Can My Employer Dismiss Me Due to My Unseen Disability? Employers should investigate further before immediately dismissing employees for violating workplace drug and alcohol policies. An employee’s diagnosis of substance dependence would be considered a disability, which is a protected ground under the Canadian Human Rights Act (CHRA) for federally regulated employers. In a recent arbitral decision, Canadian Pacific Railway v Teamsters Canada Rail Conference, a Canadian Pacific (CP) Locomotive engineer was found drinking whiskey while operating a train, which caused a collision. He was criminally charged by the RCMP and was prohibited from operating a vehicle for 2 years. Shortly after the incident, he was terminated for just cause due to his violation of CP’s Alcohol and Drug Policy. After the employee’s termination, he was diagnosed with a severe alcohol use disorder and post-traumatic stress disorder. He explained that he drank alcohol to cope with his and his wife’s battles with cancer. He expressed remorse and was attending addictions treatment. The arbitrator found that there was prima facie discrimination. In particular, the employee: 1) Possessed a characteristic that was protected by the CHRA (the disability of alcohol addiction); 2) Experienced an adverse impact (his employment was terminated); and 3) Was terminated for reasons related to the disability. CP argued that Paisley did not disclose his addiction until after the investigation. However, the arbitrator concluded there can still be a finding of discrimination in cases when the disability is not disclosed until after an incident. Furthermore, the employer did not dispute the fact that the employee had an alcohol addiction. Under the CHRA, when there is a case of discrimination based on a protected ground, the employer is required to demonstrate that they attempted to accommodate the employee to the point of undue hardship to avoid liability. In this case, the arbitrator found that CP failed to reasonably accommodate the employee. The arbitrator ordered that Paisley be reinstated subject to being physically fit for work and undergoing periodic drug and alcohol testing for 2 years. The arbitrator also required that he abstain from consuming alcohol and drugs for the duration of his employment. CP was required to make reasonable efforts to find a non-safety sensitive position for him until his driving prohibition was lifted. Key Takeaway for Employers Employers should ensure that employees with addictions and other disabilities are accommodated, in particular if workplace misconduct is due to a disability such as addiction. Though at first glance, a just cause dismissal appears warranted – investigating and making reasonable accommodations from the beginning could prevent a potential future human rights complaint. If you would like more information about human rights and employment law, contact Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawSeptember 10, 2019September 30, 2020
Can Behaviours Associated with a Sex Addiction Merit Employee Dismissal? A recent Nova Scotia labour arbitration decision suggests that employers may not have to accommodate employees who have a medically diagnosed sex addiction where behaviours associated with such an addiction clearly justify discipline or termination. In Ontario human rights law, all employers must accommodate employees with a disability to the point of undue hardship. This may include, for example, allowing employees with medical marijuana prescriptions to use medical marijuana while at work. But sex addiction may not be a “disability,” at least as was suggested in UNIFOR, Local 2215 v I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42096 (NS LA) (“UNIFOR”). In Unifor, an employee was the subject of several complaints from coworkers due to regularly masturbating in a bathroom cubicle of his workplace. After warnings, the employee continued the behaviour, and was fired. The union, on behalf of the employee, commenced a wrongful termination grievance. In support of his case, he provided a report from a doctor who diagnosed him with a sex addiction. The doctor listed a number of symptoms that, in his view, amounted to a sex addiction: “Loss of Control” – increased frequency, duration, or depth of involvement in sexual acting out behaviour indicating a possible loss of control within or between sessions. “Craving” – a strong desire to participate in sexual acting out behaviours, such as pornography, sexual contact, flirtation, sexting, video chat, phone conversation, masturbation, etc. “Threat to Life Roles” – Repeated participation and commitment to sexual acting out despite recurrent social or interpersonal problems or costs – e.g. Conflict at home or at work as a result of sexual acting out or the costs in time and energy of carrying out and keeping up the deception used to hide the behaviour. “Negative Mood” – using sex or sexual acting out behaviour to alleviate negative mood states, stress, tension, or irritation. However, during cross-examination, the doctor admitted that there was no standard list of symptoms attributable to sex addiction. He described how he had taken symptoms of general addiction and then modified them for sex addiction. The arbitrator concluded