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Ontario Employer Advisor

Keeping Employers Advised on Developments in Labour and Employment Law

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.

Continue Reading

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