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According to the Ontario Health and Safety Act (“OHSA“), employers have a duty to maintain a healthy and safe workplace for their employees.

As part of this duty, employers must ensure that proper and appropriate protocols are followed when a complaint is made within the workplace, which may include conducting a workplace investigation.

Specifically, an employee has the right to file a complaint if they have workplace concerns related, but not limited to:

The health and/or safety of the work environment;

Mistreatment, discrimination, bullying, and/or harassment in the workplace; and/or

General workplace concerns related to their position.

Failure of an employer to properly conduct an investigation may give rise to various consequences, including in relation to damages awarded to the employee.

WHEN IS A WORKPLACE INVESTIGATION REQUIRED?

Under the OHSA, employers are required to take reasonable and appropriate steps in the circumstances to investigate any concerns raised by an employee. Accordingly, each complaint should be assessed on a case-by-case basis to determine whether or not a formal investigation should be undertaken.

A formal investigation may be necessary with situations where the complaint is in relation to:

A human right(s) concern (i.e., discrimination and or harassment);

Mistreatment;

A toxic work environment;

A health and safety concern(s); and/or

A general workplace concern(s).

WHAT IF I AM NOT COMFORTABLE FILING A COMPLAINT WITH MY EMPLOYER?

If you do not feel comfortable filing a complaint a formal complaint and/or speaking to your employer, supervisor, or manager about your concerns, you may file your complaint with the Ontario Ministry of Labour.

In raising your concerns, your employer is prevented from retaliating against you, or imposing negative consequences, as doing so may constitute a reprisal for asserting your rights under the OHSA. Where you believe your employer has retaliated in response to your complaint, including by imposing a punishment or terminating your employment, we recommend contacting an experienced employment lawyer to discuss the legal remedies available to you.

You may also file a complaint with the Ministry of Labour if you do not feel confident that your concerns will be and/or have been handled appropriately by your employer. The Ministry of Labour may send an investigator to your workplace, to speak to you, a colleague, or your employer in relation to your concerns. The investigator’s role is limited to observing whether your employer has complied with the law relating to conducting a workplace investigation. Specifically, the investigator will determine whether your employer has sufficiently and appropriately dealt with the workplace concern.

If it is proven the employer has inadequately addressed the complaint, they may instruct your employer to:

Develop and implement a workplace policy in relation to workplace complaints and investigations;

Ensure employees have access to the policy by posting the policy they have in a common space, and/or by sending the policy electronically to all employees; and/or

Update the policy, as required.

HOW CAN I DETERMINE IF MY EMPLOYER HAS CONDUCTED A REASONABLE INVESTIGATION?

Generally, to complete a fair and impartial investigation, your employer should be carrying out the following steps:

Informing the parties involved that an investigation will be conducted;

Interviewing the parties, including providing the parties to provide their account and to make a response;

Requesting the names of relevant witnesses from the parties and conducting interviews with witnesses as required;

Recording detailed notes and collecting relevant documentation from the parties;

Preparing a written report that outlines the following:

The steps were taken during the investigation

The complaint;

The allegations;

The response from the accused;

The evidence gathered; and

The outcome of the investigation.

Informing the parties of the results of the investigation, in writing, and any action to be taken by the employer, within 10 days of the completion of the investigation.

CONTACT SULTAN LAWYERS IN TORONTO FOR ADVICE FOR EMPLOYEES

If you believe your employer has not fulfilled their obligations by completing a fair and reasonable investigation or has mishandled a complaint in the workplace, contact Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or via email to [email protected].

The post FILING A WORKPLACE COMPLAINT appeared first on Sultan Lawyers.

The duty to mitigate refers to a common law principle that requires an employee who has been wrongfully dismissed to take all reasonable steps to find comparable, alternative employment during the reasonable notice period. Should the employee obtain a new and comparable position during the common law reasonable notice period, earnings from the employees’ new job will be deducted from the amount owed by the employer as wrongful dismissal damages, since the employee has mitigated his/her damages.

Below we discuss some commonly asked questions regarding the duty to mitigate.

WHAT DOES THE DUTY TO MITIGATE REQUIRE?

The duty to mitigate requires making reasonable efforts to find a similar replacement job. Reasonable efforts may include:

Updating your resume;

Requesting employment references;

Regularly checking job listing sites online such as LinkedIn, Indeed, Monster, and Workopolis;

Regularly checking local newspapers for job listings;

Contacting a Search Firm/Headhunter; and/or

Applying for desirable employment positions.

Note that an employee’s duty to mitigate may be impacted by their personal circumstances. For example, if an employee becomes disabled following termination, they may not be required to engage in robust efforts to find new employment. Employees are required to make reasonable efforts to mitigate their damages, and what is considered reasonable may vary based on an employee’s particular circumstances post-termination.

WHAT INFORMATION ABOUT MY MITIGATION EFFORTS SHOULD I RETAIN?

In the event that an employee’s mitigation efforts are challenged, it is advisable for employees to keep a detailed record of their mitigation efforts. Information pertaining to mitigation efforts that should be recorded can include the following:

Positions you applied for (i.e., marking down the name of the employer, your date of application, and the position sought);

The dates and websites you’ve searched for job postings;

The dates and times of any telephone calls you made to find work; and

The dates and times of any interviews you had during your job search.

WHAT HAPPENS IF I DON’T LOOK FOR A NEW JOB?

An employer that alleges that an employee has failed to mitigate their damages holds the burden of proof. This means that they must prove that there were comparable employment opportunities available to the employee during the reasonable notice period and that the employee did not make reasonable efforts to obtain one of these employment opportunities.  Where an employer proves that a former employee failed to mitigate their damages, or took inadequate steps to mitigate their damages, a court may either:

Find that the employee is not entitled to any damages; or

Reduce the employee’s damages based on the estimated period in which the employee failed to mitigate. This can include determining the date by which the employee should have secured alternative employment.

RETURNING TO WORK WITH THE PREVIOUS EMPLOYER

Employees may be expected to accept temporary re-employment with their previous employer as an effort to mitigate their damages, but this determination is evaluated on a case-by-case basis. The factors that may lead to an employee having the duty to return to work are as follows:

Where the salary offered is the same as it was prior to termination;

Where the conditions of employment have not substantially changed;

Where the work is not demeaning; and

Where the personal relationships are not acrimonious.

Generally, an employee does not have to accept an offer to return to work if there is an atmosphere of hostility, embarrassment, or humiliation; however, the question to be answered in the case-by-case determination is whether a reasonable person in the employee’s position would perceive it to be that way.

