Author: Stacey R. Ball

If an employee is sick, incapacitated or hurt physically for any reason, they can take days off work. The days off work because of the employee’s illness, injury or medical emergency are called sick days. Sick days can also be used to attend a doctor’s appointment, if the appointment is because of an illness, injury or medical emergency.

Who is Eligible

The Employment Standards Act provides that an employee who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay because of a personal illness, injury or medical emergency.

How Many Days Can an Employee Take

The Employment Standards Act limits an employee’s entitlement to take sick leave to a total of three days in each calendar year. In addition, if an employee takes any part of a day as leave under this section, the employer may deem the employee to have taken one day of leave on that day.

However, if an employee suffers an illness that can be characterized as a disability, the Human Rights Code provides that employers must accommodate employees who are disabled up to the point of “undue hardship”. In other words, in such cases, the employee will be entitled to take as many days as necessary, until when it becomes “unduly hard” for the employer to accommodate the disability.

When Can an Employer Ask for A Doctor’s Note

An employer can ask an employee going on sick leave to provide a medical note from a health practitioner such as a doctor, nurse practitioner or psychologist, as long as this requirement is “reasonable in the circumstances”. The analysis for reasonableness will depend on all of the facts of the situation, such as the duration of the leave, whether there is a pattern of absences, whether any evidence is available and the cost of the evidence.

Nevertheless, the information that the employer is entitled to inquire is limited to the (expected) duration of the absence, the date the employee was seen by a health care professional and whether the patient was examined in person by the health care professional issuing the note. The employer cannot ask about the diagnosis or treatment of the employee’s medical condition.

Furthermore, under the current amendment to the Employment Standards Act due to COVID-19, retroactive to January 25, 2020, the employer cannot require the employee to provide evidence that the employee is sick with coronavirus or under an order to quarantine.

Employee’s Rights during Sick Leave

Employers are prohibited from threatening, firing or penalizing an employee who takes or plans on taking a sick leave in any way, and they must accept an employee’s request for sick leave in good faith, unless there are legitimate reasons for acting otherwise.

Although the employer does not have to pay the employee on sick leave, but they must continue the employee’s benefits on sick leave. After the employee returns to work after sick leave, the employer must reinstate them to the position that they most recently held with the employer, if it still exists, or if the position is no longer available, the employer shall offer a comparable position.

Stacey Reginald Ball is an experienced employment lawyer with Ball Professional Corporation.  Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal.  If you have questions regarding employment law issues, please call our office at (416) 921-7997 ext. 225.

Sometimes, after an employee is constructively dismissed or terminated, the employer later offered them a job at the same company. In this situation, it is important for the employee to understand the potential consequences if they refuse the position and fully consider whether it is reasonable for them to accept it.

Employee’s Duty to Mitigate

In the case of wrongful dismissal, the employee has a duty to mitigate their loss, either by seeking out comparable jobs or accepting another offer from the same employer. If a court finds that an employee has failed to take reasonable steps to mitigate their loss, even if they are successful in establishing the wrongful dismissal, the court will reduce their entitlement to damages.

A recent example of an employee losing part of their entitlements in a successful constructive dismissal case is Gent v Strone Inc., 2019 ONSC 155. In this case, the temporary layoff of the employee constituted a constructive dismissal, but the court found that when the employer recalled him back to work, the employee failed to mitigate his damages by rejecting that offer. The employee stated that it would be embarrassing, humiliating and degrading for him to return to work. The Court held that from a reasonable person perspective, someone in the employee’s circumstances would not have concluded that returning to work would be too embarrassing, humiliating and/or degrading. The Court also found that the employer was recalling the employee to the position he held prior to layoff on the substantially same terms and conditions, and the employer assured the employee that  he would be treated normally with no reprisals or hard feelings.

Test for Whether it is Reasonable to Accept the Position

Where an employer offers an employee a chance to mitigate damages by accepting a different position, it can be challenging for the employee to determine whether they are obligated to accept under that particular circumstance. The test was elaborated in Brake v PJ-M2R Restaurant Inc., 2017 ONCA 402. In this case, the employer alleged that the employee did not meet performance standards, and proposed to demote her to first assistant. The employee refused to accept demotion and was fired for cause. The Court held that the employee did not fail to mitigate.

