Tag: Employment Law

Temporary Layoffs during COVID-19 Can Amount to Constructive Dismissal under Common Law – Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII)

In earlier blog posts, which can be found here and here, we wrote about the implications of Regulation 228/20 (the “Regulation”), enacted pursuant to the Employment Standards Act, 2000(the “ESA”). The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave. Section 7 of the Regulation states that a temporary reduction or elimination of an employee’s work hours and/or wages due to COVID-19 will not constitute constructive dismissal during the “COVID-19 period”, which currently lasts until July 3, 2021.

The issue that remained unresolved was whether the Regulation also prevented an employee from advancing a claim for constructive dismissal at common law.

In general, for the common law to be altered by statute, there would need to be express language in the statute to that effect.

In Coutinho, an employee was placed on temporary lay-off in May 2020 due to the closure of her workplace during the pandemic. The plaintiff commenced an action against the employer claiming damages for constructive dismissal at common law, along with punitive and aggravated damages. Relying on section 7 of the Regulation, the employer argued that the plaintiff was deemed to be on Infectious Disease Emergency Leave and that the temporary reduction of her duties and work hours did not constitute a constructive dismissal at common law.

The Ontario Superior Court was asked to consider whether a temporary reduction in hours of work and/or wages constitutes constructive dismissal at common law, despite the Regulation.

Scope of Regulation 228/20 under the ESA

The defendant argued that due to the unprecedented emergency caused by COVID-19, section 7 of the Regulation should be interpreted to apply not only to constructive dismissals for the purposes of the ESA but also at common law. The Court found that the scope of section 7 of the Regulation must be interpreted with section 8(1) of the ESA which provides that “no civil remedy of an employee against his or her employer is affected by this Act.” The Court determined that the scope of the Regulation was constrained by its enabling legislation and could not be interpreted in the same manner as a statutory provision.

In support of this interpretation, the Court considered an online publication of the Ontario Ministry of Labour, Training, and Skills Development, which states that the Regulation affects only what constitutes a constructive dismissal under the ESA and does not address what constitutes a constructive dismissal at common law.

Constructive Dismissal Under Common Law

While the Regulation precluded the plaintiff from pursuing damages under the ESA, the Court determined that the Regulation did not prevent the plaintiff from pursuing a claim for constructive dismissal at common law. Under the common law, unless expressly stated in an employment contract, an employer does not have a right to temporarily lay off an employee, even if the employer complies with the provisions of the ESA. The Court found that the plaintiff was entitled to treat the company’s unilateral imposition of the layoff as a termination at common law and therefore the employee had the right to sue for constructive dismissal.

This decision confirms that the Regulation to the ESA has no effect on an employee’s common law right to assert that a reduction in hours of work and/or wage constitutes a constructive dismissal, thus entitling them to wrongful dismissal damages. In light of the Court’s ruling, many temporary layoffs due to COVID-19 could be considered unlawful and may entitle employees to damages.

“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 LawMay 26, 2021June 24, 2024

Termination Provisions of Employee Stock Awards Agreement Found Unenforceable – Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII)

In 2018, an employee was terminated by his employer without cause following a tenure of nearly 23 years. In addition to his base salary, the employee’s compensation included performance-based cash bonuses and stock awards, which collectively accounted for approximately 30% of his income. The stock awards in question were awarded to the employee during his employment but would not have vested until after his employment was terminated, during the reasonable notice period. When the employee was terminated, he was not paid his cash bonus for the 2018 fiscal year and his unvested stock awards were cancelled.

The Stock Awards Agreement included the following clause: “in the event of termination of Awardee’s Continuous Status as Participant, Awardee’s rights under this Award Agreement in any unvested stock awards shall terminate. … Awardee’s Continuous Status as a Participant will be considered terminated as of the date Awardee no longer is actively providing services to the Company.”

The Ontario Superior Court was asked to consider, among other things, whether the employee was entitled to receive his cash bonus for the 2018 fiscal year and throughout the reasonable notice period and whether the employee was entitled to his awarded but unvested stock awards.

Stock Awards

It was not disputed that stock awards formed an integral part of the employee’s compensation package. However, the issue before the court was whether the employee was entitled to the the stock awards that would have vested after the termination date, but during the reasonable notice period (of almost 24 months). The language contained in the Stock Awards Agreement stated that any unvested stock awards terminated immediately. However, the court ultimately determined that the termination language was unenforceable and awarded damages to the employee.

In arriving at its conclusion, the court determined that the employer had not taken “reasonable measures” to draw the employee’s attention to the relevant termination language in the lengthy stock award agreement. The employee testified that he had not read the entire agreement and was not aware of the provisions which would have disentitled him to unvested stock awards in the event of termination.

While the employee received email notifications with a link to the stock award agreement that he was required to accept in order to accept a stock award, the court decided that this was not a “reasonable measure” to bring the relevant language to the employee’s attention, in particular since the stock awards constituted an integral part of the employee’s compensation. Further, the court concluded that the termination language was “harsh and oppressive.” Specifically, “harsh and oppressive” terms must be drawn to the employee’s attention in order for them to be enforceable. As a result, the termination provisions were found to be unenforceable and the employee was entitled to damages in lieu of the awarded but unvested stock awards.

