business law week 10 lecture

Our next topic is employment law. If you ask my clients what the most difficult thing that they have to deal with is, I bet every one of them would say employees. Why? Because people are really difficult to manage. They're irrational. They're unpredictable. They're emotional. They get angry. They get sad. They misbehave. They have office romances. They steal people's lunches from the office fridge. They bring all of their baggage from home and elsewhere to work.

But if you ask me what the best indicator of business success is, I'll tell you employees. If you show me a company that has employees who feel valued and respected, who are proud to work for the company, who really care about their jobs and the company they work for, I'll show you a company that's probably going to succeed. And the opposite is true, too. We've all seen those employees who don't give a damn, who don't even look up from their phone when you walk in the door. Right? If you show me a company where the employees are disgruntled and feel that they are poorly treated and disrespected and underpaid and overworked and looking for any other job as soon as they can find it, I'll show you a company that's in trouble.

So employment is very difficult and challenging because on the one hand it may be the most important job that a business leader has to manage employees. On the other hand it's probably the most difficult.

What we will learn in this module is that every employment relationship is a contractual relationship. Even if there's no written employment contract, the relationship between employer and employee is always one of contract. And so fundamental contract law principles that we've already learned apply to the employment relationship. But employment is one of these special kinds of relationships. It's not just a contractual relationship. Why? Well, for one thing, people need a job. It's a necessity. For another thing, there is a built-in imbalance of power in an employment relationship. The whole relationship is based on one person telling the other person what to do. So the notion of voluntary consensus that underlies much of what we learned in contract law, it's not there in the same way when you're dealing with an employer and an employee.

And so the law has imposed certain additional principles on the employment relationship. The employment relationship is contract law modified both by statute and also by the common law by court decisions.

In this module, we're going to talk about the employment relationship and we're going to look at when there is an employment relationship and when there isn't. When there is, for example, just a relationship of independent contract. We're going to talk about the fairly recent introduction of the concept of dependent contractors, which is somewhere between employees and independent contractors. We will talk about the laws that govern the workplace and then we'll talk about termination of employment. And if there's one area of business law that is really poorly understood by business people, it's termination of employment. What I will do is I will take you through a typical termination of employment analysis and we'll see how employers ought to deal with that. And then finally, we'll spend a few minutes on professional services and self-regulating professional bodies.

I'm going to suggest to you as we go through this module that employers who treat their employees with dignity and respect, who treat them fairly, who value them and the work they do, will avoid most of the problems that employers have legally speaking with employees. When employees feel respected and valued, when they're proud to work for a company, then they care and they stay. So recruitment and retraining costs are low. And so you have a very high level of knowledge for each employee you have and they care. And so product quality and service quality is really high. That equals profitability.

And again, the opposite is true, too. If you have employees who don't care, who aren't happy, who aren't proud to work there, and who are looking for the door as soon as they find a job that pays 50 cents an hour or more, you're going to have high recruitment and retraining costs. You're going to have employees who don't know what they're doing, which strains relationships with suppliers and customers. You're going to have product quality and service quality problems because the employees don't know how to spot problems. And anyways, even if they could, they don't care. And that translates to poor profitability.

For me, managing a workforce means treating employees with dignity and respect and valuing them as human beings. Now, that sounds simple enough, but

it isn't because remember, people are really complicated and difficult to manage. And so, actually pulling that off in the real world is quite challenging. But we're going to talk about some ways that you can do it.

Employment Law (1)

1. The employment relationship.

2. Termination of employment

3. Other employment laws

4. Collective bargaining

We're talking about employment law and we're going to talk about four main topics in these videos. The first is the employment relationship and how to determine if you have an employment relationship. The second is the termination of employment, which is an important subject that a lot of employers are not clear on. Third, we'll talk about other employment laws. And we'll finish up with collective bargaining or the union environment.

Employment Law (2)

1. The employment relationship.

2. Termination of employment

3. Other employment laws

4. Collective bargaining

As I mentioned in my introduction, the theme of this discussion is going to be that doing the right thing, treating employees fairly with dignity and respect, and honoring legal obligations can provide real benefits for employers. And that's for a couple of reasons.

Employment Law (3)

1. The employment relationship.

2. Termination of employment

3. Other employment laws

4. Collective bargaining

First of all, if employers treat their employees fairly and with dignity and respect, they're much less likely to get involved in legal disputes. The second benefit for employers is that they can be more successful in business if they can cultivate a workforce of people who are proud to work for them and who believe that there is a strong culture, a a a sharing of values across the organization. I've been working with employers for many many years in a variety of different industries and I'm completely convinced that not just for moral reasons but for legal and business reasons the best way to approach employment is to treat people fairly with dignity and with respect.

Employment Law (4)

1. The employment relationship.

2. Termination of employment

3. Other employment laws

4. Collective bargaining

Historically, employment law comes from a time when there was a twoclass system. There were only rich and poor people. There were landowning aristocrats and the peasants who worked for them. You can see this kind of division in the traditional phrase that describes employment and law. It's called the law of master and servant. You still see that in in many books and articles about employment law. Courts still use the phrase master and servant. That really gives you an idea uh about you know how the relationship was viewed by the law. And it also highlights the division between capital and labor that has gone back for centuries.

Employment Law (5)

1. The employment relationship.

2. Termination of employment

3. Other employment laws

4. Collective bargaining

If you go back even a hundred years in Canada, you'll see an employment landscape that looks very different to what we have now. It's more like like something out of out of a an English um Dickens novel. Um, if you have grandparents, uh, or greatgrandparents, uh, ask them what the employment landscape was like when they were young, and they'll tell you some some pretty disturbing stories. A hundred years ago in Canada, especially if you were in a mining town or a mill town, um, the conditions of work were really, really desperate. Um they were dangerous.

