Tuesday, 19 February 2019

Termination for “Cause” Provision Violates the ESA

Does a termination clause that only allows an employer to terminate an employee without notice for “just cause” comply with the provisions of the Ontario Employment Standards Act, 2000?

In the case of Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, the Honourable Justice Carole J. Brown of the Ontario Superior Court of Justice held that it does not.

Saturday, 9 February 2019

OLRB Rules That When it Comes to Severance it’s Ontario-Based Operations Alone

Should the payroll of employees outside Ontario be included in the calculation of the payroll under section 64 of the Employment Standards Act, 2000?

According to a decision of the Ontario Labour Relations Board, released late in 2018, Doug Hawkes v. Max Aicher (North America) Limited, 2018 CanLII 125999 (ON LRB), it is only Ontario-based employment and operations that is captured by section 3 and therefore section 64 of the ESA.

This decision is a victory for large, multijurisdictional employers with more limited operations in Ontario.

Sunday, 27 January 2019

Arbitrator Orders Nurse Who Was Caught Stealing Narcotics to be Reinstated

Is it a discriminatory practice and potential breach of the Ontario Human Right Code for a nursing home to prohibit nurses from stealing narcotics?

In the case of Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ON LA), a labour arbitrator ruled that it was. Moreover, the arbitrator ordered that the registered nurse, who conceded that her employment had been terminated for just cause, reinstated to her employment.

Saturday, 5 January 2019

The ONCA's Decision in the Uber Case and the (Il)legality of Arbitration Clauses in Employment Contracts

Will an arbitration clause in independent contractor agreement always be found to be illegal, if, notwithstanding that to which the parties ostensibly agreed, the worker can later allege that he is, in fact, an “employee”?

A cursory reading of the Court of Appeal for Ontario’s decision in Heller v. Uber Technologies Inc., 2019 ONCA 1 might lead those who do not practice in the area of employment law to conclude that the answer is “yes.”

I might not be so sure.

Wednesday, 2 January 2019

ONCA says Uber's Arbitration Clause is both Illegal and Unconscionable

Can a company, which ostensibly deems all of its workers to be “independent contractors”, require those workers to arbitrate their issues, including the issue of whether or not they are, in fact, “employees”? Or, is such an agreement an attempt to contract out of the protections afforded to employees by virtue of the Employment Standards Act, 2000? In addition to, or in the alternative to, such a question, is such a clause “unconscionable”?

In the fist decision issued by the Court of Appeal for Ontario in 2019, Heller v. Uber Technologies Inc., 2019 ONCA 1, Ontario’s top court found that: (a) Uber’s arbitration clause amounts to an illegal contracting out of an employment standard; and (b) such clause is also unconscionable at common law.

Why does one think this ride isn’t over yet?

Saturday, 29 December 2018

Slate Not Wiped Clean by Release in Context of Share Sale

Can an employee extinguish his statutory right to severance pay by way of a full and final release signed in the context of a share sale?

According to a 2018 decision of the Court of Appeal for Ontario, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989 (CanLII), the answer to that question is a resounding “no.”

The case has real implications for those who practice employment law in the context of the sale of a business.

Friday, 28 December 2018

Simply Complying with the ESA not Enough to Rebut Common Law Presumption of Entitlement to Reasonable Notice – ON Divisional Court

Is the sole requirement to rebut the common law presumption of termination only upon reasonable notice that the contractual termination clause comply with the ESA, or is something else required?

In a decision released December 6, 2018, Movati Athletic (Group) Inc. v. Bergeron, 2018 ONSC 7258 (CanLII), the Ontario Divisional Court (Swinton, Thorburn, and Copeland JJ.) upheld an earlier decision of the Honourable Justice O’Bonsawin, 2018 ONSC 885, about which I blogged in my post Lack of Clear Warning Voids Termination Provision, which held something more is required.

In addition to upholding Justice O’Bonsawin’s decision, the Divisional Court provided some very clear, point-by-point analysis on what it takes for a contractual termination clause to sufficiently, and legally, rebut that common law presumption.