More Evidence that COVID-19 Can Increase Notice Periods

Not long ago, the Ontario decision Kraft v. Firepower Financial Corp. demonstrated the willingness of courts to award higher notice periods to employees who demonstrated clear mitigation efforts in spite of the many difficulties stemming from the COVID-19 pandemic and its crippling effects on the job market. Lest we began to believe such a holding was an anomaly, the Ontario Superior Court appears to have recently confirmed that a dismissal during the pandemic, combined with diligent yet fruitless mitigation efforts, does indeed engender a longer notice period.

What Happened? ***Pavlov v. The New Zealand And Australian Lamb Company Limited*, 2021 ONSC 7362**

Mr. Pavlov worked with the defendant employer for three years before his termination at the age of 47. He held a very senior position as Director of Marketing Communications & Public Relations and earned approximately $131,943 per year. He was subject to an employment agreement containing a termination provision that was unenforceable, therefore the common law applied. His termination was without cause, meaning he was entitled to common law reasonable notice or pay in lieu of that notice. The only issue for the trial judge to decide was the quantum of that notice.

On the one hand, Mr. Pavlov was hoping to achieve a notice period of between 9 and 12 months. On the other hand, the defendant employer was aiming for a period of 3 to 4 months, particularly in light of Mr. Pavlov’s relatively short service.

Determining Notice: The Trial Judge’s Analysis

In answering the all-important question of what period of notice would be appropriate, the trial judge considered all the usual factors: Mr. Pavlov’s age, duties, level of remuneration, and his admittedly short length of service. But, the trial judge also considered an additional factor: “the prevailing economic uncertainties which had a negative impact on Pavlov’s ability to secure similar alternative employment.” What did they mean by this?

The trial judge was of course referring to the undeniable impact the COVID-19 pandemic had on the economy and available job market. Mr. Pavlov was terminated in May of 2020 – still in the very early stages of the pandemic. At the time, employers were very reluctant to hire new employees as the economic feasibility of doing so was extremely uncertain. To this point, the trial judge commented:

“At the time of Pavlov’s dismissal, the initial effects of the global pandemic were being experienced by industries of all sorts, including those associated with international importing and distribution. It is a reasonable inference to draw from the evidence and the timing of the dismissal that the effects and uncertainties of the pandemic were obstacles to Pavlov’s efforts to obtain alternate employment. These obstacles would, or should, have been known to [the defendant employer] at the time of Pavlov’s dismissal.”

In light of all the above considerations, the trial judge concluded that Mr. Pavlov was entitled to 10 months’ reasonable notice of termination or pay in lieu thereof. No doubt they were persuaded by the difficulties introduced by the COVID-19 pandemic on Mr. Pavlov who, to his credit, diligently applied for over 100 jobs in that terrible economic climate with no success.

TTC Union Loses at Court: No Injunction for Vaccine Policy

On September 7th, 2021, the Toronto Transit Commission announced its mandatory vaccination policy. According to this policy, employees or dependent contractor who have not had their COVID-19 vaccine would be placed on unpaid leave beginning November 21st. Those who remained unvaccinated would then be terminated with cause (i.e., without any severance pay) on December 31st.

Unsurprisingly, not everybody at the TTC welcomed this new policy. It put their jobs at risk. To that end, the Amalgamated Transit Union Local 113, a union which represents approximately 12,000 TTC employees, approached the Ontario Superior Court of Justice to ask for an injunction to temporarily pause the enforcement of the controversial vaccine policy until after the union had an opportunity to grieve it at arbitration.

The Union’s Position

Notwithstanding their efforts in seeking an injunction, the Union has asserted that they are not actually opposed to vaccine. In fact, the Union’s president, Carlos Santos, stated that the Union actually supports COVID-19 vaccines. The issue is rather the Union’s concern with protecting their workers, their individual rights, and their jobs. According to the Union, if denied this injunction, their members would lose their jobs before the grievance procedure even begins.

In the Union’s opinion, the denial of this injunction would result in irreparable harm to their members. Irreparable harm means harm that cannot be adequately compensated by damages because it cannot be quantified in a dollar amount or otherwise cured. The Union argued there would be irreparable harm for five reasons:

Many of their members would be compelled by extreme economic duress to accept vaccines against their will. This would be an invasion of bodily autonomy and privacy;
All their members would suffer psychological stress and emotional harm which is difficult to compensate via damages;
All would lose unionized employment, which carries with it a right to reinstatement under the collective agreement;
Some of their members would be forced into early retirement. This would cause a loss of self-esteem, fulfillment, and changes to their individual retirement plans that cannot be compensated by damages; and, finally,
Refusing to grant interlocutory relief would cause irreparable harm to the arbitration proceeding and the relationship between the TTC and the Union’s members.

