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Month: September 2022

Return to Office Looms – What Employers and Employees should know

by Stacey R. Ball| | Employment Contracts| | Employment Law

Now that Labour Day has passed, the expectation is that more Employers will continue to request that their employees return to the office. Bay Street law firms, big banks and companies such as Apple have announced that their employees will be returning to the office in a hybrid format. While not every company will require its employees to return to the office, more and more companies are using this fall as the chance to bring workplaces back closer to the way they were prior to the pandemic. As such, it’s important for employers and employees to understand their legal rights on the issue, and that is why our wrongful dismissal lawyer Toronto would like to share his opinion on the topic.

Advantages and Disadvantages of Working from Home

According to a survey done earlier in 2022, only 12% of respondents said they prefer going into the office full-time. Working remotely (30%) and splitting time between the office and home (27%) received significantly more support. Employees who prefer the remote working experience cite benefits such as the absence of a daily commute, additional flexibility, and a generally improved work-life balance. Some common complaints employers have of a remote workplace is that there is less collaboration in the office and that it’s harder to build a workplace culture that many employers desire.

Legal Rights

Regardless of where you stand on the work-from-home debate, it is vital that employers and employees understand what their legal rights are on the issue. The question that many employees and employers are asking now is: can an employee be required to return to the office? Generally, the employer does have the right to require employees to return to the office. This rule is specifically applicable to employees who were hired before the pandemic, worked in the office, and then worked from home during the pandemic. An employer should have no legal issue recalling these workers.

However, the answer may also depend on the terms of the employment contract. If there is a term in the contract that stipulates the employee can work remotely, then the employee can remain working from home.

While the general rule is that an employer can require an employee to return to the office, a complication is if there is no term regarding work location in the contract for employees who were hired during the pandemic. This employee may have a better argument for remaining at home if their expectation was to remain a remote employee regardless of COVID-19. This is an example of an implied term, where even though it was not expressly dealt with in the employment contract, it has legal effect.

Another example of an implied term is if the employer allows employees to work from home long after the legitimate safety concern due to covid-19 is over. At that point, remote work may be considered to be condoned by the employer, thus making it an implied employment contract term.

Some employees may get medical exemptions to stay away from the office, which could be difficult to attain. Similarly, living with a family member who is highly vulnerable to COVID-19 may allow for accommodations to work from home. However, it is important to note that a general fear of the virus is not enough to get an exemption or accommodation of any kind.

Main Takeaway

Ultimately, if an employer does have the legal right to implement a return to office policy, an employee’s failure to comply could result in a deemed resignation. This is why it’s important to understand your legal rights on this issue, regardless of whether you are an employee or an employer.

A reminder that this blog is only to be used as general information, and it does not constitute legal advice. If you would like to better understand the legal rights in your situation, please feel free to contact our firm.

Reprisals under the Occupational Health and Safety Act: Presumptive Remedy for a Retaliatory Discharge is Reinstatement

by Stacey R. Ball| | General

What is the remedy for a retaliatory discharge due to an employee raising a health and safety issue? Thompson v. 580062 Ontario Inc. (Slainte Irish Gastropub) provides the answer.

The Facts

Ms. Haley Thompson – a restaurant employee – arrived early so she could eat prior to the commencement of her shift. The owner and her employer, Mr. Ceppetelli, asked a co-worker to bring Ms. Thompson to him. When she met with him, Mr. Ceppetelli yelled at her, called her rude names, and used inappropriate language. When Ms. Thompson decided to leave the restaurant, Mr. Ceppetelli grabbed her arm and pushed her towards the door. Ms. Thompson was in a state of shock, and left the restaurant.

Ms. Thompson reported the incident to her manager before the work shift began. After assurance that Mr. Ceppetelli would not be there, Ms. Thompson decided to go back to the restaurant and complete her shift. When the next shift schedule was released, Ms. Thompson was not on it as Mr. Ceppetelli’s requested she be removed. Believing she was suspended, she wanted a detailed suspension letter. No such letter was ever received. Moreover, the employer never scheduled Ms. Thompson again.

Ms. Thompson reported the incident to the Ministry of Labour a few days later. She also complained of workplace violence and harassment to Mr. Ceppetelli and requested a copy of the employer’s formal policy on workplace violence and harassment.

Ms. Thompson subsequently filed an application pursuant to section 50 of the Occupational Health and Safety Act (“OHSA”).

Analysis:

Section 1(1) of the OHSA defines workplace violence as:

(a) The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,

(b) An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,

(c) A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

The language of the workplace violence definition is purposely made to be broad. The intent of this was to prevent or deter physically dangerous activity in the workplace. Even though Ms. Thompson was not physically injured after the altercation, the act of grabbing her arm and pushing her was deemed to be “the exercise of physical force by a person against a worker, in a workplace, that… could cause physical injury to the worker.”

The OHSA also stipulates that an employer must prepare a policy with respect to workplace violence. Ms. Thompson was entitled to request a copy of this policy from her employer, and was entitled to receive these documents under subsection 32.0.5(2) of the OHSA.

Ms. Thompson’s initial complaint to her manager, a further complaint to Mr. Ceppetelli, a request for the workplace violence policy, and a formal complaint to the Ministry of Labour, all constitute attempts to exercise her rights under the OHSA. By not scheduling Ms. Thompson after she exercised said rights, the employer’s actions violated section 50 of the OHSA. The presumptive remedy for a reprisal in violation of section 50 of the OHSA is reinstatement of the terminated employee and backpay from the date of the dismissal to the date of the reinstatement.

However, due to the workplace violence issues, Ms. Thompson and the Board both felt reinstatement was not viable. Instead Ms. Thompson was entitled to damages for loss of employment during the period she was not earning income.

Main Takeaway:

The presumptive remedy for a retaliatory discharge due to an employee exercising rights under the OHSA is reinstatement plus backpay from the date of the discharge to the date of the reinstatement.