What is a reprisal?

A reprisal occurs when an employer or manager, penalizes or threatens to penalize an employee. Examples of reprisals include an employer or manager:

  • Firing or threatening to fire you
  • Suspending or disciplining you (or threatening to do so)
  • Intimidating or coercing you
  • Imposing a penalty (such as a transfer or reduction of hours)

Based on the case of Noble v. York University, there are three factors needed to establish a reprisal complaint:

  1. An action or threat against the complainant
  2. This action or threat was made in relation to the complainant claiming or attempting to enforce a right under the Human Rights Code.
  3. The respondent intended to retaliate for the complainant’s claim or attempt to enforce a right.

Limits on Reprisals

There are plenty of circumstances in which an employer may have just cause to discipline one of their employees. However, according to section 74 of the Employment Standards Act:

No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so, because the employee:

  1. asks the employer to comply with this Act and the regulations,
  2. makes inquiries about his or her rights under this Act,
  3. files a complaint with the Ministry under this Act,
  4. exercises or attempts to exercise a right under this Act,
  5. gives information to an employment standards officer,
  6. testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,
  7. participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,
  8. is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV

Should a court find that an employer has unlawfully reprised an employee, the employer may be ordered to reinstate the employee and compensate them for any losses they suffered as a result of the reprisal. In the event that an employer faces an accusation of giving an unlawful reprisal, the onus to prove that no reprisal occurred rests with the employer.

What to do if you believe you have been unlawfully reprised

If you experience a reprisal shortly after taking any of the actions described above, you may have a claim for reprisal. An employment lawyer can examine your case and determine if you have a viable complaint to file with the Ontario Labour Relations Board and represent your case.

KCY at LAW helps employees stand up for their rights and take action against illegal employment practices. Our professional team will be your advocates and advisors from the moment you step into our office until your final settlement. Call us today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.

 

What is Severance Pay?

The term ‘severance pay’ is often thrown around quite loosely as a way to describe money and other benefits an employee is owed upon termination of their employment. However, severance pay refers to a specific type of payment to which only some employees are entitled.

In the event that an employee is terminated without cause, he or she is always entitled to reasonable notice or termination pay in lieu thereof. Termination pay depends on the length of an employee’s service and its statutory minimums are set out in the Employment Standards Act (ESA).

On the other hand, severance pay refers to additional pay and benefits meant to compensate long-serving employees for intangible losses (such as seniority) if they are dismissed.

Who is entitled to Severance Pay?
Not all employees are entitled to severance pay upon dismissal. In order to qualify for severance pay, you must have been with your employer for five or more years. Furthermore, your employer must have a payroll over $2.5 million or have terminated the employment of 50 or more employees within a six-month period due to the permanent closure of all or part of their business.

How is severance pay calculated?
Severance pay is equivalent to one week’s pay for each year of your employment with the dismissing employer to a maximum of 26 weeks. For example, if you earned $1,000 per week and were terminated after 7 years and 6 months of employment you would be entitled to $7,500 severance pay ($1,000 x 7.5 years = $7,500).

When do you receive severance pay?
Severance pay must be paid within seven days of the end of your employment or on the your next regular pay day, whichever comes later. It is usually paid in one lump sum but it may be paid in installments with your written permission or approval from the Ministry of Labour.

Why is it a good idea to have a lawyer review your severance package?

Unfortunately for employees, there is a good chance that the severance package you are offered will be less than your legal entitlements. Your right to reasonable notice will often entitle you to longer notice than that which the ESA provides. Seek legal counsel before accepting a severance package as you may be entitled to more than what is being offered.

In the event that your severance package falls short of your entitlements, an experienced employment lawyer can help you begin an action for wrongful dismissal. Most cases will result in a voluntary agreement with your employer. However, if an agreement cannot be reached then it will be a judge who will decide your notice period.

If you have been offered a severance package from your long-time employer, have it reviewed by the employment law experts at KCY at LAW. We can advise you of your rights and advocate on your behalf to ensure that you receive the settlement you deserve. Call 905-639-0999 to book your consultation. Or, fill out an online form here.

Benefit Plans: Do employers have to provide benefits to their employees?

Employee Benefit Plans in Canada

So you’ve started a new job. And it’s been a while since you’ve been to the dentist. You’ve never had a massage and are wondering if it’s really as relaxing as you’ve heard. Plus you’ve got a prescription you’ve been meaning to fill but have been holding off because of the cost.

But now! Now you are employed. Now you will have benefits that cover these healthcare costs, right?

Do employers have to provide benefits to their employees?

There are some legislated benefits which your employer must provide, specifically:

  • Employment Insurance (both you and your employer must pay into this)
  • Canada Pension Plan (both you and your employer must pay into this)
  • Workplace Insurance Coverage (requirements and premiums for this coverage vary by industry)

However, any additional benefits, such as health insurance, a dental plan or life insurance, are at your employer’s discretion to provide.

Benefits are often an important part of a competitive compensation package to attract the top talent to your business. Health and dental insurance are some of the perks that come with employment for many, but not all, Ontario workers.

Further examples of benefits an employer may choose to provide include:

  • Retirement and pension benefits
  • Termination benefits
  • Disability, sickness and accident benefits
  • Medical, hospital, drug or dental benefits
  • Vision care
  • Life insurance
  • Flexible work arrangements
  • Education and training

Benefit Plans and the Employment Standards Act

If your employer does choose to provide benefits, they must comply with the Employment Standards Act (ESA)’s rules against discrimination. The ESA’s anti-discrimination rule prohibits employers from discriminating in their benefit contribution requirements and benefit payments between employees, dependants or beneficiaries on the protected grounds of age, sex or marital status.

Benefits can, however, be varied among employees without being discriminatory if they are based on tenure. Furthermore, it is possible to provide different classes of employees (i.e. office workers and heavy machinery operators) with different benefit packages based on their needs.

While there are some complex exceptions to these rules, employers should be cautious and consult with an employment lawyer before providing different benefit plans between their employees.

Cost of Benefit Plans

Employers should carefully consider and define each benefit they choose to provide to their employees. Benefit plans can be costly – up to 30% of payroll for large companies – and cutting back on employee benefits, even in times of economic downturn, can be cause for constructive dismissal. Therefore, employers should carefully consider what types of benefits matter most to their employees and what they can afford.

Interaction Between Benefit Plans Leaves of Absence

All employees have the right to continue contributing to and participating in benefit plans when they take any job-protected leave of absence including pregnancy and parental leave, personal emergency leave or sick leave.

Benefit plans are an excellent way to attract top talent and ensure that your employees are healthy and productive. They can, however, be costly and choosing the right plan for your employees can be difficult. Consult with KCY at LAW to better understand your legal rights and obligations.

Call us today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.