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Author: Stacey R. Ball

Nepotism in the Workplace

by Stacey R. Ball| | General

A controversial subject in the workplace is nepotism. This article from our wrongful dismissal lawyer in Toronto will answer some questions on the topic including:

  • What is nepotism?
  • What are some examples of nepotism?
  • Is nepotism legal?
  • What are some problems with nepotism in the workplace?
  • How can nepotism be avoided?

What is Nepotism?

The Oxford definition of nepotism is “the practice among those with power or influence of favouring relatives, friends, or associates, especially by giving them jobs.”

This means that qualifications and/or ability are secondary to relationships between individuals. In effect, it can be the opposite of meritocracy.

What are Some Examples of Nepotism?

Nepotism can take numerous forms. Here are some common examples:

  • Hiring a family member or friend rather than a more qualified applicant;
  • Giving a family member of a friend better working conditions;
  • Providing raises, bonuses or other benefits to a family member or friend instead of a more accomplished, deserving employee;
  • Not disciplining a family member or friend for the same wrongdoing another employee was disciplined for.

Is Nepotism Legal?

There are no laws in Ontario (statutory or common law) that prohibit nepotism. That means an employer accused of nepotism isn’t doing anything illegal, even if it is arguably unethical. Moreover, the Ontario Human Rights Code specifically states that it is not a violation of the Code to give benefits to a family member in the employment context. While it may be a poor business decision to promote a spouse, child, friend, etc., it is not illegal.

One instance where an employee may be able to sue an employer for nepotism is if there is an anti-nepotism policy in the workplace, and the employer failed to abide by it. Otherwise, there are very few instances in which suing an employer for nepotism will be successful.

What are Some Problems with Nepotism in the Workplace?

Even though nepotism is not illegal, it can still pose problems for the workplace. Some of these problems include:

  • Non-family or friends in the workplace may harbour bitterness towards the employees benefiting from nepotism, which can upset a good workplace culture;
  • Nepotism can reduce employee morale if non-family members feel less valued;
  • The emotional ties between employees may result in biased decision-making;
  • Granting employment, promotions, raises, etc. based on nepotism rather than qualifications and ability can result in bad business decisions;
  • Nepotism can result in a conflict of interest;
  • Non-family and friends may not work as hard because they believe the promotion, raise, etc. will instead be given to an employee based on nepotism;
  • Nepotism can damage an employer’s

How Can Nepotism be Avoided?

There are numerous ways in which a workplace can avoid nepotism. Ultimately, it depends on the people in charge.

As stated earlier, a written policy on anti-nepotism may hold those in charge accountable. Should the employer break its own policy, an employee may be able to sue.

Another way for an employer to avoid nepotism is to ensure if they are hiring or promoting family members, they have:

  • The appropriate education required for the role;
  • Prior work experience;
  • An open position in the business which matches the family members’ educational and employment background.

Notice Award Greater than 24 Months

by Stacey R. Ball| | Cause For Dismissal| | Wrongful Dismissal

When an employee is terminated without cause, they are offered a severance package. While many people believe that common law notice is generally one month per every year of service, this is not entirely accurate.

In determining what the common law notice period is, a court will use, but is not necessarily limited to, the following factors:

  • Character of the employment
  • Length of service
  • Age
  • Availability of similar employment, having regard to the experience, training and qualifications of the employee
  • Economic factors (downturn in the economy or in a particular industry or sector of the economy)

None of the factors are to be more heavily weighted than the others. They should all be considered equally when determining what reasonable notice is in the circumstances. This method of determining reasonable notice has been used since the Bardal v. Globe & Mail Ltd. decision in 1960.

Notwithstanding the existence of a legal termination provision in the employment agreement which limits severance to the minimums set out in the Employment Standards Act (ESA), common law notice is generally limited to 24 months. However, there are exceptions in which notice awards given to employees are greater than 24 months. In early 2023, the Milwid v. IBM Canada decision was released. Here, the Plaintiff received an award for reasonable notice above the soft cap of 24 months. He received 27 months based on a number of factors.

Milwid v. IBM Canada Ltd., 2023 ONSC 490:

In awarding a notice period greater than 24 months, the court needed to provide reasons which show why the circumstances in this case were exceptional.

Firstly, the COVID-19 Pandemic was a relevant factor. While it is not sufficient on its own to bring an award past the 24 month threshold, it is significant enough to be considered in the determination.

