Guide To Bonus Packages: Discretionary Bonus or Not?

What does it mean if you are entitled to a discretionary bonus? Does this mean that you’re guaranteed a bonus, as the word entitled would suggest? Or are you subject to the discretionary whims of your employer?

Despite the enticing promise of entitlement, your receipt of a bonus and its amount is most likely at your boss’s discretion.

Bonus Packages & Bonus Entitlements

Bonuses can be an exciting windfall or an important part of your compensation package. Maybe this year was especially profitable and your boss wants to give you some extra cash around the holidays. Or maybe a 15% bonus was guaranteed on top of your salary as a contractual benefit. Whatever the case, bonusses and your entitlement to them will be set out in your employment contract.

Bonus Packages and Entitlements - KCY at LAW

Most often, bonuses are discretionary. Bonuses are commonly awarded as a token acknowledgement of an employee’s performance or to share the success of a company. There is generally no set formula or procedure for calculating a discretionary bonus. Their amount and frequency are up to your employer.

Other times, bonuses make up an important part of an employee’s compensation package as outlined in their employment contract. In such instances, bonuses can make up a significant part of an employee’s annual earnings. The parameters of these bonuses – how they are calculated and awarded – will be set out in the employment contract.

Bonuses in Contracts

Unfortunately, wording regarding bonuses in contracts is often vague and this can leave employees wondering if they can count on extra cash in addition to their salary.

It is important that bonus clauses are clear and consistent with the expectations of both parties. Being told that you can expect bonuses of 25% of your salary is no guarantee that you will unless this is clearly stated in your contract.

What Is A Discretionary Bonus - KCY at LAW

What Is A Discretionary Bonus?

Obviously, a discretionary bonus is to the advantage of the employer. A discretionary bonus allows employers to adjust according to their business’s financial situation. If the economy is rough, the employer can forgo distributing bonuses altogether and if the business is thriving, they can share that success with their employees. On the other hand, non-discretionary bonuses must be distributed as directed in the employment contract regardless of the company’s financial situation. As such, they can be an effective means of attracting top talent.

Bonus Packages & Entitlements Experts

Either way, bonus entitlements should be laid out clearly in the employment agreement. If brought before a judge, ambiguous wording regarding bonus entitlements will generally be ruled to the benefit of the employee.

If you have questions about your bonus entitlements or wish to incorporate a bonus program into your employees’ contracts, contact the professional employment law team at KCY at LAW: (905) 639-0999 or book your consultation online.

Long Term Disability (LTD) Coverage in Ontario

Did you know that there are different types of Long Term Disability (LTD) coverage in Ontario?

Long Term Disability Benefits

Four types, to be specific. Their purpose is to replace income lost by an individual due to illness or injury that prevents them from working.

LTD benefits usually take effect four to six months after your injury or illness occurred. They are usually paid for up to two years but can be extended to the age of 65 (retirement) if you are unable to perform any work in any reasonable occupational capacity.

Types of Long Term Disability (LTD) Coverage

The following types of LTD coverage are all unique, but their basic function – to protect you against lost income that would prevent your from paying your expenses due to your long term disability – is the same and they often operate in tandem with one another.

Types of Long Term Disability Coverage - LTD Coverage Ontario

Workplace Safety and Insurance Board (WSIB)

WSIB provides government insurance that is paid into by all employers. It is intended for employees who have been injured in the workplace. Specifically, Loss of Earning (LOE) benefits are intended to replace income lost due to illness or injury incurred on the job.

LOE benefits begin the next working day after your illness or injury occurred and will continue until you recover, no longer have a loss of income or turn 65. Benefits paid are based on your annual wage ceiling.

WSIB benefits are a no-fault type of insurance. This means that, in receiving WSIB benefits, you forfeit your right to file a lawsuit against your employer for your injury.

Ontario Disability Support Program (ODSP)

This form of LTD coverage is for individuals who are disabled and aren’t able to enter the workforce or are in significant financial need at the time they become disabled. Income support from the ODSP is intended to help those with disabilities in financial need to pay for food, housing and other living expenses. Therefore, proof of financial need is required before coverage is provided.

