Wednesday, 1 July 2015

Is it Discrimination to Pay Bilingual Employees More?

Is it a prohibited form of discrimination to pay a higher salary to employees who can speak both English and French than to those who can speak only English?

In Arnold v. Stream Global Services, 2010 HRTO 424 (CanLII), the Human Rights Tribunal of Ontario said “non”, deciding that paying bilingual workers significantly more than those who spoke exclusively English was not a prohibited form of discrimination.

Saturday, 27 June 2015

Employee Owed More Severance Because He was Fired in June

Does it matter in which month an employee is fired? According to decision from the Ontario Superior Court of Justice, Fraser v Canerector Inc., 2015 ONSC 2138 (CanLII), the answer is “yes.”

In his reasons for decision granting the plaintiff 50% more reasonable notice than he otherwise would have awarded, the Honourable Justice Sean F. Dunphy wrote:

I must also account for the time of year when his employment was terminated in assessing reasonable notice. Mr. Fraser’s employment was terminated in June and it was quite foreseeable that hiring decisions at his level might have needed to be delayed somewhat due to the summer months in order to account for vacation schedules of key decision-makers.

Wednesday, 24 June 2015

Termination from Employment while on Disability Leave

There is never a good time to be fired from one’s job. However, some times are worse than others. A particularly bad time to be fired is while absent from work on disability leave.

While there are few definitive answers when it comes to the law, this post will take a look at some of the most common questions concerning termination from employment during disability leave.

Saturday, 20 June 2015

HRTO Awards $150,000 to Temporary Foreign Worker following Sexual Assault by Employer

The Human Rights Tribunal of Ontario has ordered an employer to pay $150,000.00 to a former temporary foreign worker after finding that the owner and principal of the company had engaged in a series of prolonged unwanted sexual solicitations and advances against her, including sexual assaults.

O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), now stands as the present ‘high-water mark’ for damages as compensation for injury to dignity, feelings and self-respect.

Saturday, 13 June 2015

Are Workers, Locally Engaged by the Government of Canada, "Entitled" to Workers Compensation Benefits?

Are locally engaged employees of the Consulate General of Canada in Boston (i.e. those hired by the Canadian Government to work in the consulate, but who are not Canadian diplomats), who get injured in the course of employment, “entitled” to workers compensation benefits pursuant to the provisions of Canada’s Government Employees Compensation Act, RSC 1985, c G-5?

While that question may seem oddly specific, and it is, it is not only one of the questions that the Massachusetts Department of Industrial Actions was forced to answer in the case of Cynthia L. Merlini, it is the question on which I was summonsed to provide expert evidence.

On December 11, 2012, I testified as an expert witness in Ms. Merlini’s case. Following the hearing, the trial judge, Administrative Judge John G. Preston, found, on the basis of my testimony, that Ms. Merlini was not “entitled” to benefits from the Canadian Government as a locally engaged employee.

More recently, however, the Reviewing Board held that Ms. Merlini was entitled to benefits and for that reason, and for two other reasons specific to Massachusetts law, which will not be considered by this post, reversed the Order to grant Ms. Merlini benefits from the Massachusetts Workers Trust Fund.

For the reasons set out below, here is why I think the Reviewing Board got the “entitlement” question wrong.

Sunday, 7 June 2015

Supreme Court of Canada says Governments Cannot Prohibit Strikes by Providers of Essential Services

Can a provincial government prohibit strikes by “essential” workers and refuse to provide such workers with any sort of meaningful alternative dispute resolution process?

According to a 2015 decision from the Supreme Court of Canada, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 the answer is “no.”

As Ontario once again looks at the issue of teachers’ right to strike, it is important to take note of what Canada’s top court has said is and is not constitutional.

Saturday, 6 June 2015

Rushing to Judgment: How to Reconcile the Duty to Mitigate with Summary Judgment in Wrongful Dismissal Cases

How should the court account for a plaintiff’s duty to mitigate his damages following termination from employment, when summary judgment can be awarded before the expiry of the reasonable notice period?

More to the point, how can an employer ensure that the dismissed employee will take all reasonable steps to mitigate his damages if that dismissed employee is already in receipt of his pay in lieu of notice?

In the case of Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (CanLII) (released April 16, 2015), the Honourable Justice Andra Pollak held that the use of the “Trust Approach” previously approved by the Court of Appeal for Ontario in Cronk v. Canadian General Insurance Co. (1995), 25 OR (3d) 505 (CA) is no longer appropriate, given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.