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.

Breastfeeding and the Duty to Accommodate

Everyone wants the best for their children. From day one, all parents want their child to be happy and healthy and strive to provide for their child in the best way possible. Additionally, by law parents are obligated to ensure that their children receive adequate care and nurturing. Childcare involves, among other things, making sure your child is clothed, supervised and fed. One way in which some mothers choose to provide the latter of these childcare essentials is through breastfeeding. According to Statistics Canada, nearly 90 per cent of mothers breastfeed their baby, and many do so for six months or longer.

What the Law Says About Breastfeeding

While only British Columbia and Ontario have laws that explicitly protect breastfeeding as a right, the Canadian Human Rights Act prohibits discrimination based on sex, and the Canadian Charter of Rights and Freedoms guarantees “gender equality” under the law.

Women who choose to breastfeed face unique challenges in balancing the needs of their child and their employment obligations. However, the Ontario Human Rights Commission (OHRC) explains that, “women should not have to choose between their own health, or the health of their baby, and their jobs, housing or being able to take part in a service.”

Therefore, accommodation to the point of undue hardship for breastfeeding mothers is required by the OHRC. “The goal of accommodation,” explains the Commission, “is to help everyone have equal opportunities, access and benefits.” You can read more about the basics of about breastfeeding and parental leave here.

The case of Cole v Bell Canada (2007) illustrates employers’ duty to accommodate breastfeeding mothers.

Cole v Bell Canada (2007) – Breastfeeding & The Duty To Accommodate

Cole v Bell Canada - Breastfeeding Rights - Employment LawyerFollowing her maternity leave, Hayley Cole, an employee of 13 years with Bell Canada, asked for a scheduling accommodation so she could breastfeed her son. Her son had been born with a heart defect and her doctor recommended that she breastfeed him as long as possible in order to help the baby’s immune system. Cole developed a schedule to nurse at 4:30 p.m. every day since she usually worked from 8 a.m. until 4 p.m. However, her shift occasionally ended at 4:15 p.m. and so she asked to regularly take one hour unpaid personal time off so she could nurse him by 4:30 p.m.

Her request was ignored and so Cole sought a firm 8 a.m. to 4 p.m. work schedule. Bell asserted that this request affected seniority rights and that they would need medical information in order to provide this accommodation. After submitting multiple doctor’s notes, Cole was granted accommodation for one year, not on the grounds of needing to breastfeed her son, but as a preventative measure against mastitis. After a year of accommodation, Bell asked for updated medical information if Cole wanted to seek ongoing accommodation.

CHRT Cole v Bell Canada Findings

In response to her human rights complaint, the CHRT found that Bell did not uphold its duty to accommodate its employee and ruled:

  1. Discrimination towards an employee because she is breastfeeding is a form of sex discrimination.
  2. A mother’s request for accommodation to breastfeed should not be treated as a medical/disability issue.
  3. A woman does not need to submit supporting evidence to demonstrate a need to nurse her baby at specific times.
  4. A baby’s health should be of no consideration in assessing a request to accommodate breastfeeding. A mother’s motivations for breastfeeding are of no relevance to such a request.

Furthermore, the Tribunal expressed that Cole’s request for a fixed schedule did not impose any hardship on Bell, let alone undue hardship. Bell was ordered to pay damages of $5,000 plus the cost of time Cole lost for getting medical notes.

Best Practices for Accommodating Breastfeeding and Pregnant Women - Employment Law Canada

Best Practices To Accommodate Pregnant & Breastfeeding Women

In order to foster a respectful and equitable work environment, employers should be supportive, flexible, and creative in developing accommodations for pregnant and breastfeeding women. Possible accommodations may include:

  • flexible work hours;
  • different job or duties;
  • part-time work; and
  • longer or extra breaks during which to nurse

Employers should discuss options with their employees early and openly, and be prepared to change arrangements as time goes on.

Workplace Policies for Pregnant or Breastfeeding Women

If your employee is requesting accommodation for childcare duties, KCY at LAW will help you develop fair and respectful workplace policies in line with Canadian law. If you have been discriminated against at work because you are pregnant or breastfeeding, our expertise in employment law will help you get the compensation you deserve. Call us today at (905) 639-0999 or contact us online to find out more.

