Employment Insurance Requirements under 3 scenarios: Quitting, Dismissed for Cause, Dismissed Without Cause

| June 7th, 2017 | No Comments »

Eligibility Requirements for Employment Insurance

Paying into the Employment Insurance program is usually automatic, with regular deductions taken from you paycheque – individuals that are self-employed may choose to pay into EI. Further, you must have worked the minimum required hours within the last year. This falls between 420 – 700 hours depending on your geographic area. For Toronto, the required annual amount of hours is 630. Individuals must also be without an income for 7 consecutive days, be actively seeking employment and maintain a record of the specific employers contacted along with the date.

Quitting

To be eligible for Employment Insurance (EI) in Canada, your loss of employment cannot be your own fault.  This means that if you voluntarily quit your employment you will not be eligible to claim EI.

Dismissed for Cause

If an employer dismisses an employee for cause then the employee is usually not entitled to EI. Being dismissed for cause means that the employee has done something wrong to warrant a dismissal without notice or a severance package. When an employee is dismissed as a result of a single incident, the wrongful act must be fundamentally incompatible with the employment relation, making continued employment unfeasible. Examples may include theft, workplace violence, or breach of confidentiality.

Dismissal for cause can also happen as the last step of progressive discipline. This requires an employee to have committed multiple wrongs, receiving a disciplinary measure for each instance. Whatever the case may be, if you feel that dismissal was not warranted, it is important to seek legal consultation. In addition to missing out on EI benefits, an employer would also owe additional payment in damages.

Dismissed Without Cause:

If an employer dismisses an employee without cause, the employee is owed notice or pay in lieu. This does not disqualify an employee’s eligibility for EI – employees that are dismissed without cause are eligible to apply for EI benefits, providing they meet the criteria mentioned above.

 

At what point is the duty to accommodate no longer necessary for an employer under human rights law?

| May 3rd, 2017 | 1 Comment »

Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground.  The most common grounds of discrimination within the workplace include religion, family status and disability. Other grounds of discrimination include race, colour, sexual orientation, age, sex, and others. Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground. The policy or job requirement does not have to overtly discriminate to be in violation. There simply needs only to be a discriminatory effect. The only exception is if the workplace policy or requirement qualifies as a ‘bona fide occupational requirement’ (BFOR). In order for a policy or workplace task to qualify as a BFOR, there are three points that must be satisfied that the courts have established. Below are each of the points along with an explanation as it relates to workplace policies or job requirements.

  1. The employer must show that the standard (policy/requirement) is rational in relation to the performance of the job.

This is a simple evaluation of whether the standard in question helps to fulfill a workplace goal. For instance, being able to lift 10 lbs. for an office worker may be required to access and retrieve large stacks of files. Having the requirement of being able to lift 10 lbs. in this case would qualify as a job requirement that rationally connects to the job.

  1. The standard in question must have been adopted in an honest and good faith belief that it is necessary to fulfil the work-related purpose.

The employer must also adopt the standard with the belief that it will fulfill a workplace goal or function. Maintaining the above example, the requirement of being able to lift 10 lbs. of weight for the purpose of retrieving needed work materials (such as large documents, files, etc.) would qualify as a good-faith measure. Being able to retrieve files on a regular basis that one is required to work with is a work-related purpose that would require someone to physically lift a minimal amount of weight.

  1. The standard in question must be reasonably necessary to accomplish the legitimate work-related purpose.

The final requirement is the most difficult to establish. In order to establish that the standard is reasonably necessary, employers must show that they would suffer ‘undue hardship’ by accommodating the individual. This step requires employers to explore alternatives that are less discriminatory and still accomplish the work related goal. Sticking with the above example, for a worker that cannot lift 10 lbs. due to disability, reasonable alternatives may include having other workers assist the worker when they are unable to lift the necessary documents/files, providing electronic files instead, or so on.

