Terminating an Employee who has Submitted an Extended Notice to Quit

| October 10th, 2017 | No Comments »

Employees owe their employers a notice period when intending to quit, just as an employer owes an employee notice when seeking to terminate an employee. This ensures each party has time to adjust to changes without suffering too much hardship. When an employee submits a notice period that is considerably lengthy, however, employers may wish to end the notice period early. There are a few things for employers to consider when faced with this situation.

An employer cannot end the employment relation immediately after receiving a notice to quit from an employee. In particular, when receiving a lengthy notice, such as 3 months, for instance,  employers that dismiss an employee early may be faced with litigation for wrongful dismissal. Absent of a termination clause within the employee’s employment contract, employers must give ‘reasonable notice’ established through common law in order to end a lengthy notice period given by an employee. Common law considers the employee’s length of employment, skill level, whether or not they were in a managerial position, and so on. The intent of reasonable notice is to allow the employee enough notice time to gain comparable employment, which is why senior, highly skilled employees will be owed more notice than lesser skilled employees. Employers seeking to shorten a lengthy notice period given by an employee, therefore, absent of a termination clause, must offer common law notice of termination or pay in lieu to end the employee’s notice period early. It is important to ask an employment lawyer what an appropriate length of notice would be, as each scenario will vary in accordance to the facts.

Much of this uncertainty may be avoided if the employee is subject to a termination clause within their employment contract. It is advisable to have a legal expert draft such clauses, as it must comply with minimal standards legislation to be enforceable. If found unenforceable, common law notice will apply.

Refusing Unsafe Work In Ontario

| October 5th, 2017 | No Comments »

Workers in Ontario covered under the Occupational Health and Safety Act have a right to refuse, reasonably believed unsafe work that is not essential to the job. For instance, if working at high heights is essential to complete the tasks of the job, this cannot be reused if there is adequate safety equipment and regulations in place.

Under the Occupational Health and Safety Act, workers have a right to refuse unsafe work on the basis of:
1. equipment, machinery or devices that the worker is required to operate that is likely to endanger the worker or other around
2. the physical condition of the workplace itself posing a danger to the worker of any others around, which includes the likelihood that workplace violence will occur
3. any equipment, machine or device is not up to code under the Occupational Health and Safety Act

If a worker has a reason to believe that work required is unsafe due to any of the above, the worker must report this to their employer or supervisor, and that supervisor/manager must start an investigation immediately. The investigation must be done in the presence of a health and safety committee member that represents employees, if applicable, or the workplace health and safety representative. Further, during the investigation, the worker must be in a safe place as close as possible to the workstation, and available to the employer or supervisor for investigatory purposes. The worker also must receive regular pay during the investigation.

Upon the conclusion, if the investigation, the worker must be given the results, and any remedies implemented, if applicable. If the worker then still has a reason to believe the work is unsafe the employer, the worker, or a person on the behalf of the employer or worker must contact an inspector from the Ministry of Labour. The worker must remain at work during normal working hours in a safe place, and available to the inspector for investigatory purposes. Other workers must not be given the work or task refused unless the worker has been advised of the reason for refusal in the presence of a health and safety committee member that represents workers, or a health and safety representative.

The above guidelines are meant to educate workers on their basic right to refuse work believed to be unsafe. Refusals that are done in good faith cannot be subject to any reprisals from an employer, and workers have a duty to report any unsafe work immediately. For a comprehensive view of protection granted under refusal of unsafer work, refer to section 43 – 53 of the Occupational Health and Safety Act (Ontario).

Resignation Notice: What are Employers’ rights and Employees’ obligations?

| October 4th, 2017 | No Comments »

Question:  I work for a Bank as Project Manager. I was hired as a contractual employee on a fixed salary for two years ending in December. My employment letter states that a four-week notice is required if I resign.  My manager told that I should look for a change as Bank may not be able to renew the contract.  I found a new job and have submitted my resignation with two weeks’ notice. Can my employer detain me for the remaining two weeks or deduct my salary in lieu of two weeks of notice?

