Just Cause for Dismissal

Normally, employers must give notice, or pay in lieu thereof, when they terminate an employee. This is because, more often than not, employees are terminated without cause. A company could be downsizing or office personalities are clashing and an employee needs to be let go to strike a balance in the workplace.

Even if they mess up on the job, many employees are given termination notice because of the difficulty in proving that a termination was brought on by the employee’s behaviour or performance.

If an employer finds just cause to terminate an employee, the employee will not be entitled to notice of dismissal, termination or severance pay. Additionally, employees who are terminated for cause may not be eligible to collect Employment Insurance (EI) benefits and will likely find it more difficult to find new employment than if they had been terminated without cause.

What Is Considered Just Cause For Dismissal?

According to the Ontario Court of Appeal in R. v. Arthurs, Ex parte Port Arthur Shipbuilding Co. (1967):

If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.

Let’s break that down. Just cause for dismissal arises when an employee is guilty of wilful and significant misconduct, neglect of duty or disobedience. It requires that an employee go against their contractual obligations to their employer or behave in a way that is damaging to the employer’s business.

Justifying Just Cause Dismissal

Behaviours That Warrant Just Cause For Dismissal - KCY at LAW - Employment LawyersIt is not enough for an employee to mess up on the job. Accidental poor work behaviour is not the same as wilful or deliberate misconduct. The employee’s actions or omissions must demonstrate deliberate disregard or even open hostility to the employment terms set out in their employment contract to justify dismissal.

When courts are deciding if termination for cause is justified, they always look for context. They will examine the extent, nature and circumstances of the alleged misconduct to determine if the punishment fits the crime. Factors considered include the employee’s position in the company (i.e. his or her seniority and responsibilities) and the employer’s workplace policies, procedures and standards. It is essential that employers hold all employees to the same standard. Occasionally condoning an act makes it much more difficult to later fire an employee for conducting it.

It is up to the employer to prove that a termination was for cause. Doing so is often complicated. First, an employer will have to prove that fireable behaviour occurred. To do this, employers should be careful to document misbehaviour and the disciplinary measures used in response. The employer must further prove that the employee’s actions – or lack thereof – were in contravention to their employment contract. They must prove that the employee behaved in such a way that it damaged the employment relationship beyond repair. If an employer cannot demonstrate they had cause to terminate, they will be ordered by the court to pay damages to their former employee.

Behaviour That May Warrant Just Cause For Dismissal

  • Dishonesty (i.e. theft or fraud)
  • Violence or harassment in the workplace
  • Wilful misconduct
  • Habitual neglect of duty
  • Conflict of interest
  • Off-duty behaviour that negatively impacts an employer’s business interests (see our blog about social media defamation for more on this)

Disobedience or insubordination can also be cause for termination. Insubordination may involve derisive, abusive, contemptuous behaviour towards a superior. Disobedience is the deliberate refusal to follow reasonable and important orders that are within the scope of an employee’s contractual duties. Usually, employers must have at least a few documented incidences to justify terminating an employee for disobedience or insubordination.

Incompetence and Negligence

What if your employee is just plain terrible at their job? Can you fire them for being incompetent or negligent? The answer is ‘yes’ but this can be tricky.

When it comes to firing an employee for their incompetence or negligence, the employer must make the employee aware of their misconduct; let them know the standards they must meet; give them the opportunity to improve; and inform them of the consequences if they do not.

Just Cause for Dismissal - Incompetence and Negligence

Progressive Discipline and Performance Improvement Plans (PIPs)

Occasionally, an employee can be terminated for cause based on a single significant incident. More often, however, termination for cause arises from a series of repeated failings. In the case of the latter, it is essential that employers be able to demonstrate that they gave an employee incrementally more serious disciplines and sought ways to improve their performance. For both of these examples, documentation with concrete examples is key.

Progressive discipline most often means initially giving an employee a verbal warning, then a written one, followed by a suspension and finally termination in response to repeated inadequacies in their performance. A Performance Improvement Plan (PIP) is intended to ensure that the employee is aware of their job’s expectations, their failure to meet them, and gives them explicit, achievable goals with a clear timeline for them to improve their performance.

Employer Rights and Responsibilities When Firing An Employee

If you are considering firing an employee without pay or notice, the experienced employment law team at KCY at LAW is ready to consult with you on your rights and responsibilities and advise you of the fair and appropriate course of action. Call us now on (905) 639-0999 or contact us online for more info!

Termination Pay Eligibility Before First Day

Imagine getting paid severance and termination pay for a job you haven’t started. That’s what happened to Donald DeGagne when he was ousted from his job as the Chief Administrative Officer (CAO) of Williams Lake, BC before he even worked a day in this position.

DeGagne was 57 years old and had over 25 years’ experience in local government when he relocated to Williams Lake with his wife to take up the CAO position.

