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Posting Alert – Ontario Publishes Updated Version of Employment Standards Poster

In conjunction with its overhaul of the Employment Standards Act, 2000, the Ontario government has also published an updated version of the Employment Standards Poster. Employers must post the poster in the workplace in an area where it is likely to come to the attention of employees and provide a copy of the poster to its employees. As employment standards officers will no doubt be on the look-out for this poster, employers should ensure that they take steps to comply with this easy to spot obligation.

The new poster can be downloaded from the Ministry of Labour’s website at: https://www.labour.gov.on.ca/english/es/pubs/poster.php.

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Posting Alert – Ontario Publishes Updated Version of Employment Standards Poster

10 Employment Law Cases That You Should Remember from 2017 (in 280 characters or less)

As we begin 2018, we bring you a review of 10 employment law cases that we thought were worth tweeting about in 2017.

  1. Buchanan v. Introjunction Ltd, 2017 BSCS 1002 – Employee who was dismissed before actually starting work gets 6 weeks’ notice.
  2. Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 – Mitigation Madness! Employment income earned during “statutory entitlement period” and/or from “inferior position” may not be deductible from wrongful dismissal damages.
  3. Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 – Another termination clause bites the dust! In order to contract out of the common law, employers must use clear and unambiguous language. An employer cannot fix an otherwise illegal and unenforceable termination clause through its post-termination conduct.
  4. Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 – Ontario Court allows the Toronto Transit Commission to implement random drug and alcohol testing.
  5. Krishnamoorthy v. Olympus Canada Inc., 2017 ONCA 873 – Court of Appeal confirms that in an asset sale, a purchaser’s offer of employment constitutes sufficient consideration for changes in an employment contract – including the introduction of a termination provision.
  6. McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073 – Working Notice Doesn’t Work for Disabled Employees. Court rules that employers cannot provide working notice to employees on disability leave because they are incapable of working.
  7. Lalonde v Sena Solid Waste Holdings Inc, 2017 ABQB 374 – Employer’s “shoot first ask questions later” approach to termination results in $75,000 in aggravated damages. Employers must conduct a thorough investigation which gives the employee a proper opportunity to present his/her side of the story.
  8. British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 – The scope of human rights legislation is broad enough to protect employees who suffer discrimination from co-workers – even if the co-worker is employed by a different employer.
  9. Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 – Some helpful guidance on when an employer can request an independent medical examination! Where an employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert an IME will be warranted.
  10. Papp v Stokes et al, 2017 ONSC 2357 – Employer’s negative reference does not trigger damages because it was substantially true and is covered by qualified privilege (so long as there is no proof of malice).

Stay tuned for details on our upcoming webinar where we highlight the employment and labour law trends to be prepared for in 2018!

10 Employment Law Cases That You Should Remember from 2017 (in 280 characters or less)

Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

The Ontario government has just passed the Bill 148 which amends the Employment Standards Act and the Labour Relations Act with a target effective date of January 1, 2018.  The Bill still needs to receive Royal Assent.

Key changes to the Employment Standards Act will include:

  • Raising the general minimum wage to $14 per hour as of January 1, 2018 and $15 per hour as of January 1, 2019
  • As of April 1, 2018 requiring the same rate of pay as paid to full-time employees for employees doing substantially the same kind of work including temporary help agency staff, casual, part time, temporary and seasonal workers
  • Increasing the minimum vacation to three weeks per year after an employee has five years of service
  • Increasing parental leave for birth mothers who have taken maternity leave to 61 weeks (from the current 35 weeks);  increasing parental leave for adoptive parents and fathers to 63 weeks (from the current 37 weeks)
  • Extending the availability of personal emergency leave days to employers with under 50 employees
  • Requiring the first two days per year of personal emergency leave to be paid with the remaining eight days unpaid
  • Extending the leave of absence to 104 weeks for death of a child as a result of a crime to the death of a child for any reason
  • Increasing the current 52 week leave of absence in the case of child disappearance as a result of a crime to 104 weeks
  • Increasing family medical leave from 8 weeks to 28 weeks
  • Adding a new domestic violence/sexual violence leave of absence ; up to 10 days off and up to 15 weeks of leave per year will be available (first five days to be paid) where an employee or an employee’s child experiences domestic or sexual violence and needs time off for medical attention, counselling, to relocate, for legal assistance or law enforcement reasons

