April 2023 - Stacey R. Ball

Progressive Discipline?

by Stacey R. Ball| April 29, 2023August 14, 2023 | Employment Contracts| | Employment Law

What is it?

The legal concept of progressive discipline in Ontario is a system designed to manage employee performance and behaviour in the workplace. The goal of this system is to provide a structured approach to dealing with employee misconduct while giving employees the opportunity to correct their behaviour before being subjected to more severe disciplinary measures.

The concept of progressive discipline in Ontario has its roots in common law and is also codified in the Employment Standards Act, 2000 (ESA). Under the ESA, employers are required to provide employees with reasonable notice or pay in lieu of notice upon termination, unless the employee has engaged in misconduct. This is where progressive discipline comes in – it provides a way for employers to manage employee behavior in a way that allows them to avoid paying severance or termination pay, while also providing a fair and reasonable approach to discipline.

How does Progressive Discipline Work?

The basic principle of progressive discipline is that disciplinary measures should be progressive, starting with the least severe measure and progressing to more severe measures as necessary. This means that before an employee is terminated, they should be given several warnings, and the severity of the disciplinary measures should increase with each subsequent warning.

The first step in progressive discipline is usually an informal verbal warning. This is a chance for the employer to address the employee’s behaviour and provide feedback on how they can improve. The employer should document the verbal warning, including the date, time, and a summary of the conversation.

If the behaviour continues, the employer may move on to a more formal written warning. The written warning should be specific about the behaviour that is unacceptable and should include a clear outline of what is expected of the employee going forward. The written warning should also include a timeframe for improvement and consequences if the behaviour does not improve.

If the employee’s actions still do not improve, the employer may move on to a more severe disciplinary measure, such as a suspension without pay. The length of the suspension should be proportionate to the behaviour in question.

Finally, if the behaviour still does not improve, the employer may terminate the employee’s employment. However, before doing so, the employer should understand that termination with cause is the ‘capital punishment’ of employment law. They should be certain the necessary progressive disciplinary measures have occurred and not rectified the situation.

It is important to note that the steps and severity of progressive discipline will vary depending on the circumstances of each case. For example, some types of behaviour may be severe enough to warrant skipping the verbal and written warning steps and moving directly to suspension or termination.

Main Takeaway

The legal concept of progressive discipline in Ontario is a structured approach to managing employee performance and behaviour in the workplace. Employers should ensure that any disciplinary action taken against an employee is appropriate and proportionate to the offence. This not only benefits the employer by improving employee performance and behaviour, but also benefits the employee by giving them the opportunity to correct their behaviour before being subjected to more severe disciplinary measures.

Notice of Resignation in Ontario

When an employee decides to leave their job, it’s essential to give their employer enough notice to ensure a smooth transition. In Ontario, there are specific rules and regulations regarding how much notice an employee should give their employer when quitting their job. In this blog post, we will discuss these rules and why they’re essential for both employees and employers.

What is the Minimum Notice an Employee Must Give their Employer?

A common belief is that an employee must give two weeks notice of resignation to their employer. However, that may not always be the case. It is true that many employers include a resignation clause in their employment contracts that stipulate an employee must provide two weeks notice. Nonetheless, there is no legal requirement under the Employment Standards Act or similar legislation requiring an employee to provide a specific amount of notice before resigning. Thus, this is a negotiable term when discussing an employment contract.

Why Should an Employee Give an Employer Notice of Resignation?

Giving adequate notice is crucial for several reasons. Firstly, it allows the employer to plan for the employee’s departure and arrange for a replacement if necessary. It also gives the employer enough time to ensure a smooth handover of responsibilities and to tie up any loose ends. This is particularly important if the employee holds a senior position or is responsible for critical projects or clients.

Moreover, giving adequate notice demonstrates a level of professionalism and respect for the employer. It shows that the employee is committed to ensuring a smooth transition and that they value the time and effort the employer has invested in them. This can be particularly important if the employee plans to seek a reference or maintain a positive relationship with the employer.