Termination Pay: DeGagne v. City of Williams Lake, 2015

His employment contract with the city granted DeGagne $130,000 per year and six months’ notice if terminated within the first year of employment. Additionally the contract stipulated that the city could terminate employment with one month’s notice during the initial six month probationary period of employment.

Termination Pay DeGagne v. City of Williams Lake, 2015 - KCY at LAW

DeGagne was slated to begin work on March 1, 2013 but was terminated two days prior on February 27. According to the termination letter, the decision was the result of communications from DeGagne about a labour dispute that the council felt undermined their confidence in DeGagne’s judgement. Upon terminating his employment, the city gave DeGagne a one month severance package.

DeGagne contested this amount and sued for damages, wrongful dismissal and punitive damages. The city argued he couldn’t reasonably expect a larger settlement having not actually worked a day in the position. The trial judge disagreed. Justice Dardi concluded that the City of Williams Lake had an obligation to act in good faith during the probationary period and awarded DeGagne six months’ notice of dismissal amounting to $65,250 in damages to cover six months’ pay, loss of pension and other benefits as well as relocation costs. While the court did not award punitive damages to DeGagne, the city was ordered to pay one third of his legal costs. Altogether, the dismissal cost Williams Lake about $200,000.

Right To Notice of Dismissal

The unusual case of DeGagne v. City of Williams Lake, 2015 serves as a useful reminder to employers that an offer of employment becomes an employment contract the day the offer is accepted, not the employee’s first day at work. Therefore, an employee is entitled to notice of dismissal and all other contractual guarantees as soon as the contract is signed.

Employers should carefully consider their hiring decisions and the details of their employment contracts. Don’t make promises you won’t want to keep. It is your duty to adhere to the Employment Standards Act. This means following through with your contractual commitments to employees, however irregular the circumstances.

Employment Contract Specialists - Employment Lawyer Burlington

Employment Contract Specialists

KCY at LAW is an experienced employment law team that can help you write meaningful and lawful employment contracts. We are ready to consult with you on your rights and responsibilities in even the most unusual circumstances. Call us today at (905) 639-0999 or reach us online for more information.

Leaves of Absence – Reservist, Organ Donor, Jury Duty, Voting, Pregnancy & Parental

Last week we discussed four leaves of absence intended to help employees cope with various personal and familial emergencies. This week we will try and end this series on a brighter note as we go over six more types of job-protected leaves of absence this week.

Job-Protected Leaves of Absence

As well as the leaves of absence highlighted last week, and the general guidelines about leaves of absence in Ontario outlined the week prior it’s now time to look at 6 more job related leaves of absence.

Reservist Leave

Job Protected Leaves of Absence Ontario - Reservist, Organ Donor, Pregnancy, Parental, Jury Duty & Voting Leaves of AbsenceThis leave is for military reservists deployed to a domestic or international operation to deal with an emergency or its aftermath. It lasts for the duration of the reservist’s operations. The reservists must, however, have been with their employer for at least six consecutive months prior to their deployment to qualify for this leave.

Organ Donor Leave

This is for employees having surgery to donate an organ (kidney, liver, lung, pancreas, small bowel). This leave begins the day of surgery unless otherwise specified in a certificate issued by a medical practitioner. The leave can last up to 13 weeks with the possibility of up to an additional 13 weeks if the employee is not yet able to do their job because of the surgery.

Jury Duty Leave

Employees are generally entitled to take time off for jury duty. The length of the leave depends on the length of the trial. However, if an employee’s absence – prolonged or otherwise – would cause undue hardship to an employer’s business, the employer may make a written application to have their employee’s jury duty postponed.

Voting Leave

Anyone qualified to vote in a municipal, provincial or federal election is entitled to three consecutive hours off while the polls are open. It is the employer’s right to grant this time off at their convenience. However, since many polls are open late, providing employees with this leave may not always be necessary.

Pregnancy and Parental Leaves

Easily the happiest of the leaves available, we gave a comprehensive overview of pregnancy and parental leave here. However, as a refresher: Pregnancy leave is for pregnant women whereas parental leave is for any parent of a newborn. You are entitled to pregnancy leave as long as you began your current employment at least 13 weeks before your expected due date. This leave lasts up to 17 weeks and can start up to 17 weeks prior to your expected due date.

Parental Leave of Absence - KCY at LAW

Parental leave is for new parents of all stripes (birth, adopting, or someone in a relationship with the parent of a newborn intending to treat said child as their own). It is 37 weeks (35 for women who also took a 17-week pregnancy leave) and is unpaid.

Leave of Absence Specialists

If your work position has been negatively impacted by a leave of absence, KCY at LAW has the expertise to ensure that your rights are protected. Call us on (905) 639-0999 to book a consultation or contact us online now!