For these reasons, the Union argued the Superior Court should grant them an injunction and thereby prevent the policy from taking effect until after the grievance had run its course.

Conclusion: No Injunction Granted

Ultimately, the trial judge refused to grant the Union the injunction they were seeking. The trial judge disagreed that there would be irreparable harm if the injunction was not granted. In her opinion, the policy would not have the effect of forcing TTC employees to receive the COVID-19 vaccine against their will. On this point, she wrote:

“[77] Fundamentally, I do not accept that the TTC’s vaccine mandate policy will force anyone to get vaccinated. It will force employees to choose between two alternatives when they do not like either of them. The choice is the individual’s to make. Of course, each choice comes with its own consequences; that is the nature of choices.”

The choice, of course, is between receiving the vaccine and retaining their employment.

Furthermore, the trial judge rejected the assertion that psychological stress and emotional harm can amount to irreparable harm. Every employee is likely to suffer that stress and emotional harm when faced with the termination of their employment, regardless of the cause.

Finally, the trial judge noted the legitimate health and safety purpose for the TTC’s vaccine mandate:

“[…] while the service cuts contemplated are regrettable, the potential for unvaccinated workers to spread COVID-19 to co-workers or riders is a risk the TTC should not have to accept. It is a risk which is inconsistent with its obligation to create a safe workplace for its employees and a safe way of getting around the city for its riders.

Accordingly, the trial judge found that the harm faced by the Union’s members was indeed reparable and that the balance of convenience weighed heavily in favour of the TTC.

As a result, the injunction was denied.

Mandatory Vaccination Policy Found Unreasonable in Arbitration

In early November, 2021, Arbitrator John Stout was tasked with deciding whether or not the mandatory vaccination policy introduced by the Electrical Safety Authority (“ESA”) was reasonable. This is currently a very hot issue, as many employees throughout Ontario are finding their employment jeopardized as a consequence of workplace vaccine mandates.

The ESA has a reputation as a safety organization. Arbitrator Stout acknowledged that, so far, they have done a tremendous job of protecting their employees or depending contractors. Of their over 400 employees, only seven have contracted COVID-19 since the beginning of the pandemic in March 2020. Of those seven, only two were potentially work-related. They have never had a breakout in their workplace. Obviously, this is a good thing, and the ESA should be proud of this accomplishment. However, in enacting their mandatory vaccination mandate, might the ESA have gone too far?

As it turns out, they may have. In his decision, Arbitrator Stout concluded that the ESA’s vaccination policy was indeed unreasonable.

Fluidity of Reasonableness

Reasonableness or unreasonableness does not exist in a vacuum. Arbitrator Stout found the ESA’s “current” policy to be unreasonable to the extent that employees may be disciplined or discharged for failing to get fully vaccinated. Note the use of the word current – this implies that future vaccine mandates may be reasonable. Furthermore, Arbitrator Stout emphasized that what is reasonable may change as the situation continues to unfold in the coming months. Context is extremely important in assessing the reasonableness of a workplace policy, including a vaccination policy.

With that being said, the ESA’s vaccination policy was unreasonable at this current time. It may have been reasonable at a workplace where the risk of spreading COVID-19 was high, but this was not the case with the ESA. They had not yet had any particular trouble with COVID-19. Their previous policy of testing non-vaccinated employees appeared to have been working. Testing, while fallible and not as effective as vaccination, was a reasonable alternative. The ESA could not point to any specific workplace danger or hazard that necessitated the implementation of a mandatory vaccination policy over and above what had already been in place (i.e., testing non-vaccinated employees). Arbitrator Stout commented:

“In my view, disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, is unjust. Employees do not park their individual rights at the door when they accept employment.”

In his opinion, the ESA “jumped to a hasty conclusion” without first considering the validity of their concerns and whether or not those concerns would become reality. Given the above, the ESA policy at this point in time was unreasonable – that is not to say that such a policy would not be reasonable in the future or in a different workplace context.