LIMITATION ON THE DUTY TO MITIGATE

If an employee is unsure about whether they need to take a particular action in order to mitigate their damages, they should seek out legal advice.

The duty to mitigate does not apply to the minimums set out by the Employment Standards Act, 2000 as it only applies to the common law reasonable notice period. Other limitations on the duty to mitigate are as follows:

Generally, an employee who has had their employment terminated has the duty to search for reasonably comparable employment and to accept that employment if it becomes available. However, if the available employment is substantially different from the employee’s former role, the employee may not be required to accept it.

Generally, an employee who had a pre-existing secondary source of income is not required to deduct the money earned by the secondary source of income from the wrongful dismissal damages. However, if the employee has subsequently increased their earning potential due to the loss of their primary employment, they may be required to deduct surplus earnings from their wrongful dismissal damages.

Generally, employees on a fixed-term contract are not required to mitigate their damages unless expressly set out in the employment agreement. This is because an employer is attempting to contract out of the common law reasonable notice period and replace it with a predetermined contracted amount. As a result, the employee should be entitled to the predetermined amount set out in the contractual agreement without the duty to mitigate (unless explicitly set out in the contract).

CONTACT SULTAN LAWYERS IN TORONTO FOR ADVICE FOR EMPLOYEES

If you have been recently terminated, require more information, or have any questions relating to the duty to mitigate, please contact the Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or via email to [email protected].

    The post WHAT IS THE DUTY TO MITIGATE? appeared first on Sultan Lawyers.

Following the termination of your employment, you may wonder if the termination package offered to you is sufficient or if you may be entitled to more. In the absence of a reasonable termination package, you may wish to negotiate a more equitable package with your employer, or alternatively, you may have grounds to claim that your employer has wrongfully dismissed your employment.

Accordingly, we review some factors to consider when determining whether to accept the termination package offered to you.

STATUTORY NOTICE VERSUS REASONABLE NOTICE

Employers provide dismissed employees with notice of termination, either in the form of written notice or pay in lieu, to temporarily assist the dismissed employee in searching for new employment.

Notice of termination may be given to a dismissed employee in accordance with either statutory notice or reasonable notice.

Statutory Notice: In Ontario, the Employment Standards Act, 2000 (“ESA“) prescribes the minimum notice period that an employee is entitled to if their employment has been terminated without cause. Specifically, the ESA mandates a dismissed employee’s notice period based on the length of their employment, as outlined below.

  Period of employment Notice required Less than 1 year 1 week 1 year but less than 3 years 2 weeks 3 years but less than 4 years 3 weeks 4 years but less than 5 years 4 weeks 5 years but less than 6 years 5 weeks 6 years but less than 7 years 6 weeks 7 years but less than 8 years

7 weeks

8 years or more    8 weeks

8 weeks

  Reasonable Notice: Following termination of employment, an employee may be entitled to notice or pay in lieu of notice greater than his/her statutory entitlements depending on his/her employment contract as well as a variety of other factors, as described below.

HOW DO I KNOW IF I AM ENTITLED TO REASONABLE NOTICE?

Employers may limit an employee’s entitlements upon termination by way of a valid and enforceable termination clause within the employee’s employment contract. However, the notice period set out in the contract must provide the employee with at least the minimum statutory notice period upon termination.

Absent the inclusion of details regarding the notice period upon termination in an employment contract, a dismissed employee may be entitled to reasonable notice.

HOW MUCH REASONABLE NOTICE AM I ENTITLED TO?

The amount of reasonable notice that an employee may be entitled to is assessed on a case-by-case basis. Nevertheless, the following four (4) factors are the main considerations used by the courts to assess what is reasonable:

Character of employment: Employees with more specialized skills or more senior positions may be entitled to a longer notice period than an employee with a lower-level position. The reason for this is that there may be fewer job opportunities for individuals with more specific or specialized skills.

Length of service: Generally, the longer an employee’s tenure, the longer the notice period he/she may be entitled to.

Age of employee: Older employees may be entitled to a longer notice period by virtue of the fact that it may be more difficult to secure new employment.

Availability of similar employment: The more difficult it is to find new employment, the longer the notice period. This may be the case if the employee is in a highly specialized field or if there is an economic downturn that has affected the labour market.

ACCESSING YOUR TERMINATION PACKAGE

If your employment has recently been dismissed and you are considering whether to accept the termination package offered to you, you may wish to consider the following:

Whether you are being provided with your minimum statutory entitlements only;

Whether you may be entitled to reasonable notice; and

Whether you would be entitled to a higher notice period based on the reasonable notice factors (as outlined above) and wish to consider negotiating a more equitable termination package with your employer.

TORONTO TERMINATION PACKAGE LAWYERS

To better understand your rights and the options available to you in relation to your termination package, please contact, Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or via email to [email protected].

The post WHAT IS A REASONABLE TERMINATION PACKAGE? appeared first on Sultan Lawyers.

Canadian employers facing a labour or skills shortage may be permitted to hire a temporary foreign worker to fill the role if genuine efforts have been made to initially hire a Canadian or permanent resident. Specifically, to be permitted to do so, an employer must first apply for and obtain a Labour Market Impact Assessment (“LMIA”) from Employment and Social Development Canada (“ESDC”). Given the complexity of this type of immigration application, we discuss some key considerations to take into account before proceeding with an LMIA below.

WHAT IS AN LMIA?

An LMIA is an assessment made by ESDC as to the impact that hiring a temporary foreign worker will have on the Canadian labour market.

Specifically, an employer will need to apply for an LMIA and obtain a positive/neutral decision prior to making an application for a work permit for any temporary foreign worker.

If a positive/neutral LMIA is granted by ESDC this means that ESDC is of the opinion that hiring the temporary foreign worker will have a positive/neutral impact on the Canadian labour market. The employer can then use the granted LMIA to subsequently apply for a work permit for the temporary foreign worker.

WHAT STEPS ARE INVOLVED IN APPLYING FOR AN LMIA?

When applying for an LMIA, an employer must convince ESDC that hiring a temporary foreign worker to fill a position will not have a negative impact on the Canadian labour market. To do so the employer must:

Advertise the role on a variety of platforms for a minimum duration;

The advertisement must adhere to very strict conditions – an employers “standard” advertising will usually not comply with such requirements.

Monitor applications received for the role;

Interview potentially qualified applicants; and

Justify, for each applicant, why they could not be hired to carry out the role instead of a temporary foreign worker.

LMIA applications are routinely rejected for failure to adequately demonstrate that a Canadian/permanent resident either could not be found to carry out the role or could not be trained. Given this, it is extremely important for employers to work with experienced counsel to ensure that their LMIA is as strong as possible.

