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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

Employers Must “Trust” Employees to Account for Mitigation Earnings During Notice Period

Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal
Daniel PugenPatrick Pengelly

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.

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Brace yourself, more changes to Ontario’s labour and employment laws likely to come

Posted in Employment Standards, Labour Relations, Policies
Matthew Demeo

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 Tribunal Sanctions Employee for Withdrawing Human Rights Complaint at Last Second

Posted in Human Rights
Daniel Pugen

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.

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McCarthy Tétrault launches Alberta Employer Advisor blog

Posted in Employment Standards, Human Rights, Labour Relations

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.

 

When Your Business Becomes My Business – Dealing with Off-Duty Conduct

Posted in Employee Obligations, Employment Standards, Social Media
Kate McNeill-Keller

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

Self-Audit Requirement under Ontario’s Employment Standards Act

Posted in Employment Standards
Tim Lawson

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

Mental Illness in the Workplace – Lessons from Germanwings

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

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.

 

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