New Legislation Improves Workers’ Rights
Jun 19, 2017
On June 1, 2017, the Ontario government introduced legislation that, if passed, would amend the Employment Standards Act, 2000 and the Labour Relations Act, 1995. The Bill, entitled the Fair Workplaces, Better Jobs Act, 2017, is largely a response to the Report published by the Changing Workplaces Review and mounting public pressure by organizations such as the Workers’ Action Centre.
Some of the key changes proposed for the Employment Standards Act include:
- Increasing the standard minimum wage to $14 per hour on January 1, 2018 and to $15 per hour on January 1, 2019, with an inflationary increase on October 1, 2019 and every year following;
- Increasing vacation entitlement to three weeks per year for all employees of five years or more;
- Permitting an employee to request a change to work schedule or location and mandating that the employer discuss such a request with the employee (note: this only applies to employees of at least three months);
- Expanding personal emergency leave to all employees (not only those in workplaces of 50+ employees);
- Providing two days of paid personal emergency leave; and
- Requiring employers to provide employees with 48 hours’ notice to cancel a shift or else provide an employee with three hours’ wages.
Notably, the government also intends to add another 150 workplace inspectors to address the issue of enforcement.
While limited, these are positive changes for many employees.
Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom. Contact us to discuss your options.
By Mika Imai; photo by OFL Communications, cc.
Employee who quit suddenly and “went dark” slapped with $75,000 bill
Jun 02, 2017
An employee who quits to work for a competitor can be liable for breach of contract and civil conspiracy, the Ontario Superior Court recently found after 10-day trial. But such a determination is going to turn on the facts, as you can tell from even a basic retelling of the background to Prim8 Group Inc v Tisi, 2016 ONSC 5662.
The Court found that a partner at an ad agency had left suddenly, with no notice, unlawfully taking sensitive client information and computer equipment under the cover of night.
A month later, one of his former employees left to join him at the former partner’s new firm. The former partner and the employee discussed how this employee should quit: by quitting suddenly and then “going dark” for a period. Going dark included refusing to attend work and refusing to respond to requests for security passwords.
As you can imagine, the company successfully sued the former partner. But what may not be obvious is that the employee that left was also liable for a portion of the damages — $40,000, plus a whopping $35,000 of his former employer’s legal bills.
The Court found that the employee breached implied terms in his contract of employment: the duty to give reasonable notice of resignation, and the duty of good faith and loyalty. These are implied terms of every employment contract, as we have explained in an earlier post.
The civil conspiracy aspect is a little more complicated. But the bottom line is that the employee and the former partner knew the employee’s sudden departure would cause harm to the employer, and he did it anyway. Add to that the unlawful act (quitting with no notice) and the fact it was discussed between them before it happened, and the Court concluded it amounted to conspiracy.
Navigating the end of an employment relationship is tricky, whether you are the employer or the worker who is leaving. However, as Tisi shows, there can be very real legal consequences for employees who don’t make that exit in good faith.
Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.
By Marcus McCann; photo by Ed Schipul, cc
Court orders extraordinary damages for harassed RCMP officer
Apr 21, 2017
Historically, it has been extremely difficult for an employee, particularly one who is still employed, to get damages for harassment. The recent decision of Merrifield v the Attorney General, suggests that this may be changing.
The trial judge in Merrifield found that an RCMP officer, Peter Merrifield, was ruthlessly harassed by his superiors. The employer’s actions included aggressive behaviour, an unwarranted investigation, and a punitive transfer. The transfer, in particular, was criticized by the Court as it resulted in a permanent stain on Mr. Merrifield’s reputation and hindered future advancement opportunities. Mr. Merrifield developed depression and post-traumatic stress disorder.
In determining the amount of compensation that Mr. Merrifield was owed, the Court noted that Mr. Merrifield took multiple sick leaves, isolated himself from his family, and became immobile to the point that he developed bed sores. The Court ordered the Attorney General to pay Mr. Merrifield $100,000 as compensation for the harassment and mental suffering that he experienced and $41,000 in lost wages for delayed advancement.
This is a positive case for employees who have been harassed in the workplace. However, the Court set a high test for harassment. Specifically:
- Was the conduct of the defendant(s) outrageous?
- Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
- Did the plaintiff suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress?
It is also yet to be seen whether this case will stand. On March 30, 2017, the Federal government submitted a notice of appeal. The appeal date has not been set.
Symes Street & Millard has extensive experience obtaining compensation for employees whose rights in the workplace have been breached, including due to harassment. Contact us to discuss your options.
By Mika Imai; photo by Richard Eriksson, used under creative commons commercial license.
Why do most human rights cases settle?
Mar 29, 2017
It may seem grim, but of the more than 3,000 Applications filed with the Human Rights Tribunal of Ontario each year, only 100-150 end with a final decision on the merits. That’s less than 5 percent.
But behind that statistic is some potentially good news. The truth is that many, many human rights cases settle. A settlement is a negotiated deal between the parties, which resolves the complaint in a manner both parties can live with.
Some cases settle without help from the Tribunal, but the Tribunal also does a lot of work to actively encourage settlement. For example, the Tribunal offers a free, half-day mediation session. At mediation, a vice chair of the Tribunal will sit down with the parties and try to broker a deal. A startling 60 percent of cases which go to mediation settle at mediation.
So why do so many human rights cases settle?
First and foremost, the old maxim that a bird in the hand is worth two in the bush applies. For Applicants, a settlement means a guaranteed outcome. For Respondents, a settlement amounts to risk management. For both parties, it avoids rolling the dice.
Secondly, if you’re represented by a private lawyer, taking a case to a hearing before the Tribunal can easily cost $15,000-$40,000 for each party. Unlike in civil cases, both parties must always eat their own legal bills. The prospect of these mounting legal costs can act as a strong incentive for both parties to reach a resolution. And, for some applicants, the total value of their claim could end up being less than the legal costs of going to a full hearing. Thus, there is an incentive on both sides to seriously consider an early settlement
There is no doubt that settlement leaves some people feeling queasy. After all, behind every human rights complaint is an important legal, ethical and moral issue. This is just as true for Respondents as for Applicants.
But the truth is, a settlement is not a loss. It doesn’t mean you’ve given up. It’s nothing to be ashamed of. Quite the opposite: it’s a normal and healthy part of the Human Rights Tribunal process.
Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases before the Tribunal, in court, and in negotiations.
By Marcus McCann; photo courtesy of ABC
My boss says I quit, but I didn’t!
Mar 06, 2017
We might think that it would be obvious when someone quits, but disputes about resignations are actually quite common. Typically what we see is a boss who says that an employee quit and an employee who denies it. A lot rides on who’s right – an employee who quits may not receive termination pay.
When an employee seeks our advice on this issue, we ask for details about what was said and done. We’re looking to see whether it was reasonable for the employer to have concluded that the employee quit. As a result, we need to know if you gave your boss a resignation letter or simply stormed off after a disagreement.
We also need to know what you did following the alleged resignation. Did you miss work for a week or immediately tell your boss that it was a mistake? The more that it looks like an employee’s comments were a response to a tense situation rather than a well-thought out plan, the more sympathetic courts will be.
For instance, in the recent decision, Johal v Simmons da Silva LLP, the Court concluded that the employee didn’t quit even though she handed in her security pass, collected her personal belongings and went home early. In siding with the employee, the court considered, amongst other things, the employee’s age (62), length of service (27 years), and seniority. These factors all suggested that she wouldn’t have up and quit. In addition, the employee never actually said that she was quitting and only left after receiving unexpected news of significant restructuring.
In coming to its conclusion, the Court cautioned employers against jumping at a possible resignation to avoid liability. An employer is required to do more than “let sleeping dogs lie” and must actually make inquiries about “the Plaintiff’s true and unequivocal intention”.
If your boss says you resigned and you’d like an assessment of your case, contact us. Symes Street & Millard has extensive experience representing employees in all types of employment disputes.
By Mika Imai; photo by rocketace with modifications, used under creative commons commercial license.
I’ve been fired, what do I get?
Feb 07, 2017
This is the most common inquiry we get. Unfortunately, there’s no easy answer: your entitlement depends on a whole range of factors. While we explore some of these below, this shouldn’t be taken as legal advice. What you’re owed will depend on your unique circumstances.