Mental Health and Long Term Disability

Ailments of the mind are, unfortunately, not yet as well understood or recognized as ailments of the body. They are, nonetheless, just as serious in their impact on individuals’ ability to cope with the tasks of daily living. Mental illness is among the most significant causes of long term disability in Canada according to the Centre for Addiction and Mental Health.

Mental Illness & Long Term Disability

Mental Illness and Long Term DisabilityMental illness can be responsible for a variety of disorders that affect an individual’s behaviour, mood, and thoughts. Mental illness can manifest itself in a variety of disorders including, but not limited to:

  • Depression and bi-polar disorder
  • Anxiety and panic disorders
  • Personality disorders such as obsession compulsion
  • Post traumatic stress disorder

Your health, both physical and mental, has a substantial impact on your ability to function in life independently and in social settings. As with physical illnesses, the extent to which a mental disorder impacts someone’s life is variable from one person to the next. The same variability can be seen in the effectiveness of treatments. While therapy or medication may work for one person they may not be helpful to another. Recovery from mental illness can therefore be unpredictable and ongoing. For this reason, long-term disability (LTD) coverage can be the most helpful support option for individuals suffering from mental health disorders.

Long Term Disability Benefits

LTD benefits are intended to cover any health-related issue preventing individuals from being able to work. Workplace policies tend to differ regarding the coverage they offer and many insurance companies will demand that you apply for Canada Pension Plan (CPP) disability benefits to offset their costs.

If You are Experiencing Mental Illness…

If your mental health is inhibiting your ability to work you should, first and foremost, seek medical help through your doctor or therapist and pursue their recommended treatment plan. In order to successfully pursue a disability claim, you must have a legitimate diagnosis of a mental illness that impedes your ability to function in normal life activities. To further support your claim, it is advisable to keep a daily record of your condition, its manifestations, and how it impacts your personal, family, and work life. This information can help your doctor to provide effective treatment and provide supporting evidence for your Long Term Disability claim (LTD Claim). Your LTD claim is more likely to be successful if you are able to demonstrate your commitment to a physician-monitored treatment plan.

Challenges When Applying For A Long Term Disability Claim

Filing for long-term disability can be a complex and trying endeavour. Because mental illness is often ‘invisible’ insurers are frequently sceptical over the validity of claims. It is easy to see that a construction worker who has suffered a spinal injury would be unable to perform their job in the foreseeable future, it is less outwardly evident that an office worker who is experiencing depression would need time to recover before returning to work.

Challenges Applying for Long Term Disability Claim - KCY at LAW

Insurance companies deal with a significant volume of benefits claims involving mental health. In order to save money, insurers have several strategies on which to draw so that they may minimize or deny the legitimacy of your claim. Hiring a private investigator to get footage of you doing things that may be construed as contradictory to your stated disability is a common practice. The new and inexpensive way to surveil you is to watch you on Facebook or on other Social Media (read how social media can impact your personal injury lawsuit here). They may also insist that you are evaluated by their own doctor who may critique your doctor’s diagnosis. To counter the doubt cast by insurance companies, it is imperative that you pursue and document appropriate medical treatment. The main reasons for being denied disability benefits is the failure to do these things.

Expert Long Term Disability Lawyers for Mental Health Claims

Above all, we recommend that you seek help early, so as not to aggravate your suffering. Because of the complications that often arise in LTD cases involving mental health, it can be helpful to have a lawyer manage your application and advocate on your behalf with insurance companies. KCY at LAW have helped many clients receive long term disability insurance benefit and can help you do the same. Call us at (905) 639-0999 or contact us online to book your consultation.

Workplace Drug and Alcohol Testing: What Employers Need to Know

Would you fire an employee for having a hearing aid? What about alcohol addiction? Addictions are considered ‘disabilities’ under the Ontario Human Rights Code (OHRC) and are therefore afforded the same protections under the law as physical and mental disabilities. Accordingly, the Code prohibits employment discrimination against people with drug and/or alcohol addiction(s) and requires employers to accommodate employees with addictions to the point of undue hardship. Several landmark trials as well as decades of case law have established that workplace drug and alcohol testing generally amount to discrimination.