Secondly, the court considered the typical Bardal factors:

Character of Employment

The Character of Employment Bardal factor is an exception to the rule. Over time, it is considered to be of declining relative importance. This is particularly true if an employer attempts to use the character of employment to say an unskilled employee deserves less notice because they may have an easier time finding new employment. Here, the Employer argued that the non-executive status of the Plaintiff was a reason for finding a lesser notice period award. The court disagreed based on the reasoning above.

Compensation

The Plaintiff was well compensated in his position with the Employer. This includes a substantial average annual compensation as well as possible equity participation in the Defendant’s company. These factors are relevant in determining notice. Having a compensation package such as this will likely be difficult to find in future employment. Thus, the court weighed this factor in favour of a longer notice period.

Age

The Plaintiff was nearly 63 years of age when he was dismissed from his position. The older an employee is, the more difficulty that person will have in finding comparable employment. The court found the Plaintiff’s age to be a relevant factor which weighed in favour of a longer notice award.

Length of Service

An employee’s length of service is a relevant factor as well. In this case, the Plaintiff spent most of his adult life working with the Defendant. Overall, he had 38 years of service. This again weighed in favour of a longer notice period.

Main Takeaway: No Upper Limit in Reasonable Notice Awards

As established in the case law, there is no absolute upper limit on reasonable notice awards. Therefore, based on all the relevant factors including service length, job, salary, age, and the additional factor of the Pandemic, the “soft cap” limit of 24 months was surpassed and the court felt that his 38 years of service, advanced age, substantial compensation package and the lockdowns during the Pandemic all provided enough reason to award 27 months’ notice.

This case shows both employees and employers that when the factors predominantly weigh towards a lengthier notice period, an award over 24 months is certainly possible.

Notice Summary:

Notice AwardedService LengthJobSalaryAgeAdditional Factors
27 Months38 yearsBand 10 Offering Manager$169,695.00 per annum62Plaintiff was terminated immediately before the COVID-19 Pandemic

Is CERB Deductible from Wrongful Dismissal Damages?

by Stacey R. Ball| | Cause For Dismissal| | Constructive Dismissal| | Wrongful Dismissal

To help millions of Canadians, the Federal Government started the Canadian Emergency Response Benefit (CERB) program, which provided recipients with funding while they were unable to go back to or find new work.

A portion of the CERB recipients was also terminated. When an employee is terminated and provided a severance package, there can be an obligation to find new work and deduct the new income from what is owed by the former employer. This is known as the duty to mitigate damages.

With employees who collected CERB being terminated, employers were claiming that their CERB payments should be deducted from their damages because it replaced their employment income. As this is a novel issue, there was no case law that could guide the courts on how to react to these claims.

However, in late 2022, the British Columbia Court of Appeal (BCCA) delivered a powerful answer. Then, in January of 2023, the Alberta Court of Appeal (ABCA) followed suit with a decision which agreed with the BCCA.

The British Columbia Decision: Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398

The BCCA held that CERB payments received by terminated employees are not deductible from wrongful dismissal damages. The windfall should be for the benefit of the employee, not the employer.

The court reasoned that CERB payments are similar to unemployment insurance benefits. However, the difference is unemployment insurance is made possible as a consequence of the contributions from the employer throughout the employment relationship. CERB does not have to do with the employer or the employment relationship.

Whether the recipient had to pay back CERB or not is not a concern of the employer. CERB is a matter between the recipients and the authorities administering the emergency measure scheme.

The appeal court further stated that:

“CERB was an emergency measure delivering financial aid during the early weeks and months of an unprecedented global pandemic. The program’s goal was to mitigate harm to individuals in a moment of great uncertainty. CERB payments notwithstanding, many people lost their livelihoods as a result of the pandemic. It strikes me as out of step with that reality to conclude that the combination of CERB and damages awards leaves individuals “better off” after their employment was terminated than before.”

In other words, the court decided, for social policy reasons, that it was unfair to assume individuals who collected CERB and damages for wrongful dismissal were better off compared to before their termination.

The Alberta Decision: Oostlander v Cervus Equipment Corporation, 2023 ABCA 13

The ABCA was the second appellate court in Canada to deal with the matter of CERB deductibility. The court here followed the reasoning of the BCCA, holding that the CERB payments were not to be deducted from the wrongful dismissal damages award. It agreed with the broader policy considerations that militate against the deductibility of CERB.