Answer:  Many employees expect their employer to provide them with reasonable notice before their employment is terminated.  But few realize that the obligation to provide notice is a two-way street: employees are also required to provide their employer with prior notice of their intention to resign.  Under employment law, the employee’s failure to do so constitutes a “wrongful resignation.”

Contrary to popular belief, employees generally cannot resign whenever they wish by simply providing two weeks’ notice.  Rather, the length of notice an employee has to provide will usually be set out in an employment contract.  If there is no such contractual requirement, it will depend on the employee’s position, responsibilities, tenure, and the time it would reasonably take the employer to find a replacement.  Should an employee resign without providing the full notice of resignation they agreed to, the employer is entitled to sue for wrongful resignation.  Few employers follow through with this, however.

In your case, since you originally agreed to provide your employer with four weeks’ notice of resignation, leaving on only two weeks’ notice may have legal consequences.  While your employer cannot force you to work the remaining two weeks, or deduct your salary for those two weeks (unless you clearly agreed to that in writing), it may sue you for damages for wrongful resignation.  Specifically, your employer may try to recover any losses it suffered as a result of you leaving on short notice, including lost sales, the costs of hiring your replacement, and the cost of overtime worked by other employees.  You should consult an employment lawyer for specific advice about your legal options.

Ending Fixed Term Contracts: Is a typical severance package sufficient

| October 2nd, 2017 | No Comments »

In the case of Howard v. Benson (2016), the Ontario Court of Appeals cleared up any uncertainty regarding employers ending fixed-term employment contracts prematurely. In the case, the court ruled that fixed-term employment contracts require employers to pay the employee the reminder of what would have been earned had the contract not been ended prematurely. In other words, a typical severance package or notice is not sufficient. There is an exception, however. For fixed term contracts that contain a termination clause, the provisions of the clause would apply given it complies with minimal standards legislation.

Given recent developments, employers are held to rigorous standards when drafting such clauses as any uncertainties in language may render the clause invalid. This makes it imperative for employers to seek legal assistance when implementing termination clauses within fixed-term employment contracts. In the event the clause is found unenforceable, the balance of the contract would be owed to the employee.

Employers should also be aware that an employee’s duty to mitigate damages does not apply when the employer decides to prematurely end a fixed term contract without a termination clause. Normally, if an employee does not mitigate damages by searching for comparable employment during the notice period, the courts will award less in damages to the employee.  But in the case of fixed-term contracts, employers will owe the remaining balance of the contract regardless of the employee’s efforts to mitigate damages. This makes it all more important for employers to implement a termination clause. Always seek the assistance of an employment lawyer when implementing termination clauses within fixed-term contracts to ensure the clause is enforceable if challenged.

Serving Alcohol At Workplace Events: Employer Liabilities

| October 2nd, 2017 | No Comments »

It is not uncommon for employers to sponsor or hold workplace events with alcohol being served. An example may be a Christmas party either held at the workplace or at an event hall. Employers must be aware, however, that certain risks of liability are present when holding such events. Essentially, employers must take on the same responsibilities of regular commercial alcohol vendors such as a local bar or restaurant. Employers should do all that is possible to monitor employee alcohol consumption, provide for transposition, and implement procedures that aid in limiting alcohol consumption to safe levels.

An example of the responsibilities employers have when serving alcohol at workplace parties can be seen in the case of Hunt v. Sutton Group Incentive Realty (Ontario Superior Court, 2001). The employer here held a Christmas party at the workplace with alcohol available. An employee became intoxicated while at the party and then attended a bar with co-workers and continued to drink. The employee then attempted to drive home but suffered a severe car accident that left the employee with brain damage. This employee was successful in suing the employer for negligence, alleging that the employer failed to take proper steps in protecting its employees from harm. The court ruled that the employer had a responsibility to protect its employees beyond the physical workplace. Specifically, it was not enough that the employer provided alternative transportation home. The employer here should have taken measures to limit and monitor employee alcohol consumption at the workplace Christmas party, rather than have an unsupervised open bar.

