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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Grocery Store Employee Bears Cost of Refusing to Work on Sunday

Posted in Employment Standards, Leaves of Absence
Daniel Pugen

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.

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Tightening the Belt on Broader Public Sector Compensation

Posted in Benefits, Compensation, Pensions
Kate McNeill-KellerMelissa Kennedy

On March 16, 2015, the Broader Public Sector Executive Compensation Act (the “Act”) comes into force. The purpose of the Act is to regulate and govern the total compensation of individuals who hold certain executive positions within the broader public sector (“BPS”), through the implementation of “compensation frameworks”. The “compensation frameworks” would apply to “designated employers” and “designated executives”.

Designated Employers

The following are characterized as “designated employers” under the Act:

  1. Hospitals;
  2. Every board within the meaning of the Education Act;
  3. Universities, colleges and other post-secondary institutions;
  4. Hydro One Inc. and its subsidiaries;
  5. Independent Electricity System Operator;
  6. Ontario Power Authority;
  7. Ontario Power Generation Inc. and its subsidiaries;
  8. All community care corporations;
  9. Every body prescribed as a public body under the Public Service of Ontario Act, 2006, that is not also prescribed as a Commission public body under that Act; and
  10. Ornge.

It is important to note that the number of “designated employers” under the Act is far greater than in previous BPS wage restraint legislation. This is largely due to point nine (9) above. The list of “public bodies” and “commission public bodies” can be found in Regulation 146/10.

Designated Executives

The following are characterized as “designated executives” under the Act:

  1. An individual who holds one of the following positions:
    • The head of the designated employer, regardless of whether the title of the position or office is chief executive officer, president, or otherwise;
    • The vice president, chief administrative officer, chief operating officer, chief financial officer or chief information officer of the designated employer; or, an employee who holds any other executive position or office with the designated employer, regardless of position title or office title;
    • The director of education or a supervisory officer of a designated employer that is a board within the meaning of the Education Act; AND
  1. Is entitled to receive or could potentially receive annual cash compensation of $100,000 or more per calendar year under his/her compensation plan.

The Act does not apply to those who hold similar positions within municipalities and makes exception for those who are represented for the purpose of collective bargaining.

The Act does not limit compensation per se. Instead, it gives the Lieutenant Governor in Council the authority to create regulations in the form of “compensation frameworks”. It is the “compensation frameworks” (once created) that will place parameters around the amount of total remuneration paid by “designated employers” to “designated executives”, including salaries, salary ranges, benefits, perquisites, discretionary and non-discretionary payments, payments made with respect to termination of employment, performance plans, incentive/bonus plans and allowances. “Designated employers” will not be permitted to provide compensation to “designated executives” outside of the parameters established in the “compensation framework(s)”, unless such compensation terms were in effect prior to the enactment of the compensation framework.

For those individuals whose terms and conditions of employment were in effect prior to the “compensation framework”, even if such terms do not meet the requirements set out in the regulations, their compensation may remain status quo for a maximum of three (3) years after of the effective date of the applicable “compensation framework”. At that time, any component of the total compensation package which is in excess of the framework will need to be reduced to meet the framework requirements. However, any provision in an agreement that authorizes or requires an amount to be paid in excess of the limits set out in the applicable “compensation framework” will be void and unenforceable.

In order to ensure compliance and seek to enforce the Act, the Minister has the authority to request that a “designated employer” submit reports and/or statements or participate in an audit in order to demonstrate compliance with the established framework. Individuals may face penalties up to a $5,000 fine where they are found to have wilfully failed to provide the required documentation or have wilfully falsified such documentation.

Next Steps

The Government is currently in the consultation and development process in regard to the “compensation frameworks” and has indicated that it expects such process to take approximately six months (i.e. to May 2015). However, in order to prepare for the same, “designated employers” should begin to turn their minds to how these regulations will impact their respective organizations. It is important that designated employers begin to review their executive compensation structures/plans, and current contracts in place. To the extent that “designated employers” are engaging in the recruitment of executive roles, it will be necessary that they factor these frameworks into their conversations. Ultimately, the impact that these frameworks will have will not be fully understood until they are released; however, they will undoubtedly influence how organizations in the broader public sector attract, recruit, retain and compensate top talent.

New Sexual Harassment Laws Coming Soon to the Workplace

Posted in Human Rights, Occupational Health and Safety, Policies
Daniel Pugen

On March 6, 2015, the Ontario Government published its plan aimed at addressing sexual violence and harassment in Ontario.  The document is titled, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (the “Action Plan”).  The Action Plan has a lot to say about a very important subject and I encourage readers to review the entire document.  This post though is limited to the Government’s recommended changes to the Occupational Health and Safety Act (“OHSA”) to deal with workplace sexual harassment.

