EMPLOYMENT LAW - The Law of Work and Employment
Employment Law is fully explored in this book
Canadian Law & Business Studies.
Although not a total or cohesive picture of employment law, the answers to a series of questions below will help to obtain a generalized view of the topic.
What is employment law? It is the law that applies to a worker – a worker that is not an independent contractor. As an employee-worker, the employer (often a firm or company) controls what work the employee does, where it is done and when. The law that applies to such a worker may be in a statute, in a contract (or a collective agreement negotiated by a union) or in common law (made by judges).
What employment law applies? In Canada, a worker who is an employee may be protected by a federal or provincial statute. Some Canadian business such as banking, broadcasting and some forms of transportation fall under federal authority and Canada Labour Code applies. But most Ontarians would come under the Employments Standards Act, a provincial statute that sets minimum standards of employment. Among other things, that statute deals with minimum wage, holidays, vacations, leaves, termination, and severance. Most employees also have the protection of the common law.
Look inside the book Canadian Law and Business Studies at https://bit.ly/3Ay0lSR
What does a written employment contract usually contain? It may stipulate the length of the employment engagement; that there are no prohibitions to entering into such a contract; terms of a probationary period, provisions as to lay off not covered in statutes; confidentiality and non-solicitation requirements; that there are no representations outside those that are specifically written into the contract and it may highlight some of the company policies.
What is a just cause dismissal? It is common for workers to wonder whether they can be dismissed by their employer for JUST CAUSE. The short answer is YES. Some act or activity that is gross, harmful to the employer or other workers or something that forever makes an employee-employer relationship impossible could be JUST CAUSE. This is not exactly the definition of just cause found in the cases (the caselaw) but it conveys the gist of the "test".
What is wrongful dismissal? From an employee's perspective, when is dismissal WRONGFUL or when is the "firing wrong"? Here, the employer (boss) has no major, gross or harmful incident or reason for "firing" or "terminating" someone, but they are nevertheless terminated or dismissed. This dismissal is lawful, but it must be given with notice which may be set out in a statute. Instead of such notice, the employer can pay wages that would have been paid during the required notice period - "money" instead of required notice. Under the common law, those who are dismissed without just cause and had a manager-like position generally receive one month's notice or pay for every year they were employed. Again, this is a very generalized explanation. The book, Canadian Law and Business Studies, has a full chapter on the details of employment law. Those personally experiencing dismissal should consult an expert. Note that for larger employers, the statutes often make a distinction between a layoff and a termination without cause. This and the companion website only provide general information.
Are workplace romances unlawful or prohibited? While workplace dating may not be off limits, a relationship between a manager and someone supervised by that manager (or something similar) may be suspect and cause the employer some risk or be troublesome. This relationship may be related to sexual harassment, or it may give rise to an accusation or perception of harassment. Breakups can result in attempts to be vindictive. Other workers may feel threatened, ignored or discriminated against because of perceived advantages the subordinate seems to be receiving. A workplace policy on such relationships may be very useful if clear and carefully drafted and manager training may also be helpful. (All content on these sites is generalized information and not legal advice.)
Does employment law apply to volunteers? Employment law does not apply to a true volunteer. A volunteer is not an employee, and non-profit organizations, and charities must make sure not to blur the lines. A volunteer cannot be paid. Even expenses paid by a volunteer for which s/he is reimbursed may be questioned. Amenities that are being provided to the volunteer that “works” for the charity will also be scrutinized. What the organization or charity wants to avoid is inadvertently turning a volunteer into an employee who then acquires a whole batch of benefits – including health and safety legislation protection, paid holidays, sick pay and so on. This is a delicate area of law that engages knowledge of the Income Tax Act, Canada Revenue Agency Interpretation Bulletins, ascertaining intentions, scrutinizing circumstances and so on. This is only generalized information and not legal opinion or advice. Caution and care must be taken in this area.
Does employment law apply without a contract? Apart from a collective agreement negotiated by a union for a group of union members, employment contracts are frequently not in writing. A worker may be brought onto the job “on probation” for a “probationary period” but after that period ends, s/he becomes a regular employee whether there is written contract or not. At that point, employment standards apply as do health and safety regulations and likely workers’ compensation to cover on-the-job injuries in certain fields of work.
New Statute: EMPLOYEES CAN'T BE GAGGED
In the United States, the Speak Out Act is expected to become law prohibiting employers from essentially gagging workers from speaking out against employers as it relates to various forms of harassment in the workplace.
The statute prohibits enforcement of non-disclosure agreements (NDA) and non-disparaging clauses as it pertains to certain matters.
