The last page has turned on the calendar for 2016 so it is time for my top 10 employment law stories for the year.
1. Sexual harassment. The fallout from the Jian Ghomeshi saga continues. An adjudicator under the Code awarded $ 150 000 in damages to an employee who had been sexually harassed/assaulted (Click here for a summary), a judge of the superior court awarded an employee who had been sexually harassed/assaulted $ 300 000 (click here for a summary), and another adjudicator ordered an employer to pay an employee $ 15 000 for a hug (click here for a case summary). Furthermore, the Ontario government carried out an extensive ad campaign condemning sexual harassment at the workplace, in schools and in society at large. The OHSA was also amended to include sexual harassment in the definition of harassment. I recommend that all employers have a written no discrimination policy with a written complaint procedure to support it.
2. Ontario’s proposed pension plan goes kaput. The federal government reached an agreement with the provinces to expand the Canada Pension Plan so Ontario’s proposed pension plan was shelved. This legislative initiative which would have required employers to pay 1.9% of payroll into a provincial pension plan turned out to be much ado about nothing. And I say: good riddance. Payroll taxes are high enough in Ontario.
3. Damage awards for disabled employees are on the rise. Employers need to be very circumspect when it comes to terminating a disabled employee. For a summary of a case where a disabled employee earning $ 12.85 per hour was awarded the equivalent to about 10 years termination pay, click here. For a summary of a case where a disabled employee was reinstated with 10 years back pay, click here. Have I got your attention?
4. Accommodating mentally disabled employees is tricky. Really tricky. In July 2016, the Ontario Human Rights Commission issued a policy on the topic. It discusses a number of issues like an employer’s duty to inquire about a disability in certain cases where the employee has not disclosed a disability. There were some cases where employers have been ordered to pay damages for refusing an employee’s request not to report to a supervisor or report to a geographic location. For a summary of a recent case on this issue, click here.
5. Fixed term contracts continue to be a very bad idea. One of my greatest pet peeves are fixed-term contracts. This year the Ontario Court of Appeal ordered an employer to pay an employee 37 months’ termination pay which was the balance of a 5 year fixed term contract. The court concluded the following early termination clause was NOT enforceable: “Employment may be terminated at any time by the Employer and any amounts paid to the Employee shall be in accordance with the Employment Standards Act of Ontario.”For a summary of this case, click here.
6. Courts are not enforcing termination clauses. Or are they? I presented a paper at the Law Society of Upper Canada’s 17th Annual Employment Summit on this issue. The law is all over the map in this area at the moment, and it is very difficult to predict whether a judge will enforce a termination clause that limits an employee to employment standards minimums. For more information on the current state of the law, click here.
7. The cost of terminating older workers is going up. With the elimination of mandatory retirement more employees are working longer and courts are being asked to assess damages for terminated older workers. There is case law developing that suggests older workers are starting to get longer notice periods and may not have to look for work as diligently as younger workers. For a discussion of a recent case, click here.
8. On September 8, 2016, a new amendment to OHSA expanded the definition of harassment to include sexual harassment. All incidents and complaints of harassment must be investigated by a trained investigator. The investigator must also follow a written complaint procedure. For more information on this amendment, click here. The MacLeod Law Firm is offering workplace harassment investigation training on February 1, 2017 in Barrie and February 6, 2017 in Toronto.
9. The mother of all regulations under AODA takes effect January 1, 2017. Several new obligations are being imposed on employers with 1 to 49 employees. Additional obligations are imposed on employers with 50 or more employees including the requirement to prepare an individual accommodation plan for any employee seeking accommodation. For more information on these changes, click here. The MacLeod Law Firm has a fixed fee compliance service to help employers make sure they have done everything needed to comply with this law.
10. Changes to the Employment Standards Act are coming. Former Justice John Murray and senior labour lawyer Michael Mitchell have carried out extensive public consultations about possible changes to the ESA. They have issued a preliminary report. For more information on this report, click here. The composition of the Ontario workforce has changed significantly since 2000 when the ESA was last amended and I predict these senior practitioners will recommend fairly substantial amendments. But we shall see. Stay tuned.
For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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