Workplace Drug & Alcohol Testing

However, there are some unique circumstances in which discrimination may be justified. The OHRC recognizes that workplace safety is a legitimate goal and that, given certain circumstances, impairment from drug or alcohol dependency can render a workplace unsafe. The rare cases of acceptable drug and alcohol discriminatory practices usually involve industrial workplaces such as oil rigs and construction sites where sharp mental acuity is necessary to avoid serious workplace accidents.

Workplace Drug & Alcohol Testing - Employment Law

Legal Precedents: Entrop v Imperial Oil Ltd. & Irving Pulp v Local 30

Legal precedents for limiting discrimination on the basis of addictions were set out in Entrop v Imperial Oil Ltd. (2000) and Irving Pulp v Local 30 (2013) among other cases. In Entrop v. Imperial Oil, Imperial Oil implemented a random drug and alcohol testing policy after they determined that the 1989 Exxon Valdez oil spill may have partly resulted from the captain’s alcohol abuse. The Ontario Court of Appeal determined that this policy infringed on the OHRC. Similarly Irving Pulp’s policy that a randomly selected 10% of employees submit to unannounced breathalyser testing over the course of a year was determined to be unethical due to a lack of evidence of a substance abuse problem. While inconsistencies among case law remain, it is nonetheless extremely difficult to implement random drug and alcohol testing, especially in unionized workplaces.

5 Guidelines for Implementing Drug and Alcohol Testing in the Workplace

Guidelines for Implementing Drug & Alcohol Testing In The Workplace

  1. Employers must demonstrate that testing is a legitimate requirement for the job. Sobriety must be demonstrably necessary to workplace safety.
  2. Policies must be centred on job performance. Zero tolerance policies are generally unacceptable because they do not distinguish between substance use and impairment. A small amount of alcohol in an employee’s system, for example, may have no impact on their performance.
  3. There must be evidence of a substance abuse problem. In this regard, factors such as location must be considered. An entire company should not undergo testing if it is identified that only a certain group or section of personnel appear to be using drugs or alcohol in a way that renders the workplace unsafe.
  4. Testing must assess current impairment. Tests like breathalysers and saliva swabs can be effective whereas there are limitations to urinalysis as one cannot determine if substance use is concurrent with work hours. Moreover, testing must be minimally intrusive and use maximally accurate methods.
  5. Practices must respect the dignity of employees. Testing should be respectful, confidential and never done to intimidate or humiliate.

Even if all of the above circumstances have been met, it may still be necessary for an actual workplace accident or near-accident resulting from the impairment of an employee to implement drug and alcohol testing.

Employers Must Demonstrate Undue Hardship

Furthermore, employers must demonstrate that undue hardship would be experienced in order to accommodate an employee with a substance abuse problem. Accordingly, employers should have an exhaustive framework of policies – such as employee assistance programs that offer counselling and treatment – designed to help and accommodate employees with substance dependencies. If drug and alcohol testing programs are deemed reasonably necessary and ethically acceptable, employers should develop a personalized method of assessment and accommodation for affected employees.

Expert Drug & Alcholol Legal Advice for Employers & Employees

If you have been discriminated against for substance dependency or you suspect one of your employees to be endangering the work environment because of drug or alcohol addiction, call KCY at LAW to speak with an experienced employment lawyer who can advise you of your rights and responsibilities under the Ontario Human Rights Code. You can reach us at (905) 639-0999 or contact us online now for expert advice!

PIPEDA, Privacy Laws & Personal Information

Contrary to what many believe, there is no explicit ‘right’ to privacy for many employees. Moreover, privacy laws are seldom absolute; there are almost always exceptions to their rules. As a result, issues of privacy tend to centre on moral questions rather than ones of legality. So what can an employee expect with regards to privacy of information?