The Ontario Court of Appeal quoted from Evans v. Teamsters, Local 31, 2008 SCC 20, that “[w]here an employer offers an employee a chance to mitigate damages by accepting a different position, the central issue is whether a reasonable person in the employee’s position would have accepted the offer.” The employee is not obliged to mitigate by “working in an atmosphere of hostility, embarrassment or humiliation.” There are two categories of elements to consider in this analysis, the non-tangible and the tangible. The non-tangible elements include work atmosphere, stigma and loss of dignity, and tangible elements concern the nature and conditions of employment.

On the other hand, in Evans, the Supreme Court held that the employee failed to mitigate. The employee was wrongfully dismissed, and the employer offered him the opportunity to return to his employment and serve out the balance of his notice period. The employee refused to return to work, unless the employer immediately withdrew its termination letter, which the employer was not prepared to do. The Court held that the employee did not act reasonably, as a reasonable person would have viewed the offer as bona fide employment opportunity. In addition, the relationship between the employer and employee was not seriously damaged, and the terms of employment were same.

Employer Bears the Burden to Prove Failure to Mitigate

If an employee rejects the employer’s offer of alternate work, the employer bears the burden of proof to establish that the employee has failed to mitigate their loss by doing so. This burden of proof is onerous. Furthermore, as the Supreme Court quoted in Evans, “[i]n case of doubt, the plaintiff will usually receive the benefit, because it does not lie in the mouth of the defendant to be over-critical of good faith attempts by the plaintiff to avoid difficulty caused by the defendant’s wrong.”

In conclusion, the answer to whether an employee should accept a different position offered by their employer can be fact-specific. The key is to be mindful that there exists a duty to mitigate and the test is an objective analysis based on what a reasonable person will do. For someone faced with this situation, when in doubt, it is advisable to obtain legal advice.

Stacey Reginald Ball is an experienced employment lawyer with Ball Professional Corporation.  Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal.  If you have questions regarding employment law issues, please call our office at (416) 921-7997 ext. 225.

Since 2016, the Government of Canada has been making improvements to the Employment Insurance (EI) program, in order to better meet the needs of workers and employers. These improvements include making maternity and parental benefits more flexible, providing more options to caregivers and increasing support for workers.

Support for Parents

 1. Maternity Benefits

Since December 2017, workers now have earlier access to maternity benefits. Eligible pregnant workers can receive EI maternity benefits earlier, up to 12 weeks before their due date, and up to 17 weeks after. This allows them to decide when it is best for them to begin their maternity leave.

 2. Parental Benefits

The Government of Canada has made EI parental benefits more flexible. Parents with a newborn or newly adopted child can now choose either to receive EI parental benefits over 12 months at a higher benefit rate (the standard option, with 55% replacement rate) or over 18 months at a lower benefit rate (the extended option, 33% replacement rate).

 3. Parental Sharing Benefit

For parents of children born or placed with them for the purpose of adoption on or after March 17, 2019, they can receive extra weeks of EI parental benefits so that they can share the joy and work of raising their children more equally. When parents apply for and share parental benefits, they may be eligible for 5 extra weeks of parental benefits when choosing the standard option, or 8 extra weeks of parental benefits when choosing the extended option.

Support for Caregivers

Caregiving benefits apply to someone who is a family member or considered to be like family to a person who is critically ill or injured or needing end-of-life care, in order to help him or her take time away from work to provide care or support to the person. Through EI, a claimant can receive financial assistance of up to 55% of his or her earnings, to a maximum of $573 a week.

A claimant can receive benefits during the 52 weeks following the date the person is certified by a medical doctor or nurse practitioner to be critically ill or injured or in need of end-of-life care. There are three categories of benefits, each with a distinct maximum payable period. A claimant can take the weeks of benefits within the 52-week timeframe either all at once or in separate periods. In addition, the weeks of benefits can be shared by eligible caregivers, either at the same time or one after another.