Hardly a Win for the Anti-Vaccine Movement

While many may view this decision as a win for the anti-vaccine movement, they would be mistaken. Arbitrator Stout spent quite a bit of time in his decision shutting down those who refuse to be vaccinated without possessing a legal exemption under the Ontario Human Rights Code. On the merits of COVID-19 vaccines, Arbitrator Stout commented:

“The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.”

Arbitrator Stout also spoke directly to those who refuse to be vaccinated, arguing that his decision should not be taken as vindication for their views. On that point, he concluded:

“Those individuals are in my view misguided and acting against their own and society’s best interests. These individuals may also be placing their ability to earn a living in jeopardy. These individuals should not construe this award as a victory.”

Finally, Arbitrator Stout also stated that while it is true employees have individual rights, including rights to privacy, personal autonomy and bodily integrity, these rights are not absolute and may, in certain circumstances, be outweighed by the rights of the collective. Those circumstances are very likely to include our current one, informed by the COVID-19 pandemic.

British Columbia to Give Workers Five Days of Paid Sick Leave Beginning in 2022

It was recently announced that, as of January 1st, 2022, British Columbia will be the first and only province in Canada to provide all their workers (even those working part-time) with five days of paid sick leave each year. The change was announced by Labour Minister Harry Bains at a press conference on November 24th, 2021. It will be an important change because, as Bains noted, about half of the B.C. working population does not have paid sick leave. Often, these employees represent the most vulnerable of workers. It is these workers who must often make the difficult – and some might say unconscionable – decision of staying home and losing pay or going into work when sick. This decision has been made ever more difficult to make in the unprecedented COVID-19 era, wherein we have all been cautioned to keep our distance from others when we feel even a little unwell.

While the change appears to be a step in the right direction for many employees in need, it has not been universally welcomed – some groups continue to have misgivings. The Canadian Federation of Independent Business, for example, has expressed concerns regarding the impact this new approach will have on small businesses who cannot afford to pay their employees for this amount of sick leave. The group has expressed their disappointment in the B.C. government for failing to recognize the “challenges and realities struggling small businesses are facing”.

On the other hand, some groups feel the changes have not gone far enough to protect workers. The B.C. Federation of Labour, while acknowledging that the change represents a significant milestone, would have preferred to see a 10-day standard implemented. In response to the announcement, the group clarified:

“While we’re disappointed, we’ll continue to fight for the full 10 days of leave. The public health and economic case is clear. Despite some business lobbyists’ dire claims about costs to employers, study after study—and practical experience around the world— show the opposite: paid sick leave is good for the economy.”

Sick Leave in Ontario

In Ontario, sick leave is governed by the Employment Standards Act. Under that Act, Ontario employees have a right to three days of unpaid sick leave each calendar year due to personal illness, injury or medical emergency, barring special exemptions that apply to certain occupations. This is true even if the injury is entirely the fault of your own actions. This sick leave is equally available to employees whether they work full-time or part-time and does not depend on what time of year you begin your employment. This means that an employee who commences employment contract in January will have as many sick days that year as an employee who commences their employment in October.

In comparison, the new British Columbia approach is obviously better for employees than the approach that currently exists in Ontario. Here, employees must continue to decide whether doing the responsible thing (i.e., staying home when sick) is worth missing out on a day’s pay.

The Consequence of Failing to Mitigate, Even During the COVID-19 Pandemic

by Stacey R. Ball| December 17, 2021August 13, 2023 | Employment Law

In recent Ontario decisions, terminated employees have been awarded higher notice periods due to, in part, their clear efforts to mitigate their damages in light of the COVID-19 pandemic and the demonstrated difficulty it has created in the context of job searching. In doing so, Ontario courts have recognized the impact COVID-19 has had on the job market and, therefore, on dismissed employees attempting to fulfil their duty to mitigate.
However, does that heightened difficulty in finding jobs justify an employee in not making sufficient efforts to mitigate their damages? After all, if they are so unlikely to find a job, why bother searching?
According to one recent decision of the British Columbia Supreme Court, such a nonchalant approach to the duty to mitigate might undermine a dismissed employee’s case.

Factual Background: Mr. Moore’s Termination

The employee, Mr. Moore, was an employee at the defendant employer’s business for 26.5 years. For most of those years, Mr. Moore worked as a commercial sales representative. He was 53 years old when he was dismissed without cause following a significant decline in the employer’s business. The COVID-19 pandemic was largely to blame. In fact, Mr. Moore was only one of hundreds of employees who were laid off as a result of the pandemic.
Later, on July 15, 2020, Mr. Moore was handed his termination letter and provided with only eight weeks’ pay in lieu of notice – a shockingly low amount!

