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Author: Stacey R. Ball

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.

Break In Service Time

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

A common issue terminated employees have is that they may have left their employer for a period of time and then rejoined at a later date. It is very important to determine if there has been a break in service as this could drastically change termination entitlements at common law. The Ontario Court of Appeal recently dealt with this issue in the Currie v. Nylene Canada decision.

The Facts and Discussion:

The Plaintiff, Ms. Currie, originally began working with her employer back in 1979. In June 2017, she was advised that she had satisfied the criteria to receive her accumulated pension plan. In order to access those funds, she was required to retire. The employer, Nylene, told her she could retire (to get access to the pension plan), but would then offer her employment following the retirement. Ms. Currie ultimately decided to access her pension plan.

Less than two weeks later, Ms. Currie accepted Nylene’s offer of employment. The offer stated:

  • Your current job responsibilities and reporting relationships will remain the same
  • You will be compensated at your current salary level or rate of pay
  • Your accrued and unused vacation balances, if any, will be recognized
  • You will be eligible to participate in Nylene Canada’s employee benefits plan
  • Your service will be recognized for purposes of determining vesting and benefits eligibility under the Nylene Canada benefit plan.
  • You agree to carry out your work in accordance with the policies and procedures of Nylene Canada. The policies and procedures are available to all employees through the shared file management system.
  • You agree that the wearing of required protective safety equipment and complying with safety rules when called for are conditions of your employment.

In December of 2018, Nylene terminated Ms. Currie’s employment. She was 58 years old at the time of her dismissal.

The trial judge awarded Ms. Currie damages based on a period of reasonable notice of 26 months. Nylene then appealed the decision to the Ontario Court of Appeal. Nylene argued that the trial judge erred in using the period of time from 1979 until 2018 as her total service time. They submitted that her June 2017 retirement constituted a break in service of her employment. The rehiring through the June 2017 employment letter reset her years of service clock back to zero.

The trial judge did not agree with Nylene’s argument that there was a break in service with the retirement and subsequent rehiring. He stated reasons such as:

  • Currie’s employment record did not acknowledge an alleged retirement;
  • Currie did not provide any notice of resignation or retirement;
  • Currie relied upon the company’s representation that everything would remain the same when she signed the June employment letter;
  • Currie was told if she accessed her pension, nothing in her employment would change, and
  • Currie was not prepared to stop working but opted to sign the documents prepared by Nylene only after her employer approached her and informed her of the pension entitlements.

The Court of Appeal agreed that, given the findings of fact, it was acceptable for the trial judge to conclude that the retirement/rehiring process proposed by Nylene for the limited purpose of accessing her pension plan did not affect her years of service. As a result, the Court of Appeal agreed with the trial judge that a 26-month reasonable notice period was warranted. She worked for the employer for 40 years, from the age of 18 until 58. She had limited education and specialized skills that made it very difficult to find comparable employment. Thus, a 26-month reasonable notice period was justified.

Main Takeaway

Even accounting for the other factors, Ms. Currie would not have received 26 months but for the trial judge concluding there was no break in service time due to the retirement/rehiring process that took place in June 2017. Had there been deemed a break in service, the notice period awarded would have been substantially less.

New Minimum Wage Law in Ontario

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

The minimum wage is one of the most talked about employment laws, as it is something that overtly affects so many people in Canada. Depending on what province you are in and on your employment contracts, you may have a different minimum wage compared to Ontario (which is the focus of this post).

As of October 1st, 2022, a new law took effect in which increased the Ontario general minimum wage from $15 per hour to $15.50 per hour. It is an increase of 3.33%, which is to help mitigate the impact of rising costs of living and inflation. Some of these costs include the fundamentals such as housing, food, clothing, transportation, and childcare.

This minimum standard (along with all other minimum employment standards) is set out in the Employment Standards Act (ESA), and its corresponding regulations. However, it is important for both employers and employees to understand that the general minimum wage does not apply to all ‘minimum wage workers’. There are other special categories of employees who have different minimum wage rates. Section 23.1(1) of the ESA states the special category employees and their corresponding minimum wage rate:

  • Students under the age of 18 years old who work less than 28 hours per week during the school year, or work during the summer break
    • $14.60 per hour (previously $14.10 per hour)
  • Hunting and fishing guides who work less than 5 consecutive hours per day
    • $77.60 per hour (previously $75 per hour)
  • Hunting and fishing guides who work 5 or more hours per day (consecutive or not)
    • $155.25 per hour (previously $150.05 per hour).
  • For employees who are homeworkers (note: homeworkers who are under the age of 18 must be paid the homeworker minimum wage, not the student minimum wage)
    • $17.05 per hour (previously $16.50)

