Potential Future Violation of the ESA Enough to Void Employment Contract

The main objective of a written employment agreement is to provide certainty of the terms and conditions of an employee’s employment.  However, if the agreement contradicts the entitlements set out in the applicable employment standards legislation, such as the Ontario Employment Standards Act, it will be declared void from the outset.

Potential Future Violation of The ESA

In the recent case of Garreton v Complete Innovations Inc. 2016 ONSC 1178, the Court held that a termination clause’s potential future violation of the ESA is sufficient to have the agreement deemed unenforceable.

In that case, Ms. Garreton was employed by Complete Innovations for just over two years.  She was fired for cause after grabbing a co-worker by the wrist for trying to take a bagel during a training session.

Violation of the ESA - Employment Lawyer

The Divisional Court ruled that Ms. Garreton’s employer did not have cause to dismiss her and found that the termination provision contained in her employment agreement was unenforceable, thus entitling her to reasonable notice pursuant to the common law.  Justice Patillo determined that the termination clause in question failed to allow for the payment of statutory severance pay (a requirement of the ESA for those who have worked for that employer for at least 5 years).  Thus, while Ms. Garreton was not entitled to receive severance pay given her length of tenure (just over 2 years), the termination provision would have been unenforceable for an employee with 5 or more years of service.

“Potential violation in the future is sufficient”

In coming to his decision, Justice Patillo stated the following:

“The employment contract must be considered at the time it is executed. If the termination provision is not onside with notice provisions and severance provisions (if applicable) of the Act at the outset, then it is void and unenforceable. Potential violation in the future is sufficient.”

This case proves that employers must ensure that termination pay, notice, severance pay and benefits provisions contained in employment agreements, and in particular in termination clauses, satisfy the minimum standards as set out in the application employment standards legislation, such as the ESA.

Minimum Standards of the ESA

Employment Contract Experts

If you or someone you know has signed an employment contract with a termination clause similar to the one found in Garreton and are unsure as to your rights and entitlements in the event of a termination, we at KCY at LAW have the experience and expertise necessary to effectively assist in handling your case and ensuring your legal rights are properly looked after.

Contact KCY at LAW right now at 905-639-0999 and book a consultation!

Injured In An Accident But Back To Work?

Have you been injured in an accident but are already back to work?  If so, you may still have a case.  If you have been injured in an accident as a result of the negligence of another person, you may be entitled to recover all reasonable expenses and losses which you have incurred as a result of the injuries you sustained.  This includes damages for your pain and suffering, loss of past and future income, out-of-pocket expenses and future care costs.

Loss Of Income Due To An Accident

With respect to the issue of income loss, an accident may have a significant impact on an individual’s employment status.  This can lead to a loss of earnings and a loss of economic opportunity which can put the injured person at a competitive disadvantage compared to his or her peers.  It is not always clear initially, however, as to the extent of this impact.  For example, following the accident, the individual may be earning the same amount of money or more than they did before but can later establish that had the accident not occurred, the individual’s earnings would have increased much more exponentially.  Other times while an individual is able to return to work initially following the accident, they require accommodations at work which may eventually lead to the employer growing increasingly frustrated with the employee and deciding to terminate their employment. In cases where the injured person is self-employed, the task of calculating and establishing past and future income losses is considerably more difficult as opposed to someone who is working as an employee for an employer.

Loss of Income Due To An Accident Toronto - KCY at LAW

Determining Loss of Earnings Due To An Accident

Determining Loss of Earnings Due To An Accident - KCY at LAWIt is therefore imperative that you consult with a lawyer when determining to what extent there are economic losses, as the lawyer may have to prove a number of issues, including but not limited to the following (all of which need to be linked to the accident either directly or indirectly):

  • That there are actual economic losses incurred;
  • That the injured person is less able to fulfill the demands of his or her occupation;
  • That the injured person has attempted to return to work following the accident but has been unsuccessful;
  • That there is a diminished earning capacity into the future;
  • That the injured person is less desirable in his or her field of expertise; and
  • That the injured person is less able to be as competitive in his or her field and is unable to take advantage of economic opportunities that are presented.

Loss Of Income Experts

If you or someone you know has suffered a personal injury due to the negligence of others and has been impacted negatively in various ways, including in the area of employment, we at KCY at LAW have the expertise and experience to ensure you are armed with the knowledge you need and that you get the compensation you deserve.

Call KCY at LAW now at (905) 639-0999 or contact us online to book your FREE consultation!

Violence In The Workplace: Employer Responsibilities

When a workplace violence complaint is launched against an employer, what are the employer’s responsibilities regarding the investigation of such a complaint?  This issue was addressed recently in the decision of Canada (Attorney General) v Public Service Alliance of Canada.

Violence In The Workplace – Employer Responsibilities

In that case, a poultry inspector launched a complaint regarding unfair and disrespectful treatment and humiliation in the workplace.  The employer investigated the matter but chose not to choose a neutral, competent individual to conduct the investigation, as required by Part XX of the Canada Occupational Health and Safety Regulations.   In explaining the basis for why such an individual was not chosen, the employer stated that because its investigation did not reveal that any workplace violence had occurred, it did not believe a competent and impartial person needed to be involved for investigative purposes.

Violence In The Workplace - Employer Responsibilities - Employment Law Toronto

Canada (Attorney General) v Public Service Alliance of Canada – Court Ruling

The Federal Court of Appeal agreed with the lower court that it was wrong for the employer to assess this complaint before appointing a competent person to investigate from a neutral perspective. While the employer may be able to screen clearly vexatious or frivolous complaints, this complaint was not vexatious or frivolous. As such, a competent person should have been appointed to investigate in accordance with the Regulations.  Ultimately, the Federal Court of Appeal held that unless it is “plain and obvious” that the allegations do not relate to work place violence, a competent person must be appointed to investigate.

Canada (Attorney General) v Public Service Alliance of Canada - Workplace Violence Ruling

This case highlights the importance of the steps taken by the employer before deciding whether to bring in a neutral, competent investigator or conduct an investigation in the first instance itself.  Regardless if whether you are an employer looking to determine what course of action to take in a situation like this, or you are an employee or other individual who believes you have grounds to make a workplace-related complaint, it is recommended the independent legal advice from a competent employment lawyer is sought. 

Workplace Violence Experts

We at KCY at LAW have the expertise and experience necessary to provide effective advice in order to ensure your rights are being looked after for any workplace violence related cases.  Call us now at (905) 639-0999 or contact us online to schedule a consultation right away!