Much like the BCCA, the ABCA moved away from the approach of determining how likely it was that the employee would ultimately have to pay back the CERB payments. This is considered a fruitless exercise. Instead, the court here similarly focused on the social policy and the fact that CERB is not an employer/employee relationship issue but rather a matter between the recipient and the authorities administering the scheme.

Main Takeaway:

Both wrongful dismissal cases dealing with the issue of CERB deductibility that has reached an appellate court in Canada have decided in favour of not deducting CERB from awards. This is a significant development. Lower courts in both provinces will have to follow those rulings, and it will be persuasive to courts in other provinces dealing with the same issue.

When a Non-Competition Clause is Disguised as a Non-Solicitation Clause

by Stacey R. Ball| | Employee or Dependent Contractor| | Employment Contracts| | Employment Law| | General

It is a commonplace for employers to include restrictive covenants in employment contracts in order to try and protect their business from future competition should the employee. Restrictive covenants are non-competition and non-solicitation clauses. These types of provisions are meant to set limitations on an employee’s ability to compete unfairly with the previous employer.

What are Non-Competition and Non-Solicitation Clauses?

A non-compete clause is used by an employer to stop an employee from working with its competitors after the employment relationship has been terminated by either party. A non-solicitation clause prevents former employees from reaching out to their former employer’s clients and trying to conduct business with them.

Both types of clauses are actually considered unenforceable for being too restrictive and anti-competition. However, both can be enforced if they can protect the employer while infringing as little as possible on an employee’s rights. Of the two, non-solicitation clauses are more likely to be considered reasonably limited in its restrictiveness if drafted properly. For this reason, non-solicitation clauses are preferable to employers.

Employers may word non-compete clauses as non-solicitation clauses (intentionally or unintentionally). The provision may be under the heading of non-solicitation in an employment contract, yet the language of the clause could prohibit competition too generally. Thus, it would be considered a non-compete clause and is highly unlikely to be enforceable.

Court of Appeal Decision: Donaldson Travel Inc. v. Murphy, 2016 ONCA 649

The employee in this decision left her travel agency (former employer) for a new travel agency (new employer). These travel agencies were competitors. The employment contract with the former employer stated:

“[The Employee] agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by [the Employer], directly or indirectly.”

The former employer claimed that the employee was in breach of the employment contract’s non-solicitation clause.

While at first glance, this may seem like a non-solicitation clause, the trial judge held the provision to be unreasonable and unenforceable. The judge found it to effectively be a non-compete clause which was not warranted to protect the former employer’s proprietary interests reasonably. Moreover, there was no temporal limitation in the restrictive covenant’s language, nor was it narrow in scope.

The employee was not just barred from soliciting clients from the former employer but also could not accept business with the clients regardless of what type of business was involved or if the employee even had any contact or involvement with them at their previous job. Essentially, the non-compete (masquerading as a non-solicitation clause) was not allowing the employee to deal with any of the clients, even if it was completely unrelated to the former employer’s business.

The Court of Appeal agreed with the trial judge’s decision. There was no error made with regard to the finding that the restrictive covenant was an unenforceable, non-competition clause.

What does this Mean for You?

Employers and employees should understand that the restrictive covenants included in employment agreements are considered unenforceable unless they can show it is reasonably restrictive.

If a non-compete or non-solicitation clause is in the contract, the employer should ensure it is as narrow in scope as possible, which may allow for a court to decide it is sufficiently restrictive to protect the employer’s proprietary interests without infringing on an employee’s rights excessively. However, employers should also understand that the most well-drafted non-competition clauses are still only enforceable in limited circumstances. If an employer then tries to hide a non-compete as a non-solicitation provision, that is highly likely to be considered unenforceable by the courts.

Can an Employer Change an Employment Agreement Without Consent?

by Stacey R. Ball| | Cause For Dismissal| | Employment Contracts| | Employment Law| | General

When someone is hired, there is an agreement between the employer and the employee. This agreement sets out the terms and conditions of employment. In simple terms, it outlines the services the employee will provide the employer, and the compensation the employee will receive for providing those services.

The general rule for employers changing the employment contract is if there is a unilateral amendment made, there must be new consideration offered to the employee. This means the employer must give an additional benefit (ex. more money) to the employee for the change.