Also notable (although it is not new law) is that there are a number of exceptions to minimum wage laws. The following is a list of practitioners who are exempt from minimum age (among other employment standards):

  • Architects and architecture students
  • Lawyers and law students
  • Professional engineers and engineering students
  • Accountants and accounting students
  • Surveying and surveying students
  • Veterinarians and veterinarian students
  • Chiropodists and chiropodist students
  • Chiropractors and chiropractor students
  • Dentists and dental students
  • Massage therapists and massage therapist students
  • Physiotherapists and physiotherapist students
  • Doctors and medical students
  • Optometrists and optometry students
  • Pharmacists and pharmacy students
  • Psychologists and psychologist students
  • Naturopaths and naturopathy students
  • Teachers and teachers in training
  • Commercial fishers
  • Real estate salespeople and brokers
  • Farmers whose employment is directly related to the primary production of
    • Eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, game birds, wild boar, cultured fish

Whether you are an employer or employee, if you are working in one of these positions, it is important to understand the general $15.50 minimum wage does not apply to you or your employees.

Three-Dose Vaccination Policy is Reasonable According to Arbitrator

by Stacey R. Ball| | General

According to our wrongful dismissal lawyer in Toronto, there is a growing list of decisions in the labour context that support an employer’s decision to mandate COVID-19 vaccination. Recently, another arbitrator has ruled in the employer’s favour with regard to vaccine policies.  However, this time there is an added wrinkle. In Regional Municipality of York v Canadian Union of Public Employees, Local 905 (Long Term Care Unit), an arbitrator ruled that a mandatory three-dose vaccination policy was reasonable.

The Regional Municipality of York (the “Employer” or “York Region”) is in charge of the operation of two long-term care homes (“LTC Homes”). CUPE, Local 905 (“the Union”) represented the LTC Home employees.

COVID-19 has had a significant impact on long-term care homes throughout Ontario, Canada and the rest of the world. Not only because it is a congregate setting (where spread of COVID-19 is more likely) but also because older individuals and those with underlying health conditions are much more susceptible to serious disease, and death, as a consequence of contracting the virus. In the agreed statement of facts, it was acknowledged that the consensus among experts is that vaccination is the best way of keeping people safe from infection and that a third shot substantially improves the immune response to prevent infection and severe disease.

Originally, York Region had only mandated a two-dose policy for their LTC Home workers. However, when the newer variant (Omicron) began to spread in late 2021, it was decided based on scientific evidence that a booster dose was important to restoring effectiveness. Therefore, the Employer sent out a memo to all staff advising of a new policy, making three doses mandatory by January 28, 2022. In June of 2022, the Union filed a grievance against this policy.

Discussion:

The Arbitrator had to determine whether the Employer was permitted to unilaterally impose a vaccination policy in the workplace. The Arbitrator applied the KVP test to come to a decision. He dealt specifically with these three issues:

  • Is the policy inconsistent with the collective agreement?
  • Is the policy reasonable?
  • Failure to consult the Union on the policy.

The Arbitrator agreed with York Region and found that the policy was consistent with the collective agreement. Article 11.1 of the agreement sets out principles such as the Employer being committed to protecting its employees from occupational disease, promoting a safe and healthy work environment, and employees must protect their own health and safety by complying with laws, safe work practices and procedures that are established. In reading the collective agreement, one might conclude that it actually puts an obligation on the Employer to take precautions for employee health and safety by imposing a vaccination policy.

Previously, a Provincial Directive required employers to have a three-dose vaccine mandate, which was then revoked in March of 2022. The Union argued that this fact alone made the York Region policy unreasonable. However, the Arbitrator stated that the absence of a Directive from the province on making it mandatory does not make it unreasonable. He cited that even though the Directive was no longer effective, advisory bodies in Ontario were still seriously advocating for workers in LTC Homes to be vaccinated. The Arbitrator felt the Employer had to create a mandatory vaccination policy because of the principles in the collective agreement, and scientific evidence from the Ontario Science Table.

As for the lack of consultation with the Union before announcing the policy, the Arbitrator held that he had no power to censure York Region for this, because the policy did not violate the collective agreement. Only if a provision was violated, could the Arbitrator rule in the Union’s favour on the subject of consultation.