that the doctor’s assessment of the employee’s sex addiction was problematic primarily because (a) sex addiction is not significantly medically or scientifically recognized; (b) the doctor’s stated symptoms were too general and vague to necessarily be indicative of a sex addiction if such a condition exists; and (c) the symptoms described by the doctor were largely subjective and/or represented his own opinions rather than being some kind of recognized test. The arbitrator, in the end, was not convinced sex addiction was a recognized condition that amounted to a disability, and thus the employer had no duty to accommodate the employee by being accepting of the behaviours which stemmed from his purported addiction. The termination was therefore found to have been justified. What does this case tell us? Although this is a Nova Scotia arbitration decision, and thus is not binding on Ontario arbitrators, this case nonetheless suggests that adjudicators may not be open to recognizing non-scientifically recognized forms of addiction, such as sex addiction, as legitimate disabilities requiring employer accommodation. If you would like more information on arbitration clauses or would like legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawAugust 27, 2019September 30, 2020
Could a Gift Card Compensate for a Minor Human Rights Tribunal complaint? A recent British Columbia Human Rights Tribunal decision has struck down a human rights complaint by a supermarket customer on the grounds that she was already compensated by the store for her complaint. But what compensation was considered enough? In Duke v Sobeys, 2018 BCHRT 283, the complainant went grocery shopping at a Sobey’s in British Columbia. While shopping, the complainant stated she was approached by an employee who told her inappropriate sex jokes. The employee admitted to his behaviour. Ms. Duke then requested a $250 gift card and an apology, both of which Sobeys provided. After the fact, Ms. Duke filed a complaint with the British Columbia Human Rights Tribunal. The Human Rights Tribunal concluded that the gift card and the apology were sufficient compensation in the circumstances. The Tribunal found that Sobey’s promptly responded to the complaint, immediately investigated it and addressed it appropriately. Because Sobey’s dealt with the complaint as efficiently as possible to ensure that if any discrimination existed, it would be resolved appropriately, the court felt no other remedial measures were necessary. The Tribunal also stated, “it does not further the purposes of the Code to encourage a complainant to increase what is sought, after they receive what they initially ask for”. Since the customer asked for compensation, and Sobey’s promptly provided it to her, no further remedies were required. The complaint was ultimately dismissed under section 27(1)(d)(ii) of the British Columbia Human Rights Code as it did not further the purposes of the Code. What does this decision tell us? As an employer, it is very important to respond quickly to complaints to avoid negative legal consequences. In this case, Sobey’s was quick to investigate the complaint and dealt with it in a reasonable manner that clearly ameliorated their customer’s concerns, at least at the time. This was sufficient to allow Sobey’s to avoid an unfavourable decision of the British Columbia Human Rights Tribunal. If you would like more information on human rights and employment law, contact Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Human Rights LawAugust 20, 2019September 30, 2020
Arbitration Clauses in Employment Agreements: New Developments Two recent Ontario court decisions suggest that arbitration clauses requiring employees in employment agreements to submit certain employment actions to arbitration may be unenforceable. In a recent Ontario Court of Appeal decision, Heller v Uber Technologies, 2019 ONCA 1, Uber brought a preliminary motion to stay a class action advanced by one of its drivers. Uber sought to have the action proceed to arbitration in the Netherlands pursuant to its boilerplate arbitration clause, to which all drivers are required to agree before driving for Uber. Since this was a preliminary motion, the court assumed that Uber drivers would be considered “employees” under the Employment Standards Act, 2000 (“ESA”) and thereby could, for the purposes of this motion, be considered to benefit from the provisions under the ESA. The court noted that under s. 7(1) of the Arbitration Act, 1991 if a party to an arbitration agreement commences a proceeding for a matter which, according to the agreement, should be decided in arbitration, the court will stay the proceeding and submit the matter to arbitration. However, under s. 7(2), there are exceptions to the rule delineated under s. 7(1): for example, if the court deems the arbitration agreement to be invalid. The Court of Appeal found the arbitration agreement was invalid on two grounds: (a) it constituted an impermissible contracting out of the ESA and (b) it was unconscionable. Considering (a), the Court of Appeal noted that under the ESA, employees may launch a complaint to the Ministry of Labour or may launch a civil proceeding to launch a complaint against their employer. Since the arbitration