There is more to employment law in Ontario than just the Employment Standards Act, 2000. While this point should be obvious, a recent article in the Toronto Star, Ontario allowing employers to fire workers without cause begs for this point of clarification.
If an employee asserts his right, as guaranteed under the Ontario Employment Standards Act, 2000, not to work on a holiday or on a Sunday, must the employer provide him with a substitute for the hours he otherwise could have worked?
In a decision from the Ontario Labour Relations Board, Farinha v Highland Farms Inc, 2014 CanLII 17466 (ON LRB), the answer was “no.”
As a general statement of law, it is illegal for a retail business to be open on a holiday. Of course, there are numerous exemptions to this rule; the most well-known of which being the ‘tourist area’ exemption. What many people may not know, however, is that the legal onus is on the store’s employees to restrain members of the public from buying goods.
Have employees been convicted of allowing the public to shop on a holiday? They have.
A lot has already been said about Target’s abrupt decision to close all of its Canadian stores; but one story has dominated headlines more than others: Target’s ‘decision’ to provide its employees with 16 weeks of ‘severance.’ As some employees are discovering, that ‘severance’ is really nothing more than working notice. What is more, the ‘decision’ was pretty much already made for Target as the amount is dictated by Ontario law.
Working through the mechanics of the situation, one can see that Target’s ‘decision’ is hardly as generous as it was first touted.
For those who feel like their workplaces are already too much like a prison, May 20, 2015, will not be a happy day. For on that day the workplaces of Ontario will resemble Andy Dufresne’s prison cell at the fictitious Shawshank State Prison.
For those who have not seen the movie The Shawshank Redemption my first question is “how?” But, if you have not, and sorry to spoil it for you, the movie focuses on Andy Dufresne, a innocent man sentenced to life in prison at Shawshank State Prison, from which he eventually escapes by tunnelling through the prison’s walls. Dufresne conceals his tunnel with a large poster of Rita Hayworth.
Unfortunately, the poster that employers must distribute to all employees as of May 20, 2015, is not of Rita Hayworth; it is of the salient provisions of Ontario’s Employment Standards Act, 2000.
On November 20, 2014, unpaid interns in Ontario gained a modicum of protection under some of Ontario’s employment laws. No, the government did not make any changes to minimum wage provisions relevant to unpaid labour (although the government did change the minimum wage law to make the same reflective of the Consumer Price Index, effective October 1, 2015), the government amended the Occupational Health and Safety Act to make that law applicable to unpaid labourers.
"Will litigate for food?" Earlier this month a community legal clinic in Oshawa drew fire after it advertised a 10-month unpaid articling position on Legal Aid Ontario’s official website. But can it do that? Shouldn’t lawyers know better?
Incredibly, the law concerning minimum wage does not apply to everyone. Some employees are expressly exempted from the protections of the minimum standards of the Employment Standards Act, 2000. Among those who are exempted are articling students.
If an employee provides notice of his intention to resign on a future date, can his employer legally terminate his employment (i.e. fire him) before that date and not pay him? In a case concerning Quebec labour laws, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc., 2014 SCC 51 (CanLII), the Supreme Court of Canada has said “non”.
On September 18, 2013, Andrew Coyne wrote a provocative opinion piece for the National Post on the issue of unpaid internships: "If unpaid internships are exploitation, why don’t the kids just stay home?" In his essay Mr. Coyne advances the thesis that unpaid internships "are the job equivalent of a small-cap growth stock — no dividends, but the promise of heady capital gains in future." Essentially, the argument advanced by Mr. Coyne is that the reason some people elect to take up an unpaid internship is for the opportunities that are opened by so doing and they should be free to do so without interference.
But, Mr. Coyne's position got me thinking: are these internships really an opportunity for career advancement or are they, as others, such as Toronto labour lawyer Andrew Langille, argue, exploitation? Incredibly, I found myself thinking about something actor Ashton Kutcher said at 2013 Teen Choice Awards.
(c) istock/denisik11
Can an Ontario employee make a complaint to the “Labour Board” - technically the Employment Standards Program of the Ontario Ministry of Labour - and sue his or her employer for wrongful dismissal as well?
Pursuant to both section 97 of the Ontario Employment Standards Act, 2000 and a decision from the Ontario Superior Court of Justice, Limebeer v. Canadian Tire Corp. Ltd., 2013 ONSC 2735 (CanLII), the answer is “no”.
A recent decision of Arbitrator Randy Levinson found that the Employment Standards Act, 2000 (“ESA”) does not require an employer to pay termination pay to disabled employees if the employer wishes to provide written notice of termination instead. In Quality Meat Packers Limited and the United Food and Commercial Workers Canada, Local 175 (as yet unreported), Arbitrator Levinson based his decision on the fact that the disabled employees did not provide any services to the employer and were therefore not entitled to any compensation.
Is the Human Rights Tribunal of Ontario (“HRTO”) an appropriate body to decide whether a woman was fired for “legitimate business reasons”? According to a decision from the Ontario Superior Court of Justice, Power Tax v. Millar, DioGuardi, 2013 ONSC 135 (CanLII) the answer is, “of course.”
There are exceptions to every rule. For example, not all workers in Ontario are covered by all aspects of Ontario’s employment laws. Some workers’ rights, for example bank employees and those who work for airlines, are governed by the Canada Labour Code. In other cases, even those who are generally covered by the Ontario Employment Standards Act, 2000 are not covered for all aspects.
One such exemption is with respect to “construction employees.” However, sometimes determining whether a worker is a “construction employee” is more complicated than it may initially appear.
(c) istock/Olivier Le Moal
This blog has previously considered the issue of the rights of chronically absent employees. However, there is a flip side to the situation: the rights of employers.
The two most frequently asked questions by employers with respect to the chronically absent are: (1) Can I fire this individual; and (2) If I can fire this employee, how much is it going to cost me?
(c) istock/Highwaystarz-Photography
Every year Forbes magazine releases a list of the most ridiculous excuses for calling in sick. Other publications do similar things. In its list from 2011, Forbes listed amongst its favourite worst reasons:
One employee said he couldn’t make it to work because his 12-year-old daughter stole his car. Another called in sick with a headache from going to too many garage sales. One employee claimed he had caught a cold from a puppy.
While lists like these can be amusing, they highlight a more serious issue: employee absenteeism. According to the same Forbes article:
CareerBuilder does an annual survey on absenteeism, and [in 2011] the poll reached out to more than 4,300 workers and 2,600 employers. It revealed that 29% of employees have skipped at least one work day this year by claiming to be sick when they weren’t.
The study raises two important questions: What are an employee’s rights to sick days under Ontario law, and what are an employer’s rights? This post will focus on an employee’s rights and responsibilities. (For a review of employer's rights, please see this post.)
For most workers in Ontario, the first Monday in August and Easter Monday are paid days off work. However, neither is a “public holiday” as defined by the Ontario Employment Standards Act, 2000. What that means is that the rules surrounding statutory holiday pay do not apply to “the Civic holiday” or to “Easter Monday.” But, that does not necessarily mean that they cannot be treated by any particular employer as a ‘holiday;' on this point see the post Any Day Can be a Holiday.
The points above provide an opening to discuss what the rules surrounding such holidays actually are.