If an employer changes a fundamental aspect of the employee’s job without the consent of the employee, this can constitute a constructive dismissal. A constructive dismissal entitles an employee to their termination rights, including notice pay.

An employer cannot change the employment duties without the employee having a right to a constructive dismissal claim if:

  • The changes were significant;
  • Changes not agreed upon by the employee;
  • The employer knew the changes would push the employee to quit their job;
  • There were no valid business reasons for the change in role; or
  • The changes were not explained to the employee.

When an employee faces a situation like the above, they have the following options:

  • The employee can consent to the changes explicitly or implicitly by continuing in the role;
  • The employee can reject the changes by leaving, and file a constructive dismissal claim; or
  • The employee can reject the changes and continue in their current role but risk termination if the changes were mandatory for the business.

What if the Employment Contract Allows for the Employer to Make a Unilateral Change?

In the Farber Supreme Court of Canada (SCC) decision, the court dealt with the issue of whether the employer can make a unilateral change to terms of employment if the employment contract language allows for it. Employment contracts are presumed to be between parties with unequal bargaining power. Highly unreasonable contractual terms may be unenforceable as a result. However, the SCC decided that unilateral changes to the terms of employment will not be a change to the contract itself, but rather an application of the contract. The extent of what the employer can change without the employee’s consent will depend on the language of the provision in the employment contract.

In both the Bond and Churchill cases, the court ruled in favour of the employer unilaterally changing the commission structure because the employment agreement permitted adjustments to the employee’s compensation. However, an employer cannot always rely on the language of the employment contract to make fundamental changes to the terms of employment. In the Belton decision, the Ontario Court of Appeal decided on the basis of policy reasons that the employer could not unilaterally change the terms of employment despite the existence of explicit language allowing for it. The court reasoned that the bargaining power between the employee and employer is inherently imbalanced, unlike a commercial agreement, for example.

Main Takeaway

Unless the employment contract states otherwise, an employer cannot unilaterally change the employee’s terms of employment without providing fresh consideration (ex. compensation, reduced hours, new benefits, etc.). If the employee does not accept the unilateral changes, a constructive dismissal claim is possible.

Even if the employment agreement does explicitly provide the employer with the power to unilaterally change the terms of employment, a court may find the clause to be unenforceable if it is too broad in scope. The narrower the clause is, the more likely it is a court will enforce it. The court will consider the nature of the employment relationship, the specific language in the contract, and the significance of the unilateral change in deciding whether the provision is enforceable.

The Future of Remote Employment

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

As the worst of the Pandemic moves further into our rearview mirror, more employers are asking their employees to return to the office either five days a week or in a hybrid model.

Who Can Work Remotely?

Not all employees are capable of working from home. It will depend on the nature of the employment relationship. Some employment contracts for office employees may still require in-person attendance based on the duties they are supposed to carry out (i.e., meeting with clients or organizing office materials).

In many cases, the employment contract will also specify where the workplace location is. Since the emergency aspect of the Pandemic has largely ended, employees that worked remotely may have been recalled into the office. Employers retain the right to recall their employees.

However, should an employer continue to allow its employees to work from home for the foreseeable future, it may not be able to call them back in at a later date. Employers that continue to enable employees to work remotely long after the emergency phase of the Pandemic may be implicitly altering the terms of the employment contract. Thus, they may lose the right to recall the employees back to the office.

Where Can Employees Work Remotely?

It was not uncommon to see employees move farther away from their in-office work location during the Pandemic. Since employees were not required to work in person, they could work remotely from a distance. For some, this meant moving away from the big city to the suburbs. For others, this may have meant moving to a different city, province or even country.

Employers and employees should be conscious of this moving forward. Employment law may differ across various jurisdictions. For example, Alberta employment standards or California employment standards differ from Ontario employment standards. If an employee is working in another jurisdiction, the employer could be bound by those laws. Employers and employees should also be aware of this for tax issues, human rights, and other purposes.

Moving forward, businesses should address permitted work locations in the employment contract to avoid such issues with remote employees if they do not do so already.

Monitoring Remote Workers

Ontario recently introduced new legislation on the electronic monitoring of employees (which you can read more about here). Organizations with 25 or more employees must now have a written policy on monitoring employees electronically. This includes:

  • A description of how the employees are monitored;
  • In what circumstances an employee may be monitored; and
  • The purposes for which the information obtained through electronic monitoring may be used.

