McCarthy Tétrault launched its 14th blog today, Québec Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies in Québec. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Québec marketplace. We encourage you to visit the blog and subscribe for regular updates.
Please note that for the time being, all articles will be published in French only.
Did you know? Employers who unwittingly violate hours of work and overtime requirements of employment standards legislation can be building up huge financial liability.
Although hours of work and overtime provisions themselves may seem straightforward, their practical application can be complicated and confusing. This is particularly true where employee pay is not based on an hourly wage. Several recent cases have shown that where non-compliance is widespread and affects a number of employees, an organization may find itself embroiled in class action litigation.
A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues. First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment. Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period? Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.
Often times by the time the trial rolls around, the notice period has finished. The employee’s damages (i.e. compensation over the notice period less mitigation earnings) have “crystallized”. The employer can test the employee’s mitigation efforts in Court. However, what happens when a judge determines the notice period at a time when the majority of the notice period has yet to run its course? With summary judgement procedures becoming increasingly (and properly) used by Plaintiff’s counsel in achieving a quick hearing date, this issue has increasingly come before the Courts.
Consultations are now underway as part of the Ontario Ministry of Labour’s (“MOL”) Changing Workplaces Review.
Announced in February, the MOL has indicated that the Changing Workplaces Review will focus on potential changes to Ontario’s Employment Standards Act, 2000 and the Labour Relations Act, 1995. This review is part of the MOL’s broader mandate to implement employment and labour law reforms in their effort to strengthen protections for vulnerable workers and support businesses in today’s evolving economy. Specifically, the Changing Workplaces Review and consultations seek to address: Continue Reading
Human rights applications can be frustrating for employers. As even frivolous cases must usually go to a hearing in order to be dismissed, employers are forced to incur substantial costs. Employees, on the other hand, are often able to obtain free legal advice along the way. Plus, the Human Rights Tribunal (“Tribunal”) does not award costs. Accordingly, unlike the Courts, the system is designed so that there are few consequences for an employee advancing a claim and then, perhaps because the claim had no merit all along, withdrawing the claim. Fortunately, a recent decision from the Tribunal found that an employee who tried to withdraw her claim at the last second could not do so without adverse consequences.
McCarthy Tétrault launched its 13th blog today, Alberta Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Alberta marketplace. We encourage you to visit the blog and subscribe for regular updates.
In the past few days, the issue of an employee’s off-duty conduct and its impact on the employee’s fit for continued employment has been a hot button topic in the news and on social media.
Many have questioned whether employers can or should consider conduct by an employee that occurs in the course of the employee’s personal (i.e. non-working) time. While there is no one-size-fits-all answer to that question, as it depends entirely on the circumstances of the particular case, there is an increasing movement by employers to consider such conduct and to take steps, including disciplinary steps, to address the same. Continue Reading
Did you know? As of May 20, 2015, Ontario employers could be required to self-audit their Employment Standards Act compliance.
The amendments allow Employment Standards Officers to require an employer to:
- conduct a self-audit of its records, practices or both to determine whether it is in compliance with one or more provisions of the ESA and regulations; and
- report the findings of such self-audit to the Officer, including any incriminating evidence of an ESA violation.
The Employment Standards Officer must provide the employer with written notice of the audit. The notice will identify information to be provided in the employer’s report regarding ESA compliance and may require the employer to describe the measures that will be taken in order to become compliant. The amendments specifically target wage violations, permitting the written notice to direct the employer to: Continue Reading
My colleagues Tim Lawson and Justine Lindner recently drafted an important article titled, “Lessons from Germanwings: Identifying and Managing Mental Illness in the Workplace.” For those not familiar, a flight by Germanwings from Barcelona to Dusseldorf crashed in the French Alps. Evidence was released showing that the co-pilot intentionally crashed the plane. Then, more information came to light that suggested the co-pilot suffered from a mental illness and that he may have not been fit to fly.
As many human resources professionals already understand, identifying and accommodating mental illness is extremely difficult to manage in the workplace. The importance of accommodating and not stigmatizing mental illness versus ensuring the health and safety of workers/customers is a difficult balance for many employers. In addition, employers may be faced with the situation of an employee acting in a strange, erratic or uncharacteristic manner. That employee may occupy an important or safety-sensitive position within the workplace. If the employee does not disclose any illness or disability, does an employer have a legal obligation to confront him/her as possibly having a mental illness?
Tim and Justine’s article offers great legal and practical considerations that employers should follow on this very important and timely issue. I encourage you to take a look at this article.
An interesting decision was released in the retail sector which discusses a retail employee’s statutory right to refuse to work on a Sunday under the Employment Standards Act, 2000 (“ESA”). At issue was a new company schedule that would have forced an employee to work additional hours on a Sunday. The employee not only argued that he could refuse to work on Sunday (as was his right), but that the employer had to reschedule him for another shift so that he would not suffer any weekly loss of hours and pay. The Ontario Labour Relations Board (“OLRB”) found that the company did not have to reschedule the employee. The OLRB’s decision meant that the employee could not use the right to refuse work as a means to create his preferred shift schedule with no loss of pay.