Month: March 2021

With the covid-19 pandemic rules set in place for over a year, quite a few people have been considering whether they could take a vacation to escape this long-term fatigue. However, if an employee chooses to do so, this may result in the loss of their jobs. In this blog, we will explore this topic so that you could make a wise choice.

CAUSE FOR DISMISSAL

As termination for cause is considered as the capital punishment of the employment law, an employer has to get over a high hurdle to establish that it has just cause to dismiss an employee.

Generally speaking, an employer may terminate an employee for cause if the employee has been guilty of

1. serious misconduct;
2. habitual neglect of duty, incompetence or conduct incompatible with the duties;
3. wilful disobedience to the employer’s orders in a matter of substance.

The employer has the onus of proving cause for dismissal on the balance of probabilities. The employer cannot justify the termination for cause until it proves that the employee engaged in the misconduct on purpose and there is no alternative options other than terminating the employee.

Therefore, a purposely scheduled vacation against the employer’s advice with subsequent return to work without going through necessary quarantines could arguably meet the threshold. Each case is assessed on an individual basis.

A CAUTIONARY TALE FOR HIGH PROFILE EMPLOYEES

It is very difficult for an employer to meet the evidentiary burden to terminate an employee for cause. However, when it comes to high profile employees, it is advisable that they should not take a vacation during the pandemic.

High profile employees often represent the employer’s pubic image and are supposed to have their employer’s interest at heart. They are often held to a higher standard. If a high profile employee fails to observe the public health protocols and thus puts their employer in a negative light, the employer may have a valid reason to terminate this employee for just cause.

WHAT IF YOU GET FIRED

If you have been dismissed because of taking a vacation during the pandemic, it is necessary to see whether you are terminated with or without cause by your employer.

a) Termination Without Cause

In Ontario, an employer is entitled to terminate any employee at any time for any reason that is not discriminatory. However, it must provide notice or pay in lieu of notice of termination. This is what we call termination without cause.

If you are terminated without case, you are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.

The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy. There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.

b) Termination With Cause

In the case of termination for cause, it means that an employer may not have to provide with an employee with common law severance.

As mentioned above, it is a high bar to terminate someone with cause. The reason for the high bar is that in the event of willful misconduct, disobedience or willful neglect of duty that is not trivial, an employee will not receive any termination or severance pay.

Generally, there must be some serious misconduct that harms the employment relationship, such as theft, violence, fraud rising to the level of gross misconduct. A purposely scheduled vacation against the employer’s advice with subsequent return to work without going through necessary quarantines could arguably meet the threshold. Each case is assessed on an individual basis.

If you are an employee who has been fired for cause, you should absolutely reach out to a lawyer to review the circumstances of your dismissal.  You may have a case for wrongful dismissal.

Employment issues in relation to the termination during the Covid-19 can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are terminated for breaking the Covid-19 health protocols, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

It is important for federal regulated employers to be aware of the newly introduced administrative monetary penalties under Part IV of the Canada Labour Code (“Code”). The changes came into force on January 1, 2021 and have served as a financial deterrent to the issue of frequent non-compliance by some employers.

In this blog, we will introduce to you what are these changes and their impacts on federally regulated employers.

 Monetary Penalty System to Deter Non-Compliance

The new administrative monetary penalties work as a penalty system to address concerns of frequent non-compliance with the Code and related regulations.

a) Fines

As part of the enforcement and compliance mechanism, any federal regulated employers that violate Part II (Occupational Health and Safety) and Part III (Standard Hours, Wages, Vacations and Holidays) of the Code will be subject to administrative monetary penalties up to $250,000.

b) The Add-Up Effect

Further, if the issuance of an administrative monetary penalty does not help to deter the non-compliance of the employer, the Labour Program reserves the right to issue a new penalty for the violation each day. In this way, the total amount of the penalties can add up quickly.

c) Personal Liabilities

It is stipulated that any person who contravenes or fails to comply with the regulations will be liable to the administrative monetary penalty.

