Bill 132... Picking Up Where Bill 168 Left Off?

Will the recently proposed changes to the Ontario Occupational Health and Safety Act finally bring about the workplace violence and harassment protections that so many believed would be implemented as a result of “Bill 168?” It’s possible.

For years I have been critical of the actual effects of the changes to the law brought about by Bill 168. Heralded by many at the time as a necessary change to the law, the experience of the interpretation and implementation of those changes has been grossly underwhelming.

Now the Ontario government is proposing further changes to the law by way of Bill 132, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015. The Bill passed first reading in the Legislative Assembly of Ontario on October 27, 2015.

A reading of the proposed amendments to the law leaves one with cautious optimism that perhaps change will finally come about.

Court Awards $100,000 in Punitive Damages after Employer gets "Mean and Cheap" on Dismissal

There is a cliché that crime does not pay. In the world of employment law, the most heinous crime that an employer can commit is to allege just cause for dismissal where none in warranted.

In the case of Gordon v Altus, 2015 ONSC 5663 (CanLII), the Honourable Justice Bruce A. Glass threw the proverbial book at an employer – awarding the dismissed employee $100,000 in punitive damages in addition to $168,845.00 in wrongful dismissal damages – after the employer elected to get, as Justice Glass put it, “mean and cheap” by conjuring up a cause for firing in order to save money.

Two Employers Under One Umbrella Both Get Soaked by Judge

Sometimes being under an umbrella is a good idea; like when it is raining. Other times, however being under the same umbrella as someone else is not such a good thing.

In employment law, the issue of whether two companies are a “common employer” or ‘stand under the same umbrella’ can be important when calculating a dismissed employee’s length of service; the same being one of the critical factors for calculating a dismissed employee’s entitlement to reasonable notice of termination.

In the case of Dear v Glamour Designs Ltd., 2015 ONSC 5094 (CanLII), the Honourable Justice S.A.Q. Akhtar held that there were simply too many interconnecting factors between two related companies to say that the two were anything but a common employer. The employers were found to be one and the same for the purposes of calculating the employee’s length of service.

Discrimination and Criminal Convictions: In Employment Law is it Always a Life Sentence?

To what extent must employers accommodate as employees those who were previously convicted of criminal offences? To what extent should employers be forced to do so?

Those questions raises difficult challenges and issues for both criminal law policy as well as employment law policy. The law as written raises more questions than answers.

Close Only Counts in Horseshoes and Hand Grenades: The Irrelevancy of “Near Cause” in Canada

A post by: Brent Craswell

Employers often believe that an employee’s conduct should play a role in its obligations to him or her upon termination. To the extent that those factors assist the employer in establishing just cause for termination, the employers would be correct. However, if the improper conduct does not meet the ever-elusive standard for just cause, what effect does it have on the reasonable notice period owed to the employee as common law damages for wrongful dismissal? In other words, can the employer “knock down” the reasonable notice period by arguing that it almost established cause?

In its brief decision in Dowling v Halifax (City), [1998] 1 SCR 22, the Supreme Court of Canada emphatically held that the doctrine of “near cause” has no place in Canadian employment law. In fact, the Court wrote that it would “not accept any argument relating to near cause.”

Employee on Disability Leave Deemed to Have Abandoned Employment After Failing to Respond to Employer

Image: istock/Imilian

“You have the right to remain silent.” Those seven words are a fundamental principle of the Canadian criminal justice system. But what about the intersection of disability leave and employment law? Does an employee have the right to remain silent when his or her employer asks for an update on his or her health or an estimate of when the employee may be able to return to work?

While a lot of workers may believe that the answer to those questions is “yes”, in the case of Betts v IBM Canada Ltd., 2015 ONSC 5298 (CanLII) the Ontario Superior Court of Justice held otherwise.

Writing on behalf of the court, the Honourable Justice Diamond held as follows, “Even an employee suffering from medical issues is not immune from being found to have abandoned his/her employment.”

Employers Need Not Accommodate Employees “Choice” to Breastfeed - PSLREB

Are work requirements that impact on an employee’s breastfeeding schedules discrimination and, if so, are they discrimination on the basis of sex or family status or both? And does the distinction, if any, matter? What is necessary for a grievor to establish a prima facie case of discrimination on the basis of breastfeeding? What duty, if any, does an employer have to accommodate an employee who is breastfeeding, and how far — and for how long — does that duty extend?

Those were the questions that Public Service Labour Relations and Employment Board member Augustus Richardson was asked to answer in the case of Flatt v Treasury Board (Department of Industry), 2014 PSLREB 2 (CanLII). Not easy questions to be sure.