Enforceability of Termination Clauses and the Latest Blow to Employers – Waksdale v. Swegon North America Inc. (2020 ONCA 391) Termination clauses are often relied upon by employers to define an employee’s severance entitlement when an employee is terminated without cause. These clauses are often drafted to limit an employee’s entitlement to their statutory minimums, which are significantly less than the employee’s entitlement at common law. If an employment contract contains no termination clause or an unenforceable termination clause, then the common law will apply. The courts generally dislike termination clauses that seek to limit the employee’s entitlement upon termination to their minimum entitlements under employment standards legislation. Courts have consistently found that the employee’s statutory notice and severance entitlements will usually not ensure that they will continue to receive their salary and benefits until such time as they are able to find a new comparable job. If a termination provision is ambiguous or provides the employee with a lesser right or benefit than their entitlements under employment standards legislation, then the clause will be unenforceable and the employee is entitled to reasonable notice at common law. In June 2020, the Court of Appeal for Ontario in the decision of Waksdale v. Swegon North America Inc. determined that if any part of the employer’s termination scheme is unenforceable, then the entire termination scheme will be void and the common law will apply. Previously, the courts had held only the offending part(s) would be unenforceable, while the other provisions would remain in effect (see the 2018 decision of Khashaba v. Procom Consultants Group Ltd.) In Waksdale, the parties agreed that the termination provisions were unenforceable. An employee who is terminated without cause has entitlements pursuant to the Employment Standards Act, 2000 and the common law. In order to deprive an employee of their termination entitlements under the Employment Standards Act, 2000, the employer must prove that the employee was “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” This standard is higher than the “just cause” standard at common law. Since there are two different standards, there could be scenarios in which an employee would have no entitlement at common law if the “just cause” standard was met, but would have an entitlement under the Employment Standards Act, 2000 if the “wilful misconduct” standard was not met. Accordingly, termination provisions which state that the employee would have no severance entitlement whatsoever in the event that their employment was terminated for just cause would be unenforceable, since they do not take into account the possibility than an employee who was terminated for just cause could have an entitlement under the Employment Standards Act, 2000. Although the specific termination for just cause language in question was not set out in Waksdale, it was likely for this reason that the parties agreed that these provisions were unenforceable. In Waksdale, the court determined that if the employer’s termination for just cause provisions are found to be unenforceable, then the termination without cause provisions would also be unenforceable – even if they otherwise would have been enforceable on their own – and even if the employer chooses to terminate the employee without cause. The court further concluded that the result would be the same, even if the employment contract contained a severability provision. Usually, a severability provision would ensure that the remainder of a contract would remain enforceable, in the event that a particular provision was determined to be of no force and effect. However, the court found that a severability provision could not be relied upon by the employer to uphold its termination scheme in this case. As a result, the employee was entitled to reasonable notice at common law. It is therefore very important for employers to consult with a lawyer to determine whether their current termination language should be amended to ensure that it is compliant with the Waksdale decision. Employers should also have their employment lawyers review their termination provisions at least once per year to ensure that they continue to remain enforceable. If you are an employer with additional concerns relating to employment contracts and the enforceability of termination clauses, please contact Marty Rabinovitch at Devry Smith Frank LLP to discuss your rights and options. *This blog was co-authored by Law Student Amar Gill* “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 26, 2020September 2, 2021
Employers Must Discharge Their Onus to Prove Failure to Mitigate A recent 2020 decision of the British Columbia Supreme Court, Virk v. Satnam Education Society of B.C., was a reminder that in wrongful dismissal litigation, the employer has the burden to prove an employee’s failure to mitigate. When an employee has been wrongfully dismissed, they are obligated to act reasonably by taking steps to replace their income by applying for alternative positions. This involves applying for new jobs on a “constant and assiduous” basis. However, it is ultimately the employer’s responsibility to prove that the employee failed to take adequate steps to mitigate their losses, and had the employee made adequate mitigation efforts, they would likely have found a new job. If the employer is successful in proving that the employee has failed to mitigate, the employee would be entitled to a reduced notice period at common law. In this case, Mr. Virk was a vice-principal of a Sikh private school. He was terminated in June, 2010. Afterwards, he applied to teaching positions at four schools, tutorial academies and to a learning disabilities society. Mr. Virk then applied to freelance journalist positions at newspapers and radio stations. Since Mr. Virk had a class 1 driver’s license, he then applied to jobs in the trucking industry. He eventually obtained a position at BC Transit approximately one year after his termination. The court found Mr. Virk’s efforts to mitigate his losses were inadequate since he had only applied for a few positions and there was no evidence that he had applied for any positions after October 2010. However, the court pointed out the following inadequacies of the employer’s evidence, in particular: The number and types of teaching jobs available in 2009/2010 and when they were available The hiring timelines for the school year How easy or difficult it is to transfer from teaching at private to public schools The number and types of jobs in the newspaper industry that year The number and types of jobs in the transport industry that year In the absence of such evidence, the employer failed to establish that Mr. Virk did not take adequate steps to mitigate and had he done so he would have found employment (para 109). Key Takeaway for Employers: Keep abreast of the labour market trends for your industry but also what other industries the former employee is applying to. Provide job postings, reports, articles or other data to demonstrate how easy or difficult it is to obtain work in a particular field. By taking these steps, employers can increase their likelihood that an adjudicator will find their duty to prove an employee’s failure to adequately mitigate was discharged. However, keep in mind that due to COVID-19, market trends have been severely impacted. As a result, it will likely be more difficult for employers to prove that employees would have found work if they took adequate mitigation steps since the pandemic has significantly affected employment opportunities in numerous industries. If you have more questions about an employer’s obligations after a dismissal contact employment lawyer 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 LawJuly 20, 2020November 16, 2020