CAN AN EMPLOYEE APPLY FOR AN LMIA?

An LMIA application is an application that must be made by an employer since it is the employer that is seeking permission from ESDC to hire a temporary foreign worker over a Canadian/permanent resident. As such, while an employee can assist with the process, the employer is the applicant and therefore needs to be cooperative throughout the process.

HOW CAN I MAKE MY LMIA APPLICATION STRONG? 

In order to draft a strong LMIA application, it is important to focus on how the employer has demonstrated genuine and substantial effort to secure a Canadian/permanent resident for the role.

Employers should also be prepared to justify why a Canadian/permanent resident could not be trained to fill the role.

If the position requires certain skills/expertise, these should be highlighted to the extent that is justifiable given the National Occupational Classification Code that the application is being made pursuant to. Employers should speak to experienced counsel to ensure that they craft an advertisement that includes justifiable skills/duties criteria.

CONTACT SULTAN LAWYERS IN TORONTO FOR ADVICE ON HIRING TEMPORARY FOREIGN WORKERS

We encourage you to contact, Toronto employment lawyers, advising employers on workplace immigration, Sultan Lawyers, for a free call back or flat-rate consultation to better understand the LMIA process and whether it might be right for you. Please contact us by telephone at 416-214-5111 or via email at [email protected].

    The post I Want to Hire a Temporary Foreign Worker Via a Labour Market Impact Assessment (“LMIA”): What Do I Need to Know? appeared first on Sultan Lawyers.

As employers implement mandatory vaccination policies, many employees are wondering whether they are obliged to comply with such policies and what repercussions they may legally face if they do not.

Below we explore mandatory vaccination policies and their impact on employees.

Mandatory Vaccination Policies

Many employers are implementing vaccination policies aimed at encouraging their employees to become vaccinated. While the policies vary, they generally require employees to disclose their vaccination status. Where an employee is unvaccinated or refuses to disclose their vaccination, a number of repercussions may be established by the employer, such as:

Requirements to complete COVID-19 testing;

Requirements to engage in educational training relating to COVID-19; and

Discipline or termination.

It is important to note that some employers have been mandated by the Provincial/Municipal government to impose vaccination policies. In this case, the vaccine policy must meet certain criteria as set out by law/regulations.

For further reading relating to government-imposed vaccination policies, please see our blog Ontario Directive on Vaccine Policies in Health Care Settings.

Are Vaccine Policies the Same as Vaccine Passports?

Vaccine passports generally refer to the mandate in Ontario imposed by the Ford Government that requires certain businesses to verify the vaccination status of their patrons before such patrons can access the business. The vaccine passport mandate does not apply to the relationship between employers and employees.

Vaccine policies, in the context within which are discussing in this blog, refer to policies put in place by employers to determine employee’s vaccination status and to impose implications based on that vaccination status.

I am Worried About the Vaccine Mandate. Can I Refuse to Comply?

We have spoken to employees who are concerned about vaccine policies for two key reasons:

Privacy concerns: employees do not wish to disclose personal medical information relating to their vaccination status; or

Vaccine concerns: employees do not wish to become vaccinated.

Employees who do not wish to comply with a vaccination policy imposed at their workplace should seek out the advice of legal counsel who can assist the employee with navigating their interactions with their employer to reduce the risk of severe and negative repercussions that could be placed on the employee as a result of their non-compliance.

While employees can refuse to disclose their vaccination status or to become vaccinated, they should be fully informed as to the potential implications of such a decision. Further, the employee should work with the employer to negotiate the best path forward, whether that involves accommodated working arrangements, a temporary leave of absence, or otherwise.

Employers also need to consider human rights and privacy concerns when rolling out vaccination policies. It will therefore be important for employees to have any mandatory vaccination policy reviewed by experienced employment counsel to determine if the policy may be challenged from a privacy or human rights standpoint.

Contact Us For More Information

We encourage you to contact, Toronto employment lawyers, Sultan Lawyers, for a free call back or flat-rate consultation to better understand your rights and the options available to you in relation to mandatory vaccination policies in the workplace. Please contact us by telephone at 416-214-5111 or via email at [email protected].

The post My Employer Implemented a Mandatory Vaccine Policy: Do I Need to Comply? appeared first on Sultan Lawyers.

Employees in Ontario have the right to be free from bullying and harassment in the workplace as prescribed under Ontario’s Occupational Health and Safety Act (“OHSA”) and Human Rights Code (“Code”). Specifically, employers are required to provide a safe and healthy work environment that is free from bullying and harassment as well as address any complaints or incidents.

Despite these legislated protections and obligations, employees may still find themselves subjected to instances of bullying and harassment in the workplace. This may be consequential to employers as this type of conduct may give rise to a constructive dismissal claim or a claim of discrimination.

Accordingly, we review harassment and bullying under the law and discuss the remedies available to employees.

What is harassment?

“Workplace harassment” is defined under OHSA as engaging in a course of vexatious comments or conduct against a worker in a workplace that is known, or ought reasonably to be known is unwelcome. Harassment may include behaviours that occur one time or many times. The definition of workplace harassment includes sexual, psychological harassment, and physical harassment.

Some examples of workplace harassment may include the following:

Making remarks, jokes, or innuendos that demean, ridicule, intimidate or offend; whether communicated in-person, by telephone or through email;

Belittling or condescending comments or jokes in verbal or written form;

Yelling, or making verbal threats;

Displaying or circulating offensive pictures or materials in print or electronic form;

Bullying;

Repeated offensive or intimidating correspondence;

Unwanted sexual behaviour, including unwanted sexual actions and comments;

Unsolicited criticism about a person’s personal characteristics, or appearance.

Reasonable conduct relating to the management or direction of an employee, such as constructive criticism or instructions relating to one’s employment will generally not be considered a violation of the law. However, more serious incidents causing increased levels of harm to an individual, such as humiliation, insulting language, inappropriate behaviours or unreasonable angry outbursts may amount to workplace harassment under OHSA.

Bullying and Harassment Based on Human Rights Grounds

The definition of workplace harassment is broad enough to include all types of harassment prohibited under protected grounds in the Code, such as disability, sex, citizenship, race, gender expression, age or sexual orientation.

Under the Code, employees have the right to “equal treatment with respect to employment” in all aspects of their employment, including but not limited to, hiring, training, transfers and promotions, layoffs and dismissal, rate of pay, overtime and hours of work, discipline, and performance evaluations.

