Stacey R. Ball - Employment Law Facts

This page contains general information pertaining to my law practice, the Ball Professional Corporation, federal and provincial legislation, published legal papers, articles and commentaries concerning significant developments in the law and current legal issues. The contents of this page are provided and intended as general legal information only and should not form the basis of legal advice of any kind. You should not act on this information or other legal information found online without first obtaining proper, professional legal advice.

If you have any questions pertaining to the contents of this page that may be applicable to your particular situation, please contact Stacey Reginald Ball at srball@82scollard.com.

Employment Law Facts:

1. Child Care and Workplace Accommodation

2. Resignation and Abandonment

3. Senior Employees and Cause For Dismissal.

4. Post Employment Competition by Fiduciary Employees

5. Equal Application of Employer’s Discipline Policy

6. The Minimum Wage in Ontario

7. Mandatory Retirement in Ontario

8. In Ontario - The Holiday Season Has Three Public Holidays

9. Canadian Employment Law - Stacey R. Ball, Author
CHILD CARE AND WORKPLACE ACCOMMODATION:
In Attorney General of Canada v. Fiona Ann Johnstone and Canadian Human Rights Commission, 2013 FC 113 the Federal Court held that the Canada Border Agency had a duty to accommodate a mother with her child care needs. The employer was required to assist the employee in scheduling her hours so that she could meet her child care requirements. “Family status” under the Canadian Human Rights Act covered child care obligations. This is an important decision since it recognizes that employers do need to respect reasonable requests for scheduling of hours of work so that child care obligations can be met. It was noted that if an employer could accommodate medical disabilities, it could also accommodate child care needs. The better view is that the reasoning of the Federal Court will ultimately be adopted by provincial jurisdictions.
Mr. Ball was interviewed on this subject by Global Television in February 2013.

RESIGNATION AND ABANDONMENT:
Recent decisions have confirmed that it is critical that employers take considerable care when they take the position that an employee has “resigned” or “abandoned” his or her employment. If an employee has been off work and the employer attempted to treat the non-reporting to work as a resignation, the court will be skeptical of the employer’s position if it did not attempt to reprimand the employee for non-attendance or failed to the take the position of just cause for dismissal: Beggs v. Westport Foods. 2011 BCCA 76 at para 40. In determining a resignation the court will look at, among other things, the employee’s state of mind, any ambiguities in relation to the conduct to which is alleged to constitute a “resignation”, and the employee’s timely retraction, or attempted retraction of his or her “resignation”. If the parties are operating on a misunderstanding of the other’s intention in regard to the reason for the absence from work this does not militate in favour of job abandonment. It is perilous for an employer to precipitously take the employee as resigning his or her employment: See e.g. Cox v. Victoria Plywood (1993), 2 C.C.E.L. (2d) 78 (B.C.S.C.).

SENIOR EMPLOYEES AND CAUSE FOR DISMISSAL:
It has now been held that even for senior employees, the “principle of proportionality” must be applied. The court must determine whether termination was an “effective balance” to “be struck between the severity of an employee’s misconduct and the sanction imposed.” There must be something in the work record to suggest the employee would not be amenable to progressive discipline. See Barton v. Rona Ontario Inc. 2012 ONSC 3809. In Barton despite the fact that the employee was a manager and dismissed because of health and safety violations, as well as company policy, the dismissal was found to be without just cause.

POST EMPLOYMENT COMPETION BY FIDUCIARY EMPLOYEES:
The Ontario Court of Appeal has confirmed that even fiduciary employees are entitled to engage in “fair” post-employment competition against their former employers. In Veolia ES Industrial Services Inc. v. Brule 2012 ONCA 173 competition was not deemed to be unfair when: the fiduciary’s post-employment bid was in response to a public tender; there was no solicitation of the customer; the tender was issued after he left employment; the fiduciary did not take advantage of a business opportunity developed during his employment; he did not improperly solicit the employer’s employees in order to compete; evidence was that bidding was “an art rather a science”; there was no evidence that the employer’s method of conducting business was proprietary or unique; the employee did not make preparations to compete on the company’s time or premises while he was an employee; and there was no evidence that the employee used or disclosed confidential information to compete against his former employer.