Am I owed anything at all?
If your employer had a good reason to fire you, you may be out of luck. Don’t be discouraged though, this is generally a hard standard to meet!
My employer didn’t have a good reason to fire me, now what?
If your employer can’t justify the termination, they must either:
- Give you advance notice of your end date (i.e. working notice); or
- Pay you the equivalent of the advance notice period (i.e. pay in lieu of notice).
In both cases, the notice period is the same. The only difference is whether you’re required to work during the notice period. There are two main places we look to evaluate the amount of notice an employee is owed.
- Employment Standards Act
The first place we look is the Employment Standards Act (“ESA”). The ESA sets out the basic notice entitlements for most employees. It’s based on the following formula:
Period of Employment
Less than 3 months No notice
3 months or more, but less than 1 year 1 week
1 year or more but fewer than 3 years 2 weeks
3 years or more but fewer than 4 years 3 weeks
And so on, up to a maximum of 8 weeks
In some circumstances, the ESA will also entitle employees to severance pay up to a maximum of 26 weeks.
2. Common Law Notice
Aside from ESA notice, most employees are entitled to “common law notice”. This is what you might be awarded if you went to court. Unlike ESA notice, there is no mathematical formula for common law notice. Instead, courts try to determine what would be a “reasonable” amount of time for you to find a new job. Notice is intended to act as a bridge to your next job, it is not intended to punish your employer for firing you.
Common law notice varies a lot, but it’s often in the range of one month per year of service. (The amount partly depends on whether you’ve continued to look for work. If you haven’t, this can shorten your notice period.)
Because common law notice can be quite high, some employers will try to use employment contracts to limit employee notice. If you signed a contract or received a written offer letter at any point during your employment, it is important to have a lawyer review it to determine if it affects the amount of damages that you may be able to claim. Keep in mind that these contracts and termination clauses are not always valid or enforceable.
What if my termination was discriminatory?
If you were terminated for discriminatory reasons, such as because of your race, religion, disability (or other grounds set out in the Ontario Human Rights Code), you may be able to claim additional damages under the Code. These damages could include compensation for loss of earnings and for mental distress.
Is that all?
In most cases, yes. However, if there are extenuating circumstances, you may get something more. This could include the employer’s use of harassing, abusive or discriminatory language when terminating you. The amount that you’d receive in these circumstances is highly contextual and can’t be estimated without additional information.
Of course, every case is different and it is important to get legal advice to find out what sort of damages and remedies you may be entitled to after your employment has been terminated.
If you’ve been fired and are seeking an estimate for what you’re owed, contact us. Symes Street & Millard has extensive experience representing employees who have been wrongfully dismissed.
By Mika Imai; photo by James 2 (Flickr), used under creative commons commercial license.
Providing employment coaching can help reduce wrongful dismissal payouts
Jan 17, 2017
People who have lost their jobs can sometimes benefit from talking to a professional about how to get back into the job market. Such advice has many flavours, such as traditional outplacement services, career counseling or a job coach.
Employers are not legally obligated to provide such help to staff whose employment has recently been terminated. Some employers nonetheless see it as the right thing to do.
Now, an evolving area of the law suggests that, in at least some cases, the offer of career counseling might also help protect the employer’s bottom line.
It may come as a surprise to some, but an employee’s post-employment job search is relevant to assessing wrongful dismissal damages. That’s because such damages are intended to help bridge an employee to their next job; they’re not supposed to be a windfall to the employee. Following that logic, if an employee doesn’t look for a new job after termination, it can reduce or eliminate the employer’s obligation to pay wrongful dismissal damages.
The catch is that the burden of proof is on the employer, not the former employee, to show that they failed to look for other work. That’s where career counselling services come in.
