Focus Alerts

Our Focus Alerts provide up-to-the minute information about significant cases and other developments in labour and employment law.

The articles listed below are intended to provide readers with general information. They should not be regarded or relied upon as legal advice or opinion.

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Ontario government announces that public holiday pay calculations will change (again) effective July 1, 2018

May 8, 2018

Employers who have been grappling with the new public holiday pay formula introduced earlier this year through Bill 148, the Fair Workplaces, Better Jobs Act, 2017, may be relieved to know that the government has announced that it will be reverting to the old formula, at least temporarily. On May 7, 2018, the government filed a Regulation under the Employment Standards Act, 2000 (“ESA”) (Ontario Regulation 375/18), which will take effect on July 1, 2018. Under that Regulation, an employee’s public holiday pay will be equal to the total amount of the regular wages earned and vacation pay payable to…

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Ontario arbitrator finds employees entitled to short-term and long-term disability plans under collective agreement not entitled to Personal Emergency Leave

May 4, 2018

Focus readers will recall that recent changes to Personal Emergency Leave (PEL) under the Employment Standards Act (ESA) have given all employees two paid and eight unpaid PEL days. These changes have left many employers that provide additional paid leave (such as sick, bereavement, and other leaves) questioning whether they must now also provide the PEL under the ESA. A recent arbitral decision sheds some light on this issue. An arbitrator ruled that employees covered by a collective agreement that provides both short-term and long-term disability benefits are not entitled to an additional two paid PEL days under the ESA….

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Arbitrator upholds termination for sexual harassment but rejects “zero-tolerance” approach

April 20, 2018

A recent arbitration decision upheld the termination of an employee for violating the Employer’s workplace violence and harassment policy. In Re Metro Rideau Store v. UNIFOR Local 414 (March 2018), Arbitrator Baxter found that on a balance of probabilities the terminated employee had sexually harassed a female co-worker, and that the Company’s decision to terminate the employment was not excessive. The employee at the time of termination was 61 years old, with eight years service and no prior disciplinary record. The Employer in this case was successfully represented by Emond Harnden’s own J.D. Sharp. The facts giving rise to the…

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Equal pay for equal work regardless of employment status provisions of Bill 148 coming into effect on April 1, 2018

March 29, 2018

The Employment Standards Act (ESA) currently prohibits employers from paying employees different rates of pay based on sex if they perform equal work. Effective April 1, 2018, there will be new provisions added to the ESA that will extend this equal pay requirement to employees whose employment status is different but who nevertheless perform substantially the same kind of work. A difference in employment status refers to a difference in the number of hours regularly worked (e.g., full-time vs. part-time) or a difference in the term of employment (e.g., permanent vs. temporary, casual or seasonal). This new equal pay requirement…

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Employer removes working from home – Court rules constructive dismissal

March 26, 2018

In Hagholm v. Coreio Inc. (December 2017), the Ontario Superior Court of Justice found that an employee’s ability to work from home was an essential term of her employment, such that when the Employer unilaterally took away this right, the employee was constructively dismissed. The Court awarded 20.5 months salary in lieu of notice. Ms. Hagholm was 59 years old and had worked for the Employer for 22 years (although she had also previously worked for the same employer before resigning for a period of time). Because Ms. Hagholm lived in the Waterloo Region, and the Employer’s office were located…

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Bill 203 – Proposed new employee rights to information about compensation in the workplace

March 15, 2018

The Ontario government introduced Bill 203, the Pay Transparency Act, 2018 (the Act) on March 6, 2018. If passed, the Act will come into effect on January 1, 2019 and will establish requirements relating to the disclosure of information about compensation (salaries and benefits) of employees and potential employees. In particular, the proposed legislation will: ban employers from seeking information about previous compensation from a job applicant, whether personally or through an agent. A job applicant may voluntarily disclose such information to an employer; require employers to include information about the expected compensation or range of expected compensation on publicly…

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Federal Budget 2018 – Key labour and employment-related provisions

March 5, 2018

The federal government tabled its 2018 Budget, entitled “Equality + Growth: A Strong Middle Class” in the House of Commons on February 27, 2018. We have summarized below those measures announced in the Budget that have labour and employment consequences. 1. Pay Equity – new proactive legislation The federal government has announced that it will take steps to reduce the gender-based wage gap in Canada. One of these steps will be to introduce new, proactive pay equity legislation that will apply to employers in federally-regulated sectors with more than 10 employees, including the federal public service. This legislation will be…

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Arbitrator reinstates nurse discharged for disparaging remarks

February 22, 2018

A nurse who was discharged from her employment for making disparaging comments about her employer has been reinstated. In North Bay Regional Health Centre v. Canadian Union of Public Employees, Local 139 (February, 2018), the issue for the arbitrator was whether the grievor’s public comments violated the basic duty of loyalty that she owed to her employer. The comments in question were made at a union-sponsored provincial conference for nurses. The focus of the conference was violence in the workplace. During the conference, without advance notice, the grievor was asked to speak about workplace violence in the nursing profession. Some…

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Court of Appeal upholds termination clause

February 15, 2018

A recent Ontario Court of Appeal decision represents a promising shift in how courts will interpret termination clauses. In Nemeth v. Hatch Ltd. (January, 2018), the employer terminated a 19-year employee. The employer provided notice, severance, benefits, and pension contributions, all in accordance with the Employment Standards Act, 2000 (the “ESA”), based on its interpretation of the following termination clause: The Company’s policy with respect to termination is that employment may be terminated by either party with notice in writing. The notice period shall amount to one week per year of service with a minimum of four weeks or the…

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The Top Employment Law Cases of 2017

February 8, 2018

It is undeniable that 2017 was an exciting and important year in employment law. The courts wrestled with complicated and difficult questions, including when can an employee be terminated for drug or alcohol use? And, can an employer require an employee to undergo an independent medical examination? There was a broad range of contentious issues such as these that came before the courts last year, with the end result being that a number of precedent-setting decisions were handed down in 2017. These cases were featured at Emond Harnden’s “Year End Update Breakfast”, hosted by Jacques Emond and Porter Heffernan on…

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