Where the workplace becomes intolerable, hostile, or unwelcoming because of insulting, unsolicited or degrading comments or conduct based on a protected Code ground, a poisoned environment may exist, which may cause the employee to feel uncomfortable or unsafe. Whether a workplace has become a poisoned environment will be determined by whether an objective person would see the comments or conduct resulting in unequal or unfair terms and conditions.

Employees who have been subjected to a poisoned work environment and/or bullying and harassment based on a protected Code ground may be entitled to pursue a claim for general damages and as well as reinstatement (if the employee has been dismissed).

What are my employers’ duties?

OHSA sets minimum standards that employers must abide by when dealing with harassment in the workplace.  Employers are obligated to:

Implement a workplace policy that outlines:

Where an internal complaint can be made (i.e., to a supervisor, manager, human resources);

How to make a complaint or report an incident of workplace bullying/harassment; and

How complaints/incidents will be investigated and resolved.

Inform and instruct employees of the workplace policies and programs (i.e., via a letter, meeting, email, information posted up in the workplace);

Review the company’s workplace policy on an annual basis or as necessary;

Ensure proper and formal investigations are conducted following incidents or complaints of workplace bullying and harassment in a timely and effective manner; and

Inform the complainant worker and the alleged harasser of the findings of the investigation in writing and any further actions or disciplines that will be imposed.

Employers are expected to take reasonable steps to eliminate bullying and harassment in the workplace, including in remote work environments.

What Are My Options if I am Being Bullied and or Harassed?

Potential outcomes, if you are bullied or harassed at your workplace, may include claiming constructive dismissal or filing a human rights application or a civil claim.

Constructive Dismissal Claim

Situations of mistreatment including bullying, discrimination, or sexual harassment can constitute constructive dismissal. For example, constructive dismissal may be claimed in a situation where an employee felt so uncomfortable or unsafe in their place of work that it essentially prevented them from performing their duties, and or forced them to leave their employment. In order to be able to claim constructive dismissal, you will be required to display that you have taken appropriate action (i.e., file an incident report/complaint to your employer). If you do not do so, it may be considered you have accepted the mistreatment you have been subject to.

Human Rights Application

If it is found that you have been discriminated against in the workplace based on a human rights ground under the Code, there is potential you could be compensated for both monetary loss suffered (loss of income) as well as mental suffering or damage to your self-dignity.

Civil Claim

Employers may be liable to pay for damages if a civil claim is made against them for harassment in the workplace. However, there is a test for harassment that must be met in order to for the claim to be successful. A civil claim may generally be made against an employer for breaching duties pertaining to health and safety, and prevention of harassment under OHSA, and/or the Employment Standards Act, if applicable.

Contact Sultan Lawyers in Toronto for Advice on Workplace Harassment Claims

If you believe you have been harassed and or bullied at work and your employer did not fulfil their duties according to the Human Rights Code or the Occupational Health and Safety Act, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at [email protected].

The post Understanding Bullying and Harassment in the Workplace appeared first on Sultan Lawyers.

Employees across Canada are generally entitled to financial protection if they have been dismissed from their employment on a without-cause basis. Upon termination, employees are entitled to reasonable notice (or pay in lieu of notice), which provides dismissed employees with sufficient time (or resources) to find a new and comparable role.

The amount of notice to which an employee is entitled is assessed on a case-by-case basis and depends on the specifics of the individual’s employment. For this reason, determining the appropriate reasonable notice period when the relationship comes to an end can be challenging and may give rise to potential claims of wrongful dismissal.

What is Reasonable Notice?

The term “reasonable notice” refers to the amount of notice, or pay in lieu of notice, that is awarded to an employee following the termination of their employment at common law.

Absent an enforceable termination clause in an employee’s employment contract, an employee will generally be entitled to reasonable notice upon termination.

When determining the reasonable notice period for a dismissed employee, the four (4) primary factors a court will consider in assessing the appropriate amount include the following:

The length of service;

The character of employment;

The employee’s age; and

The availability of similar employment, given the employee’s experience, training and qualifications.

Impact of Age on Reasonable Notice Period

As discussed, the purpose of the reasonable notice period is to grant sufficient time (or resources) for a dismissed employee to find alternative and comparable employment. Generally, the courts have held that older employees will have increased difficulty in attempting to secure alternate employment in comparison to their younger counterparts. As such, when calculating the reasonable notice period, courts will generally grant an extended reasonable notice period if it can be established that age will present a significant barrier to securing new and comparable employment.

Impact of Age on Wrongful Dismissal

The term wrongful dismissal refers to dismissal without just cause wherein an employer breaches its legislative and/or common law duty to provide reasonable notice of termination, or pay in lieu, to an employee.

If an employer fails to consider the age of the employee that is terminated when determining the appropriate notice period, and the period is deemed insufficient, the employer may be held liable for damages due to wrongful dismissal.

Takeaways for Employees

The courts recognize that age can present as a significant barrier to securing alternate employment.

When calculating the reasonable notice period, the courts will generally grant an extended reasonable notice period if it can be established that age will present a significant barrier to securing new and comparable employment.

Employees may therefore have valid claims for wrongful dismissal if the notice period does not take the employee’s age into consideration when calculating notice.

If you believe you have been wrongfully dismissed and/or are seeking advice in relation to how your age will affect your entitlements upon termination, please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or via email at [email protected].

The post Why Age Matters in Wrongful Dismissal appeared first on Sultan Lawyers.

A federal election is taking place on September 20, 2021, and, as such, Canadians will be headed to the polls to elect their members to Parliament, and subsequently, elect the Prime Minister of Canada.

An Employer’s Obligations to Enable Employees to Vote in an Election

This is a unique election in that this is the first time an election has ever been called during a pandemic. With many employees being called back to work in person and others remaining at home, it is important that an employer abides by their legal obligations as per the Canada Elections Act.

More specifically, under section 132 of the Canada Elections Act, every employee who is eligible to cast a vote is entitled to three (3) consecutive hours, during official polling hours, to cast their vote. It is important to note that this time must be provided to an employee should they not have three (3) consecutive hours to vote outside of their normal work hours.

For example, if polls are open from 9:00 am to 9:00 pm and an employee works from 11:00 am to 7:00 pm, an employer is required to provide the appropriate amount of time off for the employee to cast their vote. If the employee usually works from 9:00 am to 5:00 pm, they can simply cast their vote after work hours. Thus, the employer is not obligated to provide the employee with time off to vote.

Employers cannot deduct any pay from an employee’s regular earnings for taking the required time to cast a vote in the federal election.

