An Ontario arbitrator found that an
employment agency was the true employer of agency employees brought
in to perform sanitation work after the employer's entire
sanitation department was laid off in Gate Gourmet Canada Inc. v Teamsters Local
Union 647, 2014 CanLII 1163. The contract between
the agency and the employer specified that the agency was an
independent contractor and that the personnel supplied by it were
its own employees or sub-contractors subject only to its direction,
policies and procedures.
Despite the presence of some
elements suggesting an employment relationship between the employer
and the agency workers, the sanitation employees took their
direction entirely from the agency. It provided on-site
supervisory staff and a working supervisor for each shift in order
to provide that direction. The arbitrator concluded that the
agency exercised fundamental control over the working lives of its
personnel and was the employing entity. The work of the
employer had been legitimately contracted out.
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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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