OCCUPATIONAL HEALTH & SAFETY REOPENING ONTARIO –THINGS TO CONSIDER IMPLEMENTING AS BUSINESSES BEGIN TO REOPEN Reopening Ontario The province of Ontario has presented a multi-phase plan to reopen the economy. The province will follow a gradual approach to allow public health officials to monitor and assess conditions before moving onto the next phase. A practical guide to follow from the City of Toronto has been provided for employers, workplaces and businesses on workplace recommendations, protocols and procedures to protect employees and customers. The link can be accessed here. Stage 1 Stage 1 will consist of reopening business that can immediately meet or modify operations to satisfy public health recommendations and occupational health and safety requirements. Stage 1 will focus on workplaces that are well equipped and positioned to follow public health advice in terms of ensuring safe workplaces and appropriate physical distancing measures. What businesses can open in Stage 1? Construction, retail, vehicle dealerships, media industries, health services, outdoor recreational amenities, professional sports without spectators and many more. Stage 2 Ontario announced they will be taking a regional approach to Stage 2, reopening more workplaces and businesses based on additional risk assessments and public health information, determining which regions will be permitted to enter the stage when certain criteria are met. What businesses can open in Stage 2? Restaurants & bars, personal care services, shopping malls and centres, beaches, parks & camping, drive-in & drive-thru venues, libraries, community centers, along with weddings, funerals and other similar gatherings. Stage 3 Stage 3 will consist of reopening most remaining workplaces and businesses, while carefully and gradually lifting restrictions. Public health and workplace safety guidelines will remain in place, while large public gatherings will also continue to be restricted. Fifteen Proactive and Protective Measures to Keep Everyone Safe Keeping two meters or six feet of distance from others Washing your hands often – using soap and hand sanitizers Avoid touching your face with unwashed hands Cough into your elbow or a tissue Staying at home when you are sick or experiencing signs of illness Cleaning & disinfecting frequently touched objects and surfaces Wearing facemasks Avoiding all non-essential trips Screening staff and clients in regards to COVID-19 when possible, briefly questioning or implementing screening measures, prohibiting anyone with symptoms from entering the workplace Ensuring staff do not come to work when sick Maintaining flexibility, reducing operating hours, staggering of shifts and implementing flexible work policies when work can be done remotely, manage meetings electronically if possible Reduce overcrowding by establishing proper physical distancing measures and markings within workplaces for employees, workers and clients Managing entrances/exits effectively, controlling both the flow and capacity within workplaces while maintaining physical distancing Implementing signage and additional information to help advise individuals regarding important changes during this time, as it may additionally help the flow of information for workers, employees and clients Implementing proper cleaning and disinfection protocols for workplaces and/or implementing the use of air filters and cleaning services to reduce airborne contamination It is important that employers and employees work together to develop effective plans to manage and ensure the wellbeing of everyone as businesses begin to reopen. Occupational Health and Safety Act, RSO 1990, c. O. 1 (“OHSA”) In Ontario, employers have an obligation to ensure employees have a safe and healthy work environment. Employers are required to show that they acted reasonably to protect the safety of employees in hazardous circumstances, which may include exposure to COVID-19. For additional information, we encourage employers and employees to visit the Ontario website and review the latest information as it relates to the reopening of Ontario. Clickable Link here If you have more questions as it relates to occupational health and safety standards, or if you are an employer or employee who needs additional assistance regarding returning to work, please contact our firm to discuss your rights and options. “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, COVID-19, Employment LawJune 25, 2020September 29, 2020
Amendments to the Employment Standards Act, 2000 – May 29, 2020 – Impact on Temporary Layoffs This blog is co-written by our former articling student, Janet Son. On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). During the pandemic, many businesses were forced to close and were faced with an impossible situation. According to the Financial Accountability Office of Ontario, approximately 2.2 million Ontario employees have experienced temporary layoffs, job losses or reduced hours in 2020. However, under the ESA if a temporary-lay off runs longer than 13 weeks in any period of 20 consecutive weeks it is considered a deemed termination and the employee would be entitled to termination pay and severance pay (a longer layoff of up to 35 weeks in a period of 52 consecutive weeks is permitted if certain criteria are met). Under Reg 228/20, businesses are no longer required to pay the termination pay and severance pay to their employees, pursuant to the ESA, due to these types of deemed terminations. As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. Affected workers will remain employees and will also remain eligible for federal emergency income support programs. The regulation applies retroactively from March 1, 2020, and will expire 6 weeks after the state of emergency ends. Also, Section 7 of the regulation states that a temporary reduction or elimination of an employee’s work hours due to COVID-19 will not constitute constructive dismissal during the COVID-19 period. Further, in accordance with section 8, complaints filed with the Ministry of Labour due to a reduction or elimination of work hours “shall be deemed not to have been filed if the temporary reduction or elimination of hours or the temporary reduction in wages occurred during