Leaves of Absence Ontario – The Ultimate Guide Pt.1

Things come up. Life is full of unexpected twists and turns – some joyful and others trying beyond measure. Life is often a delicately managed chaos. At the best of times, striking a work-life balance demands the gymnastic skills of a Cirque-de-Soleil performer. And then life throws a curve-ball into this juggling act and, much like this circus analogy, things go off the rails.

As essential as work may be, there are other things in life that are far more important: a new baby or an ailing relative, for example. Fortunately, Ontarians have access to several different leaves of absence under the Employment Standards Act (ESA).

Leaves of Absence Available in Ontario

Different Types of Leaves of Absence Ontario - KCY at LAWThe job-protected leaves of absence available to Ontarians are:

  • Personal Emergency
  • Family Caregiver
  • Family Medical
  • Critically Ill Child Care
  • Crime-Related Child Death or Disappearance
  • Reservist
  • Organ Donor
  • Jury Duty
  • Voting
  • Pregnancy
  • Parental

Leave of Absence & Job Protection

Each of these leaves of absence is job-protected, meaning you are entitled to return to your job, in the same position as when you left for your leave. You cannot be fired or punished in any way for taking or planning to take one of these leaves of absence. This means you cannot have your wages or hours reduced or be threatened with suspension or termination. As mentioned, you are entitled to your former position upon returning to work. However, if your position no longer exists, you should be offered one that is comparable in terms of skills, duties, pay, benefits, etc.

Your benefits, length of service and seniority will continue to accrue during your leave. Furthermore, your employer must continue to make contributions towards your benefits plan unless they are shared contributions and you advise your employer in writing that you will not continue your contributions during your leave.

You are entitled to all of these leaves whether you are employed part-time, full-time, on a contract or permanent basis. While these leaves are all unpaid, you are often entitled to access certain Employment Insurance (EI) benefits during these leaves.

Giving Notice for Leave of Absence

Giving your employer reasonable notice of your leave is essential. It allows them to plan ahead and keep their business running smoothly. Two weeks is the generally accepted standard minimum period of notice. However, as many of these leaves are intended to address unexpected emergency situations, it is understood that two weeks’ notice is not always possible.

Giving Notice for Leave of Absence - Employment Law Advice - KCY at LAW

Employees should strive to give their employers as much notice as possible. With pregnancy and parental leave, this can be fairly straightforward, but with an unexpected medical emergency it might not be. Therefore, regardless of the leave, you should give your employer notice of your leave as soon as possible whether it is two months or two hours in advance.

The Scoop on the Various Leaves of Absence

As this week’s blog title suggests, we are going to break down the various leaves of absence over a couple of posts. So, come back next week to learn the ins and outs of Personal Emergency, Family Medical, Family Caregiver and Critically Ill Child leaves of absence.

If your work position has been negatively impacted by a leave of absence, KCY at LAW has the expertise to ensure that your rights are protected. Call to book a consultation (905) 639-0999 or reach us online.

Update:

Get Ready for Summer with this Vacation Time and Pay Breakdown

As the summer looms ever nearer and all of Canada’s National Parks are on offer for free to mark our country’s 150th anniversary, you are probably hoping to cash in some of those vacation days to maximize your time away from the over- or under-air-conditioned office.

When it comes to vacations, Canadians can’t get enough. And we don’t. In fact, we rank pretty low in the developed world for paid vacation days. We’ll save you the trauma of knowing how much paid downtime those Scandinavians get and instead give you an overview of your entitlements under Ontario Labour Law to make sure you can take advantage of them in full during the warm weather months ahead.

Vacation Time

Ontario employees are entitled to two weeks’ vacation time after each 12-month vacation entitlement year. Your vacation entitlement year normally begins the day you are hired. This means that after 12 consecutive months of employment with the same company you are entitled to two weeks of vacation. The vacation entitlement year is not affected by approved leaves of absence or sick days. This means, for example, that if your entitlement year began in May, 2016 and you took three months parental leave from July to September, you are still entitled to take two weeks off as of May, 2017.

Vacation Time Ontario - Calculating Vacation Pay

Unfortunately, the Employment Standards Act doesn’t provide for increases to the vacation time entitlement based on length of employment. This means that, in Ontario, even after working for the same employer for five, ten, or even 25 years, you are still only entitled to two weeks vacation time. However, many contracts and collective agreements do provide for increases to vacation time as the length of your employment increases.

Calculating Vacation Time

The number of vacation days to which you are entitled depends on whether your employment is full- or part-time. Generally speaking, you are entitled to take off the number of days you work in a regular work week, times two.

Therefore, if you work five days a week you get ten vacation days (two work weeks). If you work three days per week you get six vacation days. If you have an irregular schedule with varying numbers of days worked in a week throughout the year, you can calculate your vacation days by taking the number of days you worked in the last entitlement year period and dividing it by 52 (the number of weeks in the year) to get the average number of days you worked per week and then multiplying that number by two. For example, if you worked 136 days last year you would be entitled to 5.2 vacation days (136 days ÷ 52 weeks x 2 = 5.2 days).