Lesson Learned from the Decision:

For the most part, arbitrators continue to accept mandatory vaccination as being a reasonable policy. Moreover, some unions may have an even more difficult task arguing against such policies if their workforce is working in congregate settings or in places with a vulnerable population, as was the case here. Employers and unions should continue to monitor vaccination policy decisions in the coming months.

Illegal Termination Clauses and Fixed Contracts

by Stacey R. Ball| | Employment Contracts

Almost all employment contracts include a termination clause. Yet, not all termination clauses are enforceable. The consequences of this can be severe for an employer. This is well exemplified in the 2022 Ontario Superior Court decision, Tarras v. The Municipal Infrastructure Group Ltd.

Background:

In late 2019, Plaintiff, Mark Andrew Tarras, agreed to a three-year, fixed-term employment contract with Defendant, The Municipal Infrastructure Group Limited (“TMIG”), which made him a Vice-President. In November of 2020, Mr. Tarras was dismissed without cause, effective December 31st, 2020. This meant his salary and benefits were terminated as of December 31. The focus of this case was the provisions in his termination clause, as well as the question of a fixed-term contract.

The Termination Clause:

In Ontario, the Employment Standards Act (“ESA”) sets out minimum standards that an employer must meet. The employer and employee cannot contract out of these standards, even if they’ve agreed to do so. Any provision that contracts out the minimums set out in the ESA is simply void.

The Ontario Regulation that was enacted pursuant to the ESA provides in two different sections that there is no entitlement to notice of termination or severance pay for an “employee who has been guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer.”

The ESA standard is considered to be a higher bar for termination for cause than the common law meaning of cause. The wording used in the termination clause in this decision, does not meet to the standard required by the ESA. Ontario courts have repeatedly found that if a specific provision does not meet the legislated minimums, it will render the entire termination clause void. Therefore, even though the Mr. Tarras was dismissed without cause, the legality of the entire termination clause is called into question due to the illegal termination ‘for cause’ provision.

The sophistication level of the parties also does not matter when it comes to the requirement of meeting minimum standards. In this case, both parties co-authored the drafting of the agreement, and the plaintiff had legal counsel throughout. However, having a good understanding of the law does not allow one to contract out of minimum employment law standards. Even though both parties drafted the agreement together, their language did not meet the ESA standard of ‘cause’ which requires wilful misconduct.

Thus, the termination clause is unenforceable due to the ‘cause’ provision falling short of the minimum standards set out in the ESA. It did not matter that the parties co-authored the agreement, nor did it matter that the Plaintiff had legal counsel. The parties may have met the common law standard, but they did not meet the ESA requirement.

Fixed-Contract and Illegal Termination Clauses:

Once it was established that the termination clause was unenforceable, the court had to determine what the appropriate notice period was. To do so, there had to be a decision on whether this employment agreement was a fixed-term contract or not. The agreement in this case provided for “a term of three (3) years” with an end date of December 2, 2022. Thus, the court decided it was an unambiguous, fixed-term agreement.

If there is an unenforceable termination clause in a fixed-term employment contract, the employee will be awarded damages at common law. In 2016, the Court of Appeal found that:

In the absence of an enforceable contractual provision stipulating a fixed term of notice, or any other provision to the contrary, a fixed term employment contract obligates an employer to pay an employee to the end of the term, and that obligation will not be subject to mitigation.

As the Court of Appeal also pointed out, the entitlements to the employee are not subject to mitigation. Dismisses employees have no duty to mitigate if they are terminated from a fixed-term contract.

Takeaway:

In summary, Mr. Tarras was dismissed without cause, but because the ‘cause’ provision only met the common law standard, not the ESA standard; it rendered the entire termination clause unenforceable. Therefore, the Plaintiff was entitled to common law notice, which in the case of a fixed-term agreement, is the remainder of the contract. Ultimately, Mr. Tarras was awarded the balance of his deal – 23 months’ salary – which amounted to $479,166.67.

Return to Office Looms – What Employers and Employees should know

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

Now that Labour Day has passed, the expectation is that more Employers will continue to request that their employees return to the office. Bay Street law firms, big banks and companies such as Apple have announced that their employees will be returning to the office in a hybrid format. While not every company will require its employees to return to the office, more and more companies are using this fall as the chance to bring workplaces back closer to the way they were prior to the pandemic. As such, it’s important for employers and employees to understand their legal rights on the issue, and that is why our wrongful dismissal lawyer Toronto would like to share his opinion on the topic.