the COVID-19 period” and was related to COVID-19. However, Regulation 228/20 does not alter the common law with respect to constructive dismissal, as it relates to temporary layoffs under the ESA. Currently, it is well-established law that the employer does not have a common law right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. Typically, in order for the common law to be altered by statute, there would need to be express language in the statute to that effect, which is not the case here. How the Court will interpret and apply Reg 228/20 remains to be seen The courts may still find that employees have been constructively dismissed at common law, but they may award less generous severance package to employees. The specific facts which resulted in the temporary layoff or reduction in hours will also be relevant. Key Takeaway for Employers: Employers will not be obligated to pay out hefty sums for severance pay and termination pay under the ESA while the state of emergency is still ongoing and 6 weeks thereafter. However, if an employee has already been given a written notice of termination between March 1, 2020, and May 29, 2020, they will not automatically deemed to be on infectious disease emergency leave. Finally, this regulation does not bar employees from pursuing an action in common law and it is unclear at this stage how courts will interpret and apply this regulation. Key Takeaway for Employees: Employees will no longer be able to claim termination and severance pay pursuant to the ESA once the temporary lay-off period under the ESA ends. They now also cannot file a complaint with the Ministry of Labour as it will automatically be dismissed if the elimination or reduction of hours was due to COVID-19. However, employees can still proceed with claims in the civil courts pursuant to the common law. If you have more questions about how this new regulation will affect you as either an employer or employee contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “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, COVID-19, Employment LawJune 2, 2020July 5, 2023
COVID-19 – Employer and Employee Frequently Asked Questions Part II This blog is co-written by our former articling student, Janet Son. Employers When am I able to re-open my business? The Province of Ontario presented a multi-phase plan to re-open the economy titled “A Framework for Reopening our Province”. The Province will follow a gradual approach to allow health officials to assess the conditions before moving on to the next phase. The City of Toronto provided a guide for Employers, Workplaces and Businesses on procedures to protect employees and customers. As of May 16, 2020, the following businesses are allowed to re-open: Golf courses, with clubhouses open only for washrooms and restaurants open only for take-out Marinas, boat clubs and public boat launches for recreational use Private parks and campgrounds to enable preparation for the season and to allow access for trailers and recreational vehicles whose owners have a full season contract Businesses that board animals, such as stables, may allow boarders to visit, care for or ride their animal As of May 19, 2020, the following businesses may re-open: Retail services that have separate street-front entrances with measures in places, such as limiting the number of customers in the store and booking appointments beforehand Seasonal businesses and recreational activities for individual or single competitors such as tennis, track and field and horse racing Animal services, specifically pet care services, such as grooming and training, and regular veterinary appointments Indoor and outdoor household services that can follow public health guidelines, such as housekeepers, cooks, cleaning and maintenance Lifting essential workplace limits on construction Certain health and medical services such as in-person counselling; in-person services, in addition to virtual services, delivered by health professionals; and scheduled surgeries For businesses offering curbside pickup, Workplace Safety and Prevention Services produced a guide on health and safety for curbside pickup and delivery. What do I do if my employee cannot return to work because they are responsible for childcare while their children are at home from school or daycare? Under section 50.1 of the Ontario Employment Standards Act, the employee may be able to take unpaid Emergency Leave if they must perform childcare duties due to the closure of daycares and schools. The employee is required to advise their employer that they will be doing so and if they already started their leave, to notify their employer as soon as possible. Under subsection (4.1) an employer is allowed to ask for evidence that is reasonable in the circumstances, however, they may not require the employee to provide a certificate from a qualified health practitioner as evidence. Finally, the entitlement to leave generally ends once the state of emergency is terminated. Am I required to provide personal protective equipment to my employees? The Public Health Agency of Canada provided a guide for employers on preventing COVID-19 in the workplace. Employers should provide the necessary facilities and cleaning products to maintain a safe and clean work environment. This includes providing employees with personal protective equipment recommended by occupational health and safety guidelines. Employees Can I refuse to work because I am worried about infection from riding public transit? If you have a general fear of contagion and there has not been an order from the Medical Officer of Health, failing to attend work could be considered a “willful neglect of duty” and could lead to termination. However, if you are in a high-risk group, for example, you are over the age of 60, immunocompromised and/or suffer from another underlying health condition, you may have grounds under the Ontario Human Rights Code to discuss with your employer to ask for temporary accommodation. You may also be entitled to an accommodation if you live with someone who is considered high risk. For how long can my employer temporarily lay me off? According to section 56(2) of the Employment Standards Act, a temporary layoff is: “(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks; (b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and, (i) the employee continues to receive substantial payments from the employer, (ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan, (iii) the employee receives supplementary unemployment benefits, (iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so, (v) the employer recalls the employee within the time approved by the Director, or (vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee […]” In other words, a temporary lay-off can become a wrongful dismissal if it extends longer than 13 weeks in a period of 20 consecutive weeks without any other payments or benefits. Or after 35 weeks in a 52 week period if the employee receives payments or benefits from the employer or the government. However, the