clause forced employees to proceed immediately to arbitration, it took away their ability to make complaints to the Ministry of Labour or to launch a civil proceeding (arbitration was not considered a “civil proceeding” by the court). This constituted an unacceptable contracting out of the ESA and therefore the clause was ruled unenforceable on these grounds. Considering (b), the court also found that, even if the clause did not violate the ESA, the clause was still unenforceable because it was unconscionable. The court found it to be unconscionable primarily because it was a unilateral arbitration agreement which eliminated the drivers’ bargaining power and because drivers had agreed to the arbitration clause in the absence of legal advice. In a subsequent decision, Rhinehart v. Legend 3D Canada Inc., 2019 ONSC 3296, the court applied the reasoning from Heller, above. Mr. Rhinehart worked at a U.S. branch of a company, Legend 3D USA. Mr. Rhinehart signed several arbitration agreements with Legend 3D USA. Mr. Rhinehart then began to work for Legend 3D Canada. His employment was later terminated. When Mr. Rhinehart sought damages for wrongful dismissal, Legend Canada sought to stay the action and submit the matter to arbitration pursuant to the arbitration agreements between Mr. Rhinehart and Legend USA. However, the court found the arbitrations agreements were not enforceable because they were (a) not between Mr. Rhinehart and Legend CA; (b) the arbitration agreements between Mr. Rhinehart and Legend USA did not apply to issues arising from his Ontario employment; and (c) applying the same reasoning from Heller, the arbitration clauses constituted an impermissible contracting out of the ESA. These cases indicate that where arbitration clauses in employment agreements force employees to proceed to arbitration, rather than using the complaint process under the ESA or advancing a civil action, such clauses will be found unenforceable. Moreover, if the arbitration clause demonstrates a clear inequality of bargaining power, and leaves parties to the contract with no other reasonable choice but to agree in the absence of legal advice, such clauses will likely be invalid as they will be deemed unconscionable. If you would like more information on arbitration clauses or would like legal advice on this subject, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 25, 2019September 30, 2020
Denied a Job Due to Lack of Canadian Work Eligibility? You May Have Been Discriminated Against If you have recently been denied a job due to a lack of proof of permanent eligibility to work in Canada, you may be entitled to compensation under Ontario human rights law. In a decision last year from the Ontario Human Rights Tribunal, Haseeb v Imperial Oil Limited 2018 HRTO 957, an employer (Imperial Oil) refused to hire the applicant to whom they offered a job (Mr. Haseeb) after the job applicant failed to provide requested documentation regarding his legal authorization to work permanently in Canada. Mr. Haseeb, an international student, was a recent graduate of McGill University’s engineering program, and only possessed a postgraduate work permit for up to three years. The applicant anticipated he would attain permanent residency status within three years. Imperial Oil required graduate engineers to have permanent residency or citizenship to be eligible to apply for a permanent full-time job at their company. To circumvent this requirement, Mr. Haseeb repeatedly answered positively when asked about his eligibility to work in Canada on a permanent basis. These responses were false, as he only had a temporary work permit. Although Mr. Haseeb was offered a job at Imperial Oil, the company later rescinded the offer about one month following the deadline for acceptance. The Tribunal found that Imperial Oil did not rescind the offer due to Mr. Haseeb’s dishonesty, but rather because Mr. Haseeb did not provide required permanent work eligibility documentation when it was requested. The Human Rights Tribunal concluded that the employer’s hiring policy was directly discriminatory on its face towards international students. This meant that Imperial Oil was not permitted to rely upon the defence that permanent work eligibility was a bona fide occupational requirement. Moreover, the Tribunal determined permanent work eligibility could not have been required (i.e., an occupational requirement) to do the job effectively, as Imperial Oil was found to have recruited individuals without permanent work eligibility where their skills were particularly sought-after. If you would like more information on discrimination in hiring practices, or would like legal advice on being denied a job for discriminatory reasons, please contact Marty Rabinovitch at 416.446.5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 23, 2019September 30, 2020