In the event of the violation committed by a corporation, any of the corporation’s officers, directors, or persons exercising managerial or supervisory functions will be personally liable for the penalty if they “directed, authorized, assented to, acquiesced in or participated in the commission of the violation”.

d) No Due Diligence Defence

A person who is named in the violation can no longer use due diligence defence to exonerate them of this penalty. They cannot argue that they exercised due diligence to prevent the violations or they reasonably and honestly believed in the existence of facts that, if true, would exonerate them.

e) Public Naming of Violators

The Labour Program will make public the name of the employer, the details of the violation as well as the monetary amount imposed, once an employer has received an administrative monetary penalty. This could bring a substantial negative impact on the reputation of the employer.

The Review and Appeal Process

An employer who is found to be in violation of the Code can request a review of the penalty, the facts of the violation or both within thirty (30) days of receiving a notice of violation. They can make such a request to the Head of Compliance and Enforcement. The notice could be confirmed, amended or overturned. The employer could further appeal the review decision to the Canadian Industrial Relations Board (CIRB). The CIRB decision is final.

Federal regulated employers could face significant fines and risk tainting their reputations if they ignore the newly introduced administrative monetary penalties under the Code. These employers should be make sure that they have complied with the requirements of the Code.

If as a federally regulated employer, you have allegedly contravened the Code, Top Toronto employment lawyer, Stacey Ball can help you explore your legal options. Please contact our office at 416-921-7997 extension 227.

The severity of the Covid-19 pandemic has exerted a huge impact on the Canadian economy, forcing employers to scale down their business and reduce operational costs. Therefore, lots of employees are terminated, laid off or put on a temporary layoff by the employer. In this blog, we attempt to answer some common questions in regard to these issues.

FAQ about Layoff, Temporary Layoff and Termination During

Q: Can my employer lay me off temporarily due to the Covid-19?

You could be temporarily laid off by your employer only if the employment contract has specifically addressed this possibility and you have agreed to this term. Absent such a term, you may have a claim for constructive dismissal on the basis that you are laid off without an agreement to allow your employer to specifically do so.

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.

It is important to note that as of March 21, 2020, employees cannot claim constructive dismissal based on the Employment Standards Act (“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”. 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 a temporary layoff due to COVID-19 will be on a deemed emergency leave until July 3, 2021.

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 you are experiencing constructive dismissal issues in connection to your temporary layoff, it is advisable to seek legal advice from an experienced employment lawyer.

Q: If I agree to have a temporary layoff during the Covid-19, does that mean my employer can lay me off again in the future?

If you agree to a temporary layoff without a contract term allowing the employer to specifically do so, you should make it clear in writing to your employer that you are doing so only in response to this specific situation. You must confirm that you are not agreeing to have a layoff as a term of your employment contract.

In this way, once your employer puts you on a temporary layoff again in future after recalling you back to work from this Covid-19 related layoff, you can refuse to accept this. You can consider the layoff as a constructive dismissal and claim a severance package from your employer.

Q: Can I get any severance pay if I am terminated by my employer during the Covid-19 pandemic?

It depends on your specific fact scenarios.

Termination Without Cause

In Ontario, an employer is entitled to terminate any employee at any time for any reason that is not discriminatory. However, it must provide notice or pay in lieu of notice of termination. This is what we call termination without cause. Examples of termination without cause due to the Covid-19 includes, inter alia, lack of work, reorganization, redundancy of work force.

If you are terminated without case, you are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.

The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy. There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.

Termination for Cause

In the case of termination for cause, it means that an employer may not have to provide with an employee with common law severance.

It is a high bar to terminate someone with cause. Generally, there must be some serious misconduct that harms the employment relationship, such as theft, violence, fraud rising to the level of gross misconduct. The reason for the high bar is that in the event of willful misconduct, an employee will not receive any termination or severance pay.

If you are an employee who has been fired for cause, you should absolutely reach out to a lawyer to review the circumstances of your dismissal.  You may have a case for wrongful dismissal.

Q: Can I refuse to return if I am recalled back to work after a temporary layoff?

When you are recalled back to work after a temporary layoff, it is expected that you should return to work unless you have a legitimate ground to refuse so.