Advantages and Disadvantages of Working from Home

According to a survey done earlier in 2022, only 12% of respondents said they prefer going into the office full-time. Working remotely (30%) and splitting time between the office and home (27%) received significantly more support. Employees who prefer the remote working experience cite benefits such as the absence of a daily commute, additional flexibility, and a generally improved work-life balance. Some common complaints employers have of a remote workplace is that there is less collaboration in the office and that it’s harder to build a workplace culture that many employers desire.

Legal Rights

Regardless of where you stand on the work-from-home debate, it is vital that employers and employees understand what their legal rights are on the issue. The question that many employees and employers are asking now is: can an employee be required to return to the office? Generally, the employer does have the right to require employees to return to the office. This rule is specifically applicable to employees who were hired before the pandemic, worked in the office, and then worked from home during the pandemic. An employer should have no legal issue recalling these workers.

However, the answer may also depend on the terms of the employment contract. If there is a term in the contract that stipulates the employee can work remotely, then the employee can remain working from home.

While the general rule is that an employer can require an employee to return to the office, a complication is if there is no term regarding work location in the contract for employees who were hired during the pandemic. This employee may have a better argument for remaining at home if their expectation was to remain a remote employee regardless of COVID-19. This is an example of an implied term, where even though it was not expressly dealt with in the employment contract, it has legal effect.

Another example of an implied term is if the employer allows employees to work from home long after the legitimate safety concern due to covid-19 is over. At that point, remote work may be considered to be condoned by the employer, thus making it an implied employment contract term.

Some employees may get medical exemptions to stay away from the office, which could be difficult to attain. Similarly, living with a family member who is highly vulnerable to COVID-19 may allow for accommodations to work from home. However, it is important to note that a general fear of the virus is not enough to get an exemption or accommodation of any kind.

Main Takeaway

Ultimately, if an employer does have the legal right to implement a return to office policy, an employee’s failure to comply could result in a deemed resignation. This is why it’s important to understand your legal rights on this issue, regardless of whether you are an employee or an employer.

A reminder that this blog is only to be used as general information, and it does not constitute legal advice. If you would like to better understand the legal rights in your situation, please feel free to contact our firm.

Reprisals under the Occupational Health and Safety Act: Presumptive Remedy for a Retaliatory Discharge is Reinstatement

by Stacey R. Ball| | General

What is the remedy for a retaliatory discharge due to an employee raising a health and safety issue? Thompson v. 580062 Ontario Inc. (Slainte Irish Gastropub) provides the answer.

The Facts

Ms. Haley Thompson – a restaurant employee – arrived early so she could eat prior to the commencement of her shift. The owner and her employer, Mr. Ceppetelli, asked a co-worker to bring Ms. Thompson to him. When she met with him, Mr. Ceppetelli yelled at her, called her rude names, and used inappropriate language. When Ms. Thompson decided to leave the restaurant, Mr. Ceppetelli grabbed her arm and pushed her towards the door. Ms. Thompson was in a state of shock, and left the restaurant.

Ms. Thompson reported the incident to her manager before the work shift began. After assurance that Mr. Ceppetelli would not be there, Ms. Thompson decided to go back to the restaurant and complete her shift. When the next shift schedule was released, Ms. Thompson was not on it as Mr. Ceppetelli’s requested she be removed. Believing she was suspended, she wanted a detailed suspension letter. No such letter was ever received. Moreover, the employer never scheduled Ms. Thompson again.

Ms. Thompson reported the incident to the Ministry of Labour a few days later. She also complained of workplace violence and harassment to Mr. Ceppetelli and requested a copy of the employer’s formal policy on workplace violence and harassment.

Ms. Thompson subsequently filed an application pursuant to section 50 of the Occupational Health and Safety Act (“OHSA”).

Analysis:

Section 1(1) of the OHSA defines workplace violence as:

(a) The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker,

(b) An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker,

(c) A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

The language of the workplace violence definition is purposely made to be broad. The intent of this was to prevent or deter physically dangerous activity in the workplace. Even though Ms. Thompson was not physically injured after the altercation, the act of grabbing her arm and pushing her was deemed to be “the exercise of physical force by a person against a worker, in a workplace, that… could cause physical injury to the worker.”

