Here are my top 5 employment law stories for 2022:
1. COVID 19 – Temporary Layoffs
This issue remains my number one story because this issue impacts so many court cases. Some judges have concluded that a temporary layoff set out in the Infectious Disease Emergency Leave (“IDEL”) regulation under the Employment Standards Act, did not change the common law. So, this kind of temporary layoff is still a constructive dismissal, whereas at least one judge has come to the opposite conclusion. The issue came before the Ontario Court of Appeal in 2022, but the court refused to decide this issue. My firm has cases that have not settled because of the legal uncertainty surrounding this issue. My guess is there are still thousands of cases awaiting a decision from the Ontario Court of Appeal (and likely the Supreme Court of Canada after that).
2. COVID – Is The Failure To Comply With A Mandatory Vaccine Policy Just Cause for Termination?
Many employees were terminated in the last two years for failing to comply with a mandatory vaccine policy and these cases are winding their way through the courts. I suspect terminations that took place when: case counts were high; hospitals were at or over capacity; government vaccine mandates are in place; and, when health officials were requiring or recommending mandatory vaccine policies will more likely be upheld than if these facts are not present. In other words, I think a major factor will be health and safety considerations in relation to the employee, other employees in the workplace, and members of the public. The larger the health and safety risk the unvaccinated employee poses, the more likely the discharge will be upheld. For example, I think proving just cause now will generally be more difficult to prove than in January 2022.
3. Two New Mandatory Employment Policies
As of June 2, 2022, employers that employ 25 or more employees as of January 1, 2022, were required to have a written policy with respect to disconnecting from work. As of October 11, 2022, employers with 25 or more employees as of January 1, 2022, were required to put in place a written policy regarding any electronic monitoring processes they use to monitor employees. I suspect many (if not most) small employers with under 50 employees were unaware of these new obligations and did not implement these policies. For those employers who did, I do not think the policies likely resulted in more disconnecting from work or resulted in less electronic monitoring of employees. When preparing these policies, I suggest thinking twice before getting a free policy off the internet or buying a generic one. I have seen many such policies that go far beyond the statutory requirements, take away management rights, and impose obligations on the employer that these new laws do not.
4. Employment Contracts – Waksdale 2.0
As most of you are aware, the Court of Appeal’s 2020 decision in Waksdale v. Swegon North America Inc. rendered many (if not most) termination clauses in employment contracts unenforceable. The early cases focused on the termination clause itself. However, in a 2022 decision, an otherwise enforceable termination clause was found to be unenforceable because a specific penalty clause in another provision in the contract contravened the Employment Standards Act. In particular, a conflict of interest clause included the following sentence, “a failure to comply with this clause above constitutes both a breach of this agreement, and cause for termination without notice or compensation in lieu of notice.” If you have not updated your employment contract lately, it may be a good time to do so.
5. Is Secretly Tape Recording Workplace Conversations Just Cause?
The number of times I hear about employees secretly taping work calls has risen exponentially in recent years. In fact, I will sometimes tell a client contact to assume that certain conversations are being taped. There are cases going both ways on whether secretly recording a workplace conversation is just cause. I think the law needs to develop over the next few years before employment lawyers will have a good idea of which kind of secret recordings cross the line. In the meantime, I think judges will look at several factors when deciding whether or not secretly recording workplace conversations is just cause for termination, including: the number of recordings; over what period of time are the recordings made; the reason why the employee recorded the conversations; did secret recording run afoul of an employer policy or a professional obligation; and, did the employee record personal conversations that had nothing to do with work which violated a co-worker’s privacy. If you are concerned about this issue, you can introduce a no secret tape recording policy.
For the past 30 years, Doug MacLeod has been advising and representing employers in all aspects of the employment relationship. If you have any questions, you can contact him at 416 417-9894 or at [email protected].