COVID-19 and Voting

With COVID-19 numbers holding steady due to a possible fourth wave of the Delta variant of the virus, it is important that any employees heading to the polls adequately protect themselves from the virus since large amounts of people will be entering and exiting.

When employees return to the workplace after voting, employers should consider implementing pre-screening measures to protect against any workplace outbreaks of COVID-19.

Offences under the Canada Elections Act

It is important for employers to note that if they do not provide their employees with the appropriate amount of time needed to cast a vote, they can be found guilty of committing an offence under the Canada Elections Act.

Subsequently, if an employer deducts an employee’s pay or imposes any sort of punishment/penalty, they can be fined up to $2,000.00, up to three (3) months in jail, or both.

There are various employers who are exempt from these rules including companies that transport goods or passengers by land, air, or water, and who are employed outside of their polling division while operating a type of transportation.

Contact Sultan Lawyers in Toronto for Advice for Employers

For further information about employer obligations on election day, or to ensure that your company policies are in compliance with all election day requirements, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to [email protected]

  The post Employer Obligations & Considerations on Election Day 2021 appeared first on Sultan Lawyers.

The Ontario Chief Medical Officer of Health recently issued Directive #6 COVID-19 Vaccine Policy in Health Care Settings (the “Directive”) regarding the implementation of a mandatory vaccine policies for employees, staff, contractors, volunteers and students in certain health care settings.

The Directive is meant to assist covered organizations with addressing the risk of COVID-19, and in particular the Delta variant, including protecting vulnerable patients and staff. The requirements of the Directive are to be implemented as of today, September 7, 2021.

Below we review the Directive and its requirements for affected organizations.

Please note that the policies referenced in this blog were in force at the time the blog was published.

What Organizations are Covered by the Directive?

The Directive is applicable to the following organizations:

Public hospitals within the meaning of the Public Hospitals Act;

Service providers within the meaning of the Home Care and Community Services Act, 1994;

Local Health Integration Networks within the meaning of the Local Health System Integration Act, 2006; and

Ambulance Services within the meaning of the Ambulance Act, 1990, with respect only to paramedics.

Proof of Vaccination and Antigen Point-of-Care Testing

Pursuant to the Directive, covered organizations must establish, implement and ensure compliance with a COVID-19 Vaccination Policy for employees, staff, contractors, volunteers and students. Those persons covered under the policy must provide:

Proof vaccination against COVID-19; or

Proof of a medical reason from a physician or registered nurse that sets out a documented medical reason for not being fully vaccinated against COVID-19 and the length of time the exemption is anticipated to apply for; or

Proof of completion of a COVID-19 vaccination educational session approved by the organization.

The covered organization can remove this option, but must still make an education session available to persons covered under the policy.

If relying on the medical exemption or educational session option, the covered person must submit to regular antigen point-of-care testing and demonstrate a negative result at a minimum of once every seven (7) days.

Businesses (coffee shops, etc.) operating on-site at an organization covered by the Directive must also comply with the covered organization’s policy.

Record Keeping

Organizations covered by the Directive must collect, maintain, and disclose statistical (i.e., non-identifiable) information about the number of persons who provided proof of vaccination, requested a medical exemption or, if applicable, chose the education session. The information may be disclosed to the Ministry of Health, upon request, and may be made public.

Resource Guide

An accompanying resource guide was also introduced and is meant to assist organizations with implementing their mandatory vaccine policies. The guide includes, among other details, an example policy, links to resources that can assist with the creation of an education program and an FAQ section.

For further reading, the Directive can be found here and the guide can be found here.

Employers Implementing Policies

If applicable employers have vaccination policies in place, they should review the Directive and guidelines to ensure that their policies are in line.

Contact Sultan Lawyers in Toronto for Guidance on Workplace Vaccination Policies

Employers need to continue to consider human rights and privacy concerns of employees and should contact experienced counsel for advice on creating and rolling out appropriate policies.

We encourage you to contact, Toronto employment lawyers, Sultan Lawyers, for a free call back or flat-rate consultation to better understand your rights and options available to you. Please contact us by telephone at 416-214-5111 or via email at [email protected].

  The post Ontario Directive on Vaccine Policies in Health Care Settings appeared first on Sultan Lawyers.

While employers have a positive obligation to create a safe workplace for employees, addressing this concern through the implementation of drug and alcohol testing policies can raise significant human rights issues. Specifically, drug and alcohol testing is not always permissible, and being subject to these tests may provide employees with grounds to pursue a legal claim against their employer, including in relation to discrimination based on addiction or perceived addiction.

Accordingly, we will review some factors that should be considered when implementing mandatory drug and alcohol tests, as well as workplaces that are generally permitted to implement these types of policies.

Drug Testing And Human Rights

The Ontario Human Rights Code prohibits discrimination against individuals with disabilities (or perceived disabilities) in the workplace, including in relation to drug and alcohol addictions. As a result, policies that require drug and alcohol tests for employees may give rise to significant human rights concerns, particularly if a positive drug and/or alcohol test leads to a negative impact for that employee.

Negative impacts include, but are not limited to, conditions placed on that employee’s job, failure of the employer to accommodate the disability, failure of the employer to respect the employee’s confidentiality during or after the testing process or discipline or termination as a result of a positive drug and/or alcohol test.

These negative impacts, however, must be balanced with an employer’s obligation to ensure safety in the workplace, as well as safety to the public where the workplace provides public services.

Drug Testing Policies In The Workplace

Policies mandating tests for drugs and alcohol may be used in the following instances:

In the pre-employment stage;

Randomly (i.e., periodically done over the course of employment);

In the event of reasonable cause;

Post-incident; and

Post-reinstatement scenarios.

However, when implementing a random drug and alcohol testing policy, employers should consider the following:

Whether there is a justifiable and compelling reason for testing; and

Whether the policy includes measures for accommodation.

Reasonable Cause

Pre-employment drug tests, or drug tests that are done periodically over the course of an individual’s employment, are generally seen as extremely intrusive to an employee’s right to privacy, and as such, have been severely restricted by the courts and human rights tribunals. Drug and alcohol testing policies may be justified if an employer can prove that the testing is a bona fide or legitimate requirement of the job, such as where testing is necessary to achieve safety, for example.

While the goal of implementing drug and alcohol testing policies should be to measure impairment, rather than a general deterrent, testing to ascertain impairment will generally only be justified as a bona fide requirement where a reasonable connection to the job can be demonstrated.

Accommodation

When implementing random drug and alcohol testing policies, employers have a duty to accommodate employees who may have dependency issues pertaining to substance abuse. As such, employers should ensure that a positive test does not result in automatic termination, and instead review on a case-by-case basis whether the employee has a dependency issue or is a recreational user.

