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Month: January 2021

Workplace Safety and OLRB Complaint

by Stacey R. Ball| | General

The Occupational Health and Safety Act (OHSA) stipulates that employers have a duty to protect their employees from health and safety hazards at workplace. In addition, the employees have the right to raise to their employer their concerns regarding such hazards. If an employer punishes an employee for asking about their rights under the OHSA or complaining about health and safety concerns, it will be an unlawful reprisal and the employer may be sanctioned as a result. Especially during the COVID-19 period, it is important for employees to understand their rights under the OHSA and available remedies if they are reprised by their employer.

Complaint to the Ontario Labour Relations Board (OLRB)

According to section 50 of the OHSA, an employer is prohibited from punishing its employee for raising health and safety concerns at work. If an employee has been adversely affected such as being disciplined, intimidated, denied a bonus or benefit, transferred, terminated, or discriminated against in any way for raising a health and safety issue, the employee may be able to bring a complaint to the OLRB.

An Extra Step for Unionized Workers

Generally, if the employee is a member of a union, they should talk to the union representative first. Then the union can decide how to tackle the employee’s issue. If an complaint is necessary, the union representative may be able to help with filing the complaint.

After Filing the Complaint

After the employee makes a complaint to the OLRB, they will first need to work with a Labour Relations Officer to see if they can reach a mutually agreed solution with their employer. If this fails, the employee may then go to consultation or hearing.

A consultation is less formal than a hearing. During the consultation, the Vice-Chair will ask questions about the incident. Then the Vice-Chair makes decisions at the OLRB.

On the other hand, for a hearing, the complainant will be able to make statements, bring witnesses, and question the employer’s witnesses.

Documentation and Witnesses

Evidence plays an important role in consultations and hearings. The complainant can present documents such as the employment contract, their correspondence with their employer and pictures reflecting unsafe conditions at work. The complainant can also bring witnesses to tell the Board what they heard and saw about the incident.

Before the hearing or consultation, the complainant should review their claim and consider what are the important facts that they should focus on, and how their documentation and witnesses can corroborate those facts.

Additional Matter to be Mindful About

The hearing process can be complicated and thus difficult to navigate. It should be noted that although the OLRB does not charge a fee for the hearing, if a complainant loses, they may have to pay the employer back for what they spent on this process. This could include their lawyer’s fees, which can be expensive.

Therefore, especially for non-unionized employees, it is advisable that they consult a lawyer before filing a complaint to the OLRB. If you are experiencing workplace reprisal issues, Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

What Should I Do If I Am Being Harassed At Work?

by Stacey R. Ball| | General

From outright discrimination to workplace bullying, employees can be harassed in a number of ways at work. It is important to understand what constitutes harassment and how to handle it if it ever happens to you.

Types Of Harassment

Workplace harassment occurs when a person engages in a number of vexatious and unwelcome comment or conduct towards another person at work. Workplace harassment takes on a variety of forms. It includes but is not limited to insults and slurs, offensive comments or unwanted jokes, physical bullying or aggressive behaviours, and sexual harassment.

A person of any gender can be the victim of the sexual harassment. Sexual harassment in the workplace is not limited to spoken words and physical behaviours such as touching or staring in a suggestive manner. Obscene images, emails and videos sent to a co-worker are also considered as a form of sexual harassment, which creates a toxic work environment.

Steps To Address The Issue

If you think that you are a victim of workplace harassment, you could follow the steps to resolve the issue:

a. Confront the Perpetrator of the Harassment

If you feel comfortable in doing so, the first step to stop harassment is to confront the perpetrator. As the victim is supposed to prove that the conduct was uninvited and unwelcome, it will strengthen your case if you openly tell the harasser to stop their behaviours when they continue to behave inappropriately. However, if you fear for your own safety, it is not wise to confront your harasser directly.

b. Keep a Written Record of the Incident

It is always a good idea to keep a written record of the incident. You should try to write down the details of what happened during the incident rather than document your own personal feelings. You should make notes of when and where you were harassed, what was said or done, any witnesses at the scene, any injuries you had and any steps you took to fix the problem.

c. Report the Incident to Your Employer

Almost every employer in Ontario has to follow the rules in the Occupational Health and Safety Act, RSO 1990 (OHSA) and establish a workplace harassment policy. You should follow the steps in the workplace harassment policy. The policy should give you various options to report the harassment, including the steps of how to file an internal complaint. You can talk with your supervisor or someone in the Human Resources Department about the incident. If you are a unionized employee, you may contact your union. You should explain to them what has happened and ask for help in getting the behaviour to stop. The OHSA protects you from punishment for complaining about the harassment to your employer.