Scheduling Vacation Time

Vacation time must be taken within ten months of the completion of the entitlement year. Employers have the right to schedule vacation and are obligated to ensure it is taken before the end of the ten-month period following the completion of an employee’s entitlement year period.

If an employee is on leave at the time of this deadline, the vacation time must be taken when the leave ends or at a later date agreed upon in writing by the employer and employee.

Additionally, vacation time must be scheduled in one or two week blocks unless the employer and employee give written agreement to an alternate arrangement. This means that extending long weekends with an extra vacation day here and there is at the discretion of employers and not guaranteed for employees wishing to make a four-day cottage trip out of the upcoming Victoria Day Weekend.

How to Caculate Vacation Pay Ontario - KCY at LAW

How To Calculate Vacation Pay

Vacation pay also begins accruing the day you are hired. It must be at least 4% of your gross wages for your entitlement year. Whereas with vacation time, you must complete your full vacation entitlement year to receive any vacation time, you earn vacation pay while you earn wages. So, if you work 3 months, you will be entitled to a minimum of 4% of those months’ wages as vacation pay. Accordingly, if you earned $30,000 in gross wages in your vacation entitlement year, you are entitled to $1,200 ($30,000 x 0.04) as vacation pay.

Gross wages include your: normal earnings, commissions, non-discretionary bonuses, overtime, public holiday pay and termination pay. On the other hand, earnings from tips, gratuities, discretionary bonuses (Christmas or others unrelated to performance), travel expenses and allowances, benefit plan contributions, federal EI benefits, and severance pay are not included in your gross wages when calculating vacation pay.

Vacation pay is generally paid in a lump sum before an employee takes their earned vacation time. If you quit or are dismissed, you are entitled to be paid the vacation pay that you have earned but not yet been paid out.

Vacation Time or Pay Compensation

If you have been denied vacation time or pay, KCY at LAW are experienced employment law lawyers who can help get you compensation for those lost beach hours. Fill out our contact form or call us to book your consultation (905) 639-0999.

Unlawful vs. Wrongful Dismissal: What’s the Difference?

So, you’ve been let go. Or you’ve been terminated, fired, downsized or dismissed. Pick your euphemism, the unhappy fact remains that one chapter in your employment history has ended. It’s unfortunate that you are back on the job hunt but you are smart and capable and will handle this challenge with grace and skill.

Reasonable Notice Period Guidelines for Dismissal

Ideally, your employer has taken care to follow the reasonable notice period guidelines set out in the Employment Standards Act (ESA) to give you the time and/or resources needed to get back on your feet and facilitate your smooth workforce transition. Ideally, you and your employer remain on friendly terms and your resume has a glowing new reference.

But what if your termination was less than amicable? What if the reasons for your dismissal were petty, or worse, discriminatory? What if your severance package or termination pay was less than adequate? Does this mean you have been wrongfully – or unlawfully – dismissed? What’s the difference between the two anyways, and what recourse do you have?

What Is Wrongful Dismissal - Employment Lawyer - KCY at LAW

Wrongful Dismissal

Simply put, a wrongful dismissal occurs when an employee is terminated without cause and without adequate notice or compensation. Being wrongfully dismissed has nothing to do with an employer’s reason (or lack thereof) for firing an employee. It unfortunately means that you can be fired for petty and unfair reasons, so long as you are given appropriate notice or termination pay.

So yes, it is lawful to be fired because your boss doesn’t like your shoes.

Generally speaking, employees can be dismissed without cause if they are provided with adequate notice of their termination or with compensation in lieu of said notice. The length of notice to which you are entitled is determined by your employment contract and minimum standards guaranteed by the ESA.

If you have been dismissed without adequate notice or compensation, you may be able to sue for damages. You should know, however, that damages are meant to compensate you according to ESA standards. They are not meant to punish an employer for firing you.

What is unlawful termination - Employment Lawyer - KCY at LAW

Unlawful Termination

By contrast, a termination is unlawful if it is discriminatory under the Human Rights Code (HRC) or if it arises from you insisting on your rights under the ESA or Occupational Health and Safety Act. Legal actions may be pursued in the case of illegal terminations including being reinstated in your former position.

So while you can be dismissed because an employer doesn’t like your taste in footwear, you cannot be fired because you require certain orthopedic shoes to address a physical ailment.

Wrongful Or Illegal Termination Experts

If you think you have been wrongfully or illegally terminated, our dedicated team is here to champion your employment rights. Contact KCY at LAW to book your consultation with a skilled employment lawyer who will defend your rights under the ESA and HRC. Call us at (905) 639-0999 or reach out to us online here.

Social Media and Hiring Practices

We’ve talked in previous blogs about how what you say and post online can have negative impacts on your employment. You now know that an unprofessional online presence can get you fired, but did you know it can also prevent you from getting hired in the first place?