Individuals receiving ODSP income support may be eligible for:

  • health benefits (i.e. prescription drug coverage);
  • disability-related benefits (i.e. financial support to purchase a wheelchair);
  • housing-related benefits; and/or
  • employment incentives and benefits (i.e. aid with child care expenses).
  • Canada Pension Plan (CPP) Disability Benefits

Canada Pension Plan (CPP) Disability Benefits

The CPP disability benefit is a monthly payment for individuals who are unable to work regularly because of a disability. The taxable payment is available to individuals who have contributed to the Canada Pension Plan in the past. How much you receive is largely based on what you have already contributed to the plan.

As a CPP Disability Benefit recipient, each month you will receive $471.43 plus an amount based on your prior contributions during your working career. In 2016, the average monthly CPP disability benefit was $933.82.

LTD from a Private Insurance Company

Under a private LTD insurance plan your rights and entitlements will be set out in your contract. There is huge variability in what you can receive and the requirements for receiving it. It is common for private insurers to insist that you apply for CPP Disability Benefits to offset the costs of their payments to you. Whatever you receive from CPP will be subtracted from the amount they give you each month.

Long Term Disability Rights Ontario - Employment Lawyer

Your Long Term Disability Rights

Regardless of your LTD coverage, you are entitled to the following basic rights under the law:

  • The right to accommodation
  • The right to basic dignity
  • The right to non-discrimination
  • The right not to undergo unnecessary medical examinations.

If any of these rights have been violated you should contact an employment lawyer to help you file an appeal with your LTD care provider or launch a complaint with the Ontario Human Rights Commission.

KCY at LAW is an experienced team of professionals serving Halton, Hamilton, Toronto and Niagara. Get in touch online or call us to book your consultation (905) 639-0999.

Temporary Layoffs – Guide For Employers & Employees

You were laid off? Oh no! That’s awful. I’m so sorry. You know what, they never appreciated you the way you deserve. What a lousy bunch of – temporarily? Ohhhh. Huh. So, you’re not fired? Ok. Refresh my memory on this whole temporary layoff thing!

What Is A Temporary Layoff?

Chances are, you’ve heard of temporary layoffs. Maybe you’ve wondered if this could happen to you and, if it did, what exactly that would mean.

A temporary layoff is the cutting back or complete cessation of an employee’s employment with the understanding that they will be called back to their full-time position within a specified period of time. A temporarily laid off individual is still considered an employee, even if they are not working. This can mean that they are not working at all, or even simply earning less than half of their regular wages.

What Is A Temporary Layoff - Employment Lawyer - KCY at LAW

Temporary Layoffs – A Solution for Hard Times

A temporary layoff is a way mitigate economic hardship for both employer and employees. Temporary layoffs are often brought on by things like economic downturn, shortages of work and seasonal employment.

Temporary layoffs are most common in union environments where collective bargaining agreements determine the parameters of a layoff such as which employees are the first to return to work.

A temporary layoff allows employers to avoid severance or termination costs as long as the employee is recalled to work within 13 weeks of the layoff’s commencement. Though it would certainly be appreciated by their employees, employers have no obligation to provide notice of a layoff. Additionally, employers are not required to give termination notice until the last day of the layoff should it become clear that the layoff will have to become permanent.

Contractual Agreements and Temporary Layoffs

The parameters of temporary layoffs are set out in the Employment Standards Act (ESA). However, the ESA doesn’t give employers the right to enact them. The right to temporarily layoff an employee must be contractually stated, either in the employment contract or the collective bargaining agreement.

If an employee is temporarily laid off without a provision for this in their contract, the layoff would be considered a constructive dismissal and the employee would be entitled to seek damages for wrongful dismissal.

Wrongful dismissal charges may be avoided if the laid off employee is immediately recalled to their former position. Furthermore, some courts have found that employees who refuse to return to their position after a non-contractual layoff will be found to have failed in their duty to mitigate their damages.

If the power to perform temporary layoffs was not in written agreement at the time of hire and an employer wishes to pursue this option, they should approach their employee with a written proposal for a temporary layoff. It is possible that the employee will choose this over termination, especially since employees can usually collect Employment Insurance benefits during a layoff.

How Long Can Temporary Layoffs Last?