employer does not have a common law right to temporarily lay off an employee. In other words, the employer may not be able to temporarily lay off an employee at all, unless there is a contractual provision which permits the layoff. In the absence of a contractual provision, the layoff may constitute a constructive dismissal. My job has changed significantly, including duties and pay – is there anything I can do? Typically, unilateral changes by the employer without the employee’s consent can amount to constructive dismissal. However, if the changes are made in order to abide by COVID-19 health recommendations or requirements, for example modifying an employee’s hours as part of an employer’s plan to stagger shifts to reduce the number of employees in the office to ensure that physical distancing is possible, such changes may not constitute constructive dismissal. The courts have not yet explicitly addressed these issues, however, the extraordinary circumstances of a public health crisis will be relevant to determine whether the changes were reasonable. If you have more questions about employment law during COVID-19, contact employment lawyer 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, COVID-19, Employment LawJune 1, 2020September 29, 2020
Long-Term Care Homes Ordered to Allow Nurses to Determine Appropriate levels of PPE on the Job This blog is co-written by our former articling student, Janet Son. Long-term care homes (“LTC homes”) remain particularly vulnerable in the country’s fight against COVID-19. Reportedly, LTC homes are connected to 79% of COVID-19 related deaths in Canada. The Ontario Nurses Association (“ONA”) sought an interlocutory injunction to order the following LTC homes: Eatonville Care Centre, Anson Place, Hawthorne Place and Henley Place, to stop breaching Directives issued by the Chief Medical Officer of Health for Ontario (“CMOH”) under the Health Protection and Promotion Act (HPPA). Directive #5 states that if a health care worker determines that an N95 respirator is required in the delivery of care to a patient or resident, the LTC home must provide and not unreasonably deny access to appropriate Personal Protective Equipment (“PPE”). Moreover, Directive #3 makes it clear that LTC homes must use staff and resident cohorting to prevent the spread of COVID-19, which involves ensuring residents are separated by at least 2 meters and designating staff to care for either ill or healthy patients. On April 23, 2020, the Ontario Superior Court of Justice released its decision ruling in favour of the ONA, granting the injunction and speaking to the urgency of this life or death matter. In these four facilities, over 110 residents contracted COVID-19 with at least 54 dying from the illness and this number is growing every day. At least 7 nurses who worked at these facilities also contracted COVID-19, with one needing to be hospitalized. Eatonville Care Centre According to affidavit evidence of Regina Borkovskaia, a nurse at Eatonville, nurses were denied N95 respirators even when caring for residents diagnosed with COVID-19. Management claimed that “there were not enough N95s to go around, and that in any case, they were unnecessary”. Borkovskaia believes the decision to downgrade PPE was because of short-term economic expediency rather than to protect workers and patients. There were over 25 publicly confirmed deaths and 49 cases of COVID-19 at this facility, though the ONA believes the death count is closer to 43 rather than 25. Anson Place As of April 14, 2020, 69 residents of Anson Place tested positive for COVID-19. Only nurses providing nose swab testing to residents were allowed an N95 respirator. Nurses were told to remove their N95 respirators and to use surgical masks instead despite providing care for patients that were actively contagious. Furthermore, residents diagnosed with COVID-19 were not segregated into separate rooms and were less than 2 meters away from other residents in the same rooms, along with being treated by the same nursing staff. Hawthorne Place As of April 12, 2020, there were six diagnosed cases of COVID-19 and one death at Hawthorne Place. When staff demanded access to N95 respirators, limited supply was made available and nurses were given one to use for their entire shift. They were kept under lock and key by management and some nurses deposed they were denied the N95 though they were working in wings with active outbreaks. Furthermore, while COVID-19 test results were pending, the residents and the nurses were not directed to self-isolate. Rather, they were forced to return to work. Henley Place On March 29, 2020, a resident tested positive for COVID-19. The ONA requested that N95 respirators be provided to staff interacting with residents diagnosed or suspected of having COVID-19. This request was denied and the nurses were advised to use surgical masks even when caring for patients with a confirmed diagnosis. Furthermore, staff had to go through a lengthy bureaucratic process before being approved to receive an N95 respirator. The affidavits submitted detailed examples of nursing staff who were required to perform emergency procedures on COVID-19 patients without the use of N95 respirators. The Labour Dispute and the Precautionary Principle The ONA has filed grievances regarding these practices and a hearing had not yet been expedited. As a result, the ONA felt they had no choice but to request emergency relief from the Superior Court. In the court’s decision, Justice Morgan highlighted Article 6.06 of the Collective Agreement between ONA and the LTC homes entitled “Health and Safety”, which states that “When faced with occupational health and safety decisions, the Home will not await full scientific or absolute certainty before taking reasonable action(s) that reduces risk and protects employees.” Further, under section 25(2)(h) of the Occupational Health and Safety Act, employers are to “take every precaution reasonable” for the protection of the worker. In the context of COVID-19 where the modes of transmission of the virus are not yet fully known, Justice Morgan found the precautionary principle applied to support a requirement for nurses to be provided with N95 respirators when providing care to a confirmed or suspected case of COVID-19. Furthermore, Justice Morgan found that the LTC homes’ argument that N95s are in short supply and on-demand access by nurses would impact the availability to others, “sorely miss[ed] the mark”, in particular since the nurses were sacrificing their personal interests and safety to serve the residents of these homes. The test for injunctive relief was met and compliance with Directive #5 ordered. If you find yourself with similar concerns about adequate access to PPE at the workplace, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca to discuss your rights and options. “Our articles are 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, COVID-19, Employment LawMay 19, 2020September 30, 2020
“Our articles are 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.”