Failing to Abide by Confidentiality Provisions in a Settlement Agreement Can Cost You Your Settlement Payment The recent decision of an arbitrator in the matter between Acadia University and Acadia University Faculty Association (Re Dr. Rick Mehta), 2019 CarswellOnt 8518 (Lab Arb) [“Acadia”] emphasizes the importance of abiding by a confidentiality provision in a settlement agreement. Background In the spring of 2018 Dr. Mehta was terminated by Acadia University for, among other things, allegedly harassing students and other faculty members. The Acadia University Faculty Association (“AUFA”) filed a grievance on behalf of Mehta and in April 2019 the matter came before a voluntary mediation session. At the mediation, a settlement agreement was reached and the Minutes of Settlement (the “Minutes”) were voluntarily executed by Acadia University, the AUFA and Mehta. Confidentiality Provision The Minutes contained a provision that all of the parties to the Minutes agreed “to keep the terms of [the] Minutes strictly confidential” and that if asked about particulars a party was to “indicate that the matters in dispute proceeded to mediation and were resolved, and [the parties] will confine their remarks to this statement” (Acadia at para 3). Alleged Breach of the Confidentiality Provision Despite this provision, Mehta was quick to take to social media and make comments such as “I got the vindication I was seeking,” “I have left the university on my term[s] as opposed to the administration’s or union’s terms” and, in response to one of Dr. Mehta’s Twitter followers’ comments “Hope you got a nice sum monz,” Mehta’s reply that “All I will say is that I left with a big grin on my face.” Arbitration As a result of Mehta’s alleged breach of the confidentiality provision in the Minutes, the matter went to arbitration. The arbitrator, William Kaplan, stated that Mehta’s tweets were a clear breach of the Minutes. As a result, the university was no longer required to honour the payment provision in the Minutes and therefore Mehta essentially lost his settlement payment. The Importance Confidentiality Provisions in Settlement Agreements Settlement privilege refers to the common law principle that, with very few exceptions, discussions and documents surrounding a possible settlement of a matter cannot be disclosed. This encourages settlement by preventing settlement discussions from eventually being used as leverage against one of the parties if the matter proceeds through trial. The privilege also generally extends to settlement agreements themselves (see, for example, Sable Offshore Energy Inc v Ameron International Corp, 2013 SCC 37 at paras 17-18). While Dr. Mehta’s consequences for failing to uphold the confidentiality provision of the Minutes may seem harsh, it is important to understand why settlement agreements should be kept confidential. If a settlement agreement could be freely disclosed it could result in prejudice to one or more parties to the settlement. For example, in the case of a labour dispute, such as that in Acadia, an employer may fear that if it settles a grievance and other employees become aware of the amount of the settlement, some of the other employees may be encouraged to commence grievances of their own with the goal of obtaining a similar settlement payment. This in turn could make an employer less willing to settle, which may result in more lengthy and expensive hearings. While settlement privilege provides protection to parties to a settlement agreement, it may not cover all aspects of a settlement agreement. This is why a party to a settlement agreement should ensure that the agreement also contains confidentiality provisions, which specify the extent to which the agreement is subject to confidentiality requirements. In Mehta’s case the provision was clear that no part of the agreement was to be disclosed. One of the reasons the outcome for Dr. Mehta was so severe is because the arbitrator noted that Mehta was involved in the negotiation of the agreement and its provisions. Importance If you are ever involved in mediation or settlement discussions, despite the principle of settlement privilege, make sure that any agreement you reach contains confidentiality provisions to protect yourself from disclosure of the agreement and possible prejudice. If you are a party to a settlement agreement, Acadia illustrates the importance of abiding by confidentiality provisions in the agreement and demonstrates that failing to do so could result in a complete loss of your settlement payment. If you have any further questions about settlement agreements and confidentiality provisions, please contact Marty Rabinovitch at 416-446-5826 or marty.rabinovitch @devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 18, 2019September 30, 2020
An Illness/Injury Has Made It Unable to Return to Work: What Can I Do? If an injury or illness has resulted in there being no reasonable likelihood that you will be able to return to work within the foreseeable future, you may be entitled to compensation. The recent Ontario Superior Court of Justice decision, Hoekstra v. Rehability Occupational Therapy Inc., 2019 ONSC 562, sets out new guidelines on frustration of contract in the workplace. This potentially entitles employees to compensation if they have been injured or are suffering from an illness making it unfeasible to return to work. Frustration of contract What is frustration of contract? Frustration occurs where due to an unanticipated, intervening event beyond the control of the parties, a contractual obligation, if performed, would be radically different in character from what was initially agreed