The case of Maxwell v United Rentals (2015) provides this sobering commentary:
[I]t is significant that the defendant offered no assistance to the plaintiff in seeking and obtaining alternate employment. Although an employer is not obligated to provide such assistance to the dismissed employee, that is an important factor to be taken into consideration when the employer then accuses of the former employee of not taking adequate steps to secure alternate employment. As I said in Aucoin:
I am not suggesting that the employer has an obligation to provide outplacement counseling to a dismissed employee or to bring job opportunities to the intention of the former employee but if an employer intends to argue the failure to mitigate on the part of the former employee, it would be well advised to present evidence of assistance that was offered to the terminated employee during his or her job search. [citations omitted]
This line of reasoning has been picked up in other contexts. In Drysdale v Panasonic Canada Inc (2015), the employer had collected 370 job ads in an attempt to prove that other work was readily available to the employee if he had been looking hard enough. The judge was not impressed, and instead found:
The defendant offered the plaintiff no assistance in searching out these job postings and therefore it does not lie readily in the defendant’s mouth to criticize the plaintiff afterwards for not pursuing these specific job opportunities. … Here, the defendant raised the issue of available job postings after the fact and only in the course of this litigation. Prudence would have dictated that the employer make this information available to the employee in a timely way to assist him in his transition.
These cases were more recently applied in Merritt v Tigercat Industries (2016), and Ontario courts have likely not seen the last of this type of reasoning.
For people whose employment has recently been terminated, there may be a feeling that such “help” from their former employers is intrusive and unwelcome. However, they turn down the assistance at their peril, since an employer will almost certainly introduce evidence of the refusal to show an employee wasn’t serious about job hunting.
On the flip side, these cases potentially put employers in a double bind. They bear the onus of proving that there was other suitable work in the job market. But unless they were actively helping — either by paying for a career coach or by providing job listings they intended to rely on — they risk being greeted with skepticism by a judge.
As a result, there may be discomfort from both employers and employees about this issue. If you’re on either side of the table, it may be wise to consult with a lawyer to determine the best course of action.
By Marcus McCann; photo by Kullez (Flickr), used under creative commons lincence
Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.
City calls for sexual harassment training for bar staff
Dec 14, 2016
The City of Toronto quietly adopted a Motion on November 8, 2016 calling for better training for bartenders and waiters to help them recognize and intervene in cases of sexual harassment and sexual violence. The Motion was introduced by Councillor Kristyn Wong-Tam and adopted 35-4.
Such training would be delivered through Smart Serve, which is a mandatory program for anyone who serves or handles alcohol in the course of their employment in Ontario. The program is run by a not-for-profit but overseen by the Province, meaning that the City’s motion isn’t binding on Smart Serve.
However, the City joins a growing list of organizations calling for this training, including the Canadian Federation of Students and the Ontario Coalition of Rape Crisis Centres.
From a legal education perspective, Smart Serve is a bit of an anomaly. Not a lot of workplaces require the completion of a compulsory program to explain legal obligations to new sector workers. (Another example is WHMIS training, which is mandatory health and safety education for those who work with hazardous materials.) But that’s precisely why groups are calling on Smart Serve to deliver this information, as opposed to using another mechanism.
At the moment, Smart Serve has a strong focus on teaching those entering the profession that individual employees can be sued if they overserve a customer who then gets behind the wheel of a car.
When it comes to sexual violence, Smart Serve only refers to sexual harassment of patrons in the context of behavioural changes that might take place as inhibitions wane. The training does not contain advice specifically about how server should intervene in such situations. It also doesn’t address other bar scenarios, such as: patrons sexually harassing staff; instances of intimate partner abuse; the use of roofies; and other predatory behavior.
These are areas where public legal education would be really useful. The Province of Ontario and Smart Serve may also wish to consider, if it goes down this road, touching on other common human rights issues that arise in bars and restaurants. Such topics could include:
- accessibility for patrons with disabilities;
- racialized assumptions about patrons;
- sexualized uniforms and attire;
- gender segregated spaces like bathrooms; and
- the rights of breastfeeding customers.
If Smart Serve does undertake this kind of an update, there is ample opportunity for improvement. Better human rights training would benefit everyone: patrons, servers and bar owners alike.
Symes Street & Millard specializes in employment and human rights law. It has expertise in advocacy both inside and outside the courtroom, as well as in policy development.
By Marcus McCann; photo from ward27news.ca
Do I have to give my employer notice that I’m quitting?
Nov 17, 2016
The short answer is, yes, employees must give their employer “reasonable” notice before quitting.
Quantifying how much notice is “reasonable” depends on the circumstances. The basic idea is that employers ought to be given enough notice to find a replacement or make alternative arrangements.