If a dependency issue arises, employers should provide a process for employers to obtain treatment and request appropriate accommodation to return to the workplace.

Random drug and alcohol testing policies should be a part of a broader substance abuse policy that incorporates education, counselling, and rehabilitation.

Is a Random Drug Testing Policy Permitted in All Workplaces?

Generally, no.

On-the-job testing has, historically, only been deemed reasonable in safety-sensitive workplaces, and in very limited circumstances. In 2013, the Supreme Court of Canada, in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd, outlined that random alcohol testing can be conducted for safety-sensitive positions only if the employer can establish the following:

That the workplace is inherently dangerous; and

That there is evidence of a substantial substance abuse problem in the workplace that presents an enhanced safety risk.

Contact Sultan Lawyers in Toronto for Guidance on Drug and Alcohol Testing in the Workplace

If you have questions about the potential human rights implications of drug or alcohol testing policies in your workplace or would like to implement random drug or alcohol testing in your workplace, we encourage you to reach out to us to discuss your options. Please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or [email protected].

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    Sultan Lawyers is proud to announce that our firm’s founder, Sharaf Sultan, was included in the 16th edition of The Best Lawyers in Canada

. Sharaf has been dedicated to the practice of employment and workplace immigration law since he was called to the Bar. Sharaf advises employers and employees on a wide range of workplace employment and immigration matters and also regularly manages employment litigation and human rights applications. He is proud to have been recognized by his peers for the second time in the area of Labour and Employment Law. 

Since it was first published in 1983, Best Lawyers

 has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honour.

Congratulations to Sharaf for this honour!

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Since August 9th, 2021, fully vaccinated American citizens and permanent residents have been permitted to enter Canada for reasons related to non-essential travel, without needed to observe mandatory quarantine protocols.

Further, since this time, international flights carrying passengers have also been permitted to land at the following five additional Canadian airports:

Halifax Stanfield International Airport;

Québec City Jean Lesage International Airport;

Ottawa Macdonald–Cartier International Airport;

Winnipeg James Armstrong Richardson International Airport; and

Edmonton International Airport.

This policy change is the first step of a broader decision by the Canadian government to re-open borders to all eligible fully vaccinated travellers on September 7th, 2021, should the current COVID-19 situation remain favourable.

In light of the recent changes, we will provide an overview of the new measures, including a discussion of who is eligible to benefit from the relaxed restrictions. This is relevant to individuals travelling for discretionary purposes, as well as temporary foreign workers and business visitors.

Please note that the requirements referenced in this blog were in force at the time this blog was published.

Who Will Benefit?

At this time, American citizens and permanent residents, who are currently residing in the United States, can enter Canada by air and land for discretionary reasons.

The traveller’s vaccination status will determine whether they are eligible for an exemption from the mandatory two (2) week quarantine period.

In particular, a traveller is considered to be fully vaccinated if they have received the full series of a vaccination (or a combination of vaccinations) as recognized by the Government of Canada (i.e., Pfizer, Moderna, AstraZeneca, or Janssen (Johnson & Johnson)) at least 14 days prior to entry.

Travellers who have been fully vaccinated will not be subject to the following requirements upon entry to Canada:

Observation of a 14-day quarantine period;

Observation of a three (3) night stay (subject to extension) at a government-authorized hotel; and

Completion of a Day-8 COVID-19 test kit.

Accordingly, travellers entering Canada who are not fully vaccinated must continue to adhere to the current testing and quarantine requirements as there are no exceptions for unvaccinated or partially vaccinated travellers at this time.

How to Take Advantage of the New Measures

To take advantage of the exemption from the 14-day quarantine period, travellers are required to meet all other mandatory entry requirements to Canada, including the following:

Be asymptomatic;

Complete COVID-19 tests, including pre-arrival and on-arrival to Canada;

Provide proof of vaccination, including copies of vaccination documentation;

Submit COVID-19-related information electronically through the ArriveCAN app within 72 hours prior to arrival in Canada; and

Prepare and present a suitable quarantine plan in the event the reviewing immigration officer determines at the border that the traveller does not meet all of the conditions required to be exempt from quarantine.

Please note that if a traveller is fully vaccinated, but fails to provide the required information in the ArriveCAN app prior to arriving at the Canadian border, the traveller will not be considered for the exemption, even if they meet all the other requirements.

Employment Protections

In the event that an immigration officer determines that an individual entering Canada is not eligible for the exemption from the quarantine requirement, employment law protections exist that may protect workers who are subject to restrictions relating to COVID-19, including temporary foreign workers.

For example, there are federal and provincial laws that provide workers in Canada with the right to maintain their employment during the quarantine period. Accordingly, where an employer refuses to permit an employee to return to the workplace following the quarantine period, the employee, including a temporary foreign worker, may have grounds to bring an employment standards complaint forward and/or a claim for wrongful dismissal.

If you are travelling to Canada and have any questions, including whether you are exempt from the quarantine period upon entry to Canada, or your return to the workplace, please contact Toronto employment and workplace immigration lawyers Sultan Lawyers at 416-214-5111 or via email to [email protected]

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Many individuals pursuing litigation against their former employers for wrongful dismissal or other employment-related issues are not aware of the potential cost consequences relating to offers to settle that may arise during the litigation process.

Below we review these potential consequences, which are codified within the Ontario Rules of Civil Procedure.

What is Rule 49?

Under Rule 49 of the Rules of Civil Procedure, rejecting an offer to settle in a civil proceeding may lead to significant consequences when it comes time for the court to award costs. If the party that rejects the offer to settle would have been in the same position or better if it had accepted the offer to settle, then a higher rate of costs may be awarded to penalize that party for unnecessarily lengthening the proceeding.

The purpose of Rule 49 is to encourage settlement and, whenever possible, avoid a trial.

The Test Under Rule 49

For the cost consequences under Rule 49.10 to be triggered, an offer to settle must meet strict requirements, including:

The plaintiff or defendant must make its settlement offer at least seven (7) days before the commencement of the hearing;

The offer must not be withdrawn or expire prior to the commencement of trial;

The offer must not have been accepted by the other side; and

The judgment must be as favourable or more favourable than the terms of the settlement offer.

The offer to settle must also be fixed, certain and capable of clear calculation in order to attract Rule 49 cost consequences.

Plaintiff Versus Defendant

Under Rule 49.10:

If the plaintiff makes an offer to settle and then obtains a judgment that is as favourable as or more favourable than its own offer, the plaintiff is entitled to partial indemnity costs to the date of its offer as well as substantial indemnity costs from that date forward, unless the court orders otherwise.