EQUAL APPLICATION OF EMPLOYER’S DISCIPLINE POLICY:
Unequal application of employer’s discipline policy has been a reason for the court to hold that there was not just cause for dismissal: Dawson v. FAB Bearings Ltd. [2008] O.J. NO. 4305 (S.C.) at para 34-5 .

MINIMUM WAGE IN ONTARIO:
TORONTO --The general minimum wage is officially $10.25 per hour.

MANDATORY RETIREMENT:
In December of 2006, mandatory retirement became illegal in Ontario.

The Ending Mandatory Retirement Statute Law Amendment Act was approved by the legislative assembly in an overwhelming 60-5 vote on December 8, 2005 and was given royal assent by Lieutenant Governor James Bartleman.

People are healthier and living longer, so it is unfair to insist that they stop working simply because they turn 65. Ending mandatory retirement allows workers to decide when to retire based on lifestyle, circumstance and priorities.

The Ontario Human Rights Code will protect people aged 65 and over from age discrimination for most employment purposes. The legislation also amends a variety of other statutes that have provisions connected to mandatory retirement.

HOLIDAY SEASON HAS THREE PUBLIC HOLIDAYS UNDER EMPLOYMENT STANDARDS ACT:
Three of eight public holidays under Ontario’s Employment Standards Act, fall on Christmas Day on December 25, Boxing Day on December 26 and New Year’s Day on January 1.
QUALIFYING FOR PUBLIC HOLIDAY ENTITLEMENTS:

Generally, employees qualify for public holiday entitlements unless they fail, without reasonable cause, to work:

* Their entire regularly-scheduled shift before or after the public holiday; or
* Their entire shift on the public holiday if they agreed or were required to work that day.

Public holiday pay is an amount equal to an employee’s regular wages earned in the four work weeks prior to the public holiday plus any vacation pay payable during that period, divided by 20.

Employees who qualify for public holiday entitlements can be full-time, part-time, permanent or on a limited-term contract. They can also be students. It does not matter how recently they were hired or how many days they worked before the public holiday.
ENTITLEMENTS IF YOU ARE SCHEDULED TO WORK ON ANY OF THE PUBLIC HOLIDAYS:

Qualified employees are entitled to take off the public holidays with public holiday pay. They can also agree in writing to work on the public holidays and:

* Be paid their regular rate for all hours worked on the public holidays plus receive a substitute holiday with public holiday pay; or
* If the employee and employer agree in writing, be paid public holiday pay plus “premium pay” of one-and-a-half times their regular rate for all hours worked on the public holidays.

ENTITLEMENTS IF ANY OF THE PUBLIC HOLIDAYS ARE NON-WORKING DAYS:

For any public holiday that falls on a non-working or vacation day, qualified employees can either take a substitute work day off with public holiday pay or, if they agree in writing, they can receive public holiday pay for the public holiday with no substitute day off.
ENTITLEMENTS FOR NON-QUALIFIED EMPLOYEES:

Generally, employees who don’t qualify for public holiday entitlements must work on the public holiday if asked by their employer. Most non-qualified employees are entitled to be paid one-and-a-half times their regular rate of pay for each hour worked on the public holidays. There is no substitute day off.

If a non-qualified employee is not asked to work on the public holidays, he or she gets the days off with no pay.
SPECIAL RULES / EXCEPTIONS:
Retail Employees:

Most employees who work in retail businesses--businesses that sell goods or services to the public--have the right to refuse to work on the public holidays even if they don’t qualify for public holiday entitlements.

Retail employees who have agreed to work on the public holidays may still refuse the assignment if they give their employer 48 hours advance notice before the first hour of work on the public holiday.