How Long Can Temporary Layoffs Last - Temporary Layoffs Guide - KCY at LAWA temporary layoff can last up to 13 weeks in a consecutive 20-week period. However, if a layoff exceeds this 13-week period it will become a termination at which point the employee will be entitled to termination pay in lieu of notice with the first day of the layoff becoming the date of termination.

However, the ESA provides that a temporary layoff may be extended to as long as 35 weeks if:

  • The employee continues to receive substantial payments from the employer,
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
  • the employee receives supplementary unemployment benefits,
  • the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
  • the employer recalls the employee within the time approved by the Director, or
  • in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

If an employee quits before a layoff is over they are not owed severance or termination packages but may still be entitled to accrued benefits such as vacation pay.

Temporary Layoff Legal Experts

Employers should always seek legal counsel before temporarily laying off an employee. To speak with an experienced employment lawyer about temporary layoffs or any other employment law matter, call KCY at LAW at (905) 639-0999 or contact us online here.

Occupational Health and Safety Act (OHSA)- Protecting Workers

The Occupational Health and Safety Act (OHSA) is Ontario’s foundational legislation regulating standards of workplace safety. The OHSA is supported by other legislation such as the Human Rights Code and the Workplace Safety and Insurance Act.

The Act is in place to protect workers from on the job hazards that may cause accidents, injuries or illness. It does so by setting out employer duties and workers rights; procedures for dealing with hazards; mechanisms of enforcement; and consequences for non-compliance.

Who is covered by the OHSA?

The OHSA covers almost all non-federally-regulated workers in Ontario. This includes workers, employers and supervisors. The OHSA does not apply, however, to work done by an owner or occupant of a private residence

Workplaces under federal jurisdiction such as banks and airports are regulated by the Canada Labour Code.

Who Is Covered by OHSA - Employment Lawyer - KCY at LAW

What are workers’ rights under OHSA?

The Act’s legislation sets out three primary rights for Ontario workers. They are:

  • Right to Participate
    Workers should take part in identifying and solving health and safety issues. Working ‘on the ground’ in immediate contact with an organization’s operations and implements, workers are often the ones exposed to the greatest health and safety hazards in the work environment. Therefore, they are well situated to identify potential hazards as they arise.
  • Right to Know
    Workers have the right to be made aware about any hazards they may face. This includes being educated about proper operation of equipment and having access to proper safety equipment. The right to know also means that hazardous materials are properly labelled and that emergency procedures are in place should an accident occur.
  • Right to Refuse
    Workers have the right to refuse work that is unsafe. As a worker, you may not be reprimanded or terminated for refusing to work in hazardous conditions. This right will be discussed in further detail below.

What Are Employers’ Duties Under OHSA?

Occupational Health and Safety Act - Employers Duties OHSATo ensure a safe and healthy work environment for all, employers are required to take all reasonable precautions to protect the health and safety of their workers. This includes, but is not limited to:

  • creating and implementing occupational health and safety programs and policies to identify, prevent and solve hazards;
  • educating employees about workplace hazards and the policies and procedures in place to mitigate them;
  • complying with all OHSA regulations;
  • cooperating with the Joint Health and Safety Commission;
  • making sure all equipment is properly maintained;
  • providing appropriate training for handling of equipment; and
  • supervising employees to ensure they are not endangering themselves.

What are workers’ obligations under the OHSA?

Workers are expected to take reasonable steps to protect their own health and safety. The Act does not absolve workers of personal responsibility. They must work in compliance with the Act and workplace regulations. This means using the required protective equipment, clothing and devices. It means informing employers of dangers such as defective equipment. Furthermore, workers must never modify any protective equipment.

What Should I Do If Faced With Unsafe Work Conditions?

Most workplaces present some degree of hazard, especially those operating outside the office environment. If you are faced with a situation or environment that you feel is a threat to your health and safety, your first step should be to bring your concern to the attention of your supervisor or employer. Hopefully, your superior was simply unaware of the situation and they will immediately set to remedying it. This is an example of a worker’s right to participate. A supervisor might not come in regular contact with a piece of equipment and therefore be unaware of its state of repair. A worker who handles the equipment daily, by contrast, might immediately know if equipment is malfunctioning.

If your supervisor or employer fails to address the concern within a reasonable period of time, you should bring your complaint to a workers’ health and safety representative. If this position does not exist at your workplace, you should report the situation to the Ministry of Labour.