The OHSA also stipulates that an employer must prepare a policy with respect to workplace violence. Ms. Thompson was entitled to request a copy of this policy from her employer, and was entitled to receive these documents under subsection 32.0.5(2) of the OHSA.

Ms. Thompson’s initial complaint to her manager, a further complaint to Mr. Ceppetelli, a request for the workplace violence policy, and a formal complaint to the Ministry of Labour, all constitute attempts to exercise her rights under the OHSA. By not scheduling Ms. Thompson after she exercised said rights, the employer’s actions violated section 50 of the OHSA. The presumptive remedy for a reprisal in violation of section 50 of the OHSA is reinstatement of the terminated employee and backpay from the date of the dismissal to the date of the reinstatement.

However, due to the workplace violence issues, Ms. Thompson and the Board both felt reinstatement was not viable. Instead Ms. Thompson was entitled to damages for loss of employment during the period she was not earning income.

Main Takeaway:

The presumptive remedy for a retaliatory discharge due to an employee exercising rights under the OHSA is reinstatement plus backpay from the date of the discharge to the date of the reinstatement.

The Impact of Poor Mitigation Efforts for Notice Awards

by Stacey R. Ball| | General

If you’ve lost your job recently, it is strongly recommended to maintain a log of your efforts to find new employment. This could help you avoid the same fate as the Plaintiff from the recent Toy v. 0954516 BC Ltd., decision. Unfortunately, Mr. Toy did not mitigate his losses by taking reasonable steps to find similar or comparable employment. As a result, his notice entitlements were reduced accordingly.

Toy v. 0954516 BC Ltd: The Facts

The Plaintiff, Mr. Sidney Toy, was employed as a fuel and scale attendant with the Defendant at Vedder’s Liquefied Natural Gas Station (“Vedder”) when he was dismissed without cause in late December 2020. He was employed with Vedder for approximately 5 years and was 61 years old when he terminated. Following his wrongful dismissal, Mr. Toy sued Vedder for damages in lieu of notice. Justice Walkem then needed to determine the appropriate length of the notice period, and, significantly for this discussion, whether Mr. Toy’s mitigation efforts to find comparable employment were adequate enough.

Mr. Toy’s duties involved refuelling trucks and other vehicles, yard cleaning, customer service of trucking customers, invoicing customers and data entry. Vedder argued that these duties provided Mr. Toy with skills that were highly transferrable to other retail and administrative positions. Vedder also argued that comparable jobs were readily available.

Mr. Toy gave evidence that he only applied for 3 jobs that he found on the internet and in newspaper:

  • Friesen Group warehouse worker (interviewed but not hired);
  • Johnston’s Meat warehouse worker (interviewed but not hired); and
  • McDonald’s crew member (did not hear from them after the application).

In March of 2022, Mr. Toy was finally able to secure employment as a security worker. He did not earn any other income from when he was laid off in December of 2020 to this point.

Analysis

The purpose of reasonable notice is to provide the employee with a fair opportunity to find similar or comparable employment. The dismissed employee then has a duty to mitigate their losses by actively seeking out similar employment. If a dismissed employee fails to take reasonable steps to mitigate their losses, notice entitlements may be reduced.

Vedder argued that there were similar employment positions readily available for Mr. Toy that he should have applied for. Vedder listed “chicken catcher”, “power washer”, general labourer”, “painter”, or “bricklayer”, but these jobs do not necessarily align with his skills he learned while employed with the Defendant. Justice Walkem quipped that she does not envision Mr. Toy – who is 62 years old – pursuing the profession of chicken catcher.

However, simply because a job requires less formal training or education, and may be considered unskilled, does not mean that employee should have to apply for any unskilled position. There must be some relevance, or match in skillset to the position.

As stated above, Mr. Toy only applied for 3 jobs following his dismissal. Vedder argued that this level of effort was not reasonable, stating his job search efforts were “non-existent.” Justice Walkem noted that the number of applications is not the only way to measure the job search effort level. It cannot be the sole determinant on which reasonableness is judged. However, while the number of applications is not the only measurement for reasonableness, merely making 3 applications was not enough in these particular circumstances. Justice Walkem also believed a few computer searches and driving around nearby looking for available employment was insufficient. Had he more actively searched for comparable work, Mr. Toy would likely have secured employment earlier than March of 2022.

As such, Mr. Toy did not take active steps to search for reasonably similar employment.

