As I represent both employers and employees, often times both types of clients are surprised as to what the entitlement of a departing employee may be. I thought that a brief overview of employment law may prove useful for future reference.
Essentially, there are two types of dismissals in Canada; dismissals for just cause (where no severance is payable) and dismissals on reasonable notice (where the employer must either give reasonable advance notice of termination or pay in lieu of such notice).
Legally, just cause is a narrow concept including such things as theft and conflicts of interest. For the purposes of this article, I won’t deal with just cause terminations.
The Biggest Surprise for Employees
Employees terminated without cause usually want to discuss all of the details leading up to their termination and give all of the reasons why they didn’t deserve to get fired. The biggest surprise for them is that the reasons for the termination are irrelevant. This is also the most difficult thing for employees to understand. A post-termination autopsy of all of the reasons you should not have been terminated is useless. Really, the only issue is if you have been provided with adequate reasonable notice.
What is adequate reasonable notice? It is the employee’s full compensation package for the amount of time which a judge would decide to be reasonable notice in all the circumstances of the case (based primarily on length of service, position, age, level of specialization, etc.).
The Biggest Surprise for Employers
The Employment Standards Act of Ontario provides for a certain statutory minimum, however, an employee is usually entitled to more. Yes Mr. Employer, it is the minimum. There is usually a common law (Judge made law developed through precedents) entitlement which exceeds the statutory minimum. Depending on the employee’s length of service, position, age and level of specialization, the entitlement can be a lot more.
I suggest going to see an employment lawyer if you have been presented with a severance package or if you are thinking of terminating an employee. Either way, the cost associated with the consultation will usually put (or keep) some extra money in your pocket.
Sabatina Vassalli
Employment Law
Monday, April 18, 2011
Wednesday, April 6, 2011
Employer Responsibility for Employee Conduct
Employer Responsibility for Employee Conduct in the Workplace
Bullying is a huge societal concern, but not only in the playground - also in the shop floor, photocopying room and within the office cubicles. Yes, that’s right, bullying and harassment in the workplace is a significant management problem, and one that the government will not tolerate. With that comes a question asked by many employers: Can an employer be held liable for the misconduct of their employee within the workplace? The short answer is yes…but only in certain circumstances. With the recent amendments to the Occupational Health and Safety Act, in Bill 168, the government has thrown down the gauntlet against harassment, bullying and violence in the workplace.
However, this won’t just affect employees; employers can and will be held responsible for the acts of their employees under certain circumstances. This includes harassment and bullying that is condoned or seemingly facilitated by the employer. If the employee’s wrongful conduct consists of acts authorized directly by the employer, or even indirectly - when the unauthorized wrongful conduct is so connected with the acts that the employer has authorized - then the employer could be held responsible for the acts of the employee.
There are two practical considerations for the imposition of accountability on employers for the acts of their employees: (1) fair compensation for the harm, and (2) deterrence to avoid the harm from happening again. Keep in mind that the overarching role of the law in this area is in its ability to both reflect society’s concerns to deter social evils, such as harassment and bullying, while not unduly interfering in necessary economic effectiveness.
What does this mean for employers? In short, in order to avoid paying a hefty price for the acts of employees, employers must comply with their statutory obligations, in light of Bill 168, to have a policy and program in place that sets out management guidelines and procedures with respect to harassment and violence in the workplace. Bill 186 sets out certain mandatory requirements. There must also be implementation and supervision of that program. Taken even further, employers should have a system in place that both fairly compensates the harmed employee and punishes the harming employee, to ensure a high level of deterrence.
If the above isn’t enough to convince management to comply with the requirements of Bill 168, keep in mind that the Ministry of Labour health and safety inspectors will enforce the new OHSA provisions for workplace violence and workplace harassment to determine if employers are complying with their new duties.
For further information on Bill 168/Preventing Workplace Violence And Workplace Harassment, see: http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_workplaceviolence.php
Andrea Griese
Employment Law
Bullying is a huge societal concern, but not only in the playground - also in the shop floor, photocopying room and within the office cubicles. Yes, that’s right, bullying and harassment in the workplace is a significant management problem, and one that the government will not tolerate. With that comes a question asked by many employers: Can an employer be held liable for the misconduct of their employee within the workplace? The short answer is yes…but only in certain circumstances. With the recent amendments to the Occupational Health and Safety Act, in Bill 168, the government has thrown down the gauntlet against harassment, bullying and violence in the workplace.
However, this won’t just affect employees; employers can and will be held responsible for the acts of their employees under certain circumstances. This includes harassment and bullying that is condoned or seemingly facilitated by the employer. If the employee’s wrongful conduct consists of acts authorized directly by the employer, or even indirectly - when the unauthorized wrongful conduct is so connected with the acts that the employer has authorized - then the employer could be held responsible for the acts of the employee.
There are two practical considerations for the imposition of accountability on employers for the acts of their employees: (1) fair compensation for the harm, and (2) deterrence to avoid the harm from happening again. Keep in mind that the overarching role of the law in this area is in its ability to both reflect society’s concerns to deter social evils, such as harassment and bullying, while not unduly interfering in necessary economic effectiveness.
What does this mean for employers? In short, in order to avoid paying a hefty price for the acts of employees, employers must comply with their statutory obligations, in light of Bill 168, to have a policy and program in place that sets out management guidelines and procedures with respect to harassment and violence in the workplace. Bill 186 sets out certain mandatory requirements. There must also be implementation and supervision of that program. Taken even further, employers should have a system in place that both fairly compensates the harmed employee and punishes the harming employee, to ensure a high level of deterrence.
If the above isn’t enough to convince management to comply with the requirements of Bill 168, keep in mind that the Ministry of Labour health and safety inspectors will enforce the new OHSA provisions for workplace violence and workplace harassment to determine if employers are complying with their new duties.
For further information on Bill 168/Preventing Workplace Violence And Workplace Harassment, see: http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_workplaceviolence.php
Andrea Griese
Employment Law
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