The idea is that it must be possible to accommodate the individual so that they can perform the essential duties required for their job. If this is not a possibility, then the employer has satisfied the requirements to establish the policy or work requirement is a BFOR. Typically, accommodation requires an employer to adjust working conditions so that the employee is able to perform the essential duties of the job. If the employer is unable to accommodate the employee to this point, then the burden of accommodation has been met.

Concluding Remarks:
Once a workplace standard is established as a BFOR, an employer is not required to accommodate. However, it is always advisable to explore alternatives to avoid unnecessary litigation. When exploring alternatives for accommodation it is essential that employers take an approach of good faith. This includes joint problem solving between the employee and considering doctor opinions if available. When in doubt, it is always best to seek the advice of an employment lawyer, as accommodation can present unique challenges that require legal expertise.

Some resignations are terminations in disguise

| March 22nd, 2017 | No Comments »
Daniel Lublin, Employment Lawyer

Daniel Lublin, Employment Lawyer

When is a resignation a termination in disguise?

Sometimes employers too easily confuse when an employee has voluntarily decided to leave. Whether through insincerity or neglect, this is one situation where employers may try to rid themselves of an undesirable employee, without paying any severance. But not so fast. Some resignations are actually terminations in disguise.

If an employee is faced with an ultimatum between resigning or dismissal, it will almost never be a valid resignation. Some employers feel that by offering the opportunity to resign instead of facing allegations of misconduct, they are doing their employee a favour. In some cases this may be true. But in many other there is an ulterior motive. Employers know that proving just cause for dismissal is a difficult task, so they will sometimes threaten misconduct as a means to provoke a resignation instead. However, courts often recognize that employees who submit hasty resignations when faced with unproven allegations of misconduct have not legally resigned. Rather these are resignations given under pressure or duress, which are almost never upheld. A true resignation is a voluntary act, not a camouflaged termination.

A resignation must also not be given on impulse. The law recognizes that spontaneously made statements or actions, such as walking off the job after an argument, usually do not constitute a valid resignation. Several court cases have held that employers must not seize upon an employee’s emotional outbursts. In one recent decision, the court even went as far as stating that employers have a duty to provide a cooling off period to an employee who proclaims “I quit” in the heat of the moment and then confirm whether this is truly his or her intention.

A resignation, to become effective, has less to do with an employee’s statements and much more to do with his or her actions. The real test is whether an employee’s actions are consistent with someone voluntarily wishing to leave and not return. I currently have such a case. In it, the employee emphatically denies that she told her employer that she was “done” although the employer certainly feels that she did. However, she still came to work the next day as if nothing unusual had happened. It was only then when her employer, not expecting her to show up, purported to accept her resignation allegedly given the night before. The problem with the employer’s case is that, if my client truly intended on leaving for good, she would not have come back to work the very next day. So when she was told to leave, it should be viewed as a termination, not the other way around.

Employees tendering their resignation are sometimes free to withdraw it and continue working as before, as long as the employer has not already accepted the resignation and taken steps to move on. For example, an employee who gives two weeks’ notice of his or her resignation is entitled to change his or her mind, but only if the employer has not already hired or promoted a replacement.

What about an employee who is asked to leave after giving advance notice of their future resignation? Unless that employee engaged in misconduct and resigned before it came to light, employees who are asked to leave during their resignation notice period are entitled to payment for the remainder of the time frame they were prepared to work.

Even an employee who just does not show up for several days may not have resigned either. Courts often caution employers against snapping up the opportunity to claim an employee has resigned or abandoned their job and a number of cases have found that, in this situation, an employer has to take steps to reach out to the employee and try to confirm whether he or she no longer wants their job, before concluding there is a resignation.

The lessons for both employees and employers is clear. If either side finds itself in the “twilight zone” somewhere between a resignation and a termination, there are several practical steps to consider:

  • From an employee’s perspective, immediately protest any assertion that you resigned, if that was not what you intended to do. Further, if unclear, request that your options be outlined in writing and seek advice before taking any action, especially before leaving the workplace, as difficult as that may be.
  • From an employer’s perspective, the courts are increasingly requiring evidence that they were looking out for an employee’s best interests before accepting what appears to be a resignation. Therefore, if an employee’s behaviour or statements towards resigning are out of character or appear given impulsively, it is a good idea to ask them to first take some time to consider their actions and confirm their intentions in writing.