Even if the employer is not required to provide a written policy to its employees, it should consider doing so anyway.

With remote work comes the potential for more time theft. This means employees are doing personal things (i.e., watching Netflix) during the hours they are supposed to be working. Employees should be aware moving forward that they may be monitored, even while at home (while using a work laptop, for example). A recent BC Tribunal decision actually required a remote employee to pay their employer $2,600 for time theft which was discovered via electronic monitoring software.

Main Takeaway

There are many aspects employers and employees should take into account when deciding if remote work is right for them. As discussed, not even all types of office employees can work from home. Moreover, both parties should also be aware of jurisdictional issues if the remote employee moves to another province or country. Lastly, employees should be aware of the new legislation on electronic monitoring. Even while working remotely, employees engaging in time theft can be caught and potentially be liable.

For further reading and information on the remote work issue, click here.

Short Service Employees Large Severance Package

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

Employees terminated after being employed for a short period of time commonly believe they are entitled to a small severance package. However, this is not always the case. Under common law, individuals who are terminated without cause must be given reasonable notice or paid in lieu of notice.

Determining how much severance pay one is owed depends on a number of different factors (referred to as the Bardal factors). Importantly, none of the factors are given more weight than the others. Therefore, an employee’s service time may be short, but other factors may result in that employee receiving a large severance package.

Various Factors a Court will Rely On:

An employee’s age at the time of termination is one of the factors. The basic principle is the older a person is, the more justification there is for a longer notice period. Older individuals may have a harder time finding similar employment compared to their younger counterparts.

As already mentioned, the service time is another relevant factor. Generally speaking, the longer someone worked continuously for an employer, the longer the notice period may be.

The employee’s character of employment is also considered. In other words, did they have a high-ranking position in a company that might be difficult to find again.

The level of compensation is relevant too. Again, the higher one’s salary is, the more difficulty they might have found a similar level of pay.

The employee’s ability to find comparable employment considering their education, job qualifications and the current economic climate is also a relevant factor. A recession may mean the employee will have an even more challenging time finding comparable employment. Thus, this may help justify a longer notice period.

Circumstances that May Aid Short Service Employees Obtain Large Severance Packages:

Since service length is not the only factor in determining notice periods, and all factors should be given equal weight, there can be a number of things which while help a short-service employee receive a longer notice period.

The following list is examples of circumstances that will drastically reduce an employee’s chance of finding similar employment:

  • Older age
  • Health issues
  • Recruited by the employer who terminated you
  • Pregnancy
  • Lack of formal education or diverse job qualifications
  • Spending an entire adult life working with the same company

Recent Decision of Humphrey v. Mene:

The Court recently held that a 32-year-old employee who was only employed for three years was entitled to 12 months of severance. The employee had asked for a salary review at the same time as her promotion. In response, the company questioned her loyalty to the company. One month later, she was terminated by the employer “with cause”.

The court decided that she was wrongfully dismissed and was entitled to 12 months’ notice for the following reasons:

  • She was terminated for cause and would have to explain that to future prospective employers;
  • It can be more difficult for women to obtain senior executive positions, especially considering her age of only 32; and
  • She was a high-ranking employee with a managerial role (which helps justify a longer notice period). It is commonly accepted that executives have more difficulty than the average person finding comparable employment.

The case then went to the Court of Appeal, which agreed with the 12-month notice period (but reduced the package to 6 months because the employee did not adequately search for new employment). The Court of Appeal reiterated the fact that all relevant circumstances must be considered, not just the length of service. As the court stated, “because no single Bardal factor should be given disproportionate weight or be treated as determinative, a short notice period of service will not always lead to a short period of notice.”

It would be incorrect for the court to overemphasize the short service time and underemphasize the character of employment and the level of compensation.

Main Takeaway:

Short-service employees may not be entitled to long notice periods. However, as discussed above, there are numerous factors that also must be equally considered. Due to this fact, short-service employees may be owed longer severance than they might originally believe. If you are unsure about your own situation, if you are a recently terminated, short-service employee, please contact our law firm.

Ontario Electronic Monitoring Policy Requirement

by Stacey R. Ball| | General

As of October 11, 2022, all employers in Ontario with 25 or more employees must now have a written policy on the electronic monitoring that takes place. This requirement stems from an amendment to the Employment Standards Act (ESA) earlier in 2022.