Employment Law (6)

1. The employment relationship.

2. Termination of employment

3. Other employment laws

4. Collective bargaining

People were injured and killed frequently. Um PE there were no health and safety laws at all. Children would work for many hours, many times underground in in mines. Um there was no laws against sexual harassment or discrimination. Um and and the courts ignored this terrible situation for a long time. Um and remember too that there was no social safety net back then. There was no um health insurance. There was no Canada pension plan. Um there was there was no welfare for people who were um chronically unemployed. There was no employment insurance for people who were temporarily unemployed at that time. If if you couldn't work or if you were fired, then your family might starve.

So, you might ask, why did the courts accept this obvious departure from justice and fairness?

Employment Law (1)

Every employment relationship is contractual …

… whether the contract is in writing or not.

Well, the answer lies in the basic fact that every employment relationship is a contractual relationship. And as we know, one of the most fundamental principles of contract law is freedom of contract. In other words, you're able to structure your legal arrangements however you like. As long as you voluntarily agree to the terms, then the law will enforce it.

Employment Law (2)

Every employment relationship is contractual …

… whether the contract is in writing or not.

And so when employees went to court to complain about unsafe working conditions or dangerous conditions or discrimination or harassment or being fired uh without good reason, um the courts would simply ask, well, did you voluntarily agree to the terms of employment? to which the answer was always yes. And then the courts would conclude, well, we don't get involved in whether the terms are fair. We only get involved in determining whether the contract was voluntarily entered into. If it was, then it's enforceable.

Employment Law (3)

Every employment relationship is contractual …

… whether the contract is in writing or not.

Well, that was then and this is now. And things are obviously a lot different now. Now we have all kinds of laws that protect employees and we do have a social safety net. We do have OHIP and employment insurance and welfare and workers compensation. So how did things change? How did we get from where we were 100 years ago to where we are now? Well, it's complicated, but I can point to three factors which I think had a pretty significant impact on the changes that we've seen in the labor landscape.

Employment Law (4)

Every employment relationship is contractual …

… whether the contract is in writing or not.

The first um would have been the development of a middle class. So when a middle class developed, which was after the first world war, ordinary people had something that that they had never had before, and that was disposable income. Up until then, people had to spend everything they earned just to get by. It was pretty hard to think about helping your neighbor out when you didn't have enough food for your family. But with mass production, with the industrialization of the economy, the working class had more income than they needed to get by. And collectively, they were willing to use some of that money in order to help out their neighbors who were not as fortunate.

Employment Law (5)

Every employment relationship is contractual …

… whether the contract is in writing or not.

The second thing that happened was the involvement of women in politics. Women didn't get involved in Canadian politics in in any significant way until about a hundred years ago. And that and that was largely because they were prohibited from being involved in politics in any real way. But when women became involved in politics, they tended to gravitate to pro to to championing causes that protected vulnerable people, including children and workers. And you can trace the involvement of women in politics to various changes in legislation designed to protect workers and to outlaw some of the more egregious practices that employers would take at the expense of employees.

Employment Law (6)

Every employment relationship is contractual …

… whether the contract is in writing or not.

And then the third factor that had a significant influence on the labor landscape was the um introduction of labor unions, trade unions. labor unions, which we'll talk about at the end of the videos, um, started out by threatening the viability of businesses by speaking on behalf of labor with a unified voice. That is the unions would go to the employer and say we are going to shut down production unless you agree to these various terms safe working conditions, better wages, benefits, etc. And unions were successful. It wasn't easy, but they did carve a place for themselves in the employment landscape. Since then they've become enshrined in the law and we will talk about that again when we talk about collective bargaining. But I think it's fair to say that that through these factors and others the labor law picture changed dramatically over the last century.

Employment Law (7)

Every employment relationship is contractual …

… whether the contract is in writing or not.

We now have a lot of legislation which provides protections for workers and we're going to talk about some of that today. We have health and safety legislation, human rights legislation, employment standards legislation, pay equity laws, and a social safety net that protects people.

Employment Law (8)

Every employment relationship is contractual …

… whether the contract is in writing or not.

Legally, what's happened is that we've taken what has always been a contractual relationship and we have modified it by both legislation and case law. In other words, we still have a contract and we still have freedom of contract, but that freedom of contract has been modified by legislation and case law. The employment contract is not treated the same as other contracts. It is linked to notions of human dignity, human rights, and public policy. And so the courts and the legislatures have taken a slightly different approach towards the employment contract than other contracts. And I think you'll see that as we go through our discussions.

Every employment relationship is contractual whether it is written down or not. We are talking about a special kind of contract.

Employment Law (1)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Vicarious liability

2. Employment legislation

3. Income tax deductions

Now the first question we need to know is whether we have an employee. Now why would we want to know whether the relationship we are looking at is one of employment or not? Well, you have to understand first of all that just because someone does work in exchange for money, that does not necessarily mean there's an employment relationship. For example, if you look at my law clerk, my law clerk is an employee. She does work for me in exchange for money. But consider the plumber who comes to fix my sink at home. She also does work for me in exchange for money. But she's not an employee. She is what we would call an independent contractor.

Employment Law (2)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Vicarious liability

2. Employment legislation

3. Income tax deductions

And so the first thing we have to distinguish is whether we have an employment relationship or a relationship of independent contract. And the reasons why we want to make that distinction are first because as we know employers are vicariously liable for the actions of their employees. So if you have an employment relationship and the employee does something negligent, then the employer is vicariously liable. We talked about that when we talked about tort law. But if you don't have an employment relationship, then you don't have vicarious liability.

Employment Law (3)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Vicarious liability

2. Employment legislation

3. Income tax deductions

The second reason that we want to know if we have an employment relationship is because if we do, then we have to comply with all the employment laws that we're going to be talking about. the Employment Standards Act, the Pay Equity, Health and Safety, etc.

Employment Law (4)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Vicarious liability

2. Employment legislation

3. Income tax deductions

Third, those of you who have jobs will know that if you are an employee, when you get paid, you don't get a gross amount of pay, you get a net amount of pay because your employer is required to deduct certain amounts from your gross pay like um CPP, federal income tax, and other deductions and to remit those amounts directly to the government. Well, once again, if you don't have an employee, then you don't have to make those deductions and remittances. So, now we know why it's important to figure out whether we have an employee or an independent contractor.