There are numerous changes that will come into effect on January 1, 2019 concerning scheduling including the following:

  • If a shift is cancelled within 48 hours of its start, employees will be paid 3 hours of pay
  • Employees can refuse a shift without repercussion if they receive less than 96 hours of notice
  • On-call employees who are either not called into work or work fewer than three hours must be paid three hours of their regular pay rate

The Ministry of Labour has announced that it will hire up to 175 additional Employment Standards Officers to enforce the changes.

Key changes to the Labour Relations Act will include:

  • Card-based union certification for the building services industry, the home care and community services industry and the temporary help agency industry
  • Allowing unions to access employee lists and certain contact information provided the union can demonstrate that it has the support of 20% of employees in the proposed bargaining unit.
  • OLRB can conduct votes outside the workplace, including electronically and by telephone
  • Employees in a bargaining unit may only be disciplined or discharged for just cause in the period between certification and the date on which a first contract is entered into, and during the period between the date the employees are in a legal strike or lock-out position and the date a new collective agreement is entered into (or the date on which the union no longer represents the employees)
  • Maximum fines will increase to $5,000 for individuals and $100,000 for organizations (formerly these fines were $2,000 for individuals and $25,000 for organizations).
Ontario passes the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) on November 22, 2017

A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

In what can only be described as a victory for common sense, an arbitrator recently upheld the discharge of a 27 year employee who was found responsible for spiking the office water cooler with chlorine bleach.

On September 12, 2011, an employee reported to his supervisor that the water from the office water cooler had a “strong chlorine smell” and a “very hard taste”. In reviewing the surveillance video on the day in question, the Grievor is seen exiting his office with an empty water cooler jug, entering the chemical storage room and then leaving the chemical storage room and walking back to his office with a chlorine bleach jug in his hand. As he re-enters his office, the Grievor is seen placing his hand on the cap of the chlorine bleach jug. The Grievor later exits his office with the chlorine bleach jug in his hand. He ultimately returns to his office with a full jug of water for the cooler.

When initially confronted about the situation, the Grievor denied that he had caused the contamination of the water cooler but volunteered no information about why he had obtained the bleach from the chemical storage room. However, in his subsequent meetings with investigators and through his testimony at the hearing, the Grievor’s story evolved to the point where he alleged that he had poured the bleach into two cups – one to be used later in the day to clean some shelves in his office and the other to pour into a dumpster located outside his office in order to kill its odour.

At the hearing, the Grievor’s supervisor rejected the Grievor’s explanation noting that it made no sense for the Grievor to clean the shelves since they were not dirty and they were being dismantled to be taken out of the building. He further testified that he never saw the Grievor use a cup to pour chlorine breach into the dumpster.

In his decision, the Arbitrator found that the Grievor’s testimony lacked credibility. In the Arbitrator’s view, “the Grievor’s many actions, as witnessed on the video and as described in his testimony, when taken together simply defy logic and do not make sense”. As a result, the Arbitrator ruled that it was more likely than not that he was the cause of the chlorine bleach contamination of the office drinking water cooler. With respect to penalty, the Arbitrator held that “…the level of mistruths and evasiveness displayed by the employee, as well as his failure to take responsibility for his actions, irreparably harmed the employee-employer relationship.” There was therefore no basis for the Arbitrator to interfere with the Employer’s decision to dismiss the Grievor for cause.

This case is a good reminder of the importance that credibility will play when an adjudicator is asked to determine which version of events is more likely to have occurred. In conducting investigations, employers should ensure that they take detailed statements from those involved so as to “nail down” the alleged offender’s story. Should the alleged offender later change his or her story, the employer will be in a good position to impeach the employee’s credibility.

Knox v. Treasury Board (Canadian Food Inspection Agency), 2017 PSLREB 40.

