This is the time of year I take a look at what's coming down
the legislative chimney this year for employers and employees. And
from the looks of it, government-Claus is providing some goodies
for employees, a sack of coal for employers and a few pairs of
mandatory socks for everyone.
Employees' goodies Workers have been
granted their wish for quick, cheap and significant relief under
Ontario Employment Standards legislation. The standard $10,000
ceiling and six month-time frame has been scrapped in favour of
limitless employee claims, for the full, if still minimum,
legislative entitlements. The recovery period was extended to two
years in line with the limitation period for civil claims.
That means that cases like the one I recently had — where
a long-service employee made a wrongful dismissal claim under the
employment standards act for termination and severance pay —
will be a thing of the past. The damages in this case would have
been in the six figures had it gone to court. But for quick
severance without legal fees, the employee opted for ESA relief,
believing it would still net him $66,000. Although he won his case,
the legislation limited his award to $10,000.
The changes also allow employees to apply the Ministry of
Labour's already friendly claims process to recover wages that
may have gone unpaid, even due to payroll errors, for up to two
years and to recover termination and severance pay, even if they
get another job immediately, without resorting to the more onerous
and costly civil court system. Employers should ensure their
payroll is error free or risk being placed on the Ministry's
now extended naughty list. That unpaid overtime claim now
potentially spans two years, rather than six months.
They should also prepare for higher awards to employees whose
costs of recovery, at least for their minimum entitlements, are
greatly reduced. Ensure just cause dismissals are air tight before
denying minimum notice or risk a speedy order from the Ministry,
now potentially in the tens of thousands of dollars, plus a 10%
surcharge for good measure.
Another lump of coal The Accessibility
for Ontarians with Disabilities Act, 2005 is the gift that keeps on
giving, with its gradual imposition of barrier-eliminating
legislation for the next 10 years. The next lump of coal descends
in the new year. Oganizations with more than 50 employees must
train everyone in the workshop (whether elves, employees,
volunteers or third-party service providers) on the new Integrated
Accessibility Standards Regulation and Ontario Human Rights
The act aims to increase accessibility for the disabled but
entails increasingly arduous procedures for employers to navigate.
For now, there are limited consequences for failure. The first four
enforcement decisions from the License Appeal Tribunal fined the
offending corporations only $2,000 each for not filing
accessibility reports, likely less than the cost of preparing them.
That too will probably change.
Reminder to be good The Human Rights
Commission's new sexual harassment statement reminds employers
they must put in place clear and comprehensive policies that ensure
access to and awareness of policies and sexual harassment training
for all managers. The commission focuses on the enhanced
vulnerability of employees who fall under more than one protected
code. For example, an aboriginal woman with a learning disability
may be more susceptible to sexual harassment than if she was only
aboriginal, female or possessed a learning disability.
New duties regarding traumatic mental
stress A recent Ontario Ministry of Labour report
recommends employers provide "psychological safety
training" and update return to work procedures to include
"prevention principles, supports and recovery practices."
It is unclear what this will look like in practice and what changes
in current workplace violence, harassment and discrimination
policies will be mandated. But when bureaucracies —
particularly cause oriented ones — must justify their
existence, good sense generally disappears and expensive, and often
nonsensical, obligations ensue.
Stress-related leaves pose a major challenge for Canadian
employers. If not properly flagged and accommodated, mental illness
has potentially dire consequences for employers. On the other
hand, opportunistic complaints of stress from constructive
criticism increasingly abound. Courts and tribunals are more often
requiring employers to inquire about the prospect of a disability
when an employee's behaviour becomes aberrant.
Discerning which accommodations are legitimate appears to be the
next major workplace battle. But that is for another column.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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