In light of this case, employers should take the following precautions when hosting or sponsoring parties that serve alcohol. Ensure that alcohol is not the sole activity; provide food and various activities. Also, make sure that alcohol distribution is controlled. Having authorized or designated servers are the best way to accomplish this objective. Employers may also choose to issue a limited amount of alcohol tickets per employee. Employers should also stop serving alcohol a few hours before the end of the event. Having personnel to aid in detecting when employees have consumed alcohol past a reasonable limit is also advisable. Transportation arrangements are also very important and strongly recommended.

How Does an Employer Legally Alter an Existing Employment Contract?

| September 29th, 2017 | No Comments »

Unilateral changes to an employee’s contract are not legally binding. In the event that an employee would dispute such a change, there is a good change the employee will be successful. As an employer, however, there may be instances where an important business goal or objective depends on alterations to employees’ existing employment contracts. There may, for instance, be a desire to alter compensation schemes so that incentives match projected business goals. Whatever the case may be, there is only one way to change an employment contract legally.

In order for an employer to change an employee’s employment contract, the employer must give the employee ‘consideration’. This legal term simply means an exchange of a mutual benefit. The simplest way to offer consideration would be to give the employee a sum of money for agreeing to the new terms of the contract. There are other things an employer can offer other than money. As long as it is a benefit to the employee, the exchange should meet the requirement of consideration. Some examples may include enhanced benefits, a promotion, or an increase in vacation time.

In addition to consideration, timing is also key. Employers must offer the consideration at the time the contract is signed and allow the employee a reasonable time to consider the offer. Employers must also clearly communicate the end the existing contract and the start of the new contract. It is important that these legal requirements are met so that employers are not faced with unenforceable contracts. Always seek the assistance of an employment law expert when seeking to change existing employment contracts.

I am being bullied at work by my boss. What do I do?

| September 26th, 2017 | No Comments »

Question: I am being bullied at work by my boss. What do I do?  She yells at me daily.

She has asked me things like; can you read? Are you deaf? Are you dyslexic? Do you know how to spell? If she misplaced something I get yelled at. If a client doesn’t read a document I asked them to read I get yelled at. I have been yelled at and talked down to in front of clients.

I actually have a breakdown every Sunday at the thought of going in on Monday.  I have left work crying numerous times.

What do I do?

Answer: Just like many have learned on playgrounds as children, you have to stand up for yourself and stand up against bullies.  However, as many have also learned, standing up to a bully directly can cause a lot of pain and suffering, and there is usually a better way.

In the context of workplace bullying, there is a better way.  In most cases, you can empower yourself by taking timely and detailed notes of each instance of bullying and, within limits, even recording conversations with the bully.  This is often the first step, as the notes and recordings make it easier for you to explain the situation to your HR department, your bully’s manager, or even a lawyer.  It may also be worthwhile to get a doctor’s note; if the stress is too much to bear, you may be able to take a temporary leave of absence (sometimes paid, sometimes unpaid).

You should also do so knowing that the law protects you from mistreatment in many ways.  Harassment is prohibited by both the Occupational Health and Safety Act and, for certain kinds of Harassment, the Human Rights Code.  Further, if the environment really has become toxic, you may be allowed to leave and start a constructive dismissal claim.

 

At Whitten & Lublin, we have been successfully standing up to bullies and protecting employees for many years.  If you’re experiencing workplace bullying, call us for help!

The Importance of Knowing Whether A Fiduciary Relationship Exists

| September 25th, 2017 | No Comments »

For employees, a fiduciary relationship exists where the employee is in a position to cause the employer damage due to the duties of employment. This is not limited to senior managers or executive – a key employee may also be in a fiduciary relation. Such a relationship may exist where the employer is placed in a vulnerable position in order to receive services from the employee. An example may be where an employee is exposed to trade secrets in order to fulfill services owed to the employer. There are a number of of fiduciary duties such employees will have in order to protect the employer from the inherent vulnerabilities of the employment relation.