PIPEDA, Personal Information Protection & Electronic Documents Act

Employee’s main source of privacy protection is the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA legislates how private sector bodies collect, use, and disclose personal information in the course of business. PIPEDA applies to the collection of private employee information ranging from date of birth and marital status, to medical history and criminal record. It is intended to balance an employer’s need-to-know with an employee’s right to privacy.

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Fundamental to the act is that information be collected and disclosed with employees’ knowledge and consent. That is, employer’s must be clear about what data will be collected, why it is being collected and how it will be used. Only information relevant to the stated purpose of collection should be obtained. For example, an employee’s elementary school is likely unnecessary information for an employer trying to improve workplace safety.

PIPEDA Requirements

Furthermore, information about employees should only be used for its stated purpose. Emergency contact information, for example, should not be added to company’s email or calling list. Employees also have a right to know who is responsible for protecting their personal information and that the organization is taking appropriate security measures to do so. Information should be accurate, up to date, and only kept for as long as it is necessary or legally required. Lastly, employees must be able to access their information at all times to ensure that it is accurate and up to date.

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PIPEDA For Employers

The best rule of thumb for employers is to be transparent. Make it clear to employees what is being collected and why. Explain how it will be used and when it will be destroyed. If you are developing workplace information collections policies and procedures KCY at LAW can help you ensure that your policies are clear, understandable and consistent with PIPEDA standards. Call us today at (905) 639-0999 or visit us online to book your consultation.

Time Theft To Businesses

Time theft describes a situation in which an employee is paid for work they have not done or time they have not worked. This misuse of time can be costly to a business and difficult for employers to monitor. There are three main ways in which employees steal time from their employer: time card or time clock theft, over-extended breaks, and excessive personal time.

Time Card Theft

First, time card theft occurs when an employee either lies about the hours they worked in a shift or has a colleague punch in and out of work on their behalf. Time theft also occurs when an employee takes more than their allotted break time or more breaks than they are entitled to. Fortunately for employers, these types of abuse of company time are becoming easier to monitor and prevent with improved time clock technologies that use fingerprint or retinal scans.

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Excessive Personal Time in Work

On the other hand, excessive personal time on the company’s watch remains difficult to both monitor and prosecute. Excessive personal time includes making and taking personal calls and emails during work hours. In recent years, employees’ personal Internet use has become a particular challenge for many employers to address.

Today, it is common to have Internet access at work and, as our personal lives are increasingly online, loss of productivity to ‘cyberslacking’ – using the Internet for personal reasons during work hours – is a serious concern for many employers. However, does excessive personal Internet usage constitute time theft? According to the 2011 case of Andrews v. Deputy Head (Department of Citizenship and Immigration) the answer is only: ‘possibly.’

Andrews v. Deputy Head (Department of Citizenship and Immigration)

In this case Franklin Andrews, an employee of 27 years at the Department of Citizenship and Immigration, was dismissed for cause after it was discovered that he had been spending more than half of each working day surfing the web for non-work purposes for the last few years. Feeling dismissal was a disproportionate punishment, Andrews filed a grievance against his termination. At trial, Andrews was remorseful and admitted his wrongdoing but argued that dismissal had been an overly severe penalty given his decades-long service, efficient performance of all workplace obligations, and consistently positive performance reviews. The adjudicator, Kate Rogers, ruled in Andrews favour. Rogers stated that personal Internet use in the workplace was permissible and that time theft was an inaccurate characterization of Andrew’s actions given their lack of fraudulent intent. Andrews was ultimately reinstated in his position but without back-pay in lieu of a suspension.

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Concerned With Time Theft?

What then is an employer to do if they want to discourage personal Internet use on company time? Internet time theft cases are difficult to prosecute and existing case law suggests that employers must have a clear definition of what constitutes unreasonable Internet usage. As an employer, you need to have plain and precise policies detailing your company’s expectations regarding personal Internet use and ensure these policies are clearly communicated to employees.

If you are an employer concerned with time theft, we at KCY at LAW have the expertise to help you develop clear and enforceable workplace policies to protect you from costly misuse of company time. Call us today at (905) 639-0999 or reach us online to book your consultation.

Termination Clauses: Could a Promotion Decrease your Severance Package?