 1. Family Caregiver Benefit for Children

This category applies where the person in need of care is under 18. The maximum weeks payable is up to 35 weeks.

 2. Family Caregiver Benefit for Adults

This category applies where the person in need of care is 18 or over. The maximum weeks payable is up to 15 weeks.

 3. Compassionate Care Benefits

This category applies where the caregiver is providing care to a person of any age who requires end-of-life care. The maximum weeks payable is up to 26 weeks.

Increased Accessibility

There have been other improvements that render EI benefits more accessible.

 1. Working While on Claim

This enables a claimant to keep receiving part of his or her EI benefits and all earnings from his or her job. A claimant can keep 50 cents of his or her benefits for every dollar earned, up to 90 percent of his or her previous weekly earnings (roughly four and a half days of work). Above this cap, the EI benefits are deducted dollar-for-dollar. However, people working a full week are not eligible to receive EI benefits.

 2. Eliminating New Entrant and Re-Entrant Rules

Under the previous rules, new entrants and re-entrants to the labour market had to accumulate at least 910 hours of insurable employment before being eligible for EI regular benefits. This rule was abolished in July 2016, and new entrants and re-entrants are now under the same eligibility requirements as other claimants in the region where they live (between 420 hours to 700 hours of insurable employment).

 3. Simplifying Job Search Responsibilities

Previously, the job search responsibilities of unemployed workers were strictly defined, which would even force them to move away from their communities and take lower paying jobs. This was reversed in July 2016. However, long-standing requirements that claimants must search for and accept available work while on EI continue to be upheld.

 4. Reducing Waiting Period

The EI waiting period is a period of time for which a claimant does not get paid before beginning to receive EI benefits.  The waiting period has now been reduced from two weeks to one week. This change does not affect the maximum number of weeks of benefits a claimant may receive. Furthermore, the timelines to process claims or receive first payments remain unchanged.

 5. Pursuing Full-Time Training

Starting in fall 2018, eligible claimants who lose their jobs after several years in the workforce will have more opportunities to go back to school full-time without losing their EI benefits.

To be eligible, one must be receiving or be eligible to receive EI regular benefits or fishing benefits, and must be a long-tenured worker. A long-tenured worker is someone who has received fewer than 36 weeks of EI regular and/or fishing benefits in the last five years, and paid at least 30% of the maximum EI annual premium in 7 of the last 10 years. In addition, in order to take training while on EI, a claimant must get permission from his or her provincial or territorial government.

Stacey Reginald Ball is an experienced employment lawyer with Ball Professional Corporation.  Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal.  If you have questions regarding employment law issues, please call our office at (416) 921-7997 ext. 225.

3 BASIC RIGHTS OF WORKERS IN ONTARIO-WHAT YOU MUST KNOW

Every person employed in Ontario has the right to work in a safe environment. The Occupational Health and Safety Act (“the Act”) has established safety procedures for employees in the workplace and entitled them to three fundamental rights. These includes the right to know about workplace health and safety hazards, the right to participate in making decisions about workplace health and safety and the right to refuse work in an unsafe environment. Our  wrongful dismissal lawyer Stacey R. Ball has compiled a list if worker rights you should be aware of, in Ontario.

Right to Know

Pursuant to the Act, employers are obligated to inform their workers about known or potential safety hazards in the workplace. Before the work begins, workers have the right to know about all these hazards and to be provided with information, instructions, and supervision necessary to protect their health and safety.

Employers can provide workplace safety information in the form of product labels, safety data sheets or safe work procedures. The Workplace Hazardous Materials Information System (WHMIS) is one example of the right to know. Workers get to know more about the chemical and biological material hazards on the job through the use of this system.

Right to Participate

Workers have the right to make recommendations about workplace health and safety. They should be allowed to provide input on the steps taken by the employer to ensure health and safety.

The right to participate can be achieved in a number of ways, such as raising issues and making suggestions to the employers about workplace health and safety. One of the most effective ways to get involved is to become a health and safety representative or a member of Joint Health and Safety Committee (JHSC). These workers assess, identify and control workplace hazards and are responsible of reporting them to their employers.