If the defendant makes an offer to settle and the plaintiff obtains a judgment that is as favourable as or less favourable than the defendant’s offer, the plaintiff is entitled to partial indemnity costs to the date the offer was served. The defendant is then entitled to partial indemnity costs from that date forward, unless the court orders otherwise.

The Court’s Discretion

Despite the strict requirements under Rule 49.10, the court does have discretion when it comes to applying cost consequences under the rule. Courts also have discretion when it comes to applying cost consequences to settlement offers that do not conform to the strict Rule 49 requirements.

Generally speaking, the courts have to maintain a narrow interpretation of Rule 49.10 and tend only to depart from its requirements “in exceptional circumstances” where the interests of justice require it. However, there are cases where an offer to settle that does not meet the strict requirements of the rule will trigger the consequences of the rule.

Contact Sultan Lawyers in Toronto for Advice on Offers to Settle

Settlement discussions can take place throughout the litigation process. Litigants must consider offers to settle very carefully to avoid potential cost consequences of Rule 49.10. Ultimately, litigants should consider settlement and avoid, wherever possible and reasonable, wasting the court’s time by pursuing a trial.

At Sultan Lawyers, we are committed to advocating for our employee clients in a manner that maximizes the potential takeaway and avoids added cost consequences.

If your employment has been terminated, whether by unjust dismissal, wrongful dismissal or otherwise, we strongly urge you to have your termination package reviewed to determine if there may be an opportunity to request or argue for a more favourable exit package. We can advise throughout the litigation process to ensure you have the guidance you need to make reasonable and legally sound decisions.

Please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or via email at [email protected].

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Over the past year, employees, employers, and courts have been grappling with whether the COVID-19 pandemic should be a consideration in determining an employee’s notice and entitlements following a termination of employment.  While we have addressed this issue in a previous blog, recent case law indicates that the effects of the pandemic may lead to an increase in notice period awards.

Employee Let Go at Start of Pandemic Entitled to Increased Notice Period

In Kraft v. Firepower Financial Corp., Firepower Financial Corp. terminated Mr. Kraft’s employment in March of 2020, right before a state of emergency was declared in Ontario. Mr. Kraft made efforts to find new employment, applying to over 70 positions. However, he was unable to find a new position for approximately 13 months.

The judge stated that Mr. Kraft was searching for employment during perhaps the most uncertain time of the COVID-19 pandemic and that there was clear evidence that his search extended longer than it would have under normal circumstances.

For this reason, the judge held that Mr. Kraft was entitled to one additional month above the average notice period (for a total of 10 months’ notice).

This case is the first to explicitly indicate a precise increase in the notice period because of the impacts of COVID-19.

Employee Let Go Months Before Pandemic Not Entitled to Additional Notice

Following the Kraft decision, another case, Herreros v. Glencore Canada, declined to provide an increase to the notice period due to the time that Ms. Herreros’ employment was terminated and began seeking new employment. In Ms. Herreros’ case, her employment was terminated on October 30, 2019. The court concluded that October 2019 was well before the COVID-19 pandemic had emerged and therefore did not negatively impact her ability to find new employment.

What does this mean?

The court’s decisions on whether COVID-19 justifies an increase in reasonable notice periods appears to hinge at least in part on when employment was terminated. If employment is terminated closer to March 2020, a judge may be more likely to consider the COVID-19 pandemic’s impact when determining if a higher-than-average notice period is reasonable.

Contact Sultan Lawyers in Toronto for Wrongful Dismissal Claims

At Sultan Lawyers, we are committed to advocating for our employee clients in a manner that maximizes the potential takeaway. Given the current caselaw, there remains room to argue for a longer notice period, in the context of negotiation and litigation, by pointing to the current economic circumstances.

If your employment has been terminated, whether by unjust dismissal, wrongful dismissal or otherwise, we strongly urge you to have your termination package reviewed to determine if there may be an opportunity to request or argue for a more favourable exit package. Please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or via email at [email protected].

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Employers reserve the right to terminate an employee’s employment at any time on a without cause basis.  This applies provided that the reasons for the dismissal are not related to a protected ground under applicable human rights legislation or as an act of reprisal against an employee who has exercised their right under applicable employment standards legislation.

While there is no specific obligation for an employer to provide a justification for a “without cause” termination, employers may be required to explain the nature of the dismissal when an employee is on a leave of absence, such as a sick leave or parental leave, when they are terminated. Failure to do so may give rise to wrongful dismissal and/or claims of discrimination.

Protections for Employees

Employees who commence a leave are generally entitled to considerable protections as prescribed under applicable employment standards legislation, such as the Ontario Employment Standards Act, 2000 (“ESA”).

These protections generally provide employees with the right to remain in the same or similar position they would have been in if the leave had not been commenced. The purpose of these protections is to ensure that an employee on a leave does not suffer any consequences by virtue of exercising their right to a statutory leave of absence.

Specifically, in Ontario, employees are entitled to the following rights under the ESA:

The right to reinstatement;

The right to retain benefits;

The right to accrue seniority;

The right to vacation entitlement; and

The right to be free from reprisal.

Legitimate Reasons for Dismissal

Generally, there are three (3) circumstances in which an employee be may terminated while on a leave, as described below.

1. The Dismissal is Unrelated to the Employee’s Leave Of Absence

An employee on leave may be dismissed on a without cause basis provided that the reasons for termination are not related to the employee’s leave of absence. For example, an employee may be fired as a result of a business restructuring or the elimination of a department.

Where an employee is dismissed on a without cause basis, the employee will be entitled to notice or pay in lieu of notice. Failure to provide sufficient notice may entitle an employee to additional damages as a result of the employee’s wrongful dismissal.

2. The Dismissal is For Cause

An employee on leave may also be dismissed on a for-cause basis if the employee has engaged in serious misconduct. To justify a for-cause termination, the actions of the employee would need to be willful or intentional, which is often a high threshold for employers to satisfy.

Where an employee is dismissed for cause, and this can be sufficiently justified, the employee will not be entitled to any notice or pay in lieu of notice of their dismissal.

3. The Dismissal is a Result of Frustration of Contract

An employee who is on leave for an extended period of time with no reasonable prospect of returning to the workplace may be dismissed as a result of frustration of contract.  In this scenario, an employee would not be entitled to any compensation.

To justify a termination due to frustration of contract, an employer would need to demonstrate that it is reasonably unlikely that an employee would be able to return to the workplace in the foreseeable future. For example, where an employee is permanently disabled and is no longer able to work in any capacity, this may give rise to frustration of contract and may permit the employer to dismiss the employee.