Imagine accepting a new contract at your job of two years that includes a promotion and pay raise only to be immediately terminated as a result of corporate restructuring. Then imagine receiving only two weeks’ pay in lieu of notice. This was exactly the situation that led the plaintiff in the recent Gibbons v. BB Blanc Inc. case to claim damages for wrongful dismissal. However, the plaintiff’s claim was dismissed when the court determined the termination clause in the plaintiff’s new employment contact to be enforceable.

Termination Clauses Commonly Included in Contracts

It is common practice for employers to include termination clauses into employment contracts. Properly drafted, a termination clause allows an employee to be dismissed without reasonable notice of dismissal and to receive a severance package of lesser value than if he or she had received reasonable notice. For example, an employee may only be entitled to a few weeks’ notice instead of months or even years.

Termination Clauses Commonly Included in Contracts

A Termination Clause Must Provide Entitlements

However, a termination clause must provide the employee with their minimum entitlements guaranteed by the Ontario Employment Standards Act (ESA). An employer cannot contract out of the minimum standards guaranteed by the ESA. Even if an employee agrees to less beneficial terms, their employer is legally obligated to provide these statutory entitlements. If the entitlements contained in a termination clause do not comply with the ESA’s minimum standards, it will not be upheld by the courts and the employee can be awarded reasonable notice of dismissal under the common law at the court’s discretion. Moreover, an employee’s conditions of employment, such as wage, benefits, and contributions to pension plan, must not be reduced during the statutory notice period. Therefore, the clause’s wording must be precise and the continuation of benefits explicit. A termination clause out of line with ESA standards will not be enforced by the courts and it is therefore advisable to have your termination clause drafted or reviewed by an experienced employment lawyer.

A Termination Clause Must Provide Entitlements

It May Be Added to An Existing Employee Contract

A termination clause may be added to an employee’s existing employment contract, but only if they have been given the opportunity to consider the modified terms. As set out by the Ontario Court of Appeal in the case of Braiden v. La-Z-Boy Canada Limited, termination clauses can only be inserted into existing clauses if:

  • the changes in the agreement are clearly communicated to the employee;
  • the employee understands that they are relinquishing their legal right to reasonable notice of dismissal; and
  • consideration flowed to the employee for forfeiting these rights.

Accordingly, a termination clause must only be inserted into an existing employment contract when it will be supported by consideration such as a substantial pay raise, bonus, or promotion as was the case in the aforementioned Gibbons v. BB Blanc Ltd. case. However, the courts will not generally consider continued employment as adequate consideration because of the inherent agreement to uphold obligations of an employment contract.

Review your offer of employment and understand its terms of dismissal

To protect your rights and entitlements given the event of termination, you should carefully review your offer of employment and understand its terms of dismissal. An experienced employment lawyer at KCY at LAW can determine if a termination clause is enforceable and potentially help you to negotiate for a better settlement package. Call KCY at LAW today at (905) 639-0999 or contact us online to schedule a consultation.

Pregnancy and Parental Leave: The Basics

If you are thinking about becoming a parent you are probably curious about your entitlements to various types of parental leave and how they may affect your employment. In addition to wondering if you will ever sleep again, you may find yourself asking questions such as: what are the differences between maternity, pregnancy, and parental leave? How long can my partner and I take off work? what are my legally guaranteed employment rights? This post will give you a basic overview of your employment rights as new or expecting parents.

Parental Rights in the Employment Standards Act

Starting or expanding a family can be an exciting and stressful time. The rights set out under the Employment Standards Act are designed to help parents leave and re-enter the workforce while welcoming their new bundle of joy. It is important to note that the rights of employees of federally regulated companies (such as banks and airlines) are somewhat different from those regulated provincially. This post focuses on the rights of employees of provincially regulated companies.

Pregnancy Leave, Maternity Leave & Parental Leave

To start, pregnancy leave and maternity leave are one and the same. Pregnant women are entitled to a maximum of 17 weeks unpaid leave from work starting as early as 17 weeks before the baby’s due date.