 

 

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A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

Cheers to the Ontario government: a tonic for dealing with pension statements for missing plan members

A helpful change to Ontario pension law has come into effect, coincident with the arrival of patio season. It is a refreshing tonic that will help administrators deal with pension plan members who are difficult to locate.

Until now, the obligation to send pension statements to former and retired plan members has been an absolute legal requirement. The fact that an administrator did not have correct (or any) address information, did not relieve the administrator from the legal obligation to send pension statements.  That has changed.

The Ontario Superintendent of Financial Services now has the authority to waive the administrator’s legal obligation to provide a pension statement that would otherwise have to be sent to an unlocatable member.  This is not automatic.  The administrator has to write to the Superintendent and demonstrate that the inactive member should be considered “missing”.

A message to pension plan administrators: please take this seriously.  Do not assume that there will be no repercussions if you simply don’t send statements to unlocatable members.  Have any of the biennial statements sent out this spring to former and retired members been returned to sender?  Find out who those people are, and write to the Superintendent now to request that he waive the pension statement obligation for those individuals.  Doing so will demonstrate that you understand and care about compliance with Ontario pension law.

This welcome change to Ontario pension law does not solve the problem of what to do with the payments owed to unlocatable members.  The Ontario government has promised to address that challenge.  In its April 2017 Budget the government stated that it was considering initiatives such as the possible establishment of a public registry where employers or administrators could post information regarding missing beneficiaries and individuals could search for missing benefits.  There may be more good news on this front in the coming months.

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Cheers to the Ontario government: a tonic for dealing with pension statements for missing plan members

Interesting times for employers with Ontario pension plans

Yesterday the Ontario Deputy Superintendent of Pensions released a formal statement that included the comment:  “these are interesting times in the pension sector.”  How true.

Many long-anticipated improvements to Ontario pension legislation, regulation and policies are finally coming into force.  The pension regulator will have more specific, helpful powers to target non-compliance issues.  Plan sponsors will have more choices in the design of pension plans, especially in the defined contribution sphere.  And many employers who sponsor defined benefit pension plans will be pleased by this morning’s Ontario government announcement about an entirely new framework for funding defined benefit pension plans, which will come into effect “in the coming weeks”.

We have written about some of these promised changes in prior posts (here and here).  We will be providing more details and strategic suggestions about these interesting developments, in future articles.  In the meantime, you can find information about this this morning’s announcement by the Ontario government here.

Please contact a member of Dentons’ Pensions and Benefits group for information and advice about how these significant changes will affect your business.

 

 

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Interesting times for employers with Ontario pension plans

Changing Workplaces Review to be Released May 22: Media Reports

The countdown is on.

Over the weekend the Toronto Star and the CBC each published stories detailing what Ontarians can expect to see in the long awaited final report from the Changing Workplaces Review when it is released later this month. Citing unnamed government sources, the media outlets report that the Changing Workplaces Review has proposed a number of changes to Ontario’s labour and employment legislation including:

  • making it easier for cleaning staff and home-care workers to unionize;
  • requiring that employers provide employees with paid sick days;
  • increasing the minimum amount of vacation from 2 weeks to 3 weeks;
  • providing certain protections to independent contractors;
  • eliminating some of the exemptions to the Employment Standards Act, 2000 so that more workers are entitled to overtime and certain leaves of absence.

In addition, there is speculation that the Government may increase the minimum wage to $15.00 per hour.

We will continue to follow this story and will provide a comprehensive review once the final report is released.

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Changing Workplaces Review to be Released May 22: Media Reports

Changes to the Canada Pension Plan: a field guide for Ontario employers

Are you an employer who is uncertain about what you should be doing to prepare for the changes to the Canada Pension Plan (CPP)?  This guide will help you.

The changes were announced by the federal government a year ago, and formal rules became law at the end of 2016.  Unlike the infamous Ontario Retirement Pension Plan, these government-run pension changes are here to stay.

Here is a summary of the changes.

 Mandatory contributions to the CPP by employers and employees will increase, starting January 2019.  The increases will be phased in gradually over several years.  By 2023 employers and employees will each be paying 5.95% of their eligible income to the CPP.  Right now they are each contributing 4.95% of eligible income.