Performance Bonus

The court determined that it is settled law that performance-based awards, while discretionary, must nonetheless be conferred in a “fair and reasonable” manner. The employee argued that the process was unfair, but the court found that the employer’s decision was reasonable. Accordingly, the employee was not entitled to any damages as a result of being denied his performance bonus for the 2018 fiscal year. However, the employee was entitled to a payment in lieu of performance throughout the common law reasonable notice period.

Implications for Employers

Employers who wish to include (or introduce) termination clauses in employee stock award programs should ensure that reasonable measures (above and beyond email notifications) are taken to draw the language to the employees’ attention to increase the likelihood that these “harsh and oppressive” clauses will be enforceable.

Finally, if a performance-based cash bonus program is available to employees, employers should ensure that the process is fair and the bonus decisions are reasonable.

Further Reading

“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 24, 2021February 24, 2021

Temporary Layoffs During COVID-19 – “COVID-19 period” extended until January 2, 2021

On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. The regulation applies retroactively from March 1, 2020, and initially was set to expire on September 4, 2020, six (6) weeks after the state of emergency ended. This period of time is referred to in the Regulation as the “COVID-19 period”. Our initial blog, which explains the impact of the Regulation on employer and employee rights, can be found here.

On September 3, 2020, the government of Ontario announced that the COVID-19 period would be extended until January 2, 2021.

Impact of the Regulation and the Extension of the COVID-19 Period

As a result of the Regulation and the government’s latest announcement, non-unionized employees who have been temporarily laid off between March 1, 2020, and January 2, 2021, for reasons related to COVID-19 would be deemed to be on Infectious Disease Emergency Leave.

Under the ESA, an employee who has been laid off for more than 13 weeks in any period of 20 consecutive weeks (or for at least 35 weeks in any period of 52 weeks, if certain other conditions are met) will be deemed to have been dismissed from their employment. This constructive dismissal would then entitle the employee to statutory termination pay, as well as severance pay (if certain other criteria are met).

The extension of the COVID-19 period to January 2, 2021, means that there will be no deemed terminations arising from temporary layoffs until after January 2, 2021, provided that the reason for the layoff was related to COVID-19. As noted by the government of Ontario, the Regulation can relieve employers from substantial payments to their employees, which can make a difference in times where the business is already struggling to survive the economic effects of the pandemic.

Does the Regulation Alter the Common Law related to Temporary Layoffs and Constructive Dismissal?

As set out above, an employer has a right to temporarily lay off employees under the ESA. However, it is well-established law that an 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. This would result in a constructive dismissal at common law.

The common-law prohibition of temporary layoffs in Ontario can be altered if there is an express term in an employment contract that permits an employer to temporarily layoff employees in accordance with the ESA.

In order for the common law to be altered by a statute, there would need to be express language in the statute to that effect, which is not the case here. In fact, the ESA expressly states that “no civil remedy of an employee against his or her employer is affected by this Act” and the Regulation does not contain any language which would modify this section of the ESA.

In the event that the common law provides a greater right or benefit to an employee than their ESA entitlements, the common law will prevail. However, an employer can limit an employee’s entitlements by contract, as long as the contract ensures that the employee will not receive less than their minimum ESA entitlements.

COVID-19 has resulted in unique and unprecedented circumstances for both employers and employees and how the courts will interpret and apply Regulation 228/20 (and the most recent amendment to the COVID-19 period) remains to be seen. The courts may still find that employees have been constructively dismissed at common law, but may award less generous severance package to employees. The specific facts which resulted in the temporary layoff or reduction in hours or wages will also be relevant.

If the common law remains unaltered, many temporary layoffs due to COVID-19 would be unlawful and may result in the employee’s entitlement to a common law notice period and significant severance payouts for employers.

Key Takeaway for Employees:

Employees who have been temporarily laid off during the COVID-19 period and were waiting until after September 4, 2020, to claim statutory termination pay and severance pay from their employer arising from a deemed termination of their employment will now have to wait until after January 2, 2021. However, assuming that there was no lay-off provision in their employment contract, employees in this situation should consider taking the position that the lay-off was in contravention of the common law, their employment was constructively dismissed, and that they are therefore entitled to a common law notice period.

Key Takeaway for Employers:

Employers will not be obligated to pay out hefty sums for severance pay and termination pay under the ESA until after January 2, 2021, with respect to employees who have been temporarily laid off due to COVID-19, and may therefore wish to consider extending temporary layoffs until January 2, 2021. However, the 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.

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.

By Fauzan SiddiquiBlog, COVID-19, Employment LawSeptember 15, 2020September 29, 2020

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*

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.

By Fauzan SiddiquiBlog, Employment LawJuly 20, 2020June 24, 2024

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.

By Fauzan SiddiquiBlog, COVID-19, Employment LawJune 25, 2020August 20, 2024

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

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, 2020August 20, 2024

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.

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 our employment law department. We regularly advise employees and employers on legal workplace issues.

By Fauzan SiddiquiBlog, Employment LawMarch 19, 2020June 25, 2024

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