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Parental leave is available to any new parent (adoptive or natural mothers, fathers, and individuals in a relationship with a new parent intending to treat the child as his or her own). Parental leave can last up to 35 weeks for birth mothers who have also taken pregnancy leave and 37 weeks for other parents. Between two parents, pregnancy and parental leave can last up to 52 weeks. Birth mothers must start their parental leave as soon as their pregnancy leave ends. Other parents must start their leave within 52 weeks after the child is born or placed under their care for the first time.

Criteria For Parental or Maternity Leave

You are entitled to take either parental or maternity leave whether you work part-time, full-time, or on contract. However, you must have been hired at least 13 weeks prior to you or your partner’s expected due date and you must give your employer two weeks written notice prior to the start date of your leave. Your employer cannot tell you when to start or end your leave. However, if you return to work before 37 weeks, you have forfeited your right to the remainder of your leave. Both pregnancy and parental leave are unpaid.

Your Rights After Parental Or Maternity Leave

It is your right to be reinstated to your former position upon return from parental or pregnancy leave. If your position no longer exists, you must be offered a comparable position with the same benefits, wages, and location. If your job’s wages increased while you were on leave or would have done so if you had not been on leave then you are entitled to that higher wage upon return. As a person on pregnancy or parental leave you are still entitled to participate in various benefit plans and your employer must continue to pay their share of premiums during your leave. Your seniority and length of employment continues to accumulate during periods of leave.

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In short, you have the right to:

  • Reinstatement;
  • be free from penalty;
  • continue to participate in benefit plans; and
  • earn credits for length of employment, length of service, and seniority.

Your employer can never fire or deny you opportunities because you are pregnant, have taken or plan to take pregnancy or parental leave. However, his does not mean that you are immune from wrongful dismissal when you are on one of these leaves.

Job Termination While Pregnant or on Parental Leave?

If you have been terminated without cause while pregnant or on parental leave, or if you think you have been discriminated against for taking a maternity or parental leave, and you want to speak with an employment lawyer with experience in this area, call KYC now at LAW at (905) 639-0999 or contact us online to book a consultation.

Constructive Dismissal: When a Dream Job Becomes a Nightmare

Change is the law of life. Or so said John F. Kennedy. The workplace, like all other environments, is subject to change over time. The responsibilities, compensation and many other aspects of your job rarely remain static, especially in today’s fast-paced and technology-driven economy. Dynamic external market factors mean employers must continuously evolve their company in ways that may affect their employees. While employees must remain adaptable to developments in the workplace, not all changes – particularly those that are sudden and dramatic – must be accepted. Indeed, when changes in the workplace fundamentally alter the terms of employment, an employee may have the right to claim constructive dismissal.

Constructive Dismissal – Farber v. Royal Trust Co.

In the Supreme Court of Canada’s decision Farber v. Royal Trust Co. constructive dismissal was described as occurring:

Where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed.”

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That is, when an employer makes significant and sudden alterations to an employee’s terms of employment, the employee may be in the position to treat their contract as having been terminated. In the case of constructive dismissal, an employee’s resignation from the company may be considered a dismissal, entitling the employee to a severance package the same as if they had been terminated without cause.

Employer Actions That Constitute Constructive Dismissal

what-constitutes-constructive-dismissal-kcy-at-lawPossible employer actions that might – when combined – constitute a constructive dismissal include, but are not limited to:

  • significantly decreasing an employee’s pay;
  • requiring the employee to move to another city;
  • reducing an employee’s responsibilities.

However, determining if the changes made to your terms of employment constitute a constructive dismissal can be complicated. Constructive dismissal cases are time sensitive and dealt with on a case by case basis with the onus on the employee to demonstrate their employer’s failure to meet their contractual obligations. Claiming constructive dismissal carries a degree of risk, especially since there is no guarantee of compensation once you have left your position. Therefore, you should seek legal advice from an experienced employment lawyer to discuss your situation before quitting an untenable position.

Constructive Dismissal Employment Law Experts

KCY at LAW have the expertise to help both employers and employees navigate their rights in today’s dynamic work environment. If your workplace is undergoing a transition, contact us to ensure your contract is being upheld or to help you properly transition your team. Call us at (905) 639-0999 or reach us online to arrange for a consultation.