Employment Law (1)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

Well, how do we make that distinction? The courts will look at all the available evidence to try and determine whether the relationship is one of employment or not. It isn't a simple analysis and it isn't a mathematical tallying up of the various factors. It's more holistic than that. There is not one single factor which is determinative. However, there are a few factors which are more important than others.

Employment Law (2)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

The first and most important test to determine whether there is an employment relationship is called the control test. Here the question is who controls the work that is done? Who decides when the work will be done, where it will be done, how it will be done. If the person that controls the work is the person for whom the work is being done, then it's more likely to be an employment relationship. If the person who controls the work that is done is the person doing the work, they're more likely to be an independent contractor. The control test is the most important factor in determining whether there is an employment relationship.

Employment Law (3)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

The second most important test is called the organization test. This question asks how integral how important how critical is this person to the organization. The more critical or integral the person doing the work is to the organization, the more likely they are an employee. The more peripheral they are, the less connected they are to the organization, the more likely it is they are an independent contractor.

Employment Law (4)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

And then the court will look at all other available factors. Whether the person doing the work has a risk of loss, whether they own their own tools, whether they have an agreement, a written agreement stating that they are an employee or not. Again, there is no one determinative factor. Quite often employers make the mistake of thinking that if they have a written agreement one way or the other that that will make the distinction, but it doesn't. Notice that whether there is a written agreement is only one of many factors and it isn't even one of the more important factors.

Employment Law (5)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

Going back to my examples with my law clerk and my plumber, let's put some meat on the bones there. Take my law clerk for example. If we apply the control test, we'll see that I'm really the one who controls the work that's done. I determine where the work will be done at my office, when it will be done. I set the hours of work. I determine which clients we will work for, what kind of work we will do, and how the work will be done. So according to the control test, my law clerk is an employee.

Employment Law (6)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

If we apply the organization test, we get the same result. My law clerk is an integral part of my organization. She has an office. She has her name on the door. She has her desk and her computer. She has business cards with my firm name on them. I introduce her as an integral part of my organization. The organization tests strongly suggest that my law clerk is an employee.

Employment Law (7)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

If we look at other factors, we can also see that my law clerk is an employee. She she eats lunch in the office lunchroom. She does not own her own tools. If she runs out of paper or pens during the day, I go and I replace them. And we also have an employment agreement that says she's an employee. So really, this one is quite easy. When we look at my law clerk, all of the factors point towards an employment relationship.

Employment Law (8)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

Now, let's look at my plumber. If we look at the control test, then we can see that the plumber is the one who controls the work. She decides when she's going to work, who she's going to work for, what kind of work she's going to do. She decides how she's going to fix a sink. She just agrees to fix the sink in exchange for money. If we look at the control test, we can see that it's strongly suggest that the plumber is not my employee, but rather is an independent contractor. She's running her own business. She's not part of my business.

Employment Law (9)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

When we look at the organization test again, we get to a similar result. My plumber is not part of my organization at all. She doesn't wear a uniform with my business name on it. She wears a uniform with her business name on it. She has her business name on the side of her truck. She doesn't get paid a salary. She provides invoices to customers for the work that's done. She does. I don't know where she eats lunch, but it's not in my company lunchroom. Right? So, my plumber is not at all integral to my organization. I don't introduce her as part of my organization. She doesn't identify herself as part of my organization. This strongly suggests that she is not an employee, but rather an independent contractor.

Employment Law (10)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

And if we look at all the other available evidence, we can see that it suggests a relationship of independent contract. My plumber owns her own tools and if she runs out of something, supplies or tools during the day, then she goes and buys it. Um, she has a risk of loss. If she spends more on advertising fuel and tools than she gets in revenue, then she loses money. All of these other factors point to a relationship of independent contract.

Employment Law (11)

Distinguish between EMPLOYMENT and INDEPENDENT CONTRACT.

1. Control test

2. Organization test

3. All other factors

What does that mean? Well, again, it means that I will not be vicariously liable for the actions of my plumber. It means that I don't have to comply with employment standards or other employment legislation with respect to my plumber. And it means that I don't have to deduct any amounts from what I pay her and remit it to the government. If she charges me $250, I just pay her $250.

Employment Law

Obligations of employers:

• pay salary or wages

• honour employment contract

• provide safe working conditions

So that's the first question that we needed to answer and that is do we have an employee or do we have an independent contractor?

Once we've determined that we do have an employment relationship, what are the obligations of the parties? Well, employers have an obligation to pay salary or wages. They have to honor the employment contract and they have to provide safe working conditions. And as we'll see, they also, of course, have to comply with all of the employment laws that we're going to be talking about.

Employment Law (1)

Obligations of employees:

• work competently

• be on time

• be loyal

• fiduciary duty (maybe)

What about employees? Well, employees have to work competently. They have to show up on time. They have to be loyal. Do they owe a fiduciary duty to their employer? Well, that's a maybe. It's a maybe because we know that that sometimes employees are fiduciaries. Other times they're not. If an employee is an agent, then they're they owe a fiduciary duty. We know that. If they are a director or officer of a company, they owe a fiduciary duty. We know that. But if they are an hourly employee or an assembly line worker or a custodian uh or a music teacher, then they would not owe a fiduciary duty to their employer.

Employment Law (2)

Obligations of employees:

• work competently

• be on time

• be loyal

• fiduciary duty (maybe)

To wrap up this section, remember this is contract law. It's contract law modified by legislation and case law, but it's contract law. And so the fundamental principles of contract law apply. When we come back, we're going to be talking about the termination of the employment relationship.

Employment Law (1)

Termination of employment can be with or without cause.