Impact of Social Media on the Hiring Process

Today, job applicants can expect to be vetted based on their online profiles at all stages of the hiring process. Various studies have shown that around three quarters of hiring managers and recruiters will research candidate’s online presence to help them determine who to hire.

After all, your online presence offers recruiters a sneak peek at who you are beyond the bulleted columns of your resume. For employers, networking sites like LinkedIn and Facebook may offer insights about a candidate’s character and personality as well as the accuracy of their qualifications.

What are Recruiters Looking for?

Social Media and Staff Recruitment - Employment Lawyer BurlingtonLinkedIn is usually the first site employers will turn to in order to gain a more complete picture of candidates. LinkedIn allows them to easily verify your references and qualifications. Inconsistencies between what you say on your resume and your online profiles is an immediate red flag.

Importantly, employers are looking to see if there is anything in your online behavior that would make them want to reconsider your hire. They are looking to see if you present professionally. Have you bad-mouthed a previous employer, for example? Do your interests and activities suggest that you are well rounded and will fit into the existing work culture? How is your spelling and grammar?

According to Forbes, about a third of employers who browse candidate’s social media say they have found materials that have disqualified the candidate. The most common culprits are:

  • inappropriate photos and information;
  • evidence of alcohol and drug use;
  • discriminatory posts or comments; and
  • false qualifications.

Don’t Hide Away

As a job applicant you have the option to adjust your privacy setting on various social media so that recruiters can’t see your activities. But in doing so you will be missing the opportunity to use your internet persona to your advantage. Your profiles and posts offer a unique opportunity to highlight your accomplishments and show yourself in a positive light.

So perhaps you will want to keep your Facebook posts joking about last Friday’s debauchery private but those Instagram shots of you playing soccer or those clever tweets about your MP’s latest policy pivot can only work to your advantage.

What About my Privacy Rights Online?

Generally speaking, recruiters are within their right to view public profiles. Applicants do not have a reasonable expectation of privacy for information that is publicly available. If you are not sure how private your accounts are, most sites offer you the option to ‘view page as’ and see what your profile looks like to people outside of your network and adjust your privacy settings accordingly.

Privacy Rights Online - Recruiters Using Social Media - KCY at LAW

Recruiters should be warned, however, that not everything they see online can be used in the hiring decision-making process. Learning about things that should not factor into hiring decisions but might do so, even subconsciously, can pose a legal risk for hiring managers. Human rights law ensures that things like a candidate’s race, gender or disability, for example, cannot factor into hiring decisions.

Searching an applicant’s online presence should be approached in much the same way as workplace privacy is (see our blog post here on guidelines on workplace privacy and PIPEDA & Privacy Laws). Managing discrimination and privacy risks should be of the utmost concern. Recruiters should have a specific, relevant reason for looking at an applicant’s online profiles as part of the hiring process. They should have clear policies with regards to this gathering of information, and applicants should be made aware of what employers will be examining and why.

Legal Workplace Hiring Practices

KCY at LAW’s extensive employment law experience can help you create fair and legal workplace hiring practices. To book you consultation, please call us at (905) 639-0999 or reach us online.

Flexibility for Families? Budget 2017’s Parental & Pregnancy Leave Proposals

Budget 2017 is out and has everyone buzzing, including us at KCY at LAW. While we have previously talked about the basics of pregnancy and parental leave, new proposals in the Liberal Party’s 2017 Federal Budget may soon make some of that information out-of-date.

What Budget 2017 Proposes For Parental & Pregnancy Leave

Flexibility for Families - Pregnancy and Parental Leave Proposals Budget 2017The new budget makes two basic proposals concerning parental and pregnancy leave:

  1. It allows parents to receive EI parental benefits for up to 18 months.
  2. It allows women to claim EI maternity benefits up to 12 weeks before their expected due date.

The Budget promises to give families more flexibility when they are welcoming new members into their nest. More time off for parents certainly seems like a step in the right direction for families facing the stress and excitement of managing their young brood.

New Pregnancy & Parental Leave Benefits With A Catch

But these new benefits have a catch. While parents can choose to take up to 18 months off following the arrival of their child, they can only do so at a benefit rate of 33% of their average weekly earnings to a maximum of $362 per week. Stretching the time parents can take off also means stretching their funds to do so. Fortunately, parents still have the option to take only 12 months off at the present EI benefit rate of 55% to a maximum of $543 per week.

So, while the new budget might allow some families to spend more time with their new arrival and save on costly infant care, they will have to tighten their budgets in order to do so.

New Pregnancy and Parental Leave Proposals - Budget 2017 - KCY at LAW

The government plans to achieve these objectives through amendments to the Employment Insurance Act and the Canada Labour Code. This means it could take until next year for these extended benefits to be available to Canadian families.

