In a recent arbitration decision involving a utility company, an Ontario arbitrator reiterated the importance of trust in the employment relationship and upheld the dismissal of a seven-and-a-half-year employee with no disciplinary history for covering up a safety violation. Facts On October 9, 2012 the grievor, a supervisor, was working with his team to remove gaskets from an old generator. It … Continue reading
For the majority of employees, vacation time, vacation pay and public holidays will be set out in the terms of their employment contract. But such terms must be consistent with statutory minimum requirements set out under the Employment Standards Act, 2000 (ESA), in Ontario. Here are 10 things to keep in mind: Not all employees are entitled to vacation … Continue reading
Section 18 of the Employment Standards Act, 2000 (“ESA”) provides that employees must be given at least 11 consecutive hours of rest between shifts. Three recent decisions outline different scenarios that may exempt employers from this requirement: (1) where the employer qualifies for an exemption laid out in s. 19 of the ESA; (2) where a … Continue reading
In Kosovic v Niagara Caregivers and Personnel Ltd (“Kosovic”), the Ontario Human Rights Tribunal held that a recruitment agency’s job application form that asked for the applicant’s date of birth contravened the Ontario Human Rights Code. The Tribunal awarded the applicant $500 in damages to compensate him for injury to his dignity, self-respect and feelings, … Continue reading
In the recent case of Penteliuk v CIBC World Markets Inc, the Ontario Superior Court held that an employee whose promised promotion was taking longer than expected was not constructively dismissed. The Plaintiff was employed as a Managing Director at a large financial institution. In February of 2004, the Plaintiff turned down a lucrative employment … Continue reading
The decision of the Supreme Court of Canada in IBM Canada Limited v Richard Waterman, [2013] 3 S.C.R. 985, considered whether employees’ pension benefits should be deducted from damages for wrongful dismissal. The majority concluded, on the facts of this case, that no such deduction should occur. The company dismissed a 65-year-old employee without cause after 42 years of service. The … Continue reading
A very recent Supreme Court of Canada (SCC) decision, Canadian Artists’ Representation v National Gallery of Canada, considered the parameters of the duty to bargain in good faith. The Court found that a labour tribunal’s conclusions regarding bargaining in bad faith were reasonable, where a company took a “rigid stance” it knew would not be acceptable to … Continue reading
Where agency workers are brought in for temporary assignments, a question may arise in unionized workplaces whether the temporary workers are employees of the company, or rather employees of the employment agency. If the agency workers are found to be employees of the company that has brought in the temporary workers, then the workers may be found within … Continue reading
A recent decision in British Columbia has found post-termination evidence of just cause for dishonesty discovered in an investigation of an employee that occurred following his termination. The plaintiff in this case was responsible for managing the company’s day-to-day finances and its administrative staff. The Plaintiff had 40 years of experience as an accountant and had worked at the Defendant … Continue reading
The Ontario Court of Appeal has ruled in Ontario (Labour) v Flex-N-Gate Canada Company that post-accident compliance should not be considered a mitigating factor in sentencing for a conviction under the Occupational Health and Safety Act (“OHSA”). An employee was injured in a workplace accident when metal sheets fell off of a forklift and struck the employee’s foot, causing several … Continue reading
In, Ashraf v SNC Lavalin ATP Inc. (“Ashraf”) an Alberta judge upheld a master’s decision to strike the statement of claim of a worker seeking to sue his employer for injuries resulting from workplace harassment. The Statement of Claim of the Plaintiff was struck on the grounds that the Alberta Worker’s Compensation Act bars all rights … Continue reading
The Ontario Divisional Court recently quashed an application for judicial review brought by an individual employee seeking to overturn an arbitrator’s decision denying his discharge grievance. The Court ruled in Ali v United Food and Commercial Workers Canada that an individual employee lacks standing to apply for the review of an arbitration award. Subject to … Continue reading
The B.C. Workers’ Compensation Appeal Tribunal (“WCAT”) in Browne v. British Columbia (Workers’ Compensation Appeal Tribunal) considered a petition by 14 temporary farm hands who were injured when a truck they were riding in left the road and rolled down an embankment. Before and after work each day the 14 workers were driven to and from their residence. Both … Continue reading
In Morgan v Herman Miller Canada Inc, 2013 HRTO 650 (“Morgan”), the Ontario Human Rights Tribunal (the “Tribunal”) heard an Application made pursuant to section 34 of the Human Rights Code (the “Code”) alleging discrimination and harassment with respect to employment because of colour and reprisal. This decision will be of interest to all employers, … Continue reading
When job redundancies arise in an organization, whether as result of a merger, restructuring, or downsizing, employers need to remain aware of duties under human rights legislation, such as the Ontario Human Rights Code. To meet these expectations, an employer’s decision regarding which employees will lose their jobs can not be tainted in any way by discriminatory decision-making. … Continue reading
Starting July 1, 2014, all employers covered by the Occupational Health and Safety Act (OHSA) will be required to give Basic Awareness Training to all workers and supervisors. The objective of this training is to enhance workers’ and supervisors’ knowledge of both their rights and responsibilities under the OHSA and highlight the OHSA’s overarching principle that workers, supervisors … Continue reading
Two 2013 decisions of the Ontario Superior Court, Kotecha v. Affinia and Filiatrault v. Tri-County Welding Supplies Ltd. may indicate a trend towards higher notice periods in light of an aging workforce and the abolishment of mandatory retirement. These decisions considered terminations for employees (in their 70s and 80s) who had in some cases over 40 years … Continue reading
The Ontario Court of Appeal has substantially reduced a record setting $1 million in punitive damages jury award against a retail employer and $150,000 in punitive damages against a former manager. These damages were reduced to $10,000 against the manager and $100,000 against the company. The employee in this case worked for a major retailer in various positions since 1999. … Continue reading
In the recent case of Wilson v. Atomic Energy of Canada Ltd. (“AECL”) 2013 FC 733, the Federal Court confirmed that companies subject to the Canada Labour Code (the “Code”) are permitted to dismiss non-union employees without just cause. The Federal Court overturned a decision of a Code adjudicator appointed to hear the case allowed … Continue reading
Changes to the Canada Labour Code (the “Code”) became effective April 1, 2014 including amendment of the time limits for making complaints of unpaid wages. The time limits which were reduced to six months from the day the employer was required to pay wages or other amounts. Payment orders can cover wages owing for a period … Continue reading
Whistleblower laws exist to protect employees who disclose wrongdoing within their organizations. This legislation prohibits an employer from taking any reprisal, such as discipline or termination, against an employee who blows the whistle on employer misconduct, wherever whistleblower legislation is in force. Whistleblower legislation in Canada is more prevalent in the public sector, where employees … Continue reading
The recent Ontario Court of Appeal decision of Farwell v. Citair Inc., 2014 ONCA 177, demonstrates how the offering of substitute employment when an employee has been constructively dismissed can have a serious effect on the damages payable for wrongful dismissal. As a result of a change in product focus, the plaintiff, who had been employed … Continue reading
To give or not to give, that is often the question. Employment references can present legal risks for employers. Former employees and their subsequent employers may allege claims of negligence in the provision of references. In Canada negligent referencing has yet to be addressed definitively by the courts. However, in the United Kingdom, claims that an employer was negligent in … Continue reading
In Garrie v. Janus Joan Inc., 2014 HRTO 272, the Human Rights Tribunal of Ontario considered the practice of employing individuals with developmental disabilities in exchange for honorariums set well below minimum wage and found the approach to be discriminatory under the Ontario Human Rights Code. On the facts, the employer, with the consent of … Continue reading