The CERB criteria has expanded: Am I eligible? This blog is co-written by our former articling student, Janet Son. On April 15, 2020, the federal government announced the expanded eligibility criteria for the Canada Emergency Response Benefit (“CERB”), upon mounting criticism that many workers were unable to collect the CERB despite being financially impacted by COVID-19. The following changes have been made: Now workers can earn up to $1,000 per month in employment and/or self-employment income while collecting the CERB. Some examples: A gig economy worker has lost 80% of their jobs due to COVID-19 however the remaining 20% they earn $1000 for the month. They can still collect the CERB, which means total potential earnings of $3000 per month while receiving the benefit. A worker held two part-time jobs. They were laid off from one of their jobs due to COVID-19, however they are still working at the second part-time job. If the second job pays less than $1000/month, they are able to continue to work while receiving the $2000 benefit. A retail worker is receiving $1000 per month from a relief fund set up by the company they work since the store they work for is closed. They can still apply for the CERB and receive the $1000 from the relief fund. An office worker has had their pay cut to $1000 per month along with reduced working hours. They can continue to work and earn up to $1000 per month from their company while also receiving the CERB. Seasonal workers who have exhausted their Employment Insurance (EI) regular benefits and are unable to undertake their usual seasonal work as a result of the COVID-19 outbreak. For example, those who work in commercial fishing, construction or resorts who work for a period of the year and would typically receive EI for the remaining months and now cannot return to those jobs due to COVID-19 are eligible for the CERB benefit. Workers who recently exhausted their EI regular benefits between December 29, 2019 and October 3, 2020 and are unable to find a job or return to work because of COVID-19 For example, if you are collecting EI which is set to end May 1, 2020 and you are unable to find a job because of COVID-19, you can switch to receiving the CERB if you meet all the other criteria If you are an essential worker that makes less than $2500 per month, you will soon be eligible to receive a temporary salary top-up. Details of this program will be released shortly. There are likely to be further changes in the CERB eligibility requirements, in particular for students who are currently ineligible for the CERB and yet have no prospects for summer employment. If you are a student who earned at least $5000 during 2019 from a summer job, part-time work during the school year, and/or a co-op term, you are eligible for the CERB if you had a job offer for the month of May that has been deferred for at least 14 days. If you have more questions about your eligibility for the CERB, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca By Fauzan SiddiquiBlog, COVID-19, Employment LawApril 20, 2020September 30, 2020
COVID-19 – Employer and Employee Frequently Asked Questions Employers Can my company screen its employees for COVID-19 prior to permitting them to enter the workplace, such as by asking them if they have symptoms, or by subjecting them to a mandatory temperature check? An employer is required to maintain a safe working environment for its employees under the Occupational Health and Safety Act. Accordingly, an employer may introduce reasonable policies and procedures to make efforts to keep its workplace COVID-19 free. Employers may wish to ask each employee prior to entering the workplace whether they are suffering from a fever, cough or shortness of breath, and if the answer is yes, to send the employee home. Some employers may even wish to require their employees to undergo a temperature check prior to entering the workplace, and if their temperature is 37.3 degrees celcius or more, to send them home. A court is likely to conclude that these measures are permissible, provided that employees are provided with advance notice of the new requirements, the screening is conducted discreetly and as confidentially as possible in the circumstances and that all employees (including management) are subjected to the same screening. While an employee who is prohibited from entering the workplace would arguably not be entitled to their wages for the day, an employer may wish to consider paying the employee for the day anyway to avoid disputes. If offered by the employer, the employee may also be eligible to take a paid sick day. It is also important to remember that not all COVID-19 cases will present with a fever and many individuals who are infected will not experience any symptoms. My company has introduced policies, such as social distancing, staggering shifts, prohibiting employees with symptoms to attend at work and encouraging employees to work from home to the extent possible. But some employees are still refusing to come to work on the basis that the workplace is unsafe and that they have a right to refuse unsafe work in accordance with the Occupational Health and Safety Act. How should the company respond? An employee is entitled to refuse unsafe work. But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is insufficient for the employee to justify their refusal to work. Rather, the employee must be able to point to a specific issue that the employer has not addressed. For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work. In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work. An employee who refuses to work without a valid legal reason could be disciplined, terminated or be considered to have abandoned their job. In this scenario, the employer may wish to consider permitting the employee to take an unpaid leave of absence. COVID-19 has caused business to decline significantly and my company is looking to save money, while continuing to employ as many employees as possible. What are my options? The following options are available: a) Reducing pay and/or hours of work If the employee does not agree to the reduction, this could result in a claim for breach of contract. Depending on the amount of the reduction, this could also result in claims for constructive dismissal, since the employer is not entitled to unilaterally change key or fundamental terms of an employment contract. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary. b) Work Sharing Agreements These are arrangements in which two or more employees would share the hours and job duties of one position. This way, the employer will pay out less in wages and employees will be able to work some hours, rather than none at all. The employer and the employees must all agree to the arrangement. If the agreement is registered with Service Canada, the employees would be eligible for an Employment Insurance (EI) “top-up”. A work sharing agreement must be submitted to Service Canada at least 30 days prior to the proposed start date. c) Temporary Layoffs There are provisions in the Employment Standards Act, 2000 at section 56 which permit an employer to temporarily layoff employees. However, to date the courts have not recognized the right of an employer to temporarily layoff employees at common law. In other words, an employer is only permitted to rely on these provisions if there is an express contractual term between the employer and the employee which permits temporary layoffs. Otherwise, the employee may have a case for constructive dismissal. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and may be willing to accept the reduction, as long as it is intended to be temporary. It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic. d) Canadian Emergency Wage Subsidy (CEWS) The CEWS provides a 75% wage subsidy to eligible employers for up to 12 weeks, retroactive to March 15, 2020. The maximum value of this benefit is $847.00/week per employee. For an employer to be eligible for this benefit, they must be able to demonstrate that their revenue dropped by 15% between March 2020 and March 2019, or between March 2020 and the average revenue of January 2020 and February 2020. For continued eligibility, the employer must demonstrate a loss of revenue of at least 30%. The CEWS may enable employers to continue to employ more of their workers without pay cuts throughout the pandemic. Employers will be able to apply for the CEWS through Canada Revenue Agency’s My Business Account portal. e) Deferral of GST and HST Payments Employers are permitted to defer GST and HST payments until June 30, 2020. f) Canadian Emergency Business Account (CEBA) This $25 billion program provides a $40,000.00 loan for certain small and medium-sized businesses that is interest free until December 31, 2022. g) Deferral of WSIB Premiums Employers may defer payment of their WSIB premiums until August 31, 2020. My company has introduced reasonable and detailed policies and procedures to keep COVID-19 out of the workplace. One of my employees has advised that they were diagnosed with COVID-19 and is convinced that he must have been exposed at the workplace. Is my company liable? If the employer has Workplace Safety and Insurance Board (WSIB) coverage, and the employee contracted COVID-19 while in the course of their employment, the employee would likely be entitled to various WSIB benefits, such as compensation for any wages incurred. If the employer does not have WSIB coverage, it will depend on whether the employee can prove on a balance of probabilities that they contracted the virus while at work, and if so, whether the employer was negligent in the course of implementing and enforcing its Coronavirus policies. For example, if an employer implemented a social distancing policy which complied with the Public Health Ontario and Public Health Agency of Canada guidelines, but took no steps to enforce the policy, despite management’s knowledge that the policy was regularly not followed and treated as a joke by its employees, the employer could be liable. My company has not yet implemented a written Coronavirus policy. What should the policy include? This will depend on the nature of the business. The following list is not exhaustive. We recommend that an employer’s Coronavirus policy include the following: a) The individual(s) at the company who employees should contact, if they have symptoms of COVID-19, or believe they have been exposed to or have contracted the virus; b) A requirement that any employee who has symptoms of COVID-19, or believe they have been exposed to or have contracted the virus not be permitted to attend at work until they provide a medical note to the employer confirming that it is safe for them to return to work; c) For companies that are considered essential businesses, a requirement or strong encouragement that those who are able to perform the duties of their job from home work primarily from home; d) A prohibition of gatherings at work – for example, a statement that employees are not permitted to each lunch together in the company’s lunchroom; and e) A requirement that all employees stay at least two (2) metres away from each other when possible, in accordance with social distancing legislation and Public Health Ontario and Public Health Agency of Canada recommendations. Since most employees are likely to be working from home, employers should review their working from home policies, in particular with respect to confidentiality, health and safety/workplace accident and productivity issues. We encourage employers to seek legal advice with respect to implementing a Coronavirus policy. Employees If I am unable to work because I have COVID-19 symptoms, a family member has COVID-19 or I need to take care of my children who are home from school, is my employer required to pay me? Unless the employer offers paid sick leave, or the employee is eligible for payment in accordance with another contractual term or employer policy, the employee would not be entitled to pay from the employer. However, employees who are no longer earning income because of COVID-19 may be eligible for the Canadian Emergency Response Benefit (CERB). This benefit provides $500.00 for up to sixteen (16) weeks. I am concerned that I may become infected with the novel coronavirus at work. Am I entitled to refuse to work? Is my employer required to pay me? An employee is entitled to refuse unsafe work. But