LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday April 11, 2017.

Today we are talking about Employment Law.

An employee who has been temporarily “laid off” may be entitled to treat the layoff as a permanent termination and claim notice and severance payments and other compensation.

Temporary layoffs may not be permitted unless there is employment contract that specifically allows for such layoffs. Seek legal advice to determine your rights and entitlements if you have been “laid off.”
For more information on Employment Law, Family Law, Wills, Estates and Estates Litigation, visit our website at www.wiselaw.net

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday March 14, 2017.

Today we are talking about Employment Law.

Did you know "use it or lose it" vacation policies are illegal.

Upon termination of employment, any outstanding vacation pay must be paid to the employee.

For more information on employment law, family law, wills, estates, and estates litigation, visit our website at www.wiselaw.net.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

When is a Layoff Really a Termination in Disguise?

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 

There are big differences between the ways the law treats employee layoffs and permanent terminations. 

Although the terms are often used interchangeably when describing employment that has ended, they are not the same thing at all.

A layoff, by definition, is temporary in nature, premised on the mutual understanding that the employee will in due time be recalled to return to work. In contrast, a termination is generally intended to be a permanent end of employment, and requires that the employer provide notice or pay in lieu of notice, where the dismissal occurs without any just or proper cause.

Where an employee has not consented to this arrangement, the attempted layoff may be challenged as actually being a constructive dismissal. That is, the employer may be seen as having fundamentally altered the terms of the parties’ employment agreement, by choosing to no longer actively employ the employee. In such circumstances, the employee may be entitled to treat the employment relationship as having been effectively terminated, and claim notice or pay in lieu of this notice for this termination.

It is therefore a good idea to consult with an employment lawyer if you have been laid off, to determine assess your circumstances and entitlements.An important question to consider then is when is a layoff actually a layoff, and when is it merely a termination in disguise?

Ontario's courts have long held that for an employer to legally lay off any employee, there must be an employment contract with that employee that specifically or implicitly authorizes such a layoff. 

[As a side note, in the 2013 decision of Trites v Renin Corp., the Court suggested that, contrary to this generally-accepted legal principle, there is in fact no formal requirement that an employment contract include any layoff-permitting provisions, so long as the employer otherwise complied with the ESA. This decision does not however appear to have been applied or followed by the Courts thereafter, and in fact was expressly rejected in the more 2016 case of Michalski v Cima Canada Inc.] 

The employer must also fully comply with the layoff provisions set out in the Employment Standards Act. In particular, in accordance with section 56(2) of the ESA:

Temporary lay-off

(2) For the purpose of clause (1) (c), a temporary layoff is, 

(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks; 

(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and, 

(i) the employee continues to receive substantial payments from the employer,(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,(iii) the employee receives supplementary unemployment benefits,(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,(v) the employer recalls the employee within the time approved by the Director, or(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or 

(c) in the case of an employee represented by a trade union, a lay-off longer than a lay-off described in clause (b) where the employer recalls the employee within the time set out in an agreement between the employer and the trade union.  

The employer may not be required to provide a specific recall date (unless the employment contract provides for otherwise), but it must strictly adhere to the time frames set out in the ESA. If the employer lays the employee off for a period longer than the period of a temporary lay-off, it will be held to have terminated the employee’s position of employment.

Overall, it is important to appreciate the requirements of a layoff in order to better understand whether the circumstances presenting constitute an actual temporary layoff, or rather reflect a permanent termination of employment.

- Simran Bakshi, Associate Lawyer Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday July 12, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jul 12, 2016 at 6:38am PDT

The amount payable to wrongfully dismissed employee depends on the length of employment, age, salary and several other factors.

It can be as much as one month for each year of service, or even more in exceptional circumstances.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Friday June 24, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jun 24, 2016 at 6:55am PDT

Can an employer lawfully terminate an exceptional employee who has had consistently good performance reviews?

Under Ontario law, an employer may terminate any employee without cause so long as:

•The employer provides reasonable notice or,

•Pay instead of such notice

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Wednesday, June 1, 2016. Today we are talking about Employment Law

A video posted by null (@wiselaw) on Jun 1, 2016 at 6:23am PDT

In addition to the minimum notice and severance required by the Employment Standards Act, Ontario employees are entitled to reasonable notice of termination or pay in lieu of thereof upon termination of employment

Unless an employment contract limits an employee’s entitlements, reasonable notice will be based on duration of employment, type of position, age and many other factors. 

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Ontario Employment Law: Overtime Pay

Section 22 of the Ontario Employment Standards Act provides that in most circumstance, an employee who works more than 44 hours in a given week shall be paid at least one and one-half times his or her regular rate of pay for overtime hours worked.

Specifically, Section 22 of the Act states:

Overtime threshold

22. (1) An employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each week or, if another threshold is prescribed, that prescribed threshold. 2000, c. 41, s. 22 (1).

Averaging

(2) An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if,

(a) the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks;

(b) the employer has received an approval under section 22.1 that applies to the employee or a class of employees that includes the employee; and

(c) the averaging period does not exceed the lesser of,

(i) the number of weeks specified in the agreement, and

(ii) the number of weeks specified in the approval. 2004, c. 21, s. 6 (1).

When an employee is terminated by an employer, that employee has a statutory right to be paid for his or her outstanding overtime hours, provided that the overtime claim is not barred by any applicable limitation period. This is in addition to any other claims an employee may have to compensation under the Act or at common law.

Of course, like so many rules of law, there are some notable exceptions. For example, a regulation of the Act provides that the overtime provision does not apply to a person employed whose "only work is supervisory or managerial in character". While this is a recognized exemption from Section 22, it is a narrow one since most employees, including many managers, cannot be said to only perform supervisory functions.

A case in point is Bala Bay Inn v. Turnbal. There, the Ontario Labour Relations Board assessed the duties of a security manager, concluding as follows:

In the present case, the Board is similarly unable to find that the claimant's only work is supervisory or managerial in character. The claimant was required to perform security services himself and to perform janitorial duties on a regular basis. He was responsible for overseeing the work of other security staff while he himself engaged in security monitoring. The evidence was that the claimantwas required to perform patrolling functions while overseeing the work of other security staff, that during the overnight shifts he was required to perform janitorial duties and that he never hired or fired any employees. The Board therefore finds that the claimant is not exempt from the overtime pay provisions.

Additional, detailed information on overtime pay claims, entitlements and exclusions is available at the Ontario Ministry of Labour website. A lising of industries and professions that have special rules or exclusions applicable to overtime pay is also available from the Ministry online.

Note that provincial employment standards legislation does not cover federally regulated sectors, such as banking, airlines, telephone and cable communications and intra-provincial transport. These sectors are covered by the Canada Labour Code. For more information on the Canada Labour Code's overtime provisions, see Overview of Part III of the Canada Labour Code (Labour Standards) from the HRSDC website.

If you believe you have been wrongfuly deprived of overtime pay by your current or former employer, contact a lawyer who can advise you as to your rights relating to overtime pay and your additional entitlements under the Employment Standards Act and at common law.

- Robert Tanha and Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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