d. Making a Complaint to the Ministry of Labour (MOL)

If your employer fails to ensure that an appropriate investigation is conducted on the incident, you can make a complaint to the Ministry of Labour (MOL). The MOL will send an inspector to your workplace to see whether the way of dealing with harassments by your employer is good enough. It is important to note that MOL inspectors cannot make a decision about your case nor order compensation or other remedies. They can only look to see whether your employer complies with the OHSA. If not, they can order your employer to make, post or change the workplace harassment policy.

e. Making a Complaint to the Human Rights Tribunal

The Ontario Human Rights Code, RSO 1990 prohibits any discrimination or harassment based on a protected ground, such as race, colour, creed, place of origin, sex, ethnic origin, citizenship, sexual orientation, gender expression, gender identity, record of offences, age, disability, religion, ancestry, marital status and family status. If you are experiencing any harassment related to the above protected grounds, you can make a complaint to the Ontario Human Rights Tribunal.

You employer has a duty to create a workplace free from harassment and discrimination. If you have to leave your job or have been fired because of harassment, it is advisable for you to consult a lawyer to get to know your legal rights. Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.

My Employer Is Forcing Me To Leave My Job, What Should I Do?

by Stacey R. Ball| | Constructive Dismissal

Generally, the law provides some protection to employees when the employer wants to fire them. For example, the Ontario Employment Standards Act stipulates that most employees who have worked more than three months have the right to receive a minimum amount of notice, or pay in lieu of notice. The Canada Labour Code also contains minimum termination and severance pay rules for federally regulated employees.

Limited Grounds of Just Cause for an Employer to Terminate an Employee

When “termination for just cause” occurs, the employee is not entitled to notice of dismissal or a severance package. The grounds for just cause are limited. In general, an example of just cause can be that if the employee is guilty of serious misconduct, or is wilfully disobedient to the employer’s orders in a matter of substance. This is held by the court to be an “extreme measure” and the threshold is high.

Definition of Constructive Dismissal

If your employer is trying to force you to quit without giving formal notice, their act may constitute constructive dismissal. A constructive dismissal occurs when the employer unilaterally changes the terms of an employee’s employment in a substantial way, or demonstrates an intention to no longer be bound by the terms of the employment contract. If you are constructively dismissed, you will be entitled to the same rights and benefits as if you are fired.

Specific Examples of Constructive Dismissal

It should be noted that the change has to be substantial in order for it to amount to constructive dismissal. If your employer asks you to work at a different place in the same city, or if your employer changes your work schedule, that may not be substantial enough to pass the threshold.

On the other hand, it may likely be a constructive dismissal if your responsibilities at work change radically, especially if you are demoted, or if your employer cuts your wage significantly. Additionally, it may also qualify as constructive dismissal if your employer treats you in an oppressive or discriminatory manner.

It is worth emphasizing that whether a constructive dismissal is constituted is a fact-specific analysis, and this area of law is complicated. Therefore, if you face a situation where a constructive dismissal may have likely arisen, it is advisable that you consult a lawyer.

Special Rules During COVID-19

According to Regulation 228/20 issued by the Ontario government on March 29, 2020, from March 1, 2020 to July 3, 2021 (latest amendment made on December 17, 2020), you cannot claim constructive dismissal under the Employment Standards Act if there is:

  • a temporary reduction or elimination of your hours of work by the employer for reasons related to COVID-19; or
  • a temporary reduction in your wages by the employer for reasons related to COVID-19.

Under this Regulation, employees who have encountered such change in their wages or hours will be deemed to be on “infectious disease emergency leave”, not constructively dismissed. However, since the Regulation only deals with constrictive dismissal claims under the Employment Standards Act but not the common law, it may not necessarily bar employees from bringing common law constructive dismissal claims to the court.

If your employer is forcing you to leave your job, it is advisable for you to consult a lawyer to get to know your legal rights. Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.

Constructive Dismissal During Covid-19

by Stacey R. Ball| | Constructive Dismissal

A constructive dismissal is where an employer makes a substantial change to the terms of an employee’s employment without the employee’s consent or demonstrates an intention to no longer be bound by the terms of the employment contract so that the employee has the option of treating his or her employment as having been terminated.