In Canada, the courts are not likely to enforce an NDA where it may be used to hide employer misbehavior. Do I have to sign an NDA? You do not have to sign such an agreement but you will probably not get the job. It would be wise to consult a lawyer as to the meaning of the NDA they have put to you. While the law may prohibit some aspects of the NDA, you may be bound by what you sign.
'MORALS CHARGE' MAY JUSTIFY DISMISSAL
Someone charged with a serious offence although not yet convicted may be dismissed from employment. See 2005 CanLII 42487 (ON SC) | Kelly v. Linamar Corporation | CanLII .
WHAT IS WILFUL MISCONDUCT? A person can be dismissed from employment for JUST CAUSE. But in Ontario, that does NOT disentitle one to statutory benefits under the Employment Standards Act. However, if the conduct can be classified as wilful, planned and bad on purpose, then statutory entitlements can be denied. What are statutory entitlements? These are set out in the Employment Standards Act and include termination and severance pay upon dismissal.
CAN I RECORD MEETINGS AT WORK? While such recordings MAY not violate the Criminal Code because of the "one-party consent" exception, surreptitious recordings made at work may violate company policy and confidentiality and may result in just cause dismissal. See the British Columbia Shalagin case for details.
Our websites provide general information. Those with real issues should consult a qualified expert.
What is an independent contractor? An independent contractor is NOT an employee. It is only an employee that is entitled to the benefits of provincial or federal employment legislation (that may deal with hours of work, vacation pay, termination and severance pay) and any benefits that may be available under the common law or law of equity. It is not easy to distinguish between an employee and independent contractor. What a contract says or what the employer calls the worker or what the worker calls themselves is not determinative. The courts do consider various factors, such as who controls the work to be done and where, whether the worker pays for tools or runs the risk of a loss or has the possibility of a profit. Whether the worker can hire help and more generally whether the worker is working on their own account, involved in a business of their own, are important factors or considerations.
What is vicarious liability? When an employee is carrying out the work of his employer, the employer is vicariously liable for any harm the employee may cause to others. Of course, if that employee goes off on a personal matter while at work, the employer is obviously NOT vicariously liable. An independent contractor is responsible for its own negligence and any harm it may cause.
Can someone who complains on the job be fired? Are whistleblowers protected? Much is done to protect whistleblowers. But the victim or whistleblower must make sure they do not engage in unacceptable behaviour. In the B.C. Maung case, the employee was assaulted but rather than reporting it straight away, he tried to exact an apology and a promise from the assaulter and began a campaign of harassment to get what he wanted. In failing to report immediately, he breached company policy and was disciplined. When he failed to accept the disciplinary measures, he sent inappropriate emails to management which ultimately resulted in his dismissal. Here the assaulted victim helped create just cause for his own dismissal. (Anyone facing an on the job issues should seek professional assistance. This is merely general information.)
Check our alternate site as well for introductory or contextual information on EMPLOYMENT: https://www.fera-gasparini.ca/
WHAT IS THE DUTY TO MITIGATE (LOSSES or DAMAGES)? The common law requires the employer to pay wages for a period of a time where an employee is dismissed with inadequate notice. But the law also imposes a duty on the employee to mitigate its losses - in other words, get another comparable job. And if the employee is able to do so, then that reduces the amount of payment in lieu of notice the employer is required to pay. The duty to mitigate losses falls on the employee but the onus to prove the employee did little to mitigate wage losses falls on the employer.
Does workers compensation apply to someone injured while working from home? In some circumstances, “yes”, but jurisprudence is just beginning to build on this issue and in some instances, it will depend on how the relevant provincial legislation is worded. See this Quebec case concerning compensation awarded to a telemarketer who fell on the steps of her home and injured herself while working from home: Air Canada and Gentile-Patti.
Nothing on our websites is legal advice.
What is quiet quitting or silent quitting? It denotes a lack of enthusiasm and effort on the part of a worker to perform work tasks that are not specifically set out in the job description. The worker does the minimum required and does not go beyond that. On the part of the worker, this may be a defensive mechanism to cope with life’s ever increasing demands (the hustle culture and personal crises) and/or frustration with the job or management. It is often a reaction to an employer trying to get more and more out of employees without acknowledging or rewarding them and profiting from unpaid work hours and effort.
WHAT IS Naloxone and how is it related to employment law? Naloxone is a drug available as a nasal spray or injection (into the muscle) to reverse the effects of an opioid overdose. Starting in June of 2023, Ontario employers who ought to know there might be an overdose episode on the job will be required to have this drug on site and have someone trained to recognize an overdose and have the skill to administer this life-saving drug.
Nothing on this website is legal advice. Copyrighted
Refer personal matters to a practicing lawyer. This is just general information.