Can An Employee Rescind Their Resignation?

What happens if you are an employee and you have tendered your resignation but subsequently change your mind and wish to remain employed with your employer? What happens if you are an employer and an employee provides notice of their resignation but returns to work stating they wish to rescind their resignation? Can the employee return to work? In order for an employer to prove that an employee has resigned, there must be “clear and unequivocal” evidence in order to establish the resignation.

Can An Employee Rescind Their Resignation?

Courts in various provinces in Canada have confirmed that an employee may be allowed to rescind their resignation, whether it is verbal and/or written, so long as this is done prior to the employer accepting the employee’s resignation. This is consistent with the notion that so long as a resignation is not accepted before it is withdrawn, no resignation took place. What this means for employers is that the end of the employment relationship could be characterized as a wrongful dismissal.

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However, even if the employer has accepted such resignation prior to it being withdrawn, the employee may still be able to renege on their resignation provided the employer has not acted to its detriment following the employee’s intention to resign.

Disputes Over Resignations

In any event, matters involving disputes over resignations are very much assessed on a case-by-case basis and heavily dependent on the facts of that particular case. The Courts will most likely want to see there was clear evidence, before accepting that the employee had resigned, that the resignation was clear and unequivocal and that it was freely and voluntarily provided. Prior to taking any steps following any acts taken by the employee, employers should exercise due diligence and investigate the facts of the situation to ensure the employee truly has an intention to resign and that the resignation is not simply made in the heat of the moment.

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Employee Resignation Experts

If you are an employer or employee and you are dealing with a situation involving resignation, we at KCY at LAW have the experience and expertise to properly and efficiently handle your matter and provide the advice you need before taking any further steps. Get in touch today by calling us at (905) 639-0999 or contact us online to book a consultation!

Terminated Within The Probationary Period?

In Ontario, many employers use a ninety (90) day probationary period to determine whether a new employee who was just hired is suitable for the job.  A common perception is that if a new employee is terminated within the probationary period, the employer may terminate said employee without providing any notice or pay in lieu of notice.  This perception may stem from the fact that pursuant to the Ontario Employment Standards Act, employees with less than three (3) months of service are not entitled to any notice of termination or pay in lieu of notice.  Simply put, just because an employee is terminated within this time frame does not mean that they are entitled to nothing by way of notice or pay in lieu of notice.

Ontario Employment Standards Act & The Probationary Period

Although the Ontario Employment Standards Act does not provide for a notice period to be given to employees who have been employed for less than three months, Courts are not prohibited from applying common law reasonable notice periods when appropriate. As with most legal issues, this issue is assessed on a case-by-case basis.

One potential factor that could influence a Court’s decision as to whether an employee dismissed within three (3) months of service is entitled to any compensation is whether or not the employee signed an employment agreement with a probationary period clause.  More specifically, the contract may state that employees dismissed within the probationary period are not entitled to any notice of their termination or pay in lieu of notice. It may not be enough from an employer’s perspective for the contract to simply say that a probationary period is in place without reference to the employee’s entitlements following a termination within this period.

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Reason For The Employee’s Termination

Another factor to consider is the reason for the employee’s termination. For example, if the employee was terminated within the probationary period due to poor performance but there also happens to be an employee manual or handbook stating that employees would be given opportunities to improve poor performance (as was the case in the 2012 Small Claims Court decision of Cao v SBLR LLP), the Court may take the position that the employer is to follow their own policies. If an employer fails to honour its own policies, they may be at risk to be found acting in bad faith if they terminate the employee in this situation.

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Probationary Period Employment Law Experts

Ultimately, it is important that both employees and employers recognize that it may not be enough to simply conclude that an employee who is terminated within the probationary period is precluded from any notice of pay in lieu of notice just by virtue of the contract referencing a probationary period. Additionally, there are various other issues and facts that could decide this issue in favour of either the employee or employer. If you are an employer or employee involved in a situation regarding a probationary period and have questions, contact KCY at LAW right away at (905) 639-0999 or contact us online to book a consultation!