Experienced Maternity & Parental Leave Lawyers

If you have questions about how new maternity and parental leave may impact you, your family or your business, KCY at LAW is an experienced employment law team and is here to help. Call us at (905) 639-0999 or reach us online.

Bill 26: A Paid Leave for Safety

According to the Canadian Women’s Foundation, 67% of Canadians indicate that they have personally known at least one woman who was the victim of physical or sexual abuse. Nightly, nearly 3,500 women and over 2,700 children use shelters because home isn’t safe. These are just some of the striking statistics about domestic violence in Canada.

Bill 26: A Paid Leave for Safety To Support Victims of Domestic Violence

Dealing with the emotional, physical and criminal fallout of domestic violence can be a timely process. It takes time to seek psychological and medical help, talk to law enforcement, make sure your children are safe, deal with the courts, not to mention heal yourself. Bill 26 seeks to provide victims of domestic violence the critical support of time.

Bill 26 was first introduced in the spring of 2016 as a private member’s bill from NDP MPP Peggy Sattler and has since garnered support from Ontario Labour Minister Kevin Flynn and over 50 labour unions. The bill passed its first and second readings last fall with unanimous support.

Domestic Violence and the Workplace

Can Work Be Safe, When Home Isn’t?, the first pan-Canadian survey on domestic violence and the workplace found that, of those respondents who had experienced domestic violence:

  • 5% had lost a job due to it;
  • over a third reported that the violence affected their ability to get to work;
  • over half reported that the abuse continued at the workplace (i.e. harassing phone calls, stalking); and
  • the vast majority reported that domestic violence negatively affected their work performance.

Bill 26 - Domestic Violence - Employer Responsibilities - KCY at LAW
Disrupted work histories often result in reduced personal incomes for those who experience domestic violence. But the impacts of domestic violence are further reaching still. The Department of Justice estimated that domestic violence cost Canadian employers $78 million annually. However, this number pales in comparison to the department’s more inclusive estimate of $7.4 billion which considered the societal costs (policing, judicial, social services etc.) of dealing with the aftermath of spousal abuse.

Employment is an essential resource for individuals trying to leave an abusive relationship. Can Work Be Safe confirmed the importance of secure employment with 75% of respondents indicating a paid leave could reduce the harm of domestic violence. A secure job provides the financial stability necessary for victims to escape domestic violence and maintain a reasonable standard of living for themselves and their children.

Victims of domestic violence shouldn’t have to choose between their job and personal safety. Bill 26 seeks to facilitate the continued employment so many victims desperately want and need in order to escape the isolation and chaos of a violent home.

What Bill 26 Proposes

If passed, Bill 26 would amend the Employment Standards Act (ESA) and the Occupational Health and Safety Act to provide accommodations for employees if they or their child experiences domestic violence or sexual violence. Proposed accommodations include offering the employee an alternate work location, alternate or fewer work hours, or a paid leave of absence.

What Is Bill 26 - Domestic Violence - Employment Lawyer - KCY at LAWBill 26 proposes that employees who are experiencing domestic or sexual violence should be able to take a ten-day paid leave of absence so that they may:

  1. Seek medical attention;
  2. Receive psychological counselling;
  3. Access victim services such as shelters and social services;
  4. Temporarily or permanently relocate to reduce chances of violence; and/or
  5. Seek legal assistance.

The Bill also specifies that employers must accommodate their employee’s needs to the point of undue hardship and that any information relating to the employee’s leave be kept strictly confidential. Additionally, Bill 26 advises that:

“an employer shall ensure that every manager, supervisor and worker receives information and instruction about domestic violence in the workplace and sexual violence in the workplace.”

If you would like to lend your support to Bill 26 you can do so by signing this petition.

Bill 26 And Workplace Training & Policies

Though Bill 26 still has several bureaucratic and legislative hurdles ahead of it, all signs suggest that the ESA will be amended to include domestic violence leave. Employers would therefore be smart to start considering how their current workplace training and policies will fit into such a framework and start exploring ways in which Bill 26’s proposed changes might be incorporated.

Workplace Policy Lawyers

Workplaces need to develop practices that promote violence prevention and safety, hold abusers accountable for their behaviour, and support victims. KCY at LAW are experienced employment lawyers and can help you craft supportive and practical workplace policies that accommodate all employees and help employers keep their business running smoothly, whatever crisis should arise. Call us at (905) 639-0999 or contact us online to book your consultation now.

Workplace Discipline and Discharge for Social Media: #JustDismissal

Online actions have real world consequences. As our lives move increasingly onto the web, it is important that we remember that the same rules of respect and courtesy we were taught in kindergarten still apply.

If you don’t have anything nice to tweet, don’t tweet anything at all. Especially when it comes to your place of employment.