In response to his termination, Mr. Moore sought general, special, aggravated and punitive damages for wrongful dismissal. His employer argued that any damages owed to Mr. Moore should be reduced on account of his failure to mitigate his damages by not taking sufficient steps to find new employment.

What Period of Reasonable Notice Was Appropriate?

The trial judge began by determining, based on Mr. Moore’s age, length of service and character of employment, what amount of notice would have been appropriate. Mr. Moore was 53 years old and had worked with the defendant employer for 26.5 years – a very long time. Further, his actual job was highly specialized, thus suggesting that a longer notice period if appropriate. Given the above considerations, the trial judge determined that a period of 20 months would have been appropriate (a far cry from the 8 weeks originally provided!).

Did Mr. Moore Fail to Mitigate His Damages?

However, the defendant employer argued that Mr. Moore had failed to sufficiently mitigate his damages and, therefore, the damages they owe should be decreased as a result. The trial judge noted that the COVID-19 pandemic severely and negatively impacted the general economy and the relative availability of other employment. However, the trial judge also noted that Mr. Moore did not actively pursue any available job opportunity. Is this inactivity acceptable in light of the difficulties produced by the pandemic?

It is well known in law that a dismissed employee has a duty to mitigate their losses by seeking comparable employment. They must act reasonably and diligently (but not perfectly!) in pursuing new employment opportunities. In the era of COVID-19, these efforts might look somewhat different than they had before. However, with that being said, Mr. Moore nevertheless had an obligation to search for new and comparable employment. Unfortunately, the evidence revealed that Mr. Moore did not act reasonably and diligently in seeking new employment.

Mr. Moore testified that he created a resume (absent cover letters) and did computer searches for available jobs. This was not good enough. According to the trial judge: “A reasonable job search may include activities such as reaching out to contacts within the industry, writing cover letters setting out why you qualify for a position, following up with telephone calls, or email correspondence … A reasonable job search requires a willingness to explore how one’s experience and skills may be portable to other industries or areas.”

In the end, the trial judge found that Mr. Moore had failed in his duty to mitigate. This came with a heavy cost to Mr. Moore: the trial judge reduced his notice period by three months.

Takeaway: Pandemic Not an Excuse for Unreasonable Effort

For employees, this case is a warning that, even in the most difficult economic times, the duty to mitigate nevertheless requires you to make reasonable efforts to find alternative employment. You must remain active and diligent in your job search even where the likelihood of success is low. If you are unable to demonstrate that you made reasonable efforts to find new employment, you may see your entitlements reduced as a result.

Currie v. Nylene Canada Inc. : Reasonable Notice Beyond 24 Months

by Stacey R. Ball| December 15, 2021August 13, 2023 | Severance Packages & Pay Lawyer

It is generally understood in the world of employment law that 24 months marks the theoretical ceiling in computing reasonable notice of termination. Only very rarely will that ceiling be broken. According to the Ontario Court of Appeal in Dawe v. The Equitable Life Insurance Company of Canada, a reasonable notice period longer than 24 months is only justified where there are exceptional circumstances.

In Currie v. Nylene Canada Inc., exceptional circumstances were found to justify granting a period of notice greater than 24 months. But, was this the right decision? Or is the decision ripe for appeal?

Termination and Reasonable Notice

On December 12, 2018, Ms. Currie was terminated from her position with Nylene Canada Inc. at the age of 58 and after 39 years of employment. The parties agreed that her termination was on a without cause basis, therefore entitling her to pay in lieu of reasonable notice. However, the parties disagreed on the duration of reasonable notice. Ms. Currie proposed 26 months, which was 2 months over the typical ceiling of 24 months. Nylene, on the other hand, suggested that Ms. Currie was entitled to no more than 15 months.

To justify a notice period beyond the typical 24 month ceiling, Ms. Currie asked the trial judge to make a finding of exceptional circumstances. Nylene, for their part, took the position that no exceptional circumstances existed.