When terminated with cause, an employee is not entitled to notice of termination or severance pay.

we want to talk now about the termination of the employment relationship. This is an area that a lot of employers do not understand. I spend a great deal of my professional time advising employers on their legal obligations when an employee is being terminated. Um, and I can tell you that um, it it's a conversation I I have to have over and over and over again because there there's a lot of misunderstanding. Um, and I think some of that is due to the fact that it it's pretty complicated. Uh, there are parallel sets of obligations. uh it it's confusing and if you don't do it all the time, it can be hard to keep track of.

Employment Law (2)

Termination of employment can be with or without cause.

When terminated with cause, an employee is not entitled to notice of termination or severance pay.

This is another area where I think it's really important to keep in mind that the best approach is to treat people with dignity and respect. And that can be difficult when someone is being terminated. it's easier for people to think, well, this person is is really bad and that's why they're being terminated and so I don't have to treat them, you know, as well as as I might otherwise. I think that's a big mistake. Uh, for one thing, I I think it's just a psychological compensation. I I don't think there's any merit in it. I think that people are entitled to be treated with dignity and respect regardless. And second, I think it can lead to negative outcomes because it can be used to justify behavior that gets employers in trouble. And so my advice is be extra careful when terminating someone's employment to do it in the most respectful manner possible.

Employment Law (3)

Termination of employment can be with or without cause.

When terminated with cause, an employee is not entitled to notice of termination or severance pay.

Now termination of employment can be either with or without cause. When an employee is terminated with cause, then they are not entitled to any notice of termination or pay in lie of notice or severance pay. Essentially, termination for cause means the employee can be dismissed on the spot immediately.

Employment Law (4)

Termination of employment can be with or without cause.

When terminated with cause, an employee is not entitled to notice of termination or severance pay.

If you want to think about this in contract law terms, this is like a breach of contract by the employee that is sufficiently serious that it allows the employer to treat the employment contract as over. That's essentially what it is. It's really just contract law. So, what kind of breaches of the employment contract are sufficient to entitle an employer to terminate for cause?

Employment Law

“Cause” may be based on:

• serious misconduct

• dishonesty

• insubordination

• chronic absenteeism

• sexual harassment

• conflict of interest

• breach of fiduciary duty

• criminal behaviour

Well, here's a list of some of the grounds on which employment can be terminated for cause. Um, it has to be serious. So when I have this discussion with employers and they start by saying, you know, I'm not sure if we have cause. Well, any conversation that starts that way ends with me saying then you don't. If you aren't sure whether you have cause, then you almost certainly do not. And that's because cause has to be something really serious.

Employment Law (1)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

The courts have established a test for cause. The termination for for cause must the the the behavior of the employee must rise to the degree that it violates an essential condition of the employment contract that it breaches the trust or faith that is inherent in the working relationship or is fundamentally inconsistent with the employees obligations to the employer.

Employment Law (2)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

Um and you know again I I try to encourage employers to think very carefully before they conclude that uh an employee can be terminated without cause uh or sorry with cause if the um employee has significant amount of seniority. In other words, they would normally be entitled to a significant amount of notice or pay or severance, then terminating them for cause under dubious circumstances is just asking for a lawsuit.

Employment Law (3)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

Um, quite often employers will ask me, um, can we terminate someone for cause because they've been late 20 times? I say, well, my goodness, you know, that is that is certainly serious. you know, 20 instances of lateness. Boy, that that that really is something. Um, and the employer says, "Well, can we terminate for cause? Is it sufficiently serious?" And my and my response will be, "Well, what did you do the first 19 times?" you know, um because if you did what's called progressive discipline, so if the employer started with the with the the the least severe punishment and then worked towards termination for cause, then it might be sufficient for termination for cause.

Employment Law (4)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

So, for example, if the first three times the employee was late, it they were given a verbal reprimand. The next three times they were late, they were given a written reprimand. The next three times they were late, they were suspended for one day. The next three times they were late, they were suspended for three days. All the while being told that if the situation did not improve, then they would ultimately be terminated for cause. Well, if the employer has a file like that for the 20 instances of lateness, then sure, they've got cause. But if they're just really upset because the employee has been late 20 times, but all they've done is note it in the file or talked to the employee verbally a few times, that's not going to do it.

Employment Law (5)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

Um, progressive discipline means that the employer cannot go from zero to the most severe form of punishment, which is termination for cause, without progressive discipline in between. Um, so you know, that's one of the reasons why it's so very important for employers to keep records in writing and to make sure that they communicate with their employees as to what is acceptable, what isn't, um, and where the employee needs to improve and what the consequences will be for failure to improve. Once you have that kind of a file, now you have options.

Employment Law (6)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

Uh sometimes employers will say, "Well, okay, I don't have that kind of a file, but I I really want to get rid of this guy and I really want to do it for cause, so I'm going to start building a file tomorrow, and I'm going to document every lateness, and I'm going to do just what you said. I'm going to I'm going to give written reprimands and and suspensions, etc." Well, that's okay. um in terms of you know in a few months maybe you'll be able to terminate the person for cause. But quite often what happens with these employees who are sort of habitually underperforming and and pushing the line, you know, on on the verge of being fired for cause um is that they'll figure it out and they'll notice, oh, this is this is different. I I'm being talked about talked to about my absences now. Huh. and they'll figure out that the employer is building a file on them and so they will perform just well enough to stay on the right side of of not being terminated for cause.

Employment Law (7)

To amount to “cause”, the misconduct must rise to a degree that:

• violates an essential condition of the employment contract

• breaches the trust or faith that is inherent in the working relationship

• is fundamentally inconsistent with the employee's obligations to the employer

So, um you know, my advice to employers usually is look, can this employee be rehabilitated? If not, then then let them go. And if you can't let them go for cause, then let them go without cause. But you don't do any favors for your organization by keeping people employed who are both underperforming and who you have determined cannot be rehabilitated. That's not a good business strategy. If the employee can be rehabilitated, if you think they could become a productive member of the workforce in the future, no problem. I think that that is time and energy well spent trying to get them back on track. Once you've made the determination though that they cannot be rehabilitated, then it's time to let them go.