Right to Refuse

Workers have the right to refuse work in an environment that they believe will endanger their health or safety. Employers cannot fire or discipline their workers by using this right. In Ontario, the right to refuse process involves several steps. The Act sets out a specific procedure that must be followed in any work refusal.

Procedure for a Work Refusal

First Stage:

• 1. The worker considers work is unsafe;
• 2. The worker stays in a safe place and reports work refusal to their supervisor or employer. They may also wish to advise their worker safety representative and/or management representative.
• 3. The employer or supervisor investigates the work conditions in the presence of the worker or the worker safety representative.
• 4. Either
  • a. Issue resolved. The worker goes back to work.
  • b. Issue not resolved. The investigation proceeds to the second stage.

Second Stage

• 1. The worker continues to refuse work and remains in a safe place based on reasonable grounds to believe work is still unsafe. The worker, employer or someone representing the worker or employer calls the Ministry of Labour (MOL).
• 2. The MOL investigates the working conditions in the presence of the worker, safety representative and supervisor or management representative.
• 3. The inspector gives decision to the worker, management representative/supervisor and safety representative in writing.
• 4. Changes are made if required or order. The worker returns to work.

The Act provides workers with protection from reprisals from their employers, should they decide to refuse work or sought enforcement of the Act. If you are experiencing occupational health and safety issues, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

5 SIGNS YOU ARE IN A POISONED WORKPLACE

All employees have the right to work in an environment free from discrimination and harassment. However, in the circumstances that an employee is subject to pervasive insulting or degrading offensive actions that make the workplace hostile or unwelcoming, a poisoned or toxic work environment is created.

Things that Constitute a Poisoned Work Environment

1.   Verbal Abuse

Abuse comes in a variety of forms, not all of which are physical. Verbal abuse occurs when an employee is subject to repeated verbal attacks from their coworkers or employers. Consider it a red flag if you often get insulted or humiliated in your workplace. If you frequently get yelled or screamed at for no reason, it is another sign that you are subject to verbal abuse.

2.   Insulting or degrading comments based on personal characteristics

The Ontario Human Rights Code states, “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offense, marital status, family status or disability”. If your coworkers or employer often make unwelcome or insulting comments based on the aforementioned personal characteristics, this amounts to the creation of harassment in the workplace and hence a poisoned work environment.

3.   Unwelcome sexual remarks or contact

Sexual and gender-based harassment takes on a number of forms, which includes but is not limited to unnecessary physical contact, leering or inappropriate staring, sexually suggestive remarks or innuendo, display of sexual pictures or images and spread sexual rumours. These unwelcome behaviours of a sexual nature, if allowed to continue, could create a hostile work environment for the recipient.

4.   Conduct that intimidates or humiliates employee

Conducts or actions that intimidate or humiliates employees into accepting poor treatment and violations of their rights constitute another form of workplace harassment. Violence is not necessary, as long as these intimidating behaviours impose a fear of harm on the victims. Bullying of this kind also consists of a hostile work environment.

5.   Targeting a particular employee with unjustified criticism or impossible goals

Targeted behaviors at a particular employee that consist of overly harsh criticism, excessive performance monitoring and unrealistic and unmanageable business goals could also create workplace bullying. Such behaviors have manifested bad faith on the part of the employer, which creates a poisoned workplace for the employee.

What an Employee Can Do

Once an employee feels that he or she has experienced a poisoned work environment, they should report any harassing or humiliating behaviors to the superior. There is an obligation on the employer to investigate and deal with the issue. Failing to do so will enable the employee to claim constructive dismissal, where the employer makes a fundament and unilateral change to the terms of your employment. Here, the employer fails to provide you with a workplace that is free from harassment and discrimination.

However, sometimes it is too quick for an employee to claim that their workplace is a poisoned or toxic one. In General Motors of Canada Limited v Johnson, 2013 ONCA 502, the Ontario Court of Appeal illustrated the principle that “workplace becomes poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated”. The court also clarified that the employee has to show that this behavior is persistent or has been repeated over time and a reasonable person in their position would have also felt the creation of a poisoned work environment.