However, these rules for retail employees do not apply to those who work for businesses that primarily:

* Sell prepared meals (restaurants, cafeterias, cafés, etc.)
* Rent living accommodations (hotels, tourist resorts, camps, inns, etc.)
* Provide educational, recreational or amusement services to the public (museums, art galleries, sports stadiums, etc.)
* Sell goods and services that are incidental to the businesses described above and are located on the same premises (museum gift shops, souvenir shops in sports stadiums, etc.).

Under the Retail Business Holidays Act, most retail outlets must close on Christmas Day and New Year’s Day. However, stores may open if they choose on Boxing Day. Employees still retain the right to refuse to work on Boxing Day.
Hospital, Continuous Operations and Hospitality Employees:

Employees in hospitals, continuous operations and the hospitality industry may be required to work on the public holidays if they fall on days they would normally work and if they are not on vacation. This applies to employees who work for hospitals, nursing homes, hotels, motels, tourist resorts, restaurants and taverns, as well as to employees who work for continuous operations (operations or parts of operations that do not shut down or close down more than once a week such as oil refineries and alarm monitoring companies).
Elect-to-work Employees
Elect-to-work employees--those who decide without penalty whether or not to work when requested--are not covered by the public holidays provisions of the Employment Standards Act, 2000 except for the right to be paid one-and-a-half times their regular rate of pay for each hour worked on the public holidays.
EMPLOYEES NOT ELIGIBLE FOR PAID PUBLIC HOLIDAYS:

Some employees are not eligible for public holiday entitlements because public holiday provisions under the Employment Standards Act, 2000 do not apply to certain jobs. These employees include:

* Seasonal workers (employees who work for an employer no more than 16 weeks in a calendar year) in a hotel, motel, tourist resort, restaurant or tavern who are provided with room and board
* Taxicab drivers
* Professionals such as lawyers, doctors, teachers, architects, chiropodists, chiropractors, dentists, massage therapists, optometrists, pharmacists, professional engineers, physiotherapists, psychologists, public accountants, surveyors, veterinarians and those covered under the Drugless Practitioners Act
* Students in training for any of the professions listed above
* Students who instruct or supervise children or who work at a children’s camp or recreational program operated by a charitable organization
* Hunting and fishing guides, commercial fishers and some farm workers
* Commissioned salespeople, except route salespeople, who normally work away from their employer's place of business
* Employees who install and maintain swimming pools
* Employees in landscape gardening, mushroom growing, or the growing, transporting and laying of sod
* Employees who grow flowers or trees and shrubs for retail and wholesale trade
* Employees who breed and board horses on a farm or who keep fur-bearing mammals for propagation or the production of pelts for commercial purposes
* Construction workers who receive 7.3 per cent or more of their wages for vacation pay or holiday pay
* Residential building superintendents, janitors or caretakers who live in the building
* Firefighters
* Registered real estate salespeople.

LEGAL TEXT - CANADIAN EMPLOYMENT LAW
Information of interest to the legal community is addressed in Mr. Ball's excellent legal text Canadian Employment Law (Canada Law Book). Canadian Employment Law has been quoted and cited by the Supreme Court of Canada, as well as superior courts in every Canadian Province.
The Canadian Bar Review, Vol. 77, 1998 states: "Ball's text is the most comprehensive text on employment law in Canada. It is carefully constructed and accurate."

Citing over 6500 cases, this one-stop reference provides you with a thorough survey of the law. It clearly analyzes current law and developing trends, suggests potential avenues of attack, as well as identifies potential weaknesses in the law.

Updated 3 times per year, Mr. Ball's text is designed to keep you up-to-date on this rapidly changing area of law.

The text covers:

wrongful dismissal

human rights

fiduciary obligations

tort law and vicarious liability issues

restraint of trade

developing causes of action

employment contracts

remedies

constitutional issues

occupational health.... and much more.

Click on the following title Canadian Employment Law (Canada Law Book) to order.

Scales of Justice

Stacey Reginald Ball, BA LL.B
Barrister and Solicitor
Ball Professional Corporation
Employment & Labour Law
82 Scollard Street,
Toronto, Ontario M5C 2W7
Telephone: (416) 921-7997 Ext. 225
Fax: (416) 640-1756
Email: srball@82scollard.com