As discussed above, you also have the right to refuse unsafe work. You do not have to accept and continue to work in hazardous conditions while you wait for your complaint to be addressed. The procedure for properly refusing unsafe work is available here.

What Should I Do If I Am Injured At Work?

If you are injured at work, the first thing you should do is seek proper medical attention. It is your employer’s responsibility to ensure that you receive this attention whether it involves receiving first-aid by a trained colleague or being driven to the hospital by ambulance. Depending on the nature and severity of your injury, you should then report the accident to your supervisor or employer. Finally, you should complete the Workplace Safety and Insurance Board form.

If you have concerns about workplace safety – either as an employer or worker – the employment law team at KCY at LAW is ready with the knowledge and experience to ensure that you get the care and attention you deserve. Reach us online or call us at (905) 639-0999.

Overtime Pay Overview

Working long hours? We get you. Having recently finished up a trial that had us at the office in the wee-est of hours, we can commiserate over the exhaustion that arises from fitting two weeks’ worth of work into one. Deadlines must be met but workers must also be fairly compensated for their lost free and family time.

When Does Overtime Start?

Overtime starts for most employees after working 44 hours in a work week (regardless if their employment status is full- or part-time, or casual). After 44 hours of work in a week, they must receive at least time and a half for each extra hour they work (1.5 times their normal wages). Unless explicitly agreed to in the employment contract, overtime is not calculated daily. This means that an employee could work 11 hours in one day and not receive time and a half after their initial eight hours on the job so long as over the course of the week they do not exceed 44 hours of work.

Exceptions To Overtime Standards

There are, however, several exceptions to overtime standards. Managers and supervisors, for example, are not covered by overtime rules. While calling more members of your staff by these titles to avoid paying them overtime may seem like a sneaky way to save your business money, simply calling an employee a manager or supervisor does not make it so. Only people with the authority to hire, fire and grant time off to employees, and who participate in business and operations-level decision making are considered managers when it comes to overtime entitlements.

Overtime and Public Holidays

Overtime and Public Holiday Law Canada - KCY at LAWWhen it comes to overtime pay and public holidays there are three possibilities:

  • The employee has the day off and receives public holiday pay.
  • The employee works and gets premium pay (1.5 times regular pay) plus public holiday pay. This results in the employee earning 2.5 times their regular wages, also referred to as double time and a half.
  • The employee works the holiday, earns regular wages and receives an alternate day off with public holiday pay.

How to Calculate Overtime Pay

There is some variation in how overtime pay is calculated depending on how the employee is paid (hourly, commission, salaried, etc.). However, the basic principle that the employee’s average hourly wage is multiplied by 1.5 for every hour they work after 44 hours in a week remains consistent. Below are some examples of what that can look like.

Hourly Wage
Daphne’s regular hourly wage is $16. She worked 48 hours this week meaning she worked 4 hours overtime. Therefore, Daphne is entitled to an additional $96 to her regular weeks’ wages of $704 (44 hours x $16 = $704) for a total earning of $800.

48 hours – 44 hours = 4 hours overtime
1.5 (time and a half) x $16 (hourly wage) = $24 overtime wage
$24 (overtime hourly wage) x 4 (hours overtime) = $96 overtime pay

Hourly Wage plus Commission
For an employee working an hourly rate plus commission, their overtime rate is calculated by taking their total week’s earnings (including commissions) and dividing it by the regular number of hours (44) to establish what would be their hourly wage and therefore the wage that will be used to calculate overtime pay.

So, if Frieda worked 50 hours last week and earned $400 commission in addition to her $12 per hour wage she would be entitled to $180 in overtime pay in addition to her $1000 wages (50 hours x $12 = $600 + $400 = $1000) for a total earning of $1180.

50 hours – 44 hours = 6 hours overtime
$1000 (weekly earnings) ÷ 50 hours = $20 per hour (average hourly wage)
1.5 (time and a half) x $20 (hourly wage) = $30 overtime wage
$30 (overtime hourly wage) x 6 (hours overtime) = $180 overtime pay

Fixed Salary
Similarly, for an employee with a fixed salary you must divide their weekly salary by 44 (hours) to get the hourly rate you will use to calculate their overtime pay.