When assessing whether a fiduciary relationship exists, the courts have set the following criteria. To be in a fiduciary relation, (1) the employee must have scope for the exercise of some discretion or power, (2) the employee must be able to unilaterally exercise that power or discretion so as to affect the employer’s legal or practical interests, and (3) the employer must be peculiarly vulnerable to the employee holding the discretion.

Employees in a fiduciary relation have a duty of “loyalty, good faith and avoidance of conflict of duty and self-interest” (Supreme Court of Canada – 1973). This means that employees with fiduciary duties cannot solicit any customers/clients from their previous employers, enter anything that causes their personal interests to conflict with their employer’s interests during their employment, or deprive their former employer of business opportunities which belong to the employer. Each duty will be limited in duration in accordance to the facts of each particular case, which makes it important to seek advice from an employment law expert if in a fiduciary relation with an employer.

What is Ethnic Discrimination in the Workplace?

| September 18th, 2017 | No Comments »

Ethnic discrimination occurs when an employee is treated different than his or her colleagues based on their ethnicity in a manner that is unfair.

A person’s ethnicity refers to the national, cultural or religious group(s) to which they belong, or are perceived to belong.  A person’s ethnicity can be shown visually (i.e. if they wear a turban), linguistically, (e.g. if they have a Chinese accent), or it can be difficult to detect.  A person’s ethnicity is associated with their cultural identity, and it can change over time.  In contrast, a person’s race is generally seen as an unchangeable part of their biological makeup.

Ontario’s Human Rights Code prohibits ethnic discrimination in the workplace.  Ethnic discrimination often overlaps with other types of discrimination under the Ontario Human Rights Code, such as race, place of origin, creed and ancestry.

Ethnic discrimination in the workplace can come in many forms, some of which are very commonplace.  A manager who makes fun of his subordinate’s hijab would likely have engaged in ethnic discrimination.  An employee who is denied a receptionist position based the fact she is not proficient in English may have experienced ethnic discrimination.  She could make an application to the Ontario Human Rights Tribunal claiming discrimination on the basis of ethnic origin.  However, the potential employer could defend against her claim by arguing to the Tribunal that English proficiency is a legitimate requirement for the position.  The Tribunal will closely analyze the claim that English proficiency is required for a position.  In many cases, an employee does not need to have perfect English skills in order to perform the duties associated with a particular position.

Author: Simone Ostrowski, Whitten & Lublin

How to Deal With Workplace Violence

| September 18th, 2017 | No Comments »

It is exceedingly important that businesses have clear policies and procedures in place to address workplace violence, which comply with the statutes that govern workplace violence – including the Ontario Occupational Health and Safety Act.  Under this Act, employers are required by law to prepare a written policy that defines workplace violence, provides examples of it, sets out a clear program for filing internal complaints and investigating them, and describes any other steps the company will take in relation to workplace violence.

Companies may be required in appropriate circumstances to hire an external provider both to train their staff, and to investigate incidents of workplace violence as they occur.  They are also required to provide protection from any workers with a history of violence, and to reasonably protect workers who are at risk of domestic violence.

Because workplace violence is considered a “safety hazard”, workers have a right to temporarily stop performing their duties until the issue is adequately addressed.  Employers will be required to put a safety plan in place to ensure that any risks are limited to the extent legally required.  In some cases, employers may also be expected to provide counseling services, if the workplace violence incident is of a sufficiently serious nature.

Where a company fails to comply with its legal obligations, it is at risk of substantial fines, extra attention from the Ministry of Labour, unhappy employees, reduced productivity, damages for wrongful or constructive dismissal, reinstatement of terminated employees (together with back-wages) and increased legal fees – among other things.

 

Author: Daniel Chodos, Whitten & Lublin