subject to any disability that would trigger the employer’s duty to accommodate under the Human Rights Code, a general fear of contracting COVID-19 is not sufficient for the employee to justify their refusal to work. Rather, the employee must be able to point to a specific issue that the employer has not addressed. For example, if a hospital requires a medical professional to treat COVID-19 patients without providing sufficient personal protective equipment (PPE), the employee may be justified in refusing work. In addition, if an employer refuses to provide a plan to reduce the risk of an “at-risk” employee (ex. someone who is over 60 years old) of contracting COVID-19, that employee would likely be justified in refusing to work. An employee who refuses to work without a valid legal reason is not entitled to payment. The employee could also be disciplined, terminated or be considered to have abandoned their job. In this scenario, the employee may wish to ask their employer to take an unpaid leave of absence. Can my employer fire me if I miss too much work for a COVID-19 related reason? Absolutely not! Employees are entitled to a protected unpaid leave of absence from work for employees who are unable to work for the following reasons: a) The employee is acting in accordance with an order under the Health Protection and Promotion Act. b) The employee is in isolation or quarantine in accordance with public health information or direction. c) The employer directs the employee not to work due to a concern that COVID-19 could be spread in the workplace. d)The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure. e) The employee is prevented from returning to Ontario because of travel restrictions. For more details, please see section 50.1(1) of the Employment Standards Act, 2000, which was recently amended. I have been diagnosed with COVID-19. Can my employer require me to disclose this diagnosis to them? An employer has an obligation to maintain a safe working environment. Normally, if an employee is sick and is seeking time off or an accommodation under the Human Rights Code, an employer would be entitled to know the employee’s prognosis as it relates to employment, but not their diagnosis. However, the medical evidence available suggests that COVID-19 is highly contagious. It would therefore be in the interest of the employer and other employee to know whether one of their co-workers has been diagnosed with COVID-19. This way, any individuals with whom the employee diagnosed with COVID-19 can stay away from the workplace and self-isolate, so as to reduce the spread of the virus in the workplace. If an employer becomes aware than an employee has been diagnosed with COVID-19, the employer should take reasonable steps to maintain confidentiality. Rather than disclosing the identity of the individual to the entire workplace, the employer should communicate that there has been a confirmed case of COVID-19 in the workplace. To ensure compliance with public health guidelines, it may be necessary for the workplace to close and for all employees to self-isolate for 14 days. My employer is threatening to temporarily lay me off from work, significantly reduce my hours or cut my salary due to a slowdown in business. Is this legal? If there is a contractual term that permits an employer to temporarily lay off employees, then it can do so, provided that it complies with the temporary layoff provisions at section 56 of the Employment Standards Act, 2000. It is also possible that the courts may determine that employers are entitled to temporarily lay off employees in accordance with the Employment Standards Act, 2000, even without a contractual term, due to the unique and unprecedented circumstances which have resulted from the COVID-19 pandemic. An employer is not permitted to unilaterally reduce hours of work or cut an employee’s salary. This may constitute constructive dismissal and entitle the employee to a severance package. However, given the state of the COVID-19 economy, many employees – in particular short service employees with a lesser severance entitlement – are likely to realize that it will be difficult for them to find a new job, and maybe willing to accept the change in the terms of their employment, as long as it is intended to be temporary. For more information please contact Employment lawyer Marty Rabinovitch by email marty.rabinovitch@devrylaw.ca or phone 416-446-5093. “This article is intended to inform. Its content does not constitute legal advice and should not be 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, COVID-19, Employment LawApril 15, 2020September 30, 2020
The Canada Labour Code & Employer Releases THE REMEDY The Canada Labour Code applies to employees working in companies which are governed by federal law, as opposed to provincial law. This includes industries such as public broadcasting, railroads, trucking companies which cross provincial borders, banks, federal government employees and public harbours, to name the most evident. The legislation, among other things, gives every federally regulated employee the right of arbitration when they are dismissed for cause, and in some cases when they are dismissed absent of any allegations of cause. The arbitration process can lead to an award for lost income to the date of the hearing as well as reinstatement and, in certain situations, an award of aggravated damages for injured feelings where the termination was the result of seriously unfair conduct. THE RELEASE ISSUE Many of these arbitration decisions have held that it is illegal for the employer to require the employee to sign a release waiving their rights under the Canada Labour Code as a term of a settlement offered at the time of termination. Notably, this was the case in the 1998 Court of Appeal decision National Bank of Canada v. Canada (Minister of Labour). In that decision, the ONCA upheld the arbitrator’s decision that the employee was entitled to bring a complaint notwithstanding the fact that they had signed a release, stating: Section 168 protects the right of an employee to complain of an unjust dismissal even if that employee has signed a contract by which his or her employment is terminated. Indeed, it