There is no clear-cut formula (e.g. I worked X number of years therefore I must give my boss X weeks’ notice). Rather, it often boils down to how essential the employee is to company profit and/or success. A lower ranking employee might be expected to give notice in the range of two weeks, but it can be longer for senior employees.
While employees should take these legal obligations seriously, they can’t be forced to keep working. Instead, the employer can sue for its losses. But even this is unlikely. Most employers won’t sue because legal actions are time-consuming and expensive.
Having said that, an employee’s risk of a law suit increases if multiple employees leave at the same time or a high-ranking employee leaves to join a competitor.
Employees should also be sure to review their employment contract. If it states how much notice they’re expected to give, this may be deemed the “reasonable” amount in the circumstances. An employee who leaves earlier still can’t be forced to work, but it may mean the employer has an easier path to a lawsuit.
As a practical matter, employees should consider giving as much notice as possible. Ending on amicable terms and getting a positive reference can be hindered when an employee leaves abruptly.
Symes Street Millard LLP provides expert advice to both employers and employees seeking to end an employment relationship. Contact us at the number above if you would like to discuss your legal options.
By Mika Imai; photo by Alan Cleaver (Flickr) used under cc licence
Human rights complaints against Cleveland baseball team name and logo get creative
Oct 25, 2016
As we reported on October 18, 2016, two human rights applications were filed by Douglas Cardinal against Rogers and Major League Baseball (“MLB”). The applications assert discrimination based on the Cleveland team name, the Cleveland Indians, and the team logo, the graphic image commonly known as the Chief Wahoo (the team also sometimes uses a letter “C” as shown in the attached image).
One of the claims is that Rogers and MLB published signs or symbols intended to incite discrimination contrary to section 13 of the Ontario Human Rights Code (the “Code”). Section 13 is a rarely used part of the Code and the decision to rely on it is an interesting one.
Unlike the average discrimination claim, section 13 requires analyzing a respondent’s intentions (i.e. whether a respondent intended to incite discrimination). Intentions are a tricky thing to prove because a respondent rarely admits wanting to discriminate. We also rarely now see the type of explicit racial discrimination where a business openly bans certain people based on race.
Because of this complexity, Mr. Cardinal argues that the focus should not be on whether Rogers and MLB wanted to incite discrimination by using the Cleveland name and logo, but whether, regardless of desire, it was reasonably foreseeable that using the name and logo would incite discrimination. Mr. Cardinal claims that reasonable foreseeability is made out:
“The continued presence of racist symbols in society, in and of itself, fuels additional racism. Most importantly, such symbols normalize racist conduct by others. When a Major League Baseball [. . .] team attracting millions of viewers uses a racist symbols [sic], others come to believe that such racism is acceptable. The Name and the Logo perpetuate the historical disadvantage suffered by Indigenous Persons by using them as a historical caricature.”
In considering Mr. Cardinal’s argument, the Human Rights Tribunal of Ontario (the “Tribunal”) will consider the other cases, though limited, where section 13 was alleged.
For instance, in Entrop v Imperial Oil Ltd, the Ontario Court of Appeal concluded that the good faith implementation of a policy on alcohol and drug testing was inconsistent with an intent to discriminate. By focusing on the employer’s “good faith”, the Court adopted an interpretation of intention that is more in line with the type of reasoning that Mr. Cardinal is trying to avoid.
On the other hand, Mr. Cardinal may find support in Bowater v Communications Energy and Paperworkers Union of Canada. In Bowater, Arbitrator Roberts concluded that “regardless of the true intention of the employer” the job posting language in question set out a threshold level of physical health without regard to accommodations. Accordingly, in finding a violation of section 13, Arbitrator Roberts drew a distinction between what the employer may have intended and how it was reasonably received.
Ultimately, this part of the case will likely turn on whether the Cleveland team’s name and logo are sufficiently offensive on their face that Rogers and MLB should have known that they would incite discrimination. Given the limited case law decided under this section, the Tribunal’s decision is difficult to predict. Regardless of the outcome, the Tribunal’s interpretation of “intention” will likely dictate how widely section 13 of the Code is used going forward.
By Mika Imai; photo by Keith Allison (Flickr) used under cc license