Workplace Discipline and Discharge for Social Media

Information gathered from your social media activity can be used to justify workplace discipline and even discharge. It is important that workers understand how social media – whether it’s blogs, Facebook posts or tweets – fit into existing employment, privacy and confidentiality frameworks. In short: anything you say on social media can be held against you if it reflects negatively on your employer or violates workplace confidentiality or harassment policies. Away from the work place, social media use can also impact personal injury lawsuits.

The case-law origins for just cause termination of employees for off-duty conduct – fundamental to emerging social media defamation cases – is the 1967 case of Millhaven Fibres Ltd v. Atomic Workers Int’l Union. This case determined that an employee’s behaviour outside the workplace may be grounds for termination if, among other factors, their conduct harms the company’s reputation or product, or makes other employees reluctant to work with them.

When considering if termination is appropriate for online behaviour, arbitrators will consider, among other considerations, the frequency of disparaging posts, if they were violent or threatening in nature, if confidential information was disclosed, the damage to business and reputation of the workplace, and if the accused demonstrated remorse and cooperation to remedy their misconduct.

Cases Regarding Social Media & Disciplinary Outcomes

Cases Regarding Social Media - Lougheed Imports v . Local 1518There have been dozens of cases in recent years where employees have been reprimanded or even fired for cause for things they posted online. Below are two cases that illustrate the disciplinary outcomes facing employees whose online behaviour is deemed incompatible with workplace values and policies.

Lougheed Imports v. Local 1518 (2010)

Two employees of West Coast Mazda in B.C. posted multiple disparaging remarks about their employer and coworkers on Facebook. The two employees were Facebook friends with their manager but nonetheless posted threatening remarks about their employer and told people not to use the business. After the manager confronted the employees multiple times about their behavior on and offline the two were fired for cause. When the two former employees filed a grievance, the Labour Board found that they did not have a reasonable expectation of privacy for their public Facebook posts and that their continued confrontational behaviour after multiple warnings made for just cause for dismissal.

Credit Valley Hospital v. Canadian Union of Public Employees (2012)

After a patient at Credit Valley Hospital sadly jumped to his death from a parking garage, Mr. Brathwaite, a hospital employee, was tasked with aiding in the clean-up of the scene. As he was tending the site of the accident, Mr. Brathwaite took pictures with his cell phone and posted them on Facebook. He was fired for cause shortly thereafter. The employer’s position was that Mr. Brathwaite had violated the hospital’s Code of Conduct and the confidentiality of patient, employee and corporate information. Upon arbitration, a panel upheld the hospital’s decision citing Mr. Brathwaite’s culpable misconduct as well as the fact that he was neither remorseful nor accepting of responsibility for his misbehaviour.

Preventing Social Media Defamation

In order to ensure that employee’s online behaviour does not negatively impact company interests, it is important that employers take preventative measures to educate employees about acceptable use of social media as it relates to the work place. Although many workplace policies regarding confidentiality, privacy and harassment extend to social media and other online activities, many employees are unaware of the online scope of these policies.

In order to protect their business from online employee misconduct, employers should:

  • Ensure that employees are aware of what constitutes “appropriate use” of social media as it relates to the workplace.
  • Have policies that make clear how online behaviour can affect employment.

Preventing Social Media Defamation - Employment Lawyer Burlington

Determining if an employee’s online behaviour is grounds for dismissal is a nuanced task. Be sure to consult with an employment lawyer to determine what disciplinary action online comments and posts warrant.

Experienced Employment Law Team

KCY at LAW is an experienced employment law team that can help you develop fair and enforceable workplace policies regarding appropriate online behaviour and help you to properly address issues should they arise. Call us today on (905) 639-0999 or contact us online to book your consultation.

Illegal Interview Questions: What They Are And What To Do About Them

Are you married? How old are you? How’s your health? Have you ever been arrested? What country are you from? Do you like to drink?

These are probably not questions you want to be asked by someone you barely know, let alone by someone determining your future employment. These prying inquiries may be a faux-pas in polite conversation but they are an absolute no-go in the context of a job interview.

Illegal Interview Questions

Illegal Interview Questions in Canada - KCY at LAWSometimes, versions of these questions may come up casually and innocently in the context of a job interview as employers want to make sure that you will also be a good fit for the company. However, Canadian human rights law prohibits interviewers to ask questions concerning:

  • Country/place of origin and citizenship status
  • Religion, faith or creed
  • Age
  • Gender or sexual orientation
  • Race or ethnicity
  • Family structure, children or marital status
  • Mental or physical health and disability
  • Appearance, height and weight
  • Pardoned offences

With very limited exceptions, it is forbidden to ask questions about any of these topics at any point in the hiring process. Questions should only seek information relevant to the candidate’s ability to perform the job for which they are applying.

How To Deal With Illegal Questions During An Interview

In interviews, passing references to some of these topics may come up – “sorry to delay, my kid is sick and was on the phone, you got kids?”

