Top 10 employment law stories of 2015
Seasons change, employment laws change and the last four seasons saw many changes to Ontario’s employment law landscape. In fact, 2015 may later be known as the year the Kathleen Wynne government started implementing its rather ambitious employment law agenda…changes were made to a number of laws including the Accessibility for Ontarians with Disabilities Act, the Employment Standards Act, and the Occupational Safety Act.
The P word: this year, the government made a commitment to pass a law which would require private sector employers to implement and contribute to an employee pension plan.
Human rights: the fallout of the Jian Ghomeshi affair persists. Courts started to award higher damage awards for sexual harassment and sexual assault and legislation was tabled that will require employers to investigate sexual harassment claims.
Tweet, tweet. Employees continue to be fired for comments made on social media and for damaging their employers’ reputation while off duty.
And of course, conceptual and technical legal issues continue to arise in the courts and the legislature. For example, the definition of an “employee,” whether an administrative leave is a “constructive” dismissal, and the enforceability of a termination clause in an employment contract were addressed this year.
Here are my top 10 employment law stories of 2015:
1. The courts and administrative tribunals started to award much higher damages awards for sexual harassment and sexual assault
The Jian Ghomeshi termination in the fall of 2014 placed the issue of sexual harassment and sexual assault in the public spotlight. And judges and administrative tribunals took note.
In a decision released on May 22, 2015, adjudicator Mark Hart ordered a corporation and its owner to pay a temporary foreign worker $150,000 in general damages under the Ontario Human Rights Code because the owner sexually harassed/assaulted the worker. This was about $100,000 more than any other damage award under the Code. For more information on this case, click here.
Shortly thereafter an Ontario judge awarded an administrative employee who was sexually harassed/assaulted at work on three occasions about $300,000. For information on this case, click here.
2. The Ontario government introduced legislation that will help reduce sexual harassment in the workplace
The Ghomeshi affair also seems to have prompted the Ontario government to act. On October 27, 2015, the Ontario government tabled its Sexual Violence and Harassment Action Plan Act (“Bill 132”). Under Bill 132, the definition of “workplace harassment” under OHSA will expand to include “workplace sexual harassment.” Bill 132 creates a new statutory duty for employers to investigate “incidents and complaints” of workplace sexual harassment. Under Bill 132, a Ministry of Labour inspector can order an employer to conduct an investigation by a third party at the employer’s expense, and the harasser and harassee must be informed in writing of the results of the investigation and of any corrective action that has been taken or will take place as a result of the investigation. For more information on Bill 132, click here.
3. Judges and arbitrators were asked whether off-duty conduct (including social media postings) constitute just cause for termination
Employees continued to get into all kinds of trouble outside of work and judges were asked to decide whether this conduct could cost a person their job.
Last year I wrote about two firefighters who were fired for sexist comments on their Twitter accounts. For more information about these cases click here. This year Evan Solomon lost his job as a CBC host because he had a part-time job and a Hydro One worker was fired for making obscene and sexist comments to a TV reporter although an arbitrator subsequently reinstated him. To read my blog on the Solomon case click here and for my blog on the Hydro worker click here. I have spoken to a number of human resources and legal conferences about disciplining employees for social media posting.
4. Significant and substantive amendments were made to the Employment Standards Act
Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014 was proclaimed into force at different times during 2015. Some of the changes were as follows: (i) the monetary limits on employment standards complaints for wages was eliminated; (ii) the time limit for filing a complaint was increased to two years; (iii) employers are now required to provide employees with an ESA poster; (iv) the minimum wage was increased on October 1; and (v) employers are now liable for temporary help agencies’ obligations. For more information on the implementation of Bill 18, click here.
5. The Ontario government introduced legislation, which will require most employers to introduce a pension plan for employees and make financial contributes to this plan
In late 2014 the Ontario government introduced Bill 56, which if passed into law will be called the Ontario Pension Plan Act, 2014. Under Bill 56, employees who are not part of a pension plan and their employers would each be required to contribute 1.9 per cent of the employee’s earnings up to $90,000 each year to a provincial pension plan. This is in addition to the employee’s and employer’s contribution to the Canada Pension Plan. For more information on Bill 56, click here.