Harriet is paid a weekly salary of $1,500. She worked 46 hours last week and is therefore entitled to $102.27 overtime pay in addition to her regular pay of $1,500 for a total earning of $1,602.27.

46 hours – 44 hours = 2 hours overtime
$1,500 (weekly salary) ÷ 44 hours = $34.09 per hour (average hourly wage)
1.5 (time and a half) x $34.09 (hourly wage) = $51.14 overtime wage
$51.14 (overtime wage) x 2 (hours overtime) = $102.27 overtime pay

How to Calculate Overtime for Fixed Salary Employee - KCY at LAW

Time Off Instead of Overtime Pay

It is possible as an employee to receive time off instead of overtime pay. This is often referred to as ‘banked time’ and must be agreed to in writing by both employer and employee. The employee must receive at least 1.5 hours paid time off for each hour of overtime worked within three months of the week in which the overtime occurred or within a year if the employee is agreeable in writing.

Overtime Averaging Agreements

You may be reading this post and thinking to yourself: “but I regularly work over 44 hours in a week and have never received overtime pay. Is this even legal?” The answer ‘yes’ is not impossible. Overtime Averaging Agreements are a period of time agreed to by both the employer and employee over which the number of hours worked will be averaged. This means that instead of overtime starting after 44 hours in a week, it will start when the total number of hours for the averaging period are exceeded. For example:

If the averaging period is three weeks, overtime hours will start to collect after the employee has worked 132 hours (44 hours x 3 weeks = 132 hours) in this period. This means that if an employee with this averaging agreement works 60 hours one week, 50 the next but only 20 the last week of the averaging period, they do not qualify for over hours because the total number of hours they will have worked is only 130 and does not exceed the 132 hour threshold for a three-week averaging period.

Overtime Entitlement Experts

To discuss your overtime entitlements with an experienced employment lawyer, contact KCY at LAW by calling us on (905) 639-0999 or reach us online for more info!

Small Claims: Choosing the Right Court for your Case

Undertaking litigation of any kind is a complicated affair. There are a thousand things to consider when building, negotiating and advocating a case and each decision plays a role in its outcome. One consideration many people don’t contemplate when launching an employment lawsuit is in which court to pursue their claim. Here are the basics of your options in Ontario.

The Ontario Courts

First, a little background on how the court is set up in Ontario. There are two divisions that make up the Court of Ontario: The Superior Court of Justice and the Ontario Court of Justice.

The Superior Court of Justice is, as its name suggests, the higher court of the two. It is tasked with hearing cases of a more serious nature than the Ontario Court of Justice. The Superior Court deals with serious criminal offences, divorces, challenges to the Canadian Charter of Rights and Freedoms, and civil cases involving large sums of money. The Ontario Court of Justice, on the other hand, is primarily concerned with minor criminal offences, pre-trial hearings and violations of provincial law. Each of these divisions are further divided into specialized branches.

Small Claims - Is Small Claims Court The Right One

Is Small Claims Court Right For Your Case?

Small Claims Court is a branch of the Superior Court that handles nearly half of all civil claims in the province. As it relates to employment law claims, Small Claims Court has jurisdiction over monetary claims under $25,000. The idea being that handling claims under this amount streamlines the litigation process by determining cases quickly and inexpensively compared to the Superior Court.

Because the Small Claims Court can only award plaintiffs up to $25,000 and plaintiffs who fail to be awarded more than $25,000 in the Superior Court may face financial punishment, it can sometimes be difficult to decide which court would best suit your claim. Cases where the damages being sought hover just over $25,000 put the plaintiff in the pickle of either limiting their claim to $25,000 or risk the judge refusing to award costs.

Bray v. Canadian College of Massage and Hydrotherapy – Small Claims Example

A telling example is the case of Bray v. Canadian College of Massage and Hydrotherapy in which the plaintiff was awarded damages of $42,700 but, since the claim was brought before the Small Claims Court, she was limited to only collecting $25,000 in damages.

Bray v. Canadian College of Massage and Hydrotherapy -Small Claims Example

Small Claim Employment Law Experts

When deciding which court to bring forth your claim, an experienced employment lawyer can help you decide the course of action to serve your litigation goals. To consult with KCY at LAW’s expert employment law team, contact us online here or by phone (905) 639-0999.

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.