Our wrongful dismissal lawyer in Toronto emphasizes that this is an important change for employers to understand. The following will be a breakdown of how it works and if it applies to you.

The Policy Requirement:

The electronic monitoring policy must include:

  • If the employer electronically monitors employees;
  • A description of how the employer monitors;
  • What circumstances the employer may monitor;
  • How any information obtained by the employer through electronic monitoring may be used; and
  • The date the policy was prepared, as well as the date any changes were made to it.

The policy must be made available to every employee within 30 days from the date the employer is legally required to enact such a monitoring policy.

What is Electronic Monitoring?

The ESA does not define what exactly electronic monitoring is. However, the Ontario Ministry of Labour does provide some guidance on the subject. Essentially, electronic monitoring captures any monitoring which occurs electronically on equipment issued by the employer whether it be at or away from the workplace. Electronic monitoring may also apply to employees using personal equipment that is used for work purposes.

Here are some examples provided by the Ministry of Labour of when an employer is monitoring its employees electronically:

  • The employer uses a GPS to track the movement of an employee’s delivery vehicle;
  • The employer uses an electronic sensor to track how quickly employees scan items at a grocery store check-out;
  • Tracks the websites that employees visit during working hours.

What is an Employee?

An individual who meets the ESA definition of an employee is included in the count. This means that all full-time, part-time, and casual employees are included. The Ministry of Labour also provides additional guidance on who may be considered an employee for the purposes of the policy:

  • Homeworkers
  • Probationary employees
  • Trainees
  • Officers of a corporation who perform work or supply services for a wage
  • Employees on a fixed-term contract
  • Employees who are on lay-off, so long as they have not been terminated permanently
  • Employees on leave of absence
  • Employees on strike or locked-out

What is Meant by 25 or More Employees?

The new electronic monitoring policy law also captures more complex workplaces. For example, if an employer has 3 locations which each have 10 employees, that still meets the threshold as the aggregate number is used. That employer employs 30 individuals.

Likewise, there are circumstances where two or more employers may be treated as a related (or a single) employer. Thus, all employees employed in Ontario by these employers will be included in a single count.

Does the Policy Requirement Apply to You?

If the employer engages in electronic monitoring as described above, as well as employs 25 or more people as described above, then a written electronic monitoring policy is required.

Deadline

If you are an employer with 25 or more employees as of January 1, 2022, your electronic monitoring policy was required by October 11, 2022. If you did not meet these criteria, but as of January 1, 2023 you will employ 25 or more people, you must have a written policy by March 1, 2023.

More Information

For more information, please see the Ontario Ministry of Labour website, or contact our law firm for advice.

How Bereavement Leave Works in Ontario

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

An unfortunate part of life is dealing with the passing of family members. Thankfully in Ontario, the law allows employees to take time off during that difficult time. Yet, there are limits to when an employee is entitled to bereavement leave and how much time they are eligible to be absent from work.

The Employment Standards Act, 2000 (ESA) provides in section 50.0.2(1) that employees are entitled to two days of unpaid bereavement leave each year. To receive that entitlement, the employee must have been with the employer for more than two consecutive weeks. Even employees who begin partway through the calendar year have access to two bereavement days. However, employees cannot carry over unused bereavement days to the following calendar year.

Notably, the employee is entitled to bereavement leave right regardless of whether they are employed on a full-time or part-time basis and regardless of the type of employment contract in Toronto they have.

Family Members Covered for Bereavement Leave:

Only the death of the following family members will allow an employee to access the ESA unpaid bereavement leave benefit:

  • A spouse;
  • A parent, stepparent or foster parent of an employee or employee’s spouse;
  • A child, stepchild or foster child or the employee or the employee’s spouse;
  • A grandparent, step-grandparent, grandchild, or step-grandchild of the employee or of the employee’s spouse;
  • The spouse of a child of the employee;
  • The employee’s sibling; or
  • The relative of the employee who is dependent on the employee for care or assistance.

Importantly, the death of a niece, nephew, aunt, or uncle is not covered by the ESA. Therefore, if one of those individuals passes away, the ESA does not provide the employee with job-protected bereavement days.

Employment Contract vs Employment Standards Act:

If the employee has an employment contract which stipulates a greater right or benefit than what is provided in the ESA, then the terms of the contract apply instead of the minimum standard. On the other hand, if the employment contract does not provide a greater right or benefit, then the ESA entitlement for bereavement leave applies.