Employment Law

Termination of employment without cause must be in good faith.

It must be for business reasons.

So let's say the employer does not have cause. Well, termination without cause can be done at any time. Now, it's a common misunderstanding that an employer has to have cause for termination. They don't. But the reason for termination cannot be arbitrary or discriminatory. In other words, it must be for business reasons. It doesn't have to be serious. It can just be that they're not getting along or that they're not doing as well as you would have hoped or that they, you know, it doesn't have to be sufficiently serious. It just can't be in bad faith. It can't be um discriminatory because of their religion or their skin color. And it can't be arbitrary. There has to be a reason.

Um, so let's say that a decision has been made to terminate an employee. There isn't cause.

Employment Law (1)

Termination of employment without cause creates two sets of obligations on the employer:

• must provide ESA notice, severance

• must provide “reasonable” notice

So the termination will be without cause. Now what? Well, termination without cause leads to two sets of legal obligations for the employer. First of all, the employer must provide notice and possibly severance under the employment standards act. Second, the employer must provide reasonable notice under the common law.

Employment Law (2)

Termination of employment without cause creates two sets of obligations on the employer:

• must provide ESA notice, severance

• must provide “reasonable” notice

Now the confusing part is that both of these obligations coexist. Now you you might ask does an employee have to give notice of termination as well? Yes. Typically an employee is also required to give reasonable notice of termination but we don't see very many cases on wrongful resignation. So when we talk about the failure to give notice, we're almost always talking about a failure alleged to have occurred on the part of the employer.

Employment Law (3)

Termination of employment without cause creates two sets of obligations on the employer:

• must provide ESA notice, severance

• must provide “reasonable” notice

So keep this straight. With termination without cause, the employer must comply with the Employment Standards Act, which means giving the required amount of notice under the act or pay in lie of notice, which means instead of notice, and possibly severance, and I'm going to go into that in a minute. And the employer must provide reasonable notice under the common law. Now these are not additive. They they they can overlap. As we will find out, reasonable notice under the common law is usually but not always longer than notice required under the employment standards act.

Employment Law (4)

Termination of employment without cause creates two sets of obligations on the employer:

• must provide ESA notice, severance

• must provide “reasonable” notice

If there is a written employment contract and the amount of notice that the employee will receive on termination is set out in the employment contract, then that will govern provided it is at least what is required by the employment standards act. If there isn't a written employment contract that sets out the amount of notice required, then reasonable notice must be given under the common law.

Employment Law (5)

Termination of employment without cause creates two sets of obligations on the employer:

• must provide ESA notice, severance

• must provide “reasonable” notice

I'm going to first explain what's required under the Employment Standards Act. Then I'm going to explain what's required under the common law. and then I'll tell you how they fit together.

Employment Law (1)

ESA notice: 1 week/year, max 8

ESA severance: 1 week/year, max 26 (if annual payroll ≥ $2.5 million and 5+ years employment)

This is termination without cause requirements under the employment standards act. The employer is required to provide notice of termination of one week notice per year of employment to a maximum of 8 weeks. So if the employee has worked for two years, they're entitled to two weeks notice. If they've worked for 12 years, they're entitled to 8 weeks notice.

Employment Law (2)

ESA notice: 1 week/year, max 8

ESA severance: 1 week/year, max 26 (if annual payroll ≥ $2.5 million and 5+ years employment)

Notice can be either notice of termination or payment or a combination. For example, suppose someone has been employed for 12 years. They would be entitled to 8 weeks of notice of termination. So they can either be given the notice for example so and so in 8 weeks your employment will end or they can be given a check representing 8 weeks pay and their employment ends immediately or a combination. In four weeks your employment will end at which time you will receive a check representing four weeks pay. All of those are equivalent to the 8 weeks of notice that's required.

Employment Law (3)

ESA notice: 1 week/year, max 8

ESA severance: 1 week/year, max 26 (if annual payroll ≥ $2.5 million and 5+ years employment)

In some circumstances, the employer must also provide severance. So, when do you need to provide severance? When you have a payroll of $2.5 million or more annually for all your employees. So you have a total payroll for all employees of $2.5 million or more and the employee has been employed for at least 5 years. If both those conditions are met, then the employee is entitled to one week of severance pay per year of employment to a maximum of 26 weeks.

Employment Law (4)

ESA notice: 1 week/year, max 8

ESA severance: 1 week/year, max 26 (if annual payroll ≥ $2.5 million and 5+ years employment)

For example, if our employee with 12 years of experience of work, 12 years of of employment with us is being fired without cause, terminated without cause, then they are entitled to 8 weeks of notice under the ESA and 12 weeks of severance. If the employer has a payroll of $2.5 million per year or more, severance pay can only be made in a lumpsum payment on termination. So severance cannot be spread out over time. It can only be paid in a lump sum.

Employment Law (5)

ESA notice: 1 week/year, max 8

ESA severance: 1 week/year, max 26 (if annual payroll ≥ $2.5 million and 5+ years employment)

These are the minimum requirements under the employment standards act. If the employer does not comply with these minimum requirements, then the employee can go to the Ministry of Labor and obtain an order requiring the employer to pay.

Employment Law

ESA notice can be lump sum, notice of termination, or combination of both

ESA severance must be lump sum payment on termination

Now, let's talk about the second set of obligations, the obligations under the common law.

Employment Law (1)

“Reasonable” notice is based on:

• age

• seniority

• skills, training, education

• ability to find alternative employment

The courts have consistently held that it is an implied term under every employment contract written or not that reasonable notice of termination will be given. That's why if the notice, the amount of notice is set out in the employment contract, then you have an express term. So, you follow that. But if not, if there's nothing in the employment contract regarding the amount of notice to which the employee will be entitled, then it is an implied term that they will get reasonable notice.