It is also regrettably possible that an interviewer may make glaringly inappropriate inquiries – “We’re looking for someone committed, do you plan on having children in the future?”

It is up to you to decide in that moment how you want to deal with the situation. Depending on the circumstances, you might not want to stop the interview in its tracks and instead decide to deflect or even directly answer the question. Some options when confronted with this situation are:

  1. “My [family status/country of origin etc.] does not affect my ability to perform this job.”
  2. “I’d prefer not to answer this question unless there is a particular reason why it is relevant.”
  3. “Can you please explain to me how this is applicable to my performance of the job?”

The trouble with certain inappropriate questions is that, even if they were asked in passing and without mal-intent, they leave open the question of what role your answers to them played in the hiring process.

Kartuzova v HMA Pharmacy Ltd - Employment Lawyer KCY at LAW

Kartuzova v HMA Pharmacy Ltd.

According to the Ontario Human Rights Tribunal (OHRT), simply asking improper questions is enough to prove discrimination. Such was the case with Kartuzova v HMA Pharmacy Ltd. In this case, Kartuzova applied for a position as a pharmacy technician and was denied the job after an interview ended suddenly following questions about her family and marital status, financial situation, and how she came to Canada. Kartuzova said she had felt obligated to answer these questions and that the tone of what had otherwise been a very positive interview changed abruptly following her answers. The OHRT ruled that the questions Kartuzova had been asked were in violation of the Human Rights Code and ordered the pharmacy to pay her $4,000 for loss of dignity and $496.13 for lost wages.

Employment Law Experts

If you have been asked inappropriate or discriminatory questions during an interview that you felt affected your employment offer, KCY at LAW can help you to register a claim with the OHRT to seek compensation for your lost opportunity. Call us at (905) 639-0999 or reach us online to book your consultation.

Unpaid Internships: What You Need To Know When You Are Working For Free

“We are currently looking for a part-time Graphic Designer to join our Marketing & Communications team in Toronto. The ideal candidate will be responsible for creating and producing visual solutions to communicate messages and ideas that inspire and inform,”

reads an ad on Indeed.ca.
To be eligible for this position you must have, among other qualifications:

  • a degree in media design
  • minimum two years’ experience in media design field
  • advanced knowledge of HTML, CSS and JavaScript

The starting wage for this job? $0.00 per hour.

Does the compensation seem commensurate with the skills and experience required? Would you go to work every day and not get paid? This is exactly the situation many young people face as they are forced to pay their dues in the Internship Market.

Concerns With Unpaid Internships

One of the chief concerns with unpaid internships, besides their occasionally exploitative nature, is that they foster inequality. Working for free generally means that there is someone with the means to support you during this time and so it is often children from wealthier families who are able to reap the benefits that some unpaid internships can provide.

Companies will counter criticism of unpaid internship practices saying that they don’t want to hire someone incompetent or that they can’t afford to hire more staff. We would counter that this is what probationary periods and training is for, and that if your company cannot run without free labour, you probably need to reconsider your business model.

The only legal argument unpaid internship-providing businesses and organizations can submit is that they offer useful training to those without job experience to pad their resume and prepare them for the work environment. Unfortunately, many internships provide little in the way of mentorship and practical workplace skills.

Canadian Government Crack Down on Unpaid Internships

Canadian Government Crack Down on Unpaid Internships

The spread of unpaid internships amounting to little more than a lesson in photocopying and coffee preparation has led the Canadian government to crack down on them in recent years. In 2015, the Ontario government came down hard on illegal internships and recovered nearly $140,000 in lost wages owed to interns. Employment standards officers investigated 77 workplaces with interns and found that nearly a quarter failed to meet Employment Standards Act (ESA) requirements.

Determining If Unpaid Interships Are Legal - KCY at LAW

Determining If An Unpaid Internship Is Legal

So, what determines if an unpaid internship is legal?

All employees are entitled to the rights guaranteed by the ESA, including the minimum wage. However, just because an organization calls you an intern, doesn’t mean you are one in the eyes of the law. The Ministry of Labour requires that six criteria be met in order for an internship to be unpaid. Unless all of the conditions outlined below are met, your internship must be paid:

  1. The training is similar to that which is given in a vocational school.
  2. The training is for the benefit of the intern. You receive some benefit from the training, such as new knowledge or skills.
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
  4. Your training doesn’t take someone else’s job.
  5. Your employer isn’t promising you a job at the end of your training.
  6. You have been told that you will not be paid for your time.

The one notable exception to these requirements is if the internship is part of a college or university program intended to offer practical training to complement classroom learning.

Recover Lost Wages With Experienced Employment Lawyers

Being new to the labour force does not mean that you should have to work for free. We believe that your time is valuable. If you feel that you are being taken advantage of at an internship, an experienced employment lawyer at KCY at LAW can advise you of your rights and help you recover any lost wages. Call us at (905) 639-0999 or contact us online to book your consultation.