Exceptional Circumstances

After considering all the facts, the trial judge found that there were indeed exceptional circumstances justifying the imposition of a notice period beyond the typical ceiling of 24 months. In particular, the trial judge made the following findings of exceptional circumstances:

Currie left high school to take this job. She has been very loyal, remaining with a single employer (Nylene and its successor employers) for 39 years. Ms. Currie dedicated her entire working life to this single job. As the trial judge put it: “She has known nothing else”;
Currie was 58 years old at the time of her termination, thus nearing the end of her career;
It will be very difficult for Ms. Currie to find a new employer as her entire working history has been spent with one employer in one single type of environment; and
Ms Currie’s termination was equivalent to a forced retirement when you consider her age, limited education and limited skill set.

Having found that there were indeed exceptional circumstances in the case, the trial judge awarded Ms. Currie with 26 months’ salary as compensation in lieu of notice.

Decision is Potentially Inconsistent with the Court of Appeal in “Dawe”

Although this decision is one to be celebrated by employees, it might be theoretically and legally unsound. This is because the trial judge, in finding that there were exceptional circumstances, placed great emphasis on Ms. Currie’s age and the incredible length of service. However, the Court of Appeal in Dawe would have said that these considerations were already “recognized” and “rewarded” by the general ceiling of 24 months’ notice and do not, therefore, justify extending notice beyond that ceiling. Given that the decision in Currie may be contrary to the Court of Appeal’s guidance, there is a chance we may see an appeal down the road.

No Injunction to Prevent Dismissal in Mandatory Vaccine Case

by Stacey R. Ball| December 13, 2021August 13, 2023 | Cause For Dismissal| | Employment Law

In the first of inevitably many Ontario court proceedings concerning the implementation of mandatory COVID-19 policies in hospitals, the Ontario Superior Court of Justice dissolved an interim injunction to stay the termination of employees who refused to get their vaccines. This decision is particularly important for unionized employees who may hope to challenge mandatory vaccine policies in the workplace. A key issue in the case was whether or not the unionized employees even had standing.

Standing: Unionized Employees and Mandatory Vaccine Policies

Labour law in Ontario provides that workplace disputes arising in the unionized context must be resolved through final and binding settlement by arbitration. In this case, both the employer and the union agreed that the jurisdiction of arbitration to resolve workplace disputes in the unionized context is exclusive such that courts cannot interfere. There is no overlapping jurisdiction. If the “essential character” of the dispute arises from the interpretation, application, administration or violation of the collective agreement, then jurisdiction to hear the dispute rests solely in arbitration.

In considering the issue of jurisdiction, Justice Dunphy commented: “The Legislature has gone to great pains to erect high walls surrounded by a deep moat to preserve and protect the labor relations environment from outside incursions.”

It was clear to Justice Dunphy that the “essential character” of the dispute went to the “very core” of the collective agreement because the dispute challenges the right of the employer to have implemented a mandatory vaccine policy and the right of the employer to terminate the employment of the affected employees. According to Justice Dunphy: “There are few aspects of a collective agreement more fundamental than establishing what does and does not constitute just cause for the discipline or termination of employment of an employee subject to it.”

Accordingly, the unionized employees did not have standing to pursue the dispute in the civil courts. Their only option, the exclusive option, was arbitration. The choice of a union to pursue or not to pursue a particular remedy is something courts must give considerable deference to.

The importance of this decision is that it confirms the continued exclusivity of labour arbitrators even in the context of mandatory COVID-19 vaccination policies, which are relatively new and immensely controversial.

What About Non-Unionized Employees?

Justice Dunphy found that the unionized employees did not have standing – but, what about non-unionized employees? These employees would not be subject to the exclusive jurisdiction of labour arbitration or the exclusive representation of a union.

Nevertheless, Justice Dunphy could not prevent their employer from terminating them for not having the vaccine. Generally speaking, non-unionized employees can be terminated at will for any reason whatsoever, including for no reason at all, so long as compensation is provided to the employee in situations where no cause is alleged or where cause is alleged but not proved. If cause is not proved, employees do not get their jobs back. Compensation is the only remedy available. A court cannot order an injunction to prevent a wrongful dismissal (assuming these dismissals are indeed wrongful to begin with).

The Unanswered Question: Was there Just Cause? </h2.

The question we all want to be answered is not whether an employer can dismiss an employee for being unvaccinated, as that answer is generally yes. The question we all want to be answered is whether an employer can dismiss an employee for cause, meaning that the employee is not entitled to notice or pay in lieu of notice.

Unfortunately, that all-important question was not answered in this case. Nor does this case address whether or not mandatory vaccine policies are legal, to begin with. We will have to continue to wait in order to have these questions answered. For now, we can rest assured that unionized employees must rely, as always, on arbitration, and that non-unionized employees cannot rely on injunctions to prevent their terminations.