By contrast, it may be difficult to demonstrate frustration of contract where an employee’s disability is deemed temporary, as the employee may be able to fully recover and/or return to work in some capacity.

Dismissing an Employee on Leave Must be Justified

If an employer is unable to justify an employee’s termination based on one of the above grounds, the reasons may be deemed to be related to the leave and/or otherwise discriminatory. This may allow an employee to pursue their employer for a claim of wrongful dismissal and/or discrimination based on a protected human rights ground.

If your employment has been terminated while you were on a leave of absence, we strongly recommend reaching out to us to discuss the legality of your termination as well as your rights, entitlements and possible recourse. Please contact Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or via email to [email protected].

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Many employees are deterred from requesting additional compensation from employers upon termination.  This is largely because employees assume that they can only secure damages after a drawn-out period of expensive litigation.

Below we discuss how negotiation in advance of litigation can be used to provide employees with a time-sensitive and cost-effective means of securing added compensation from their employers in the event of wrongful dismissal.

Am I Entitled to More Compensation?

Employees in Ontario are entitled to reasonable notice, or pay in lieu of notice, of the termination of their employment unless that right has been limited via an enforceable employment contract.

There is no absolute “rule” to determine how much reasonable notice an employee is entitled to at common law as this is determined through a review of the circumstances of each employee’s case, including considering factors such as the employee’s age, years of service, and the nature of the position the employee held. However, at common law, employees can be entitled to between 1-2 months’ of pay for each year of service that they complete with an employer.

It is advisable for employees to have their termination package reviewed by competent counsel.  This is because counsel can undertake a comprehensive review of the package, including the termination language in their employment contract, to determine whether the package offered accurately reflects the employee’s entitlements at law.

Specifically, even if an employee has signed an employment contract that addresses termination, an employment contract can be challenged, and the employee may be able to access greater common law reasonable notice entitlements. These added compensation amounts can often be significant, particularly for long-serving employees.

Do I Need to Sue?

If it is determined that your entitlements upon the termination of your employment are greater than what your employer has provided you, then you may decide to pursue your employer for further compensation.

While employees can consider proceeding directly to litigation to pursue the matter, it is in the best interests of the employee to at least attempt to negotiate a settlement package with their employer prior to taking this step.

Some reasons to pursue a settlement through negotiation include:

To avoid the time it takes to pursue a matter via litigation; and

To avoid relevant litigation costs, including payment of legal fees leading up to and during the litigation process.

If you are thinking of suing your employer, you should first seek the advice of counsel to determine whether there may be an opportunity to settle your matter and avoid the litigation process.

How Do I Settle?

The process of negotiating a settlement with your employer involves crafting direct and legally relevant correspondence to your employer that sets out the legal case for your requests for additional compensation.

Employers will usually respond to such correspondence, with or without their own counsel, and may propose an alternative compensation package, such as a package that is more generous than the one initially presented to the employee. An employee can then assess the revised package and determine (ideally with the assistance of counsel) whether to accept the package, reject the package or propose further adjustments.

Ideally, the employer and employee will eventually come to an agreement as to the contents of the termination package and oftentimes an employee will be asked to execute Minutes of Settlement and a Release. It is important to have these documents reviewed by counsel to ensure that the compensation being received by the employee is in line with their entitlements and is adequate given what the employee is foregoing via the Release.

If you have been terminated from your employment and have questions about your rights and entitlements, we strongly recommend reaching out to us to discuss your options. Please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or via email to [email protected].

  The post Do I Need to Sue if I Think I’m Entitled to Further Compensation at Termination? appeared first on Sultan Lawyers.

The Government of Canada has formally designated September 30 as a public holiday. National Day for Truth and Reconciliation will be observed to honour First Nations, Inuit and Métis survivors and their families and communities, and ensure the public commemoration of their history and the legacy of residential schools.

BILL C-5, AN ACT TO AMEND THE BILLS OF EXCHANGE ACT, THE INTERPRETATION ACT, AND THE CANADA LABOUR CODE (NATIONAL DAY FOR TRUTH AND RECONCILIATION)

Originally proposed in 2015, Bill C-5, An Act to amend the Bills of Exchange Act, the Interpretation Act and the Canada Labour Code (National Day for Truth and Reconciliation), received Royal Assent on June 3, 2021, creating a new public holiday under the Canada Labour Code (the “Code”). This Bill will officially come into force on August 3, 2021, which means that this will be the first year that this new holiday will be in effect.

The new statutory holiday applies to all federally regulated public and private sectors, including employers that are subject to the Code. Sectors that are federally regulated include, but are not limited to, the following:

Air transportation, including airlines, airports, aerodromes, and aircraft operations;

Banks, including authorized foreign banks;

Most federal crown corporations, such as Canada Post Corporation;

Radio and television broadcasting; and

Telecommunications, such as telephone, Internet, telegraph and cable systems.

This new holiday applies to federally regulated employers which are subject to the Code exclusively. This means that the holiday does not apply to provincially regulated employers at this time. However, the provincial legislatures may follow suit.

WHAT IF I AM REQUIRED TO WORK ON A STATUTORY HOLIDAY?

Employees in Ontario who are required to work on a public holiday are entitled to receive a pay rate of time-and-a-half of their regular wage or a substitute holiday with holiday pay regardless of their tenure with the employer. It is important to note that an employee who is scheduled to work a holiday, but is absent, will not be paid for the holiday.

Holiday pay is calculated based on how much an employee has earned in the four (4) weeks before the holiday, per day. More specifically, the employee is entitled to all of their regular wages earned in the four (4) week period preceding the work week with the public holiday plus all of the vacation pay payable to the employee in the four (4) week period, divided 20.

Generally, employees will qualify for the public holiday entitlement unless they:

Fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday; or

Fail without reasonable cause to work their entire shift on the public holiday if they agreed or were required to work that day.

It is important to note that employees can qualify for holiday pay regardless of whether they are full-time, part-time, or on a contract. Additionally, it does not matter when the employee was hired or how much they have worked prior to the holiday.

WHAT IF THE STATUTORY HOLIDAY FALLS ON A NON-WORKING DAY?

If September 30 falls on a non-working Saturday or Sunday, then federally regulated employees must be given time off on the work day immediately preceding or following the holiday.

If you have any questions in relation to statutory holidays and/or holiday pay, or if you otherwise feel you have not been treated appropriately by your employer, we encourage you to reach out to us. Please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or [email protected].

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