6. New obligations were imposed on employers under the Accessibility for Ontarians with Disabilities Act and the most onerous obligation will take effect on January 1, 2016 for employers with 50 or more employees
In 2015 a number of new obligations took effect for employers with 50 or more employees; including (i) all employees must receive training on the Human Rights Code as it pertains to persons with disabilities and the Integrated Standards; and (ii) employers must ensure that their feedback processes can be administered in accessible formats and with communication supports, upon request. For more information on these obligations click here.
To find out more about the 11 new obligations that are imposed on employers with 50 or more employees on January 1, 2016, click here.
7. The Supreme Court of Canada decided that placing an employee on a paid administrative leave can constitute a constructive dismissal
Employment lawyers do not like being asked by employees whether an employer’s unilateral action constitutes a constructive dismissal. One reason is because if the lawyer answers incorrectly and the employee resigns then the employee receives no termination pay. Another reason is because the law of constructive dismissal frequently changes and advice that is correct today can be incorrect tomorrow. Who would have thought for example that placing an employee on a paid administrative leave would constitute a constructive dismissal? On March 6, 2015 the Supreme Court of Canada released its decision Potter v. New Brunswick Legal Aid Services Commission. When considering non-disciplinary suspensions, the SCC stated that an employer never has a right to withhold work from an employee unless it can demonstrate that it is reasonable and justified. Furthermore, the court said that an administrative suspension will usually not be justified where there has been no communication with the employee about the reason. In this regard, the court noted: “At a minimum, acting in good faith in relation to contractual dealings means being honest, reasonable, candid, and forthright.” For more information on this case, click here.
8. The courts continued to review the enforceability of termination clauses in employment contracts
Ten years ago, few employees signed an employment contract with a termination clause. In 2015 termination clauses in employment contracts are common. Many termination clauses provide that an employee is entitled to the minimum notice of termination provided for under the Employment Standards Act. This can reduce an employee’s termination pay entitlement from 104 weeks pay to eight weeks pay. Not surprisingly, employees are challenging these clauses in the courts. For information on a recent case when a termination clause was found to be unenforceable click here.
9. More and more people are asking the Ontario government to address the rights of employees with precarious employment
From the end of the Second World War until the beginning of this century, most people in the paid labour market had traditional full-time secure jobs; many with good pensions. With the advent of the information age, the proliferation of the Internet and the introduction of global free trade, employment has become increasingly precarious. For example, young people are being forced to take on unpaid internships to obtain experience because older workers are not retiring. Similarly, smartphone applications like Uber are disrupting the labour market in the taxi industry where an unregulated, part-time workforce is replacing a full-time, highly regulated workforce. The Ontario government has asked two experienced employment lawyers to review the Employment Standards Act and one of the issues being considered is whether to deal with the issue of precarious employment.
10. The definition of “employee” or ‘worker” is changed in some employment laws
You would think that all of Ontario’s employment laws have the same definition of employee but that is not the case.
Under the Ontario Human Rights Code, the term employee is not defined and has been interpreted broadly to include employees, contractors, interns, and volunteers. Similarly, under the Ontario Labour Relations Act, a dependent contractor is included in the definition of employee. In 2015, the definition of “worker” under the Occupational Health & Safety Act was expanded to include unpaid co-op students, certain other learners and trainees participating in a work placement in Ontario. For more information on this issue click here.
The fact is that certain individuals including volunteers are deemed to be an employee for certain purposes under Ontario’s labour and employment laws. This raises the issue of when a person who is not a traditional employee should be granted some employment rights. For example, should Uber be required to pay a driver who consistently works 40 hours a week the minimum wage? This is not an easy question to answer but the Ontario government needs to decide how our employment laws can be changed to reflect the reality of the current labour market.