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Author: Stacey R. Ball

Workplace Discrimination Ontario: Grounds for Discrimination

by Stacey R. Ball| | 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| | 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.

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.