In Render, a long-term employee, Mr. Render, was terminated for “just cause” following a single incident in which he slapped a female co-worker on her buttocks. Mr. Render explained that the slap was “playful” and not done on purpose. The workplace investigation into the co-worker’s complaint found that Mr. Render had violated ThyssenKrupp’s sexual harassment policy. As such, ThyseenKrupp terminated Mr. Render’s employment without any notice or pay in lieu of notice. Mr. Render sued for wrongful dismissal.

The Trial Court held that this single incident of sexual harassment justified Mr. Render’s termination without notice or pay in lieu of notice. Accordingly, the Court dismissed his claim for wrongful dismissal.

However, the Court of Appeal, while being careful to denounce Mr. Render’s behaviour, ultimately found that his behaviour did not meet the standard of “wilful misconduct” under the Employment Standards Act, 2000, S.O. 2000, c. 41, (the “ESA”). The Court of Appeal had this to say:

“While the trial judge found that the touching was not accidental, he made no finding that the conduct was preplanned…Although his conduct warranted dismissal for cause, it was not the type of conduct in the circumstances in which it occurred that was intended by the legislature to deprive an employee of his statutory benefits.”

In other words, while his behaviour was reprehensible, Mr. Render should not have been deprived of the minimum notice provisions under the ESA. Mr. Render was therefore awarded eight (8) weeks of statutory termination pay for his dismissal.

The Court of Appeal also clarified the fundamental difference between the “just cause” standard at common law and the very strict “wilful misconduct” standard under the ESA. In short, the ESA standard of “wilful misconduct” involves an assessment of the employee’s subjective intent, which is not required to meet the standard of “just cause.”

The Court of Appeal further clarified that:

“Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the [legislative] standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.”

Implications for Employers

In all cases where an employee behaves in a manner which is inconsistent with continued employment, (whether it is a single incident or a course of conduct) it is incumbent on employers to ask themselves whether the employee intended to misbehave. An answer in the affirmative may warrant a termination without any notice or pay in lieu of notice. However, an answer in the negative will mean that the employee is still entitled to the minimum statutory termination and severance pay provisions, in accordance with the ESA.

It will be interesting to see if this case is further appealed to the Supreme Court of Canada. For now, we will continue to provide our clients with the same advice – do not terminate an employee for cause before speaking with a lawyer; as ThyssenKrupp learned, a termination misstep can be costly.

Reach out to our Employment Law Team if you have any questions.

The post The Costly Difference Between Termination for “Just Cause” and “Wilful Misconduct” appeared first on FREEDIN & ROWELL LLP.

Changes to the Employment Standards Act (“ESA”)

Bill 88 introduces a new requirement that employers with 25 or more employees have a written policy about electronic monitoring.  This policy must inform employees whether they are being electronically monitored, and if so, the circumstances of when this monitoring takes place, and the purpose for which the employer is gathering this information.  Employers will have until October 11, 2023 to put their policies in place.  Employers with 25 or more employees as of January 1st of any subsequent year will have until March 1st of that year to comply with the requirement.

Bill 88 also expands job-protected reservist leave under the ESA.  As of April 11, 2022, employees are eligible for time off to participate in Canadian Armed Forces military skills training after being employed for 3 consecutive months.  Previously, reservist leave was limited to deployments, and employees were required to be employed with their employer for at least 6 consecutive months before they would qualify for the job-protected leave.

Creation of the Digital Platform Workers Rights Act, 2022

The new Digital Platform Workers Rights Act creates rights for individuals working on or through a digital platform. “Digital platform work” is defined in the Act as the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.

In many respects, the new Act parallels the ESA with similar oversight and minimum standards.   The following worker rights and obligations are codified in the Act:

• the right to information, including with respect to remuneration, work assignments, and performance ratings;
• the right to a recurring pay period and pay day;
• the right to minimum wage for each work assignment performed by the worker;
• the right to amounts earned by the worker and to tips and other gratuities;
• the right to notice of removal from an operator’s digital platform;
• the right to resolve digital platform work-related disputes in Ontario; and
• the right to be free from reprisal for exercising rights under the Act.

This Act will come into force on a date still to be determined.

Changes to the Fair Access to Regulated Professions and Compulsory Trades Act, 2006

Bill 88 also enacts the new Fair Access to Regulated Professions and Compulsory Trades Act, 2006.  This Act establishes timelines within which regulated professions must respond to applications for registration from domestic labour mobility applicants, unless an exemption is granted.  A “domestic labour mobility applicant” means an individual who has applied for registration by a regulated profession in Ontario and is currently registered with a body that regulates the same profession in a Canadian province or territory other than Ontario.  These new timelines will come into force on a future date to be determined.