For example, if you refuse to return because of your illness or childcare responsibilities arising from school closures, you have the right to do so. Your employer has an obligation to accommodate you. Any failure would amount to a breach of the prohibited grounds under the Ontario Human Rights Code.

Employers also have an obligation to provide a safe work environment free from dangers under the Occupational Health and Safety Act. If you refuse to return to work because of work health and safety concerns such as lack of Personal Protection Equipment (PPE), you are also entitled to say no to your employer.

However, if you simply refuse to return to work without any legitimate reasons, your employer could treat your refusal to return to work as a resignation. In that case, you will not be able to claim any termination or severance pay.

Employment issues in relation to layoff, temporary layoff or termination can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are experiencing any employment law issues due to the Covid-19, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

The advent of the Covid-19 pandemic has reshaped the traditional working styles and reimagined the roles of offices in the work environment. In addition, the pandemic has also exerted huge impact on the Canadian economy, causing substantial job losses and making others in jeopardy.

In this blog, we would like to answer some of the questions in regard to your employment rights during the Covid-19 to help you better understand your situation in the current employment market.

REFUSAL TO WORK BECAUSE OF COVID-19 CONCERNS

Q: Can my employer fire me if I refuse to go to work because of Covid-19 concerns?

Employers are entitled to expect that their employees will continue to perform their work unless there is a legitimate reason to show why they cannot. Normally, your employer can expect you to come to work if your workplace remains open and your employer is following the government’s guidelines for a safe workplace. It is simply not enough for you to say that you want to stay home because of the Covid-19.

If you do not have Covid-19 while your workplace remains open, your employer could terminate you for not coming to work. Your refusal to work can be perceived as resignation by your employer if the workplace is deemed safe. In these case, you will not be entitled to severance pay.

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.

Q: I have underlying medical conditions and a compromised immune system. Can my employer let me go if I refuse to go back to work due to Covid-19 concerns?

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.

 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.

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.

WORKING FROM HOME

Q: If my employer does not allow me to work from home, what should I do?

If your employer has followed all the necessary government’s guidelines and the workplace is deemed as safe, you are obliged to attend the workplace. Any refusal to work on your part could be considered as resignation by your employer.

However, if you have certain family obligations such as caring for your children who stay at home, your employer has the obligation to accommodate you to the extent of undue hardship. If your employer does not allow you to work from home, it would amount to the breach of Ontario Human Rights Code (“Code”) on the basis of family status.

If you have underlying medical conditions or a weakened immune system, your employer has the same obligation to accommodate you. It should allow you to work from home. Otherwise, it could be perceived as discrimination on the basis of disability under the Code.

Q: Can my employer be allowed to only choose certain staff to work from home?

Yes, employers are allowed to only choose certain staff to work from home, as long as they are not discriminatory in choosing who can or cannot work remotely.

SELF ISOLATION AND ACCOMODATION

Q: Does my employer have to pay me if I have contracted Covid-19 or am in quarantine?

No, your employer does not have a duty to pay you if you have contracted Covid-19 or are in quarantine. However, if you are still able to continue to perform your work duties by working remotely, you are then entitled to your usual pay and benefits.

Q: Can my employer ask me if I have tested positive for Covid-19 and share that information with other employees?

An employer generally does not have the right to disclose any employee’s confidential medical information to others. It is a breach of Ontario Human Rights Code (“Code”) on the basis of disability once the employer does that.

However, it is allowed under the Code if your employer asks you this question to determine whether you are fit for work and fulfill its obligation to create a safe work environment. However, if your employer discloses any identifying information to other employees without any urgent health and safety justification to do so, it will amount to a breach of the prohibited ground of disability under the Code. Therefore, it is advisable for employers to disclose that an unnamed employee has tested positive for Covid-19 once they find that someone in its workforce has contracted Covid-19.

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

A Guidance on How to Recall Employees to Work from a Temporary Layoff

With the community transmission of Covid-19 cases slowing down and vaccination program gradually rolling out, more and more businesses are starting to consider whether they should recall part or all of their employees back to work after a temporary layoff. In this blog, we would like to answer some common questions in connection to this issue.

Q: What is a recall?