The Right to Disconnect: New Ontario Legislation

by Stacey R. Ball| December 10, 2021August 13, 2023 | Employment Law

Ontario has recently proposed new legislation aimed towards giving workers the “right to disconnect” from work. The new legislation will require employers with 25 or more employees to implement written policies pertaining to disconnecting from work. According to the legislation, “disconnecting from work” means: “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” In the era of COVID-19, many employees find it difficult to disengage from work as they are bombarded and ambushed by emails and phone calls at all times of the day. As Monte McNaughton, Ontario’s Minister of Labour put it: “The lines between family time and work time have been blurred.” This new legislation, presumably, would give employees some relief. However, it is not clear whether the legislation will be successful.

The Legislation May be Ineffective

Some experts are of the opinion that the legislation will be ineffective without more clearly defined rules and incentives. The legislation does not provide a means of enforcing these new expectations. Employers can create disconnect policies in compliance with the legislation but, if there is no means of enforcing those policies, they might as well not exist at all. Furthermore, there is also a risk that employees will feel pressured not to disconnect despite the policy because they do not want to appear lazy or unmotivated or otherwise forfeit opportunities to others who choose not to disconnect.

Why would an employer want to promote an employee who no longer answers the phone after 5 pm (perhaps in compliance with their own policy) over an employee who answers the phone even in the middle of the night? Another concern involves considerations of professions where “disconnecting” is simply unfeasible – for instance, many lawyers have no option of disconnecting when a client is in a crisis.

Not as Bad as it Seems?

Despite the above concerns, other experts have weighed in to suggest the legislation is not quite as worrisome as the naysayers have made it out to be. Rather, the legislation appears quite sensible. The legislation requires transparency between employers and employees such that employees will be made aware of what hours they are expected to work. Those expectations will vary from workplace to workplace, which is fine so long as the employer is transparent (i.e., distributes their policy).

Abolishing the Non-Competition Agreement

On top of providing employees with transparency concerning their expected hours of work, the new legislation has an additional benefit: the abolishment of non-competition provisions in employment contracts. These agreements prevent employees from accepting a new position with another business in the same field or industry as their former employer. As it turns out, such agreements are usually already unenforceable – but most employees are unlikely to know this and will simply assume they are enforceable. By abolishing these non-competition agreements, the legislation is simply codifying in law what Ontario courts are already doing. More employees will be made aware of their rights and won’t need to pay considerable fees to have a lawyer advise them as to the unenforceability of such clauses.

The Long Haul to Work: Are you Entitled to be Paid for your Commute?

by Stacey R. Ball| December 8, 2021August 13, 2023 | General

For some very fortunate employees, it does not take very long to arrive at work. If you’re lucky, maybe you live right around the corner. For those less fortunate employees who are not so lucky to live close to work, actually getting to and from work can consume a significant portion of your day – in some cases, even many hours. It can be frustrating, driving through traffic, waiting for busses and trains, climbing down the stairs to the subway, especially in bad weather.

It would be less frustrating, perhaps, if you were being paid for it. But, are you entitled to be paid for your commuting time?

Unfortunately, according to the Ontario Employment Standards Act, and most likely based on the majority of employment contracts, the answer is no. This is because the time you spend commuting to and from work is not considered “work time”. Generally speaking, “work time” is any time where the employee is actually working or where the employee is not working but is required to stay at the workplace.
Commuting time, on the other hand, is the time it takes for an employee to get to work from home and vice versa. This is not considered work time for the purposes of the ESA. As a result, you are not entitled to be paid for this time.

Exceptions: When you can be paid for Commuting Time

However, there are a few exceptions to this general rule. These include:

) Where an employee drives home in a work vehicle for the convenience of the employer, the “work time” begins when the employee leaves home in the morning and ends when they arrive home at the end of the day.
) Where an employee is required to transport other staff or supplied to or from the workplace or work site, that time spent travelling will be considered work time for ESA purposes.
) Where an employee usually works in one location but is required to travel to another, separate location to actually perform their work, the time spent travelling to and from that other workplace would be considered work time for ESA purposes.