upon (see Amalgamated Investment and Property Co Ltd v John Walker & Sons Ltd [1977] 1 WLR 164 Eng. Ct. A.). Normally, frustration relieves both parties of any obligations they have under the contract. Frustration under the Employment Standards Act (“ESA”) Frustration operates somewhat differently in the context of employment law. Under section 2 of regulation 288/01 of the ESA, where a contract of employment is frustrated due to illness or injury, the employer remains obligated to pay the employee’s minimum termination pay and severance pay as of the date of frustration. In Hoekstra, cited above, the plaintiff had not performed any employment duties for four years due to a severe illness that forced him to go on medical leave. As a result, an employment dispute ensued, stemming from the employer’s refusal to pay further medical benefits. The medical condition eventually shifted from being merely temporary to being a permanent disability, and thereby rendered him incapable of engaging in required work at his employment. The court held that frustration of an employment contract occurs where “there is no reasonable likelihood of the employee being able to return to work within a reasonable time” (at para 28, citing Fraser v. UBS, 2011 ONSC 5448 at para 32). The employee was entitled to termination pay based on the period from the first day of his employment, to the date the frustrating event occurred (i.e., the date the illness was indicated as being more-or-less permanent by a doctor). The court also ordered the employer to pay the employee statutory severance pay. Importantly, the court held that both employees and employers can claim frustration of contract. This principle is also highlighted in the decision of Estate of Cristian Drimba v Dick Engineering Inc., 2015 ONSC 2843, where an employee took the position that his employment contract had been frustrated and the court agreed and awarded termination pay and severance pay pursuant to the ESA. Either way, the employee may be entitled to compensation under s. 2 of regulation 288/01 of the ESA if the test for frustration is met, and the frustration is the result of injury or illness. If you would like more information about these new developments, or would like legal advice as to frustration of contract, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 4, 2019September 30, 2020
Medical Marijuana: Limits to Consumption in Unionized Workplaces A recent labour arbitration decision from Saskatchewan has framed what might be the boundaries around workplace consumption of medical marijuana. In Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), an employee was dismissed for vaping medical marijuana while operating the employer’s vehicle. The employee had previously disclosed to his employer that he had had a prescription for medical marijuana and was allowed to vape marijuana in the workplace. The employee was not allowed to operate his employer’s vehicle for approximately 30 minutes following the vaporization of marijuana. He was also not permitted to operate heavy machinery for 1 hour after vaping. The employee was later discovered to have been vaping while driving and immediately before driving. As a result, the employer summarily dismissed the employee. The employee’s union filed a grievance challenging the summarily dismissal. The arbitration board held that, despite the lack of proof of the employee’s impairment on a balance of probabilities, the vaping of marijuana immediately prior to and while operating the vehicle entitled his employer to summarily dismiss him. The board also emphasized the fact that the employee appeared to lack respect for the limits of his employer’s medical accommodation of him, and cared little for the safety of his coworkers by vaping while other employees were in the vehicle with him. The arbitration board found the decision to summarily dismiss was not excessive discipline. The board noted that while the employee should not be deprived of using marijuana for the medical purpose intended, ultimately “there is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving.” What does this case tell us? While it is a Saskatchewan decision, the same principles apply in Ontario: having a prescription for medical marijuana is not a free licence to consume it whenever and wherever you like, particularly while working for an employer. Moreover, even if your employer has expressly accommodated you by allowing you to consume marijuana in the workplace, not adhering to the terms of that accommodation could result in dismissal without notice. It is also important to note this case applies to unionized employees, who have greater protections from dismissal than non-unionized employees. This suggests that, in a non-unionized workplace, the threshold for misconduct meriting dismissal based on the consumption of medical marijuana could be lower. According to Ontario’s human rights laws, all employers must accommodate employees with a disability to the point of undue hardship. This accommodation could include allowing employees to use medical marijuana while at work. However, employees must comply with the limits of their employer’s accommodation, so as to avoid undesirable disciplinary measures. If you would like more information about these amendments, or would like legal advice to ensure your place of work is compliant, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Employment LawJune 5, 2019July 5, 2023