Consequences of Failing to Give Notice of Resignation

On the other hand, failing to provide adequate notice can have negative consequences for both the employee and the employer. For instance, the employer may need to scramble to find a replacement or redistribute the departing employee’s responsibilities, causing disruption and potentially affecting the company’s operations. Additionally, the employee may burn bridges with the employer, which can hurt their professional reputation and future job prospects. Another potential consequence is if the employee does not provide reasonable notice as specified in their contract, they may be liable for breach of contract.

Main Takeaway

it’s crucial for employees to provide their employer with adequate notice when quitting their job in Ontario. There is no legal requirement under the Employment Standards Act or similar legislation requiring an employee to provide a specific amount of notice before resigning but employees are encouraged to give reasonable notice, particularly if they hold a senior position or are responsible for critical projects or clients. Adequate notice allows the employer to plan for the employee’s departure, ensure a smooth transition, and maintain a positive relationship with the employee. Failing to provide adequate notice can have negative consequences for both parties, potentially causing disruption and damaging professional reputations as well as breach of contract implications liabilities for the employee.

What is the Duty to Mitigate and How does it Work?

What is Mitigation?

When an employee is terminated without cause, they have a duty to make reasonable attempts to find comparable employment in order to mitigate their losses from the dismissal. There are various legal issues and scenarios that make the duty to mitigate less clear-cut than it seems.

How to Comply with the Duty to Mitigate:

As stated, a terminated employee has a duty to mitigate their losses. Choosing to stay unemployed can result in a situation where the employee has been deemed to have failed in their duty. This can ultimately lead to the notice pay provided to the employee being reduced. However, it should be noted that the employers have a heavy burden in proving a failure to mitigate has taken place. The Supreme Court of Canada has stated this burden is “by no means a light one”.

Employees should try to take reasonable steps to mitigate their losses. The following are several ways an employee can do this:

Applying for available jobs
Reaching out to contacts in your industry
Cold calling companies
Keeping a record of your efforts (dates, jobs applied to, contacts spoken to, if you received interviews, etc.)

It is important to note that going back to school rather than applying for jobs will not satisfy the duty to mitigate.

Is there an Obligation to Apply for Lower-Paying Work in Order to Mitigate?

This is a common question dismissed employees have. Do they have to accept any position they can find? Does it have to be in the same industry? More specifically, if one was previously a company Director, do they still need to accept a lesser position such as manager?

The Lake v. La Presse decisions provided us with the insight to answer such questions.

The dismissed employee was the General Manager of a division of the Employer, where she earned $185,000 per year plus benefits. Eight staff members reported to her, and she reported to the VP of Sales and Operations.

Decision of the Motion Judge

The original decision was that she was entitled to eight months’ notice. However, the motion judge felt that the employee failed to take reasonable steps to mitigate her losses. The judge stated:

The employee waited too long to start her search;
The employee did not apply to enough applications; and
The employee “aimed too high” in her job search.

The motion judge stated that there was nothing wrong with her applying to roles such as VP. The motion judge inferred that had she expanded her search efforts (for example, a sales representative), she likely would have found a new job. As a result, the motion judge deducted two months from the eight-month award.

Court of Appeal Reversal

The Court of Appeal stated that the employee was not required to search for lesser-paying jobs. Crucially, the Court of Appeal stated that the employee needs only to seek comparable employment. This means that the status, hours, and compensation are comparable to what the employee previously had.

It also noted that the terminated employee has no obligation to search for lower-paying work such as a sales representative (as suggested by the motion judge).

Lastly, the Court of Appeal found that she did not aim too high in her search efforts because the positions were largely a fit based on qualifications and skills. The motion judge focused too much on the title itself.

Therefore, the Court of Appeal held that there was no failure to mitigate and thus, no deduction to her eight months’ notice.

Further Questions on the Duty to Mitigate?