Published in the Globe and Mail.

Are your Employment Contracts Illegal?

| March 8th, 2017 | No Comments »

Employers often require their employees to sign employment contracts that limit the amount of notice of dismissal they are required to provide.  In most cases, the employer attempts to limit its obligation to the bare minimums under the Employment Standards Act, as opposed to the more onerous obligation of providing reasonable notice.

Many of these contracts, however, violate one or more minimum standards under the Act, which renders the entire termination provision illegal.  Many judges in the last several years have granted leniency to employers, rather than overrule the illegal clause.

Recently, Whitten & Lublin was successful in convincing Ontario’s highest court to put an end to this practice, in the case of Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 The law on this point is now clear: a termination provision that can reasonably be interpreted as contravening the Act will fail, and the employer will be required to provide reasonable notice of dismissal.

Determining whether an employment contract violates the Act is a difficult task that requires a competent employment lawyer to assess.   Nonetheless, the following are a few guidelines for determining whether a contract is illegal:

  • Are benefits mentioned? The Act allows employers to provide payment instead of formal notice of dismissal, provided that the employee’s benefits are continued for the minimum notice period. Since benefits are not a form of “pay”, they must be separately referenced
  • Can severance be worked? Severance pay under the Act must be paid. If the contract permits an employer to satisfy all obligations with working notice, or a combination of pay in lieu of notice without separately referencing severance pay, then the contract is illegal
  • How is pay in lieu of notice calculated? Pay in lieu of notice must be calculated based on what the employee would have received, had they been given working notice of dismissal. Limiting pay in lieu of notice to just base salary may violate the Act
  • Does the contract exclude a minimum standard, or is it just silent? A contract that states that the employee will receive no further entitlement is more likely to be illegal than one that is silent on the point.

Illegal termination clauses come in all shapes and forms, and are used by large corporations, all the way down to small businesses.  Contact our lawyers to determine your rights on dismissal.

For further reading, the judgment in Wood v. Fred Deeley Imports Ltd. can be viewed here.

Employee Medicinal Marijuana Use and Workplace Policy: What Are the Implications?

| March 6th, 2017 | No Comments »

If an employer has a workplace policy that restricts or prohibits the use of medicinal marijuana this could in effect be grounds for discrimination under human rights law. Although the policy may not explicitly target an individual, or be discriminatory due to the language used, it is the effect of the policy that is important. If the effect of the policy results in an individual facing inadvertent discrimination, then the employer must accommodate up to the point of undue hardship.

For instance, suppose a workplace policy limits the use of medicinal marijuana to certain times during the working day. This may not seem discriminatory since the employer does allow those individuals that need the use of medicinal marijuana to do so; however, there may be certain individuals that are negatively impacted. Certain cases may involve an individual that deals with unpredictable chronic pain. If proper treatment for this individual involves the use of medicinal marijuana on an as-needed-basis, then any policy that restricts such use would in effect be discriminatory.

An employer would legally be legally obligated to accommodate in instances where individuals are adversely affected up to the point of ‘undue’ hardship. Simply, the employer must accommodate in a way that would allow an individual to perform the essential duties of the job unless doing so results in unreasonable hardship for the employer. ‘Undue’ hardship is an elusive standard in employment law so if you are faced with any concerns of medicinal marijuana use in the workplace and workplace policy, seeking the consultation of an employment law expert is necessary. Safety sensitive workplaces also add an extra element of complexity. This would require the employer seeking information on the effects the medically prescribed marijuana has on the individual in relation to their job duties and workplace safety, just as would be required for any other medically prescribed drugs. Again, the advice of an employment law expert is strongly recommended in these circumstances.