The lesson here for employers is that if your employee reports to you about a poisoned work environment, you should conduct a thorough investigation. If you are an employee who has been exposed to a poisoned work environment and would like to file a constructive dismissal claim, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.

List of Rules Which Apply to Ontario Employers in Cases of Mass Termination

Pursuant to section 58(1) of the Employment Standards Act, 2000 (“ESA”), a mass termination occurs when an employer terminates 50 or more employees at the employer’s establishment in the same four-week period. It is important to provide termination notice to avoid wrongful dismissal. However, this does not apply to a temporary layoff in Ontario due to the Covid-19 pandemic.

a.   Notice to Director of Employment Standards

Employers must submit Form 1 (Notice of Termination of Employment) to the Director of Employment Standards. Notice of mass termination will not be effective until the Director receives the Form 1.

b.   Notice of Termination or Pay in Lieu of Notice

In addition to posting Form 1 in the workplace, employers must provide each employee with individual notices of termination or pay in lieu of notice. Termination pay can be provided as a lump sum payment, which is equal to the employee’s regular wages for a regular work week, including a portion of unused vacation days.

c.   Severance Pay

Employers must provide their employees with statutory severance pay if they are entitled to it. When an employer has a payroll in Ontario of at least $2.5 million, employees with at least five (5) years of service are entitled to severance pay.

However, where employees with five or more years of service are dismissed en masse due to permanent discontinuance of business, they are still entitled to severance pay even if their employer does not have a payroll of 2.5 million or more.

d.   Notice Period Requirements

In mass termination, employers must abide by enhanced ESA notice requirements. In addition to statutory entitlements, employees may also assert a right to contractual or common law notice upon their termination of employment, which depends on the termination provisions of their employment contract. Employees who refuse an offer of reasonable alternative employment may be exempt from receiving notice of termination or termination pay under the ESA.

Enhanced Statutory Notice Period

In mass termination, employers must provide affected employees with enhanced statutory notice of termination, which is determined by the number of employees being terminated rather than the length of each employee’s service. Employers must provide:

• Eight (8) weeks’ notice if 50 to 199 employees are terminated;
• Twelve (12) weeks’ notice if 200 to 499 employees are terminated;
• Sixteen (16) weeks’ notice if 500 or more employees are terminated.

Form 1

The Form 1 (Notice of Termination of Employment) must be given to the Director of Employment Standards on the first day of the statutory notice period. Late delivery of the Form 1 notice will cause the employer to lose credit for statutory working notice given before the Form 1 is delivered. Despite that the Form 1 must be posted in the workplace throughout the statutory notice period, the employer still has the obligation provide each individual employee with written notice of termination.

Working After the Initial Termination Date

Employers are allowed to provide temporary work to employees without providing a further notice of termination, if this temporary work is within 13 weeks after termination date specified in the original notice. This exemption only applies to a single period of temporary work, not multiple extensions. A fresh notice is needed if temporary work exceeds 13 weeks post termination.

Resignations

In mass termination, if employees have already received statutory working notice but want to resign before the termination date, they must give

• One (1) week’s notice if the employee has less than two (2) years of service;
• Two (2) weeks’ notice if the employee has at least two (2) years of service.

Once an employee resigns, they are not entitled to pay in lieu of the balance of working notice.

Exceptions

The mass termination provisions do not apply if

• The number of employees whose employment is being terminated is 10 percent or less of the employees who have been employed for at least 3 months at the establishment; severance pay applies to employees who have been employed with the same employer for a specific duration;

and

• None of the terminations are caused by the permanent discontinuance of all or part of the employer’s business at the establishment.

Failure to abide by the minimum requirements for these termination provisions under the ESA can incur significant financial consequences for an employer. If you are an employee who is mass terminated, it is also advisable to seek the legal advice of an employment lawyer. No matter you are an employer or employee, top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 225. Such an employee might be owed more even after a working notice period has ended.