Please contact our office by calling (416) 921-7997 ext. 225 to book an appointment with Stacey Ball.

Workplace Discrimination Ontario: Grounds for Discrimination

by Stacey R. Ball| April 21, 2023July 17, 2024 | Employee or Dependent Contractor| | General

What is Discrimination?

Under the Ontario Human Rights Code, workplace discrimination is defined as any conduct or action, intentional or not, that treats someone differently or adversely because of a protected characteristic. The Canadian Human Rights Act also plays a crucial role in prohibiting discriminatory practices. The protected characteristics under the Code include:

Race
Ancestry
Place of origin
Colour
Ethnic origin
Citizenship
Creed (religion)
Sex (including pregnancy and gender identity)
Sexual orientation
Age
Marital status
Family status
Disability

Human rights law serves as a framework for safeguarding individual rights and addressing instances of discrimination. The Employment Equity Act further ensures equal opportunity and non-discrimination under federal jurisdiction.

To help clarify each ground, the following is more detail and some examples of the prohibited grounds for discrimination in Ontario.

Race/Ancestry/Place or Origin/Skin Colour

Discrimination based on race can include treating employees or job candidates differently based on their skin color, ancestry, ethnicity, or place of origin. For example, an employer might pass over a qualified job candidate for a promotion because they are of a different race than the majority of the company’s employees. Alternatively, an employee could experience discrimination in the course of their employment, through things like racial slurs or other racist behaviors.

Gender Identity/Sexual Identity/Sexual Orientation

Discrimination based on gender can include treating employees or job candidates differently based on their gender, gender identity, sex, sexual identity, or sexual orientation. For example, an employer might refuse to hire a transgender person because of their gender identity. An employer may also discriminate against a worker in the course of their employment because of their sexual orientation or gender identity.

Age

Discrimination based on age can include treating employees or job candidates differently based on their age. For example, an employer might lay off older workers because they assume they will retire soon or refuse to hire younger workers because they assume they lack experience.

Disability

Discrimination based on disability can include treating employees or job candidates differently based on their physical, mental, or learning disabilities. For example, an employer might refuse to hire someone with a visible physical disability because they assume the person will need reasonable accommodations that the company is unwilling to provide. Otherwise, a worker might experience discrimination during work by being denied reasonable accommodations.

Creed (Religion)

Discrimination based on religion can include treating employees or job candidates differently based on their religion or beliefs. For example, an employer might refuse to accommodate an employee’s request for time off to observe a religious holiday.

Marital status

Discrimination based on marital status can include treating employees or job candidates differently based on their marital status or relationship status. For example, an employer might assume that a single employee is less committed to their job than a married employee.

Family status

Discrimination based on family status can include treating employees or job candidates differently based on their family status or responsibilities. For example, an employer might refuse to hire someone because they have young children and the company assumes the employee will need to take time off for childcare.

What is Not Covered Under the Ontario Human Rights Code:

While the Ontario Human Rights Code provides protections against discrimination based on certain specific characteristics, not all types of discrimination are covered. Examples of discrimination that are not a prohibited ground, hence not covered by the Ontario Human Rights Code include:

Political Beliefs or Affiliation: This means that an employer may be legally allowed to discriminate against an employee or job candidate based on their political views or affiliation, as long as it does not overlap with any of the protected grounds.
Criminal Record: While the Code protects against discrimination based on certain criminal convictions (such as a conviction that has been pardoned or expunged), it does not protect against discrimination based on an individual’s criminal record more broadly. This means that an employer may legally refuse to hire an individual or terminate their employment based on their criminal record.
Physical Appearance: While appearance-related discrimination is sometimes included under the grounds of “disability” or “gender”, in most cases it is not explicitly covered by the Code. For example, an employer may be legally allowed to discriminate against an employee or job candidate based on their height, weight, hair style, or facial features.

Human rights laws differentiate between federal and provincial jurisdictions, with each level of government having its own set of regulations and protections.