The Order and Main Takeaway

Mr. Toy failed in his duty to mitigate his losses following dismissal by not taking active steps to search for reasonably similar employment. As a result, the notice period awarded to the Plaintiff was reduced from 5.5 months, to 3.5 months (2-month reduction for lack of mitigation efforts).

This decision is a good reminder to dismissed employees to ensure they are making reasonable efforts to search for similar employment and to keep a log of their attempts.

Compensation in Lieu of Reinstatement: Notice Model or Economic Loss Approach?

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

In an unjust dismissal case, the presumptive remedy an adjudicator can award is reinstatement with back pay. However, under certain circumstances, the adjudicator may decide that returning the employee back to the workplace is unwise. Therefore, the award can be compensation in lieu of reinstatement. In such cases, how are the damages calculated? This is the question that has been put in front of adjudicators, including in the case discussed below.

Szabo v. Canadian Pacific Railway Company (CP): The Facts

Mr. Szabo was dismissed by Canadian Pacific Railway on April 25, 2020, following an incident a couple of weeks prior that was considered to be a serious safety infraction. Mr. Szabo’s role was that of terminal trainmaster at Kipp Yard in Lethbridge, Alberta. This meant he was responsible for the safety of all the trains coming through his yard. The serious safety infraction that ultimately led to his dismissal was Mr. Szabo failing to inspect the brakes on the rail cars, as was required. Once it was confirmed to him that no previous inspection took place, he failed to stop the train after it had left his station to ensure the proper inspection took place.

Both parties agreed that the failure to inspect the brakes took place. However, Mr. Szabo did not want to take responsibility for the event, as he believed it was the responsibility of others, which was not the case. Mr. Szabo also had previous disciplinary issues, but nothing related or close to the seriousness of this particular infraction.

Adjudicator Decision to Adopt Economic Loss Model

Adjudicator Asbell ultimately decided Mr. Szabo was unjustly dismissed from his role at CP. Due to an irreparable breakdown in the relationship between the two parties, reinstatement is no longer feasible. As such, Mr. Szabo is to be made whole for the period from the date of his dismissal to the date of the award. In other words, he is to be compensated for all the money and benefits he would have earned during that period. However, to be subtracted from that figure is the amount of money he would have lost due to the disciplinary actions from his infraction.

The second part of the compensatory package Mr. Szabo was awarded relates to the monies in lieu of reinstatement from the date of the award and beyond. Section 242(4)(c) of the Canada Labour Code also enables an adjudicator to award any equitable remedy to counteract all the losses due to the dismissal. In this case, that means Mr. Szabo is entitled to an equitable remedy: monies in lieu of reinstatement. While this is not a case involving a unionized worker, the Supreme Court of Canada stated in the landmark Wilson decision that the remedies in the unjust dismissal context should reflect the remedies enjoyed by employees in the collective bargaining realm.

The two approaches to calculating damages in scenarios where reinstatement is not an appropriate remedy for an unjust dismissal are: the “notice model” and the “economic loss model”. The notice model is used by the courts in wrongful dismissal cases, which is based on a formula tied to the number of years of service the employee had. It also takes into account the “loss of protections and rights that would have otherwise continued under the collective agreement”. The second approach is the economic loss model, otherwise known as the fixed-term approach. It attempts to quantify damages based on the importance of security of tenure in the unionized sector and the guarantees normally associated with holding a unionized position.

In this decision, Adjudicator Asbell determined that moving forward, calculating damages in lieu of reinstatement under the Code would be done by the economic model approach. Even though non-union employees under the Code are not subject to a collective agreement, they should receive similar protections and security. Using the economic model approach, adjudicators will more properly value the losses experienced by employees due to their dismissal. The damages will assume the employee will remain in their job until their expected retirement date, subject to contingencies, such as, but not limited to:

  • The employee’s age;
  • Their tenure and position with the employer;
  • Current state of health;
  • Projected length of time before retirement;
  • Likelihood of employee being dismissed by the employer for cause in the future based on their prior conduct and behaviour;
  • Likelihood of early retirement;
  • Changes in career path given job and educational levels.

The Order:

Using the above factors, Mr. Szabo was considered fairly likely to be dismissed within the next 12-16 months had he been reinstated. Therefore, Mr. Szabo’s total award was an order for back pay for lost wages and benefits from the time of dismissal to the award, in addition to damages in lieu of reinstatement for the 16 months following the order.