Recall refers to a process that employers bring back to work those employees after a temporary layoff. The relevant statutory provisions in the Employment Standards Act, the layoff clauses in the employment contract (if any) or applicable company policies usually govern the process.

Q: when should an employer start recalling employees back to work?

It depends on each employer’s specific situation. They should fully consider their business needs before proceeding to recall their employees back to work. Employers need to consider whether there is enough work for the recalled employees to do. They also need to fully assess whether they can observe the recommended government health guidelines so that they can offer their employees a safe work environment. In addition, employers should also fully consider the changes to the statutory temporary layoff provisions in the Employment Standards Act (the “ESA”) before they make a decision about recalling their employees back to work.

While the temporary layoff provisions normally restrict the amount of time an employee can have for a temporary layoff before being considered as terminated by their employer, the Infectious Disease Emergency Leave amendment to the ESA changed this. In this way, employees who experience a temporary layoff due to Covid-19 will be on a deemed emergency leave until July 3, 2021. During this period, employees are barred from bringing constructive dismissal claims under the ESA. However, they can still bring common law constructive dismissal claims to the court.

Q: Do employers have to recall longest-serving employees first?

No. Employers are generally free to recall employers in its preferred order as long as it does not do so in a discriminatory way. However, when deciding the order or whether to recall some employees back to work, employers should fully consider its implications to make sure that it will not be a breach of Ontario Human Rights Code on the basis of the prohibited grounds such as age or family status.

Q: How much notice should an employer give in advance before recalling employees back to work?

Absent any employment agreement or company policy stating the minimum recall period, employers need to provide a reasonable notice of recall before bringing the laid off employees back to work. What constitutes a reasonable notice varies. It is assessed on a case-to-case basis. However, the recall notice at a minimum should include the date that employees are expected to return and the location where employees report to work.

Q: What should an employer do if an employee does not respond to the recall notice?

If an employee fails to respond to the recall notice, the employer should take reasonable steps to make sure that the recall notice has been actually received. The employer could simply send multiple notices or try to use a different communication mode. If the employee still does not respond after the multiple attempts to reach them, the employer could consider sending a final recall notice, stating that any failure to respond to this notice by a certain date could be construed as resigning or in the alternative abandoning their employment.

Q: Can an employee refuse to return if he or she is recalled back to work after a temporary layoff?

When employees are recalled back to work after a temporary layoff, it is expected that they should return to work unless they have a legitimate ground to refuse so. For example, if an employee refuse to return because of their illnesses or childcare responsibilities arising from school closures, they have the right to do so.  Employers have an obligation to accommodate them. Any failure would amount to a breach of the prohibited grounds under the Ontario Human Rights Code.

Employers also have an obligation to provide a safe work environment free from dangers under the Occupational Health and Safety Act. If an employee refuses to return to work because of work health and safety concerns such as lack of Personal Protection Equipment (PPE), they are also entitled to say no to the employer. However, if an employee simply refuses to return to work without any legitimate reasons, the employer could treat the refusal to return to work as a resignation. In that case, the employee will not be able to claim any termination or severance pay.

Q: What other issues should an employer fully consider when recalling its employees back to work after a temporary layoff?

Employers have an obligation to take reasonable steps to make sure that the work environment is safe from hazard. When an employee has reasonable grounds to believe that the work environment is unsafe, they can refuse to attend for work even after answering the recall notice. Therefore, it is essential for an employer to fully investigate the work place hazard and observe the government health guidelines before recalling its employees back to work after a temporary layoff.

In addition, employers should also accommodate those employees who are unable to return to work because of having contracted Covid-19 or experiencing underlying health conditions that make them vulnerable to the virus. It is the same case with those employees who cannot make it to work because of child care responsibilities due to the closure of daycare centres and educational institutions. Employers should consider allowing these employees to work remotely if situations permit. Under the Ontario Human Rights Code, employers have a duty to accommodate these employees to the extent of undue hardship. It is strongly recommended that employers should consult a legal counsel before taking any adverse actions against the employee who fails to report to work based on the above-mentioned reasons.

If you are experiencing any issues in connection to employee recall after a temporary layoff, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.