Author Archive - Simon Heath, BA, MIR, LLB, Heath Law

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

What are the “exceptions” to the equal pay provisions of the Employment Standards Act

May 30, 2018 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Human Resources, Payroll, Union Relations, Wages and Compensation

The Ministry of Labour has updated its Policy Statement on Equal Pay for Equal work which can be found on its website and which forms the foundation of this article.

collective agreement, employment law, Employment status, equal pay, equal pay for equal work, merit system, pay equity, seniority system

5 employment law predictions for 2018

December 20, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Penalties and Fines

What’s in store in 2017 for HR and payroll

‘Tis the Season and 2017 is coming to a close. With this, I am predicting some of the trends to follow from an employment law perspective of 2018. Here are 5 trends to follow in the new year.

aggravated and punitive damages, damages, employment law, employment law predictions, equal pay for equal work, marijuana, sexual harassment, termination clauses, terminations

Ontario Court of Appeal confirms offer of employment is consideration after an asset sale

November 22, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Recruiting and Hiring

This case is a useful reminder that in asset sales, as opposed to share purchases, the purchasing employer is not obligated to hire all the vendor’s employees.

asset sale, consideration, employment contract, employment law, ESA, offer of employment, ontario employment standards act, Termination clause

Pregnant temporary worker files human rights complaint after termination

September 22, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Human Resources, Human Rights

Many employers in Canada use temporary workers supplied by employment agencies so that they don’t have to have full time employees and the obligations associated with full time staff such as severance, benefit and other monetary entitlements.

discrimination, employment law, Human rights complaint, prohibited ground under human, Temporary worker, termination

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

July 18, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights, Pensions and Benefits

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.

duty to accommodate, employment contract, employment law, hrto, human rights code, Human Rights Tribunal of Ontario, Independent Medical Exam, medical evidence, sick-leave benefits, stress leave

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

May 19, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Government Budgets, Throne Speeches and Plans, HR Policies and Procedures, Human Resources, Payroll, Pensions and Benefits, Recruiting and Hiring, Union Relations, Wages and Compensation

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.

casual employees, Changing Workplace Review, employment law, employment standards, employment standards act, ESA, Interim Report, interns, Labour Relations Act, part–time employees, sick leave, temporary employees, trainees, vacation pay

Employee’s age justifies wrongful dismissal damages of 24 months

March 15, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Wages and Compensation

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.

age, Bardal Factors, common law damages, common-law notice period, damage awards, employment law, employment standards act, long service employees, older employees, outplacement services, Ozorio v. Canadian Hearing Society

Requesting background checks after employment starts

February 15, 2017 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Source Deductions and Reporting, Union Relations, Wages and Compensation

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.

background checks, background checks during employment, Covenoho v. Pendylum Inc., employment law, employment standards act, termination of employment, termination pay

Termination deemed reprisal for refusing unsafe work

December 14, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Union Relations, Wages and Compensation

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.

employment law, Joint Occupational Health and Safety Committee, occupational health and safety act, OHSA, Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc., refusing unsafe work, reprisal, termination, termination of her employment

Fresh consideration and employment contracts

November 17, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Source Deductions and Reporting, Union Relations, Wages and Compensation

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.

consideration, employment contract, employment law, employment standards act, enforceable contract, fresh consideration, Gibbons v. BB Blank Inc., Holland v. Hostopia.com Inc., lack of consideration, promoted employee, promotion, Termination clause, termination clauses

Refusing a 50 km commute not a failure to mitigate

October 17, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations

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.

common law notice, constructively dismissed, employment law, failure to mitigate, Marsland v. City of Toronto, mitigate damages, wrongful dismissal

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

September 15, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll

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.

damages for wrongful dismissal, dismissed with cause, employee misconduct and rise to a breakdown in the employment relationship, employment law, Fernandes v. Peel Educational & Tutorial Services Limited, just cause, just cause dismissal, loss of insurance benefits, misapplication of law of just cause dismissal, reverse Trial Judge decision, termination for cause, wrongful dismissal case

Arbitrator upholds just cause termination in part on negative Facebook post

August 11, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR and Technology, HR Policies and Procedures, Human Resources, Training and Development, Union Relations

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.

disciplinary record, Dismissal, employee use of social media, employees on Facebook, employment contracts, employment law, employment policies, facebook, Just cause termination, Local 1 (Cory Tucker) and Specialty Care Trillium Centre, non-disparagement clauses, repercussions of social media, severance agreements, social media, termination

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

July 14, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Wages and Compensation

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.

employment agreement, employment contract, employment law, employment standards act, enforceability of termination clauses, Notice, Pensions and Benefits, Severance pay, statutory severance pay, summary judgement, Termination clause

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

June 9, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

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.

common law notice, employment contract, employment law, failure to mitigate, negotiated settlement, not-for-cause termination, outplacement services, salary continuance, suitable severance package, summary judgement, termination, written contract, written termination clauses