For example, if an employment contract provides one bereavement day per year, this is a lesser right than what is provided by the ESA. This means that the employee is still eligible to take two job-protected bereavement days per calendar year.

Notice Requirements:

There is a requirement for an employee to provide the employer with notice of bereavement leave. However, this is not always possible. For example, a sudden death may not give the employee enough time to inform the employer about the leave. In such instances, the employee must do its best to inform the employer as soon as possible after starting their bereavement leave.

The notice also does not need to be in writing. Oral notice is sufficient (i.e., a phone call, in-person conversation, etc.).

Proof of Entitlement:

An employee may be asked to provide evidence that is “reasonable in the circumstances” of their eligibility for bereavement leave. The following list includes examples of what is considered sufficient evidence:

  • Death certificate
  • Notification from a funeral home
  • Obituary
  • Copy of the program from a memorial service
  • Communication from a legal office setting up an appointment to discuss estate matters

What is considered reasonable in the circumstances will also depend on the context of the situation. How long is the employee expected to be gone? Is there a pattern of absences? Is there any evidence available? How expensive would it be for the employee to obtain the necessary evidence?

Rights During Bereavement Leave

Employees who are on bereavement leave have the same rights as other employees on pregnancy or parental leave. This means they cannot be terminated, threatened, or penalized in any way while on bereavement.

Federally Regulated Employees Working in Ontario:

If you are a federal employee, you are not covered by the ESA. Instead, you receive protection from the Canada Labour Code (CLC). Under the CLC, an employee is entitled to a leave of up to 10 days which is considerably more than what an employee under the ESA is entitled to. Of those 10 days, 3 of them are paid, unlike the ESA-regulated employee bereavement leave.

Recording Conversations in the Workplace

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

A common question that employees have is if they can record their conversations in the workplace. There are several reasons why one may want to create a recording. One obvious reason is trying to prove wrongdoing by a co-worker, superior or subordinate.

Firstly, you can record conversations with other members of your workplace. The Criminal Code outlines that individuals can record private conversations with other parties as long as one of the parties in the conversation consents to the recording. Therefore, if you are recording a conversation with yourself and a co-worker, your consent alone is sufficient. This is the case regardless of the conversation being in-person, over the phone, or via another medium.

According to our wrongful dismissal lawyer in Toronto, the recording party must also be present in the conversation. You cannot leave a recording device in your boss’s office to attempt to catch him or her “in the act”. Even if you are the topic of discussion between others in a separate room, you cannot record their private conversation.

Some Limitations to Recording Conversations in the Workplace

It is a non-starter to record conversations where confidential information or trade secrets are being shared. The consequences for recording such things can range from reputational damage, work relationships, and trust destroyed to termination with cause. At the very least, recording a conversation which reveals trade secrets or confidential information can lead to disciplinary measures.

Another aspect of recordings in the workplace for people to understand is whether there may be any breach of privacy issues. Capturing videos of others in a more vulnerable state (intimate, without clothing, etc.) can be considered a breach of privacy. The person in the vulnerable position does not need to be one of the parties involved in the conversation. For example, if the video recording between two doctors captures a patient changing, this is also potentially a breach of privacy.

Should you Record your Conversations?

Just because it is legal to record conversations does not mean it is always a good idea. Trust and honesty are key components of an employer–employee relationship. Recording someone without their consent or knowledge can damage that relationship, which may impact your career. It can also affect your reputation inside and outside of your workplace. It is important to be mindful of these considerations.

When Should You Record Conversations at Work?

The reason for creating a recording at work may very well be legitimate. There are several good reasons to record a conversation in the workplace. For example, one may choose to record their conversation upon termination to have a record of what entitlements the employer might have offered. Another reason to record a conversation is if someone in the workplace is spreading inaccurate information about you. A recording of the conversation with that person may prove the inaccurate information wrong. It is helpful in scenarios such as these to preserve a record of mistreatment or abuse in the workplace when there is no other way of showing such evidence.

Other Considerations

You should not edit the recording. Doing so can make it difficult to prove the authenticity of everything said or done in the recording. Individuals should also refrain from recording things that do not apply to them.

Lastly, whether the court will consider your recording to be reasonable also depends on the context of the situation. Questions such as why you made the recording: did you believe it was necessary, and what are your intentions with the recording may all be asked. This will help the court determine if the recording is justified and if your employer may be able to terminate you with cause.