Employers are already obligated to create a workplace harassment policy and to investigate harassment complaints under the Human Rights Code (the “Code”) and OHSA.  Readers may recall that these OHSA obligations were introduced five years ago, under legislation commonly known as Bill 168.  Amongst other things, Bill 168 imposed an obligation on employers to create workplace violence and harassment policies and programs, implement a complaint procedure, investigate complaints, and to undertake workplace violence risk assessments and warn employees of certain individuals with a violent history. Continue Reading

SCC Constitutionalizes the right to strike for unionized employees

Posted in Employee Obligations, Employment Standards, Labour Relations
Matthew Demeo

On the heels of its labour friendly decision in Mounted Police Association of Ontario v. Canada (“MPAO”) which granted RCMP officers the right to unionize (and which our colleagues in Vancouver wrote about here), the Supreme Court of Canada (“SCC”) released its highly anticipated decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL”). In SFL, the SCC was tasked with determining whether the prohibition on the right to strike for public sector employees the Government deemed “essential service employees” was a violation of section 2(d) of Charter of Rights and Freedoms (“Charter”), which protects the right of freedom of association. This case presented the SCC with the opportunity to revisit whether there is constitutional protection for the right to strike. An issue it decided in the negative almost 30 years ago. Continue Reading

A “Without Cause” Dismissal is Not Automatically an “Unjust” Dismissal: A Federal Employment Law Update

Posted in Employment Standards, Labour Relations, Policies
Justine Lindner

The decision in Wilson v. Atomic Energy of Canada Limited, released by the Federal Court of Appeal (the “FCA”) on January 22, 2015, marks the end of a long-standing tug of war. The FCA held that non-unionized employees in the federal sector do not have a “right to a job” and that dismissal from employment on a without cause basis is not automatically an “unjust dismissal” under the Canada Labour Code (the “Code”).

Part III of the Code provides an adjudication process for non-unionized employees who claim that they have been unjustly dismissed from their employment. An adjudicator may order the employer to provide compensation or other remedies to the employee, including reinstatement. Continue Reading

Sorry but I can’t help you with your purchase, I’m being accommodated by my employer

Posted in Accommodation, Disability, Discrimination, Human Rights, Retail
Daniel Pugen

It is part and parcel of a retail employee’s job to interact with customers and assist them in making purchases.  However, if an employee with a disability/injury has trouble in performing this essential duty, how far must the employer go in accommodating that employee?

A recent Human Rights Tribunal decision dealt with an interesting accommodation request by an employee with a wrist injury.  That employee requested that she should be allowed to tell customers (when working alone) that they had to return to the store at a later date so they could be assisted by another employee who did not have her physical restrictions.  Thankfully, the Tribunal found in favour of the employer.  It was an essential duty of the position to be able to assist customers and telling customers that they had to go away and come back later was unreasonable in the circumstances. Continue Reading

Terminated for Tweeting: A Tale of Two Toronto Firefighters

Posted in Employment Standards, Labour Relations, Social Media, Termination
Matthew Demeo

When used properly, social media can be a powerful tool for connecting individuals, marketing businesses and mobilizing the masses behind a cause.   However, many organizations have learned the hard way that inappropriate social media use by employees  can have a detrimental effect on an organization’s reputation.

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Federal Labour Law Amendments: Harder to Certify a Union (and Easier to Decertify a Union)

Posted in Unions
Daniel PugenJustine Lindner

On December 16, 2014, the Act to amend the Canada Labour Code (“Code”), the Parliamentary Employment and Staff Relations Act and the Public Sector Labour Relations Act (certification and revocation – bargaining agent), also referred to as theEmployees’ Voting Rights Act received Royal Assent and became law.  This new legislation significantly changes the rules for certifying and decertifying a union for federally regulated employers.  Those changes essentially make it easier to decertify a union and harder to certify one.

The amendments to certification and decertification requirements bring the Code in line with the labour legislation in several provincial jurisdictions, including Ontario.  Now, a lower threshold of employee support is required to trigger a decertification vote.  Plus, “card check” certification (where a union could be certified without a vote) is eliminated.  Now, a vote must always be held.

Decertification

Under the previous regime, any employee who claimed to represent a majority of employees in a bargaining unit, and who could provide evidence to that effect, could apply to the Canada Industrial Relations Board (the “Board”) for an order revoking the certification of the union. This application usually triggered a secret ballot representation vote of the bargaining unit employees. Continue Reading

Worldwide Code of Conduct Reasonable Exercise of Management Rights

Posted in Labour Relations
Meaghan McWhinnie

Many multinational corporations have issued company-wide codes of conduct setting out baseline rules that apply to all of their global operations. A recent Ontario arbitration decision provides a good precedent for employers who may be concerned about balancing corporate governance interests against the rights of unionized employees when instituting universal codes of conduct.

In Candu Energy Inc. v. The Society of Professional Engineers and Associates, Arbitrator Keller approved the right of a multinational employer to institute a code of ethics applicable to all its employees, including its unionized workforce, concluding that it was a reasonable exercise of management rights.

Facts

SNC-Lavalin Inc. (“SNC”), Candu’s parent company, introduced a company-wide Code of Ethics (the “Code”) providing guidelines on professional and ethical standards expected of all SNC employees, whether unionized, non-unionized, managerial or executive board member. The Code applied to employees in all units of SNC and all subsidiary and associated companies around the world, including Candu. Continue Reading

From the Desk of the HR Manager, December 2014

Setting Performance Objectives

Posted in Employee Obligations, Policies
Melissa Kennedy

Melissa Kennedy is a labour relations, employment and human resources specialist who assists clients with proactively managing compliance, risk and ensuring best practices are in place.

As we set to embark upon the year’s end, now is an appropriate time to begin goal setting and implementing employee performance objectives for the new year. Establishing clear expectations which are tied to the overall mission and vision of the organization, and which are aligned with and cascaded from senior leadership, will ensure that employees understand their role and value within the organization, and will work to continually motivate them throughout the year. Continue Reading