It’s a significant increase in contributions.  The combined employer and employee mandatory contributions to the CPP will go from 9.9% of employees’ eligible income to 11.9% of their eligible income.  That’s a 21% increase.

And it’s an even bigger hit for higher-income employees and their employers.  Anyone with an annual salary of more than $70k (approximately), and their employers, will have to make additional contributions commencing 2024.

The upside is that the amount of the CPP benefit paid to Canadians will increase.  It is expected that the annual benefit paid by the CPP will increase by as much as 50%.  In today’s dollars, the maximum CPP annual payout would go from $13,370 to $20,000.  This full enhancement to the CPP benefit probably won’t be seen for approximately 40 years.

If you have Quebec employees, beware:  the CPP does not apply.  Changes to the Quebec Pension Plan are being considered, but it’s not known whether or when any changes will be made.

January 2019 is not far away.  If you will be making changes to retirement and savings plans as a result of the CPP changes, you may want to communicate those changes to employees in the next year or so.

As a starting point, here are some high-level strategic suggestions:

 If you have a Group RRSP or defined contribution pension plan:

  • Consider whether to reduce the amount of required employee contributions to your plan, so that there will be little or no impact on your employees’ take-home pay.
  • Consider reducing employer contributions to your Group RRSP or defined contribution pension plan, so that the overall employer costs of contributing to the CPP and your employer-sponsored plan remain level.  If you decide to do so, communicate the changes to employees now, so they are well aware in advance of any changes.

If you have a defined benefit pension plan:

  • Find out if there is anything in your pension plan that relates to the CPP.  Are employee contributions computed based on how much they contribute to the CPP?  Is there a “bridge benefit” that relates to the CPP?
  • Ask your actuary whether the liabilities of your pension plan will increase as a result of any provisions that relate to the CPP.
  • Consider amending your pension plan to lessen the impact of the CPP changes, if any, on the design of your plan.

If you have a union:

  • Find out if there are sections of the collective agreement that will restrict you from making changes to your retirement savings plans.  Consider letting the union know, in collective bargaining, that changes may be made due to CPP changes.
  • If the term of the collective agreement goes beyond 2018, formulate a plan to communicate to the union the fact that employee take-home pay will go down as a result of higher CPP contributions.

Please contact a member of the Dentons Canada pension and benefits group for assistance in understanding how the CPP changes will impact your organization.  Be prepared.

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Changes to the Canada Pension Plan: a field guide for Ontario employers

Costs of Accommodation: British Columbia Supreme Court Reaffirms High Threshold for Undue Hardship

In a July 2016 decision, Providence Health Care v. Dunkley, 2016 BCSC 1383, the British Columbia Supreme Court held that Providence Health Care (PHC) and the University of British Columbia (UBC) failed to establish that the costs of providing interpreter services for a deaf medical resident constituted undue hardship.

The decision is a reminder of the demands placed on employers to accommodate, and that a successful undue hardship defence based on financial reasons will require extensive financial disclosure on the part of the employer and related entities.

Briefly, the facts of the case were as follows. The claimant secured a residency position at PHC, a local hospital. Due to a profound hearing loss, she required the use of sign language interpreters. On the residency start date, arrangements for interpreter services had not been made and a few months later, the claimant was placed on paid leave, followed by unpaid leave.  PHC subsequently informed her that accommodation could not be provided and dismissed her from PHC as an employee and from UBC as a resident.  The claimant filed a complaint with the British Columbia Human Rights Tribunal, who found that PHC and UBC had discriminated against her on the basis of her physical disability.  The Tribunal concluded that PHC discriminated against the respondent regarding employment, contrary to s. 13 of the British Columbia Human Rights Code, while UBC discriminated against her by denying her accommodation, services or facilities customarily available to the public, contrary to s. 8 of the Code.

On judicial review, the British Columbia Supreme Court upheld the Tribunal’s decision.  The Court reaffirmed that the relevant considerations were the employer’s efforts to accommodate; the options explored and/or offered to the employee; and explanations given for the absence of such offers.

