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

It 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.

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!

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

This 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 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!

As the summer looms ever nearer and all of Canada’s National Parks are on offer for free to mark our country’s 150^th 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.

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 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.

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

Impact of Social Media on the Hiring Process

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

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

What are Recruiters Looking for?

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

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

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

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

Don’t Hide Away

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

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

What About my Privacy Rights Online?

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

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

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

Legal Workplace Hiring Practices

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

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

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

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

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

Domestic Violence and the Workplace

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

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

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

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

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

What Bill 26 Proposes

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

Bill 26 proposes that employees who are experiencing domestic or sexual violence should be able to take a ten-day paid leave of absence so that they may:

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

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

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

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

Bill 26 And Workplace Training & Policies

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

Workplace Policy Lawyers

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

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

Sometimes, 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.

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.