Employment Law (2)

“Reasonable” notice is based on:

• age

• seniority

• skills, training, education

• ability to find alternative employment

What's reasonable depends as usual on all the circumstances. In particular, it depends on the age of the employee, their seniority, their skills, their ability to find work. Notice of termination is intended to give the employee a reasonable opportunity to find alternative employment. So the more difficult it is for the employee to find another job, the more reasonable notice they are going to be entitled to.

Employment Law (3)

“Reasonable” notice is based on:

• age

• seniority

• skills, training, education

• ability to find alternative employment

So what about disability? Well, termination of employment for disability may be allowed by contract law, but there's probably a duty to accommodate under human rights legislation for the disability. So, and discrimination on the basis of disability can result in a human rights complaint and reinstatement. So under the old traditional principles of common law, it might have been permissible to terminate someone because of disability. We would never counsel an employer that that would be acceptable.

Employment Law (1)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

Now, so when you hear about wrongful dismissal, what is wrongful dismissal? Well, wrongful dismissal is either termination without reasonable notice or it's termination for bad faith or it's termination based on a prohibited grounds of discrimination. That's what wrongful dismissal is. It's usually termination without reasonable notice.

Employment Law (2)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

So what does the employee get if they sue the employer for wrongful dismissal? Well, the type of damages that the employee will receive are called Bardle damages after a 1960 Ontario case of the same name. In Bardle, the employee was awarded damages equal to the notice of termination that they should have received and didn't. Now, because this is a breach of contract claim, the employee has to mitigate their damages. Well, how do you mitigate your damages in a case like this? You have to look for work. You have to keep records of your employment search. You have to go to interviews and you probably have to take a job if it is suitable. And so employees have to mitigate their damages in order to establish the Bartle damages to which they're entitled.

Employment Law (3)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

So for example, if an employee is given 8 weeks notice because quite often what happens is employers will look at the Employment Standards Act which they can see online. They'll say, "Oh, well, the maximum amount of notice under the ESA is 8 weeks, so I'm going to give this employee 8 weeks." Well, in fact, the employee has been employed for 18 years. Well, if the employee has been employed for 18 years, we would normally think of reasonable notice being somewhere in the ballpark of two to four weeks of notice per year of employment. So that means that the employee is probably entitled to somewhere around a year of notice, not 8 weeks.

Employment Law (4)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

So let's say for sake of discussion that the court found that the employee should have been given 52 weeks of notice, a full year of notice, but they were only given eight weeks of notice. The employees damages, their Bardle damages are 44 weeks. The 52 weeks that they should have received minus the 8 weeks that they did receive. We used to think that there was sort of a soft cap on Bartle damages of one year. But that idea was kind of blown away by the Supreme Court of Canada in the 2014 Honda and Keys case where the court awarded 15 months of Bartle damages.

Employment Law (5)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

Honda and Keys is an interesting case because it also illustrated although Mr. He's received a significant amount of damages for wrongful dismissal, he was unsuccessful in his claim for punitive damages. In Honda and Keys 2014 case, Mr. Keys was diagnosed with chronic fatigue syndrome. He went to his employer, Honda Canada, and said, "I can't work because I have chronic fatigue syndrome. My doctor says I can't work." And Honda said, "Well, we don't believe you and we want you to see our doctor."

Employment Law (6)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

And Mr. Keys said, "Well, I'm not going to go see your doctor because I know what he's going to say. I went to see my doctor, and my doctor says I can't work." And Honda said, "Well, if you don't go see our doctor, then we're going to take the we're going to assume that you've simply resigned and decided not to show up for work," and we're not going to give you any notice or severance or benefits or pension or anything else. And that's exactly what they did.

Employment Law (7)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

At trial, Mr. Keys was awarded 15 months of pay in lie of notice. He was also awarded $500,000 in punitive damages because the employer acted in bad faith and caused significant emotional distress to Mr. Keys. The Supreme Court of Canada upheld the 15 months of Bartle damages but overruled the punitive damages because the Supreme Court of Canada ruled that the employer had not acted in bad faith or intended to cause harm. And so, Honda and Keys kind of cut both ways. In terms of Bartle damages, it blew through that soft cap of 12 months that we thought existed just because there had never been a case where more than 12 months of such damages was awarded.

Employment Law (8)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

But it also made the point that if an employee is seeking damages for mental anguish or distress from termination that that's going to be a very difficult case for them to make and they're going to have to show medical evidence and actual damages as a result of the actions of the employer. It's not going to be enough to show that the employer acted in an objectionable way.

Employment Law (9)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

Another thing actually that Honda and Keys did was it put an end to so-called Wallace damages. So okay, we know what Bartle damages are, right? That's the amount of reasonable notice that should have been provided less whatever notice was provided. Well, there was another case called Wallace versus United Grain Growers where Mr. Wallace was terminated from his employment under particularly egregious conditions. The employer humiliated him and treated him in an extremely disrespectful manner. What the trial court did was they said, "Okay, well, here's the amount of reasonable notice to which Mr. Wallace was entitled, and what we're going to do is we're going to extend that because of the egregious way in which he was terminated. So we're going to add on to the notice period and make it longer." And that became known as Wallace damages.

Employment Law (10)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

And so we would always say to employers, you know, you want to be careful because if you terminate an employee in a humiliating way, then you might be liable for Wallace damages. So what the Supreme Court of Canada also did in Honda and Keys was they said don't do that anymore to the courts. They said there's no such thing as Wallace damages and you're not to award them. So when they said that any damages for mental anguish, mental distress, pain and suffering have to be provable as a standalone claim, what they were saying to the lower courts was Wallace is not good law. It's not to be followed. You're not to increase the amount of notice due to the manner in which the employee was let go.

Employment Law (11)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

What's really interesting is that even though that is a Supreme Court of Canada precedent, the lower courts, you can tell when you study the decisions, they don't follow it. So whenever you have a case where the employee has been treated in a particularly disrespectful manner while being let go, the notice periods end up being longer. Now, of course, the lower courts don't call it Wallace damages because they're not supposed to because the Supreme Court of Canada said, "Don't do that."