If you are feel you are not being treated equally at work, and have any questions regarding discrimination in the workplace, please contact our office by calling (416) 921-7997 ext. 225 to book an appointment with Stacey Ball.

Cannabis and Discrimination Issues

by Stacey R. Ball| April 11, 2023August 14, 2023 | General

There are several legal issues that can be raised in the context of cannabis in the workplace. A recent Human Rights Tribunal of Alberta decision dealt with the issue of pre-employment drug testing and discrimination. Both employers and employees should be aware of the implications of the following decision: Greidanus v Inter Pipeline Limited, 2023 AHRC 31.

The Background and Context:

The complainant, Jason Greidanus, alleged that the respondent, Inter Pipeline Limited, discriminated against him on the ground of physical disability.

Mr. Greidanus was offered a job with Inter Pipeline with one of the stipulations of the contract being he underwent a pre-employment drug test. Mr. Greidanus failed the drug test due to cannabis (THC) in his system. Mr. Greidanus was diagnosed with Hashimoto’s disease which causes chronic pain, anxiety, depression and low energy. So, he used cannabis to treat himself. Mr. Greidanus was using CBD oil to help treat his condition, which he says did not impair him. However, at the time of the drug test, he had not received a prescription from a doctor. He does not smoke cannabis because of respiratory issues he has arising from a wildfire in Fort McMurray.

Due to this failed drug test, Inter Pipeline revoked their offer of employment. Inter Pipeline did not know of Mr. Greidanus’ disability when they revoked their offer of employment. At that time, there was merely a failed drug test, positive for THC in his system.

The Moore Test:

The commission applied the Moore test to determine if there was a prima facie discrimination in the workplace. The Moore test requires the complainant to establish, on a balance of probabilities, that:

(1) he has a characteristic protected from discrimination under the applicable human rights legislation;

(2) he experienced an adverse impact with respect to his employment; and

(3) the protected characteristic was a factor in the adverse impact.

1) He has a characteristic protected from discrimination under the applicable human rights legislation

Based on the evidence presented, the diagnosis of Hashimoto’s disease was considered a physical disability. Thus, he has a physical disability that is a protected ground under the human rights legislation which satisfies the first part of the test.

2) He experienced an adverse impact with respect to his employment

The second part of the test is also easily satisfied. Mr. Greidanus was to be hired and given a salary of $125,000.00, as well as other forms of compensation. Revoking the offer of employment is a clear adverse impact on the complainant.

3) The protected characteristic was a factor in the adverse impact

The third and final part of the test is the most challenging question to be answered in this case. Inter Pipeline was not aware of a disability or condition that Mr. Greidanus was using cannabis to treat.

There was also no evidence that it can be implied that Inter Pipeline ought to have reasonably known that Mr. Greidanus may have had a physical disability. He had numerous opportunities to inform the prospective employer of his disability and his usage of CBD oil to treat it. He did not disclose it before, during or after the job interview. He also did not disclose it even after he knew of the pre-employment drug test when he was given the conditional offer of employment. Lastly, he did not disclose it when doing the pre-employment drug test questionnaire, or to the third-party agency administering the test.

Therefore, his disability was not a factor in the adverse impact he experienced (revocation of employment offer).

The Duty to Inquire:

The employer may also have a duty to inquire before it takes any disciplinary steps when it is reasonably ought to be aware that there may be a disability or the conduct of the employee is reasonably sufficient to raise an employer’s suspicion that the employee has a protected characteristic. If the duty to inquire does arise, Inter Pipeline would have a duty to investigate a possible connection between cannabis and a potential disability.

Once again, Mr. Greidanus did not provide any evidence of a disability or evidence on which one can reasonably conclude that the respondent ought reasonably to know that the complainant had a disability or that there may be a connection between the complainant’s disability and the complainant’s inability to satisfy the pre-employment drug test requirement.

Thus, there was no duty to inquire.