeks post termination.

Resignations

In mass termination, if employees have already received statutory working notice but want to resign before the termination date, they must give

• One (1) week’s notice if the employee has less than two (2) years of service;
• Two (2) weeks’ notice if the employee has at least two (2) years of service.

Once an employee resigns, they are not entitled to pay in lieu of the balance of working notice.

Exceptions

The mass termination provisions do not apply if

• The number of employees whose employment is being terminated is 10 percent or less of the employees who have been employed for at least 3 months at the establishment; severance pay applies to employees who have been employed with the same employer for a specific duration;

and

• None of the terminations are caused by the permanent discontinuance of all or part of the employer’s business at the establishment.

Failure to abide by the minimum requirements for these termination provisions under the ESA can incur significant financial consequences for an employer. If you are an employee who is mass terminated, it is also advisable to seek the legal advice of an employment lawyer. No matter you are an employer or employee, top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 225. Such an employee might be owed more even after a working notice period has ended.

What is Reinstatement

Reinstatement can occur under certain circumstances where an employee who has been terminated is entitled to resume their previous employment. Generally, there are three ways for an employee in Ontario to achieve reinstatement. An employee can either claim human rights violation, retaliation, or right to reinstatement under the Canada Labour Code.

When an Employee is Eligible for Reinstatement

i. When termination constituted violation against the Human Rights Code

Human rights legislations protect employees from discrimination on the basis of age, race, religion, gender, sexual orientation, etc. If an employee’s termination was motivated by one of these grounds, a remedy of reinstatement may be applicable.

ii. When termination constituted retaliation for a workplace complaint

Both the Occupational Health and Safety Act and the Employment Standards Act contain provisions protecting employees from retaliation when they are exercising or enforcing their workplace rights. For example, if an employee is dismissed as a result of report unsafe work conditions or refuse to work under an unsafe work condition, the applicable remedy may include reinstatement.

iii. When the employment is federally regulated

Employees working in federally-regulated industries are governed under the Canada Labour Code and are more likely to be reinstated. These industries include telecommunications, banks, railways and trucking. In the Code, reinstatement is widely provided as a remedy to non-managerial workers who have been unjustly dismissed.

When Employment Reinstatement is Impossible

i. For a “manager” under section 167 (3) of the Canada Labour Code

Under the Canada Labour Code, reinstatement as a remedy to unjust dismissal is provided in its section 241.2(4), Division XIV, whereas its section 167 (3) stipulates that Division XIV in its entirety does not apply to “managers”. Generally, an individual must have independent decision-making authority in order to be considered a “manager” for the purpose of the Code.

ii. When reinstatement is not appropriate

More commonly, when an employee is statutorily entitled to reinstatement, the courts’ primary inquiry will be whether it is the appropriate remedy given the specific contexts. Notably, the Federal Court recently clarified in Kouridakis v Canadian Imperial Bank of Commerce, 2019 FC 1226 that reinstatement “is not the standard remedy” in all unjust dismissal cases. In general, the chances of an employee to be successfully reinstated is relatively low.

In Kouridakis, the Court found that it was reasonable not to reinstate the employee. The employee alleged bullying and harassment at workplace, and the Court upheld the arbitrator’s reasoning that since the relationship between the employer and employee was likely unamendable, reinstatement could cause the employee to face adverse consequences on a day-to-day basis.

In other words, courts will consider whether reinstatement is impractical or undesirable, especially given the frictions occurred in the employment relationship and the fact that the employee has commenced legal actions against the employer.

Things an Employee Should Know About Reinstatement

Reinstatement is a powerful remedy. It is important for employees to be aware of how to make an application or complaint, and the potential effects of claiming it.

• First, there is a special limitation period of one year for employees who wish to claim reinstatement under the Human Rights Code to make an application to the Human Rights Tribunal after the discriminatory treatment occurred.
• Second, for federally regulated employees under the Canada Labour Code, they only have 90 days from the date of their dismissal to file an unjust dismissal complaint.
• Last but not least, even it is not the employee’s intention to be reinstated, it may still be claimed strategically. As employers tend to be unwilling to restore an employee that they have dismissed, if parties are seeking settlement, a claim for reinstatement can serve as an incentive for employers to offer or agree to more favourable terms for employees.

If you are seeking reinstatement as a legal remedy after being terminated from work, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.

What is Workplace Suspension

Work suspension occurs when an employer relieves an employee of their duties, but the employment relationship persists.. During a suspension, an employee can either be paid or unpaid. In 2018, after being suspended improperly by his employer, an employee was awarded $100,000 in punitive damages (Filice v Complex Services Inc., 2018 ONCA 625). This article gives an overview of what is workplace suspension on Ontario and legal rights of employees.

Reasons Why Employers Suspend Workers

Generally, an employer may suspend an employee either for administrative or disciplinary reasons. A typical reason for administrative suspension is that the employee is being investigated for workplace misconduct or under criminal proceeding. For example, Filice involves a casino employee suspected of theft. On the other hand, disciplinary suspension often occurs as a punitive measure for an employee’s misconduct, or as part of a progressive disciplinary process to address poor performance at work.

Suspended Employee Rights

Right to Appeal

After receiving the decision of suspension, if the employee is deprived of an opportunity to appeal this decision, courts will likely find that this suspension has constituted a constructive dismissal. An employee will thus be entitled to a notice for termination, and will be able to claim entitlements and benefits when the notice is not given properly. If you are a victim of such dismissal contact our wrongful dismissal lawyer Stacey R. Ball today at 416-921-7997

Right to Payment

Regarding an administrative suspension, the employee will generally be entitled to payment if the employee is available and willing to work, unless the employee has waived this right in their employment contract. The Supreme Court in Cabiakman v Industrial Alliance Life Insurance Co., 2004 SCC 55 stated that an administrative suspension can only be carried out when it is necessary to protect the legitimate business interest, is for a relatively short time period for a fixed term, and that the employer must be acting in good faith. In Filice, the employer suspended the employee without pay under no justification. Therefore, the court held that it constituted constructive dismissal, and the employee was awarded damages.

Likewise, during a disciplinary suspension, an employee is likely also entitled to be paid unless they expressly waived this right in their employment contract.

Express vs. Implied Suspension

In general, an employer does not have the right to resort to either administrative or disciplinary suspension unless the employment contract provides them with such a right. An employer’s authority to suspend an employee can either be express or implied in the employment contract.

An employment contract may expressly contain a clause suggesting that employees may be subject to suspension under applicable circumstances, or referring to a policy book which include such provisions.  Alternatively, an employer may possess an implied authority to suspend an employee. The Supreme Court case Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 demonstrated that the threshold is lower for an employer to establish that there are implied grounds for suspension for administrative reasons than that for disciplinary reasons. However, there shall be a business justification. In Potter, the criteria in Cabiakman for business justification was upheld, namely legitimate business reasons, the employer’s good faith, the suspension’s duration and that the suspension shall generally be with pay.

In conclusion, it is important for employees to understand their rights regarding suspension, and that an unlawful suspension can constitute constructive dismissal. If you are an employee who has been improperly suspended and would like to file a constructive claim, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.