Employment Law (12)

Wrongful Dismissal is:

• failure to provide reasonable notice

• termination on bad faith • discrimination

So they don't say that that's what they're doing. But that is what they're doing. It's very interesting. It's one of a couple of rare situations where the Supreme Court of Canada lays down the law on something and the lower courts sort of nod but wink, you know. Why? Well, I have a theory on that. My theory is that because the trial courts hear from witnesses, they actually hear the personal anguish of these terminated employees. They hear firsthand what the impact was of being let go in a particularly horrible manner. The Supreme Court of Canada never hears that because they're an appeal court, so they don't ever hear from witnesses. I don't know if that's why the discrepancy but I think it may well be.

Employment Law (1)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

Constructive dismissal is another kind of wrongful dismissal. It's when the employer breaks the employment contract by changing the nature of the job without the employees consent causing the employee to resign. Under contract law, this is kind of the opposite of termination for cause. Constructive dismissal under contract law is a breach of a condition by the employer and therefore this time the employee is entitled to treat the contract as ended. So this sometimes happens constructive dismissal when an employer decides, you know, we want to let someone go, but we don't want to pay all the money that it's going to cost. So what do we do?

Employment Law (2)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

Well, what we could do is we could make it so unpleasant for them that they'll resign. And so they take steps to change the nature of employment causing the employee to resign. Well, when that happens, that's a wrongful dismissal. And the damages that the employee will be entitled to will be the same as if the employee was terminated without cause. So, reasonable notice. Note that the employee does have to resign in order for there to be constructive dismissal.

Employment Law (3)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

So how do employers navigate this complicated landscape? Well, for sure they have to provide the minimum under the employment standards act. That is an absolute statutory minimum. Now, how much they want to provide in terms of reasonable notice, that's much more imprecise. For one thing, it can be difficult to estimate it. We often use a sort of a benchmark of 2 to 4 weeks per year of employment for reasonable notice, but reasonable notice could be less than that. It could be more than that. It's an implied term of the contract but it's not entirely clear how much it will be. If the employee already has a job starting Monday, well then the amount of reasonable notice to help them find new employment is zero, right? On the other hand, if the employee is older, they've worked for you for a very long time. They have very specific skills and it's going to be very difficult for them to find another job. Then the reasonable notice could be very very long.

Employment Law (4)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

And so what the employer has to do is try and figure out how much reasonable notice they have to provide so as not to leave money on the table and pay more than they need to, but also not get sued for wrongful dismissal. And that can be a difficult analysis, but it's one I go through with employers all the time.

Employment Law (5)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

When I am going through that analysis with employers, I try to encourage them to think about all the costs of dismissal, not just the dollar costs. That's not easy for employers to do. Employers are very good at adding up specific amounts of money. So, they take the number of weeks, they multiply it by the salary, they add the benefits, you know, whatever needs to be added up, and they get that pretty quickly. But I always remind them that there are nonmonetary costs to termination. There's the value of closure, of knowing that it's done and that you're not going to get sued. There's the value of sending a message to your other employees. You know, if you treat an employee very badly on the way out the door, then that's sending a message to all your other employees and they look around and think, "Uhoh, I could be next. I better get my resume updated because I don't want to be in that position a month from now."

Employment Law (6)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

Whereas, if you treat someone with dignity and respect and you treat them fairly, even when you're letting them go, that also sends a message to your employees. It sends a message that you care about people and that even if you're letting someone go, that you're going to treat them fairly. So other employees, they say, "Okay, you know what? A, I like working here. I like the fact that they care about people and they treat employees with respect and B, I don't want to get fired, but if I do, at least I know that I'll be treated fairly."

Employment Law (7)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

So, I try to encourage employers to think about the big picture when they are calculating how much reasonable notice they are going to offer in their severance packages. I try to remind them that there is a value to closure and avoiding litigation, that ex employees can be some of the most bitter and vindictive people on the planet. And so if you can part ways in a somewhat amicably that is beneficial. And I also encourage them to think about the impact that a termination especially of a long-term senior employee, how that is going to impact the other employees that you have.

Employment Law (8)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

So that is the discussion basically that I have with my employer clients when they're making a decision to let someone go. Sometimes they ask me to do it because they want to make sure that it's done properly and they want to have someone do it that is unencumbered with any sort of baggage that comes along with the termination. You know, the employee will sometimes say, "Is this because of what happened at the Christmas party?" You know, and I'm able to say, "I don't know what you're talking about."

Employment Law (9)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

And so I can sort of duck that entirely. I don't, you know, I'm not going to have those discussions. So, you know, I end up terminating quite a few employees, I must say. And I don't mind doing it in the sense that I know it's being done right and I know that I can do it treating the person with dignity and respect and doing it fairly and legally. So, you know, it makes me feel better that I know that it's being done properly. Once the decision's been made, then it's going to happen. The only question is whether it's done properly or not.

Employment Law (10)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

And sometimes my employers, they get cold feet. Nobody likes terminating someone's employment. And if you've ever done it, you know what I'm talking about. It sucks. People cry, they get angry, it's terrible. It really, you know, it's a very unpleasant thing. But, you know, that's one of the reasons that managers make more money because they do things that other people don't want to do. If it was easy, everyone would do it. It's not easy. But, I think that when my employers get cold feet and I can see them they're dragging their heels because they don't want to do it, I say to them, look, yes, you have a responsibility to the employee that you're letting go to deal with them fairly and legally, but you also have an obligation to the rest of your employees to get rid of this person.

Employment Law (11)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

ou have an obligation to do what's in the best interest of the organization so that you remain viable and successful. And right now, what's in the best interest of the organization is making sure that this person is gone. And so, if you've made the decision that this person has to go for whatever reason, then you must follow through with that decision.

Employment Law (12)

Constructive Dismissal is when the employer fundamentally changes the nature of the job without the employee’s consent, causing the employee to resign.