The Court upheld the Tribunal’s finding that PHC had used an unreliable cost estimate, and that both PHC and UBC had failed to undertake a reasonable investigation into the true cost of accommodation. Further, the Court confirmed that PHC could not base its claim of undue hardship only on its own budgetary restrictions.  The financial resources of UBC, Vancouver Coastal Health Authority (VCHA) and the Ministry of Health were also relevant since those entities were either affiliates of PHC or had agreed to provide it with funding for the UBC residency program.  Consequently, PHC should have explored the possibility of obtaining additional financial resources from those entities or establishing a cost sharing model as part of its investigation into costs.

The Providence Health Care v. Dunkley decision highlights that employers must prove that they have engaged in a comprehensive investigation into the true cost of accommodation, including an assessment of all sources of funding available, before they successfully rely on undue hardship.

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Costs of Accommodation: British Columbia Supreme Court Reaffirms High Threshold for Undue Hardship

Is This The Definitive Word on Termination Provisions/Consideration?

A series of Ontario cases dating back to 2012 has put into issue the question of what does, or doesn’t, make a termination provision enforceable.  After a number of recent employer-friendly decisions, the Ontario Court of Appeal has weighed in with a decision that contains some good news, and some bad news, for employers.

In Wood v. Fred Deeley Imports Ltd., the court primarily looked at: (i) whether or not consideration was required to uphold an employment agreement; and (ii) whether the termination provision in the agreement was unenforceable (thereby opening the door to a common law notice award).  The Plaintiff, Julia Wood, was an 8.4 year employee at the time of her termination.  She signed an employment agreement the day after she started work that contained a termination provision which provided for “2 weeks’ notice of termination or pay in lieu thereof for each completed or partial year of employment…”.  The termination provision also stated that “… the Company shall not be obliged to make any payments to you other than those provided for in this paragraph” and “The payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000”. On termination, the employer provided Wood with 13 weeks of working notice, followed by a lump sum payment equal to 8 weeks of pay.

In looking first at the consideration issue, the court found that Wood had been provided with a copy of the Agreement prior to her start date, although it wasn’t signed until the day after she started work.  The court determined that this was not a case where Wood was seeing the Agreement for the first time when she signed it, nor was it a case where a new material term was introduced into the Agreement at the time of signing.  The court went on to find that the signing of the Agreement the day after Wood commenced employment was merely an administrative convenience and therefore fresh consideration such as a signing bonus was not required in order to make the Agreement valid and enforceable.  The employer was therefore successful in arguing that the Agreement was not void for lack of consideration.

However, things went downhill from there for the employer.  In looking at the termination provision, the court found that it contravened the Employment Standards Act, 2000 (ESA) and therefore was unenforceable.  It came to this conclusion for two reasons.  First, the court found that because the termination provision did not expressly require the continuation of benefits through the ESA notice period, it was in contravention of the minimum standards of the ESA.  This was so even though the employer gratuitously provided benefit continuance through the entirety of the ESA notice period.

Second, the court found that although it was possible that the termination provision could provide notice and statutory severance in accordance with or even in excess of the ESA, it was also possible for it to undercut the minimum provisions of the ESA.  Simply put, even though the “2 weeks per year” calculation could potentially result in the employee receiving more than her ESA notice and severance entitlements, it could also have the opposite effect.  In particular, Wood received less than her ESA severance in the case at hand because the payment of 8 weeks at the end of her working notice period was less than the 8.4 weeks of severance that she was entitled to under the ESA.

The court reviewed termination provisions in other cases and once again made it clear that each case will be decided based on its own facts.  For example, a termination provision which is not well drafted but does not expressly contract out of the ESA may yet be enforceable, despite this case. On the other hand, a termination provision which expressly contracts out of the ESA, as was the case here, will not be enforceable.

The broken record continues – the importance of properly drafting termination provisions cannot be understated and with so much at stake, it is critical that employers regularly review and update their termination provisions with the assistance of legal counsel.

The court’s decision in Wood v. Free Deeley Imports Ltd. may be found here.

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Is This The Definitive Word on Termination Provisions/Consideration?