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Author Archive - Simon Heath

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more

Divisional Court confirms Human Rights Code provides statutory authority to demand an Independent Medical Exam

Back in December 2015, I wrote a blog post on a recent Human Rights Tribunal of Ontario decision in Bottiglia v. Ottawa Catholic School Board. The case concerned the ability of an employer to demand an Independent Medical Exam in circumstances where there was no clear contractual or express statutory authority.

 

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Ontario considers big changes to Employment Standards Act and Labour Relations Act

For the first time in over 20 years, the Province of Ontario has commissioned an independent report to review both the Employment Standards Act and the Labour Relations Act.

 

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Employee’s age justifies wrongful dismissal damages of 24 months

Given the elimination of mandatory retirement years ago, employees are working for longer periods of time and well into their 60s and some into their 70s. Age has always been one of the key Bardal factors, in addition to title, length of service and compensation, that courts use to determine an appropriate common law notice period. In the recent case of Ozorio v. Canadian Hearing Society, 2016 ONSC 5440, Justice O’Marra confirmed that an employee’s age remains a significant factor in determining a common law notice period.

 

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Requesting background checks after employment starts

In a recent Ontario Superior Court decision it was held that an employer’s decision to request a criminal background check after employment had commenced was lawful under the applicable 12–month fixed term contract and the employee was not entitled to damages when her employment was terminated after she refused to consent to the background check.

 

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Termination deemed reprisal for refusing unsafe work

In the recent decision Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc., the Ontario Labour Relations Board (OLRB) held that the Employer had reprised against the Employee when it terminated her employment after she had exercised her rights under the Occupational Health and Safety Act (OHSA) to refuse unsafe work. The OLRB did not agree that the termination was the result of an legitimate organizational restructuring. Rather, it held that the Employee’s termination was motivated “at least in part” as a reprisal against her for exercising her rights under the OHSA in the weeks preceding her termination.

 

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Fresh consideration and employment contracts

When a company promotes an employee, the employer should provide the employee with a new contract to sign prior to allowing the employee to commence his or her duties. In that way, the company is providing the employee with “fresh consideration” to make the contract enforceable. Consideration is the legal word for the exchange of something of value to make contracts enforceable and in a promotion it takes the form of the increased salary that comes with the new job. If the company allows the employee to be promoted and then has the employee sign an employment contract after the promotion has already taken place, there is a chance the employee can argue the terms of the contract that were not discussed pre–promotion should not be enforced for lack of fresh consideration rendering the terms of the contract unenforceable.

 

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Refusing a 50 km commute not a failure to mitigate

In wrongful dismissal litigation, one of the key issues is always the dismissed employee’s duty to mitigate. When an employee is terminated or constructively dismissed, he or she has a positive obligation to minimize his or her damages by seeking out comparable, alternate employment. Anything the employee earns in the common law notice period is subtracted from what the company owes. An issue that often arises is whether or not it was reasonable for an employee to refuse exploring a potential new job because of the length of the commute.

 

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Huge wrongful dismissal damage award overruled by Ontario Court of Appeal on basis of misapplication of law of just cause dismissal

A 62 year old Mississauga teacher with 10 years of service experienced the joy of winning a huge damage award in the face of allegations of just cause at trial only to have the trial decision squarely overruled by a majority of the Ontario Court of Appeal with significant cost consequences to account for. While the Ontario Court of Appeal often gives Trial Judges significant deference in their decisions, the Court of Appeal found that the Trial Judge misapplied the facts to the proper law on just cause dismissal and overruled the entire decision and awarded the employer significant costs on both the trial and appeal.

 

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Arbitrator upholds just cause termination in part on negative Facebook post

Social media has become entrenched in our society and millions of employees use it on a daily basis. However, employees are warned that making negative comments about their employers on social media can have significant repercussions. Arbitrator Norm Jesin recently upheld a just cause termination, in part, because the Grievor had made negative comments about the employer on Facebook after his employment had been terminated.

 

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Ontario Court of Appeal suggest deference to trial judge in interpretation of termination clause

The Ontario Court of Appeal weighed in, to some extent, on the hot issue of enforceability of termination clauses in a recent decision. In this case, the clause at issue was written in French. The Applicant argued that the Motion Judge’s interpretation of the clause only referred to “notice” and not “severance” and therefore the termination clause was an unlawful attempt to contract out of the Employment Standards Act because it did not expressly provide for the payment of severance and there are a number of cases suggesting such clauses are void.

 

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Motion for summary judgement raises questions about efficiency of pre-trial resolution

Employment lawyers will advise you that a motion for summary judgement can be expensive to lose. Not only does the company have to pay the judgement, the company will have to pay the costs of its own counsel and part of the costs of the employee’s counsel. Therefore, there is pressure on the company to offer a suitable severance package to negotiate a settlement rather than leave it to a court to decide with the cost consequences that follow.

 

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Ontario Ministry of Labour announces OHS and ESA blitzes for 2016–2017

In 2016–2017, the Ministry of Labour of the Province of Ontario will continue to implement its proactive campaign of “blitzes” to ensure that the Occupational Health and Safety Act (“OHSA”) and the Employment Standards Act, 2000 (“ESA”) are followed. The various blitz campaigns are set to start May 2, 2016 and continue to run for more than one year until June 2017 in some cases.

 

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Small claims court rules termination clause that violates ESA in future is unenforceable

This decision is another reminder to employers to ensure that termination clauses provide for all entitlements prescribed by the Employment Standards Act in order for them to be considered valid and enforceable. The company in this case should never have carved out its obligation to provide statutory Severance Pay.

 

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Ontario Human Rights Commission released updated policy on “preventing discrimination based on Creed”

This past December the Ontario Human Rights Commission released a new and comprehensive 173 page Updated Policy on Preventing Discrimination based on Creed to replace its earlier Policy that was first published in 1996. The Commission stated that given the significant demographic changes in Ontario, it has been working on a new policy since 2012. The aim of the policy is to highlight how discrimination on the basis of Creed can be avoided in broader Ontario society which is increasingly more diverse.

 

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Ontario court sends message of deterrence by sentencing project manager to 3.5 years imprisonment from preventable workplace fatalities

As most of you recall, on December 24, 2009, five construction workers fell from a stage swing on a residential building that was been used so that the workers could fix the concrete on the building. There were six workers on the platform but only two secure lifelines and only one of the workers had secured himself. When the platform split, four of the workers were killed and one miraculously survived the 100 foot drop albeit with serious injuries.

 

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