is not difficult to envisage a situation where an employee could, after having signed such a contract, realize that the termination of his or her employment is not the result of a legitimate business restructuration as he or she was led to believe, but is instead a coloured or disguised attempt at wrongfully dismissing her or him. This shows the wisdom of the Code in protecting an employee’s access to the remedies against unjust dismissal notwithstanding the signature of a termination contract between the parties. This issue was revisited recently by the Federal Court in Bank of Montreal v. Li. In this case, the employee was presented with and accepted a severance offer. She signed a release by which she gave up all rights to file an “unjust dismissal” complaint under the Canada Labour Code. After she signed the release document and was paid the settlement sum, she proceeded to do what the release document specifically prohibited and she succeeded in court on her right to pursue her remedy. THE RIGHT WAY It is possible for an employer to settle such a case before proceeding to arbitration, but it requires that the employee file the complaint and then proceed to a mediation settlement with the Department of Labour, which is indeed a cumbersome procedure. Employees’ Take Away As has been stated many times before, the words in a contract may not be determinative of your rights. This remedy, in particular, may be quite powerful and supersede any contract in which you expressly agree not to pursue this option. It is always advisable to seek the opinion of a skilled employment lawyer before signing any release or other termination documents. However, even if you have, you may still have the option to seek further remedies. GET ADVICE AND KNOW YOUR RIGHTS This is an important issue to understand both sides. For advice on this and similar issues and, indeed, any employment issue, contact Elyse Mallins of Devry Smith Frank LLP. We regularly advise employees and employers on legal workplace issues. By Fauzan SiddiquiBlog, Employment LawMarch 19, 2020September 30, 2020
Can I Form My Own Union? Any group of eligible workers in Ontario can form a union. If 40% of the membership signs union membership cards, the Ontario Labour Relations Board will hold a vote to determine whether the union should be certified. A secret ballot is then held. 50% or more votes in favour will cause the union to be certified. The Collective Agreement The terms of the employment relationship between the workers and the company are then determined by the collective agreement. There is no individual right to bargain for wage increases or other terms of employment. This agreement forms the basis for all employment rights and entitlements. Rights on Termination The collective agreement determines all rights and remedies on termination for cause or without cause. If there is termination or other forms of discipline imposed, the worker, by union representation, has the right to grieve the decision. With union support, such a case may proceed to arbitration. At that stage the decision maker has the power to order back pay, reinstatement or any other similar remedy. Reinstatement in this process is generally considered the default remedy when there is no cause for termination found. Just as a common law judge may order additional damages for unfair conduct, the arbitrator may also make such incremental awards for “aggravated” damages. No Right to Sue The union members have no right to sue in the civil courts for an employment dispute. All such issues must go through the grievance process. This is the same for “wrongful dismissal” claims. In the civil courts without union representation, an employee fired without cause can claim damages for lost income in the period of “reasonable notice”. This claim is not allowed for union members. Termination without cause will likely follow a seniority system. The person to be terminated will be allowed only the severance sums set out in the collective agreement and no more. This payment must at least meet the statutory minimum. Disputes with Union Management If there is an issue between the company and the employee, such as an alleged termination for cause, the legal parties in the case are the union and the company. The individual person is a not a party, as they are represented by the union, which has the legal authority to make all decisions in the case. For example, the union may decide the employer’s offer of reinstatement with no back pay is a fair offer to be accepted. The employee may disagree. The union must consult and discuss the issues with the employee but ultimately makes the final call on the offer. The same issue often arises on a termination case which may possible may be headed to arbitration. The union may decide, for whatever reason, not to support the case to proceed to arbitration. It again will certainly consult with and discuss the issues with the employee. Again, however, at the end of the day, it is the union’s final decision to make. Can the Decisions of a Union be Reviewed? The union has an obligation to allow for “fair representation” to its members. There is a potential remedy available to a disgruntled employee who has disagreed with the union’s advocacy. This is a complaint to the Ontario Labour Relations Board of “unfair representation”. These cases are notoriously difficult for the employee to win. Essentially, the worker must show that the union failed to even consider the merits of the case. If the union has consulted outside legal counsel and reviewed the case, there is virtually no chance of success for the employee’s case. Unions do offer certain protections to employees which are not available without their existence. There is a definitely good news and not so good news. Before you sign the union card and before you vote, you should understand both sides. It is always recommended to seek advice from an experienced employment lawyer before taking action that may result in a claim for damages. Contact Elyse Mallins of Devry Smith Frank LLP for advice for both employees and employers on legal workplace issues. “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 LawFebruary 10, 2020September 30, 2020