Bill 66: Changes to the Employment Standards and Labour Relations Acts Bill 66, which received royal assent on April 3rd, 2019, changes the Employment Standards Act, 2000 (ESA) and the Labour Relations Act (LRA). Workplaces that are covered by the ESA should take note that: Posting requirements are no more: Employers are no longer required to display a poster in the workplace delineating the ESA’s applicable regulations and rules. However, employers remain obligated to provide a poster delineating ESA rules and regulations to their employees. Agreements extending the ESA overtime limit no longer require approval: Employers no longer need to apply for approval to make agreements allowing their employees to exceed 48 hours of work in a work week. As long as there has been an agreement between the employer and the employee extending the amount of hours the employee can work, employers are not violating the ESA. Overtime-averaging agreements no longer require approval: Employers no longer need to apply for approval to make an agreement with an employee to average their employee’s hours of work for the purpose of determining entitlements to overtime pay. Note, however, that the employee’s hours may be averaged in accordance with the terms of an averaging agreement only if the overtime period in the agreement does not exceed four weeks. Workplaces that are covered by the LRA should take note that: The list of non-construction employers has been expanded: municipalities, local boards, school boards, local housing corporations, hospitals, Ontario colleges and universities now no longer apply to the LRA’s rules with respect to construction employees. Employers listed under this new provision may opt-out, but only if: (1) A trade union represents employees of the employer who are employed, or may be employed, in the construction industry as of April 3, 2019; (2) The application must be made by a person with authority to bind the employer; and (3) The election must be filed with the Minister of Labour within three months of April 3, 2019. If you would like more information about these amendments, or would like legal advice to ensure your place of work follows these new requirements, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawMay 24, 2019September 30, 2020
Employment Bill 148 is Being Scrapped…But Which Parts Are Uncertain Last week Doug Ford announced that he was halting the implementation of a $15 per hour minimum wage in Ontario but it looks like he is seeking to additionally roll back other employment laws that have already come into force. Yesterday, October 2, 2018, Doug Ford announced in the Ontario legislature that he was going to scrap Bill 148, a bill enacted by the previous Liberal government (after a broad consultation) that increased protections for workers in an effort to alleviate the impacts of precarious work (see our previous blogs on Bill 148). Bill 148 introduced many new provisions to both Ontario’s Employment Standards Act and Ontario’s unionized Labour Relations Act. Some of the new provisions included a presumption that a worker is automatically an employee unless it is proven otherwise (an employee classification gets the most protection under labour and employment legislation), mandated scheduling provisions including the expansion of the “3 hour rule” (i.e. an employee gets paid for three hours of work if his/her shift is cancelled less than 48 hours before he or she was to commence working), equal pay for equal work laws between full and part-time workers, personal emergency leave provisions (10 days of emergency leave absences with 2 days of paid leave), and increased regulation on temporary help agencies. However, whether Bill 148 is going to be axed in its entirety or in a piecemeal fashion remains to be seen. Doug Ford’s statements in the legislature were incredibly broad, saying “We’re getting rid of Bill 148. We’re going to make sure we protect the front-line workers because 60,000 people lost their jobs under Bill 148 … We’re going to make sure we tell the world Ontario is open for business. We’re going to make sure we’re competitive around the world.” After Question Period, reporters swarmed Jim Wilson, Minister of Economic Development, Job Creation and Trade, with respect to Ford’s comments. Wilson scaled back Ford’s comments, stating that the government was still reviewing Bill 148 and a final decision had yet to be made. Wilson made statements that despite the Conservative government voting against the Bill when the Liberals introduced it, they were likely going to keep the $14 an hour minimum wage and other sections. Devry Smith Frank LLP will be monitoring the province’s efforts to scrap Bill 148. It is important to contact a labour and employment law lawyer to keep apprised of recent legislative developments and get advice on how it will impact your business or personal contracts. If you need assistance with labour and employment laws please contact one of our employment lawyers. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawOctober 10, 2018March 27, 2024