Lateness and Absenteeism

| February 17th, 2017 | No Comments »

In General, an employer has a reasonable expectation that employees will not be late for work on a regular basis and on time. If an employee is regularly absent without permission then, under the right circumstance, the employer may have grounds for a summary dismissal. With a summary dismissal, the employer is entitled to end the employment relationship and not be liable for notice pay.

Circumstances that warrant a summary dismissal for lateness may include instances where the employee was absent during a very important time, where the absence was deliberate after having received warnings from the employer regarding past absenteeism, and where the employer was prejudiced (or harmed) by the employee in their absence. A couple examples of the above are as follows:

If there is a very important 3-day sales event and the employer makes it clear to a key sales manager that his or her presence is necessary, a deliberate absence would probably grant the employer just cause for termination. In this example, the relevant factors are the importance of the event and the position of the sales person being managerial (a key role). An example of prejudice by an employee may be an instance where a request for vacation time was denied due to business reasons (short staff, busy time-period, etc.). In this instance, if an employee were to be absent during the time that was requested off, this could be cause for dismissal because the employee caused the employer harm, knowing that the time off was not granted.

With regards to lateness, the threshold for summary dismissal is higher. Lateness usually must hinder the employee from performing the essential duties of their job. Important factors to consider are whether the time was ever made-up by the employee, whether lateness is an ongoing issue, whether warnings were previously issued, the harm caused to the employer, and whether the lateness was the fault of the employee. A single lateness is unlikely to be cause for summary dismissal.

In considering termination for lateness and absenteeism, an employer must ensure that no human rights grounds are being violated. If an employee’s lateness or absenteeism is the result of illness, childcare obligations, or any other prohibited discriminatory grounds under the Ontario Human Rights Code, the employer must reasonably accommodate. In this instance, it is advised that employers seek legal advice as the duty to accommodate can be a complicated issue. Employees also should make employers aware if lateness or absenteeism is a result of illness, medical conditions, or childcare obligations as an employer cannot accommodate without knowledge of the situation.

Tips for Legally Sound Termination Letter

| February 13th, 2017 | No Comments »

It is all too easy to write a termination letter that does not comply with the law.  Here are some common pitfalls and tips for ensuring that your termination letter is legally sound:

  • Tip #1 – Consider whether you may be using out-of-date precedent: This one is most common.  Sometimes employers use and reuse the same termination letter for years.  While the letter was drafted by a lawyer at one point in time, it has not been reviewed by a lawyer in years.  Employment laws have changed in the meantime, and the termination letter has become unlawful.  If your company uses a precedent termination letter, have your employment lawyer review it at least once a year.
  •  Tip #2 – Ensure that the letter states that the employee is being provided with at least the minimum requirements under the Employment Standards Act, 2000: If the employee’s employment is terminated without cause, they must be provided with a specific amount of notice of termination, and, if applicable, severance pay.  If the termination letter provides less termination and severance pay than what the Employment Standards Act, 2000 says the employee should get, it may be unlawful.  Be aware that even employees who are paid solely on the basis of commission are entitled to termination pay.  Similarly, if the termination letter does not provide for the employee’s benefits to continue during the time period that they receive termination pay, it may be illegal.
  •  Tip #3 – Provide Valid Consideration: If you are asking the employee to sign a legal release on or after termination, you must offer them something that more than just the termination and severance pay that they are otherwise entitled to under the Employment Standards Act, 2000.   You cannot offer an employee something that they already entitled under the law in exchange for their signature on a release.  You must offer something them something in addition to their existing legal entitlements.
  •  Tip #4 – Do not Attempt to Rely on an Employment Contract that is Invalid: Often, in a termination letter, an employer will reference an employment contract signed years ago, such as a termination provision limiting the employee’s entitlements on termination. For the same reason as Tip #1, above, you should ensure that the contract language that you want to repeat in your termination letter is still legally valid. Some common termination provisions found in older employment contracts have been deemed invalid and inapplicable in recent court decisions.
  •  Tip #5 – Be Careful when Alleging a Reason for the Termination: If the termination is without cause, there is no general requirement for an employer to provide a reason for the termination.  However, if the termination is with cause, you generally must provide a reason.  It is important to get the exact reason for a with-cause termination right.  If you terminate an employee’s employment for cause for a reason that turns out to be false or flimsy, they could sue for additional damages on that basis.