Example Case

In Tradium Mechanical Inc. v Abdellatif Jaidane, the Ontario Labour Relations Board confirmed the above. In this case, employees were provided with a work vehicle and were permitted to use that vehicle for commuting to and from work. They were not, however, required to use the work vehicle for that purpose. The Board found that the employees were not using the work vehicle for the convenience of the employer as required in point one, above. Rather, the Board found that employees have an obligation to get from home to work however the employee chooses to. Using a work vehicle rather than a personal vehicle does not make a difference unless the employee is using the work vehicle for the employer’s convenience.

If the employees in this case were required to use the work vehicle for the purpose of commuting, they may very well have been entitled to pay for the time spent commuting.

Apology, No Job – A Serious Approach to Sexual Harassment at Work

by Stacey R. Ball| December 7, 2021August 13, 2023 | Sexual Harassment

Sexual Harassment

No Apology, No Job – A Serious Approach to Sexual Harassment at Work

The Ontario Court of Appeal recently upheld the termination of an employee for refusing to accept responsibility and to apologize for conduct that, following an internal investigation, was found to constitute sexual harassment. In so doing, the Court has reminded us all that sexual harassment at work can indeed justify summary dismissal, and refusing to accept responsibility for that misconduct can result in a breakdown of the employment relationship.

The Basic Facts:

Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728

Mr. Hucsko had worked with the employer for twenty years before his termination on July 25, 2017. He was 62 years old at the time of the trial, whereas the complainant, who had only worked with the employer for approximately three years, was about 52 years of age. The complainant had accused Mr. Hucsko of various inappropriate comments, including making references to exotic dancers and suggesting the complainant sit in another employee’s lap.
Following an investigation, it was determined that Mr. Hucsko had indeed made inappropriate comments. The investigation also found that Mr. Hucsko had previously been warned by a supervisor against making such comments but nevertheless continued making the comments. The investigation memo noted:

“This is a very serious matter.”

As part of the investigative memo, Mr. Hucsko was warned that further comments would result in his termination. Two requirements were made of him:

) He was required to participate in sensitivity training;
) He was required to provide a direct apology to the complainant.

Mr. Hucsko agreed to participate in sensitivity training. He did not agree, however, to apologize. Because he refused to apologize, his employment was terminated for cause. The employer argued there was an “irreparable breakdown in the employment relationship.”

Was it fair for the employer to terminate Mr. Hucsko for not apologizing?

The Trial Judge: No Just Cause

The trial judge believed Mr. Hucsko’s comments did not warrant summary dismissal. It was not clear to the trial judge that the comments amounted to sexual harassment. As for the apology, the trial judge was critical of the employer for not negotiating the content of the apology prior to terminating Mr. Hucsko. Ultimately, the trial judge believed there was no just cause to terminate Mr. Hucsko. There was no irreparable breakdown in the employment relationship. The trial judge therefore awarded Mr. Hucsko with 20 months’ compensation in lieu of notice.

On Appeal: Termination Was Warranted

On appeal, the Ontario Court of Appeal disagreed with how the trial judge characterized the comments made by Mr. Hucsko. Indeed, the comments were inappropriate and properly constituted sexual harassment. They reached this conclusion for four reasons:

) Each comment was based on gender and possessed a sexual connotation;
) The comments were demeaning and undermined the complainant’s dignity. They implied provocative behaviour by the complainant, or that she welcomed Mr. Hucsko’s sexual suggestions;
) The comments were unwelcome and Mr. Hucsko knew that; and
) The comments created a poisoned atmosphere for the complainant.

This finding is essential to correctly interpret Mr. Hucsko’s refusal to apologize. The apology, according to the Court of Appeal, was only a single aspect of Mr. Hucsko’s misconduct. The refusal to apologize did not occur in a vacuum. The apology was an opportunity for Mr. Hucsko to “redeem himself and to save his job.” The Court of Appeal believed this was a fair and proportionate response by the employer.

In this context, the Court of Appeal held that Mr. Hucsko’s refusal to apologize did indeed amount to a complete breakdown in the employment relationship. Mr. Hucsko refused to accept the discipline imposed on him as a consequence of his misconduct. For that reason, the employer could have no confidence that Mr. Hucsko would not continue with the same conduct moving forward – particularly as he refused to even accept that what he had done amounted to sexual harassment, despite the investigation’s conclusion that it had.

In the end, the employer’s decision to terminate Mr. Hucsko based on his refusal to apologize was therefore justified and appropriate.

What Happened? Pavlov v. The New Zealand And Australian Lamb Company Limited, 2021 ONSC 7362