What Constitutes a Constructive Dismissal

To be considered as a constructive dismissal, the change to the terms of employment must be very fundamental to the employment contract. A typical example can be that when the employer cuts the hours of work or lowers the pay of the employee. It may also occur when the employer modifies the employee’s duty or asks the employee to relocate. However, the line between a fundamental change and a reasonable modification to one’s duties can be difficult to draw. It is therefore advisable that an employee consult a lawyer when these scenarios arise.

Claims and Remedies

In Ontario, there are 2 ways that one can make a constructive dismissal claim. The first route is to make a complaint to the Ministry of Labour, which enforces the Employment Standards Act (ESA). The employee can also directly bring their claim to the court.

Generally, when an employee is constructively dismissed, you can claim pay in lieu of notice. It shall be noted that an employee may also be able to claim severance pay if they have worked for the employer for five or more years, and the employer either has a payroll in Ontario of at least $2.5 million, or severed the employment of 50 or more employees in a six-month period because all or part of the business is permanently closed.

It shall be noted that the ESA only provides minimum standards. Some employees may have greater rights under the common law, and a complaint to the Ministry of Labour can only help an employee obtain their entitlements under the ESA.

Changes During COVID-19

As of March 21, 2020, employees cannot claim constructive dismissal based on the ESA for temporary cuts to their pay or hours of work because of COVID-19, according to Regulation 228/20 issued by the Ontario government on March 29, 2020. These employees are deemed to be on “emergency leave”.

Specifically, an employee encountering either of the following situations are barred from making a constructive dismissal claim under the ESA:

  • a temporary reduction or elimination of the hours of work by the employer for reasons related to COVID-19; or
  • a temporary reduction in the wages by the employer for reasons related to COVID-19.

This does not apply to an employee who resigned within a reasonable period in response to a constructive dismissal before the Regulation came into force on May 29, 2020. In addition, since the Regulation only deals with constrictive dismissal claims under the Employment Standards Act but not the common law, it may not necessarily bar employees from bringing common law constructive dismissal claims to the court.

On December 17, 2020, the Ontario Government amended Regulation 228/20 by extending the “COVID-19 Period” to July 3, 2021. In other words, employees who experience cuts to their pay or hours of work due to COVID-19 will be on a deemed emergency leave until July 3, 2021.

If you are experiencing constructive dismissal issues, Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

Can My Employer Fire Me If I Don’t Want To Go To Work Because Of Covid-19?

by Stacey R. Ball| | Constructive Dismissal

Employees nowadays are worried about getting back to work, given the severity of the Covid-19 pandemic. They are afraid of catching the virus at the workplace and spreading it to their family and friends. Normally, your employer can expect you to come to work if your workplace remains open. It is simply not enough for you to say that you want to stay home because of the Covid-19.

Situations that You Can Stay Home Without Getting Terminated

If you do not have Covid-19 while your workplace remains open, your employer could terminate you for not coming to work. However, there are situations that you can stay home. You can ask for an unpaid leave of absence from work (“Infectious Disease Emergency Leave”). This will prevent you from being terminated if

  • You are sick with Covid-19
  • You are caring for a family member who has contracted the disease
  • You have been ordered to quarantine or isolate
  • You are in isolation, self-isolation or quarantine because of information or directions from a doctor or nurse, a public health official, Telehealth Ontario, a municipal council, the Ontario government, the Canadian government, or a board of health.

If You are at Extra Risk from Contracting Covid-19

If you have an underlying medical condition such as diabetes or chronic pulmonary disease, you are at greater risk of contracting Covid-19 if you return to your workplace. Under these circumstances, you have two options:

  • You can either take the unpaid Infectious Disease Emergency Leave; Or
  • You can ask your employer for accommodation, such as working from home.

Taking the Infectious Disease Emergency Leave

If you are planning to take the infectious disease emergency leave, you should notify your employer of this as soon as possible. However, it is not necessary for you to give your employer a doctor’s note.

If you employer asks for reasonable proof, you can simply provide them with some details about why you need to leave. The leave is available until July 3, 2021 and there is no limit on the number of days that you can ask for this leave.

Asking for Accommodation

If you have a weakened immune system because of underlying medical conditions, there is a higher risk for you to contract Covid-19 at the workplace. If your employer still forces you to come to work in the office, this amounts to discrimination. According to Ontario Human Rights Code, employers cannot discriminate against employees on a number of enumerated grounds, including disability.

To avoid this situation from happening, the employer has a duty to offer different working conditions to accommodate you. This could include working from home or working at different hours. If you are thinking about asking for accommodation from your employer, it is always advisable to consult a lawyer and get more information first.

If you are experiencing employment law issues in connection to Covid-19, Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.