If you have questions about writing a legally sound termination letter, or if you think that your termination letter is unlawful, contact one of the lawyers at Whitten & Lublin for assistance.

 

Author: Simone Ostrowski, Whitten & Lublin

Can an Employer Terminate an Employee Charged But Not Yet Convicted of a Criminal Offence?

| January 23rd, 2017 | No Comments »

An employer may be concerned about damaging their reputation by continuing to employ an individual that has been charged with a criminal offence. This may especially be the case if the employer is known to be involved with the community in which it operates its business. In trying to establish whether there is just cause for termination, a court looks at the following:

  • The amount of responsibility the employee has in relation to his/her duties
  • The degree to which the company’s reputation in the community may be harmed
  • Whether the accusation involved the use of company equipment

To illustrate, the case of Kelly v Linamar (Ontario Supreme Court of Justice) speaks to the above listed points quite well.

Kelly supervised 10-12 employees, managed deliveries and was in contact with customers on a regular basis. Linamar is located in Guelph, Ont., a small town of about 100 000 residents. Linamar had a great reputation in Guelph, especially with its contributions to children for educational donations, sponsoring many youth sports teams and assisting local schools in educational initiatives. Kelly was charged with possession of child pornography at the time he was employed by Linamar and the local media identified Kelly as an employee of Linamar.

Linamar terminated Kelly before he was convicted of this criminal offense and the court found the termination was justified. Considering the points above, Linamar was justified in terminating Kelly because:

The amount of responsibility the employee has in relation to duties:

Kelly was a supervisor and was in constant contact with customers. The fact that the community was aware of the charges against Kelly due to the local press made this a concern for Linamar and its brand.

The degree to which the company’s reputation in the community may be harmed:

Given that the charges dealt with allegations concerning children, this directly conflicted with the image Linamar had in the community. Linamar made efforts to positively impact the children of the Guelph community. Given the press releases and Kelly’s interaction with customers within the Guelph community, Kelly’s continued employment definitely posed a threat to Linamar’s reputation. This was the most significant factor in this case.

Whether the accusation involved the use of company equipment

Kelly did not use company computers to commit the alleged acts. Had he done so, this would undoubtedly be enough for termination.

This case illustrated the three key factors to be determined if employers are considering terminating an employee for being charged criminally for acts committed outside of the workplace. It is important to understand that such decisions should be made with careful consideration of all the factors. The unique facts of each case must be considered because an employee being charged with a crime that is morally reprehensible, such as the one described, does not on its own grant an employer cause to terminate an employee without compensation (notice pay).  Please seek the advice of an employment law expert if faced with a similar situation.

Inducement of an Employee: Risks and Damages

| January 9th, 2017 | No Comments »

Inducement: When pursuing an employee that works for another company, it is important to be mindful that this employee would be sacrificing a number of employment benefits by leaving their employer. This generally includes seniority, potential career advancements with their former employer, job security, benefits and so on. If recruiters are very persistent and aggressive towards an employee of another organization, or use promises such as career advancement, security, or higher pay, then this will be seen as inducement. The law seeks to protect individuals being induced by holding employers liable if the employee is terminated unjustly or too quickly. Thus, when recruiters focus on attracting talent from another organization, employers should be aware of the potential risks.

Risk 1: Increased damages through notice pay

This is problematic an unjust dismissal or constructive dismissal claim. In these circumstances, the employer will owe the employee pay for damages through increased notice pay as a result of the inducement. (Notice pay are damages owed to place the employee in a similar position had he/she not been terminated).