And so when I see my employer clients having made the decision that it's the right thing to do to let someone go and then they drag their heels because they don't want to do it, that's when I sort of give them a firm shove between the shoulder blades and say get in there and do it because you can't let your reluctance to do something unpleasant trump your obligation to do what's best for the organization and all the other employees.

So that's the very difficult and somewhat complicated topic of termination of employment. When we come back we are going to talk about some other employment laws.

Employment Law (1)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

So we are now on our third topic in employment law. We're talking about other employment laws. Um we know some of these um for example uh we know that employers are vicariously liable for the wrongful acts of their employees and we know that that means that employers should be taking some steps to avoid um that liability, right? They should be hiring good people. They should be training them. They should be monitoring them, supervising them. They should have good policies and procedures. Uh they should improve their uh physical facilities to minimize the likelihood of injury and things like that. Um and of course they should be buying insurance.

Employment Law (2)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

We know that employers may be liable for criminal activities um of employees. Uh we know that employers are liable for uh statutory deductions, withholdings and remittances. Um so um these are all uh things that we already know about. Um and again I would suggest to you that it's usually best legally, morally and economically to act ethically to begin with. And if you do the right thing, you're much less likely to get embroiled in a legal dispute.

Employment Law (3)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

Um, one question comes up sometimes with uh my clients is, can employers conduct drug and alcohol testing of their employees? Um, and this is a difficult one, isn't it? Because on the one hand, we want safe and efficient workplaces and we don't want people to be impaired by alcohol or drugs when they're on the job, especially if they're doing things that might be dangerous to themselves or others. Uh on the other hand, um you know, human rights means that workers should have dignity and reasonable privacy and you know, having to pee in a cup every morning when you get to work is not the way most of us would like to start our day. Um so what does the law say?

Employment Law (4)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

Well, mandatory drug testing is generally illegal. Um but testing for impairment um if it's connected to the safe operation of the job is legal. So you can't you can't just randomly test people for drugs or alcohol. But if they show signs of impairment then then you can. Um there are some occupations uh where it is permissible to conduct random drug tests um but not very many and only those involving extreme public safety.

Employment Law (5)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

generally um drug users and uh substance uh addicted people can only be dismissed after they have been offered treatment and have either refused the treatment or refused to cooperate once they go to treatment um or if they can't perform the job because of their alcohol or drug use or dependency. Um human rights uh tribunals see uh drug and alcohol dependency as a disability and therefore there is a duty to accommodate on the part of the employer. Now, that doesn't mean that you have to have people who are impaired uh on the job, but it does mean that you have to offer treatment and you have to uh try and accommodate people who may have drug and alcohol dependency issues.

Employment Law (6)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

then there are a number of employment laws that are in the form of statutes. Uh the Employment Standards Act is one we've talked about already with regard to termination of employment. The Employment Standards Act sets out minimum standards that cannot be contracted out of or waived. Again these are minimum standards. So um you can agree to more but you can't agree to less. Now having said that there are some categories of workers uh construction workers couple others that have different standards applicable professionals um but for most employees the Employment Standards Act provides minimum standards.

Employment Law (7)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

Minimum wage for example although there are quite a few exceptions, hours of work, overtime, rest periods, vacation. So for example, the minimum amount of vacation that people are entitled to is two weeks per calendar year. They you can agree that they'll be entitled to more, but you cannot agree that they'll be entitled to less. Um pregnancy and parental leave, equal pay for equal work, notice of termination, we've talked about layoffs.

Employment Law (8)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

Um so, uh, you know, COVID was a wake-up call for a lot of employers because when COVID happened and businesses got shut down, a lot of employers laid off their employees. Um, and then they discovered that they weren't actually entitled to do that um unless they had a written employment contract where layoffs were permitted. Um, now what happened was that the Ontario government subsequently retroactively amended the Employment Standards Act because of COVID to say that layoffs were permitted as a result of COVID. Um, but that doesn't change the common law.

Employment Law (9)

Employment Standards Act

• minimum wage

• hours of work, overtime, breaks

• vacation

• pregnancy and paternal leaves

• equal pay

• termination, layoffs, severance

And under the common law, those people would still have a potential claim for wrongful dismissal because if they didn't have an employment contract that said they could be laid off and they were told not to come to work, well, that is wrongful dismissal. Now, most people who were temporarily out of work as a result of COVID decided that they were better off going back to a job than suing their employers. And so most of these cases did not get litigated, but uh it's it's still interesting to note that layoffs are not permitted unless that is set out in a written employment contract.

Employment Law (1)

Human Rights Legislation

• prohibits discrimination

• requires accommodation

• prohibits sexual harassment

• may result in fines, re-instatement

Human rights legislation um applies to the employment relationship. Uh, human rights legislation prohibits discrimination and harassment, sexual harassment. Uh, and it applies mostly to three spheres of activity: employment, government services, and accommodation. Um, now why? Well, because these are all absolute necessities, right? You need a job, um you need government services, and you need a place to live. And so although human rights violations can be harmful in other areas, it's thought that they are particularly harmful in these three areas.

Employment Law (2)

Human Rights Legislation

• prohibits discrimination

• requires accommodation

• prohibits sexual harassment

• may result in fines, re-instatement

And so human rights legislation um has a has a significant impact on the employment relationship. Uh the human rights legislation in Ontario comes in the form of the Ontario Human Rights Code, but if you are a federally regulated employer, then it's the Canada Human Rights Code, but they have similar provisions. Um, the human rights code uh prohibits discrimination on a number of listed grounds and they are more or less what you would expect. Um, the code requires accommodation for disability. The codes prohibit sexual harassment and um the codes are what we call quasi-criminal.

Employment Law (3)

Human Rights Legislation

• prohibits discrimination

• requires accommodation

• prohibits sexual harassment

• may result in fines, re-instatement

They're not criminal law because of course that's federal jurisdiction and found in the criminal code, but they are like criminal in that the consequences can be fines or even jail time. Um, so we call them quasi criminal. There can also be orders of reinstatement if people are wrongfully terminated.