Author: Stacey R. Ball

From outright discrimination to workplace bullying, employees can be harassed in a number of ways at work. It is important to understand what constitutes harassment and how to handle it if it ever happens to you.

Types Of Harassment

Workplace harassment occurs when a person engages in a number of vexatious and unwelcome comment or conduct towards another person at work. Workplace harassment takes on a variety of forms. It includes but is not limited to insults and slurs, offensive comments or unwanted jokes, physical bullying or aggressive behaviours, and sexual harassment.

A person of any gender can be the victim of the sexual harassment. Sexual harassment in the workplace is not limited to spoken words and physical behaviours such as touching or staring in a suggestive manner. Obscene images, emails and videos sent to a co-worker are also considered as a form of sexual harassment, which creates a toxic work environment.

Steps To Address The Issue

If you think that you are a victim of workplace harassment, you could follow the steps to resolve the issue:

a. Confront the Perpetrator of the Harassment

If you feel comfortable in doing so, the first step to stop harassment is to confront the perpetrator. As the victim is supposed to prove that the conduct was uninvited and unwelcome, it will strengthen your case if you openly tell the harasser to stop their behaviours when they continue to behave inappropriately. However, if you fear for your own safety, it is not wise to confront your harasser directly.

b. Keep a Written Record of the Incident

It is always a good idea to keep a written record of the incident. You should try to write down the details of what happened during the incident rather than document your own personal feelings. You should make notes of when and where you were harassed, what was said or done, any witnesses at the scene, any injuries you had and any steps you took to fix the problem.

c. Report the Incident to Your Employer

Almost every employer in Ontario has to follow the rules in the Occupational Health and Safety Act, RSO 1990 (OHSA) and establish a workplace harassment policy. You should follow the steps in the workplace harassment policy. The policy should give you various options to report the harassment, including the steps of how to file an internal complaint. You can talk with your supervisor or someone in the Human Resources Department about the incident. If you are a unionized employee, you may contact your union. You should explain to them what has happened and ask for help in getting the behaviour to stop. The OHSA protects you from punishment for complaining about the harassment to your employer.

d. Making a Complaint to the Ministry of Labour (MOL)

If your employer fails to ensure that an appropriate investigation is conducted on the incident, you can make a complaint to the Ministry of Labour (MOL). The MOL will send an inspector to your workplace to see whether the way of dealing with harassments by your employer is good enough. It is important to note that MOL inspectors cannot make a decision about your case nor order compensation or other remedies. They can only look to see whether your employer complies with the OHSA. If not, they can order your employer to make, post or change the workplace harassment policy.

e. Making a Complaint to the Human Rights Tribunal

The Ontario Human Rights Code, RSO 1990 prohibits any discrimination or harassment based on a protected ground, such as race, colour, creed, place of origin, sex, ethnic origin, citizenship, sexual orientation, gender expression, gender identity, record of offences, age, disability, religion, ancestry, marital status and family status. If you are experiencing any harassment related to the above protected grounds, you can make a complaint to the Ontario Human Rights Tribunal.

You employer has a duty to create a workplace free from harassment and discrimination. If you have to leave your job or have been fired because of harassment, it is advisable for you to consult a lawyer to get to know your legal rights. Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.

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.