Risk 2: Damages for Misrepresentation (moving costs)

Another concern for employers should be whether the inducement was accompanied by a misrepresentation of the employment offer. The key is to be completely honest about the available position. If certain promises are made, such as advancement, but it is known that such promises are only possible with a budgetary approval, this information must be given before the candidate is hired. If a misrepresentation is made, the employer will be liable for any moving costs the employee incurred in addition to the amount owed through increased notice pay. Of course, this is only an issue if the employee is terminated undeservingly (i.e. termination without just cause) or too quickly. Nonetheless, employers should take the necessary steps to ensure their recruiters are fairly representing employment opportunities to potential candidates.

Factors used to Determine if Inducement Occurred

If the employer is able to show that the employee was not induced or if the employment lasted several years, then it is less likely that damages will be awarded. In summary, some of the factors to determine whether inducement occurred are:

  1. Whether the former job was secure
  2. Whether the employee accepted the offer while there were other better offers available
  3. Whether the employee had to move as a result of accepting the position
  4. Whether the employee was an owner of a business prior to inducement

If you are an employee and feel you have been induced and now find yourself unemployed after a short period, please contact an employment law expert to ensure you are compensated fairly. Employers are also encouraged to seek legal advice for any concerns regarding the risks mentioned above.

Employees’ Wrongful Actions and Employers’ Liability

| December 20th, 2016 | No Comments »

wrongful actionsEmployers may be found liable for the wrongful actions of their employees under certain conditions. The wrong must be tortious – this is a wrongful action that can be brought to civil court – which includes torts such as trespassing, assault, theft, negligence and so forth. There are certain factors established by the courts in determining whether the employer is vicariously liable for the wrongful act(s) of their employee. These factors are analyzed thought the ‘Salmond’ test established by common law.

Salmond Test – Vicarious Liability

The ‘Salmond’ test seeks to establish whether the employer created an opportunity for the employee to commit the wrongful action through the duties required for the position. If the act was related to such duties, then the employer can be found liable. The test seeks to analyze the following:

  • The opportunity the employer gave the employee
  • The extent to which the wrongful act may have furthered the employer’s aims (i.e. making this action more likely to be committed by the employee)
  • The extent to which the wrongful act was related to friction, confrontation or intimacy inherent to the position/business
  • The power conferred on the employee in relation to the victim
  • The vulnerability of the victims in relation to the employee’s power

In general terms, the principle underlying the ‘Salmond’ test is whether the duties required gave an enhanced opportunity for actions of wrongdoing. This can be examined though a combination of the above factors in the ‘Salmond’ test. Employers are encouraged to seek an employment law expert for a full understanding of any situation raising concern. The above is by no means comprehensive.

An example that illustrates the relevant principles is Bazley v. Curry (SCC 1999). This case established that vicarious liability extends to enterprise risk. Simply, this can be viewed as the necessary duties employees are given to conduct business in the specific industry. This means that employers can be found liable for the risks inherent in the job itself, and not just acts that are authorized by the employer.

Bazley v Curry Example

In Bazley v. Curry, the employer was a child care facility. Employees here were caretakers of mentally disabled children. The nature of this business required caregivers to have a relationship of total intervention – bathing, preparing children for bed, and so on. Mr. Curry was the caregiver and Bazley was the child subjected to abuse by Mr. Curry. The employer here was found to be vicariously liable for the wrongdoing. In simple terms, this was because Mr. Curry was put in a position that made the abuse more likely when examining the duties of the job. The focus here is on the enterprise risk.  The nature of the business made these actions by Mr. Curry more likely to occur; the employer was therefore vicariously liable.

Final Thoughts

The courts place an increased responsibility on employers for the actions of their employees for two reasons. The employer has the means to compensate potential victims for the wrongdoing of their employees. Also, the court recognizes the employer’s ability to deter their employees from committing such wrongful acts. This may include performing criminal background tests or placing third-party supervision as deemed necessary for the position and enterprise, as this will mitigate risk and deter employee wrongdoing. It is important for employers to be diligent and take the necessary precautions to prevent wrongful actions by employees.