Changes to the Occupational Health and Safety Act (“OHSA”)

Bill 88 also amends the Occupational Health and Safety Act by requiring employers to have a naloxone kit ready and available if the employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose in the workplace.

Perhaps most notably for employers, the maximum applicable fines for violations of the OHSA will also be dramatically increased from $100,000 to $1,500,000 for directors and officers of a corporation, and from $100,000 to $500,000 for other individuals.  In addition, the limitation period for instituting health and safety prosecutions will be extended from 1 year to 2 years.

Bottom Line for Employers

Bill 88 imposes new rights for workers, new obligations for employers, and expands potential liability for workplace health & safety issues.  For more information about Bill 88, advice on how to implement the Bill’s requirements, or assistance with drafting an electronic monitoring policy, please contact a member of our Employment Law Group.

The post Bill 88: Working for Workers Act, 2022 Receives Royal Assent appeared first on FREEDIN & ROWELL LLP.

Labour shortages have always been a challenge for businesses, and the pandemic has only exacerbated these issues. The current labour shortage has made a huge impact on Ontario businesses, forcing many to permanently close their doors. Many Ontario employers are finding there are not enough workers to satisfy the needs of their businesses.

It is not only the availability of workers which is at issue. The recruitment and retention of skilled employees is also an obstacle that many employers face. It isn’t surprising that throughout the pandemic, jobs that once required in-person interaction have largely disappeared. The number of Canadian employees that now work from home has substantially increased. Remote working has become a mainstream practice, and many employees are preferring their new working arrangements.

As health restrictions start to ease and businesses start to reopen, many employers are finding it difficult to entice employees back to their old jobs. It is those employers that have not been able to adapt to a work-from-home model that are suffering the most. Employers in the retail and hospitality industries have especially experienced a hard time attracting workers to back positions that require them to work in-person from the workplace.

High employee turnover rates is another problem that persists. Common reasons for employees leaving the workplace include low wages, lack of opportunities for advancement and dissatisfaction with management and/or workplace culture. The cost and time involved in hiring and training new employees can be burdensome. If employers want to recruit and retain a more stable workforce, they should start by improving wages and working conditions. Types of incentives that may be offered include competitive wages, stable shifts, enhanced benefits, paid sick/personal days, and improved training and safety. Employers should also provide mentoring and career development opportunities.

As employees are being welcomed back to the physical workplace, now is the best time for employers to implement new employment contracts. A new legislation has been proposed by the Ontario government that provides a host of labour-friendly policies, including a ban on non-compete clauses. Employers may soon be forced to remove these clauses from their employment contracts. The omnibus legislation also proposes a right for employees to disconnect, requiring employers with 25 or more employees to develop disconnecting from work policies.

Employers should also consider the benefits of conducting regular performance reviews and offering regular salary increases, as a strategy to keep good employees. All employee incentives should be clearly stated in the employment contract.

The pandemic has underscored the importance of good communication in the workplace. Maintaining strong relationships between management and employees is good way for employers to create more motivated, productive and loyal employees. Employees should feel comfortable coming to their employer with ideas, questions and concerns at any time. This is especially vital for those essential workers that carry a greater risk of contracting the COVID-19 virus.

While employee burnout is not new in the workplace, it’s a problem that has worsened during the pandemic. One way for employers to alleviate employee burnout is by offering more flexible work arrangements. Where feasible, employers should consider the possibility of allowing employees to continue working remotely. While there are undeniable benefits for in-person work, many employees appreciate the flexibility of being able to work from home and improve their work-life balance. It’s evident that the traditional 9 to 5 job isn’t what is driving employees anymore. Flexible work arrangements are proving to be critical in hiring and retaining employees.

Offering legal accommodation under Ontario’s Human Rights Code is another important measure that employers should be taking for employees with human rights-based needs. Accommodation can often be provided without the employer incurring any additional costs. For example, a more flexible work schedule might be the appropriate solution or accommodation to offer an employee with child or elder care responsibilities. 

Employers must also take care to ensure they support their employees’ mental health. Many Canadians have reported experiencing poorer mental health than ever before. It is therefore critical for employers to offer resources and employee assistance programs to members of its workforce. Employers should also ensure that their employees feel engaged and connected so as to avoid feeling isolated.

Employers can also help boost their skilled workforce by seeking out talent from an international pool of candidates. By creating a path for foreign workers to fully apply their skills, employers may reach new markets and receive the benefit of diverse perspectives and experiences.

The COVID-19 pandemic is not surprisingly a major factor for why many workers are rethinking their current employment situation. As we continue to adapt to the realities of this global pandemic, investment in creating a talented pool of loyal employees should be a top priority for employers.

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