Terms & Definitions

SEVERANCE PAY

Severance pay compensates an employee for losses that occur when a long-term employee loses their job and is reserved for long term employees only. The intent of severance pay is to compensate an employee for loss of seniority, the value of firm-specific skills, and recognizes an employee’s duration of service.

In order to qualify the employer must: have an annual payroll of at least $2.5 million and the employee must have been employed for at least 5 years.

Contact Preddie Law to review your severance package to ensure you receive the correct severance package.

TERMINATION PAY

According to the Employment Standards Act (“ESA”), after 3 months of employment, an employee who is terminated without cause is entitled to either notice (during which they continue working and receiving pay and benefits), or they are entitled to pay in lieu of notice.

Termination pay is pay that is given in place of a required notice of termination. The amount of notice to which an employee is entitled will likely be set out in their employment contract, otherwise they are entitled to certain minimum standards guaranteed under the ESA. The length of notice to which employees are entitled depends on how long they have been working with a company.

Contact Preddie to review your termination package and ensure your allocation is correct.

WRONGFUL DISMISSAL

A wrongful dismissal claim in Ontario occurs when an employer terminates an employee without providing them advanced notice of termination or appropriate termination and or severance pay in lieu of notice. Employers often provide a terminated employee with minimum termination pay as required by the Employment Standards Act, 2000, but ignore the fact that common law termination and or severance pay must also be provided.
Your employer can dismiss you for any reason.

Contact Preddie Law to make sure the dismissal was permissible under the law.

TERMINATION WITHOUT CAUSE

An employer has the right to terminate an employee’s employment without cause at any time and for any reason as long as it’s not discriminatory. All that is required of an employer is to provide the employee with reasonable notice of dismissal, pay in lieu of notice of dismissal or a combination of both.
Have you been terminated in the last 2 years? If so, it is not too late to ascertain your rights even if an agreement has already been signed.

CONSTRUCTIVE DISMISSAL

A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent. Where an employer repudiates the essential obligations imposed by a contract of employment, even though the employee is not dismissed from employment, such an action may give rise to constructive dismissal at common law.

Constructive dismissal can also occur when an employer creates or allows a hostile or toxic work environment.

Don’t claim constructive dismissal, accept changes to your employment or a hostile work environment without talking to Preddie Law first. Preddie Law, is here to walk you through the process.

TERMINATION FOR CAUSE

An employer may terminate an employee’s employment for cause if the employee is guilty of serious misconduct, habitual neglect of duty, incompetence, conduct incompatible with his/her duties, conduct prejudicial to the employer’s business, or if he/she has been guilty of willful disobedience to the employer’s orders in a matter of substance. When an employee is fired for cause the employer is not obligated to provide notice or compensation.

The law surrounding Termination for Cause is a complicated area. Contact Preddie Law to ensure you were not wrongfully dismissed instead.

ANTI-BLACK RACISM

Anti-Black Racism includes policies and practices rooted in Canadian institutions such as, education, employment, health care, and justice that mirror and reinforce beliefs, attitudes, prejudice, stereotyping and/or discrimination towards people of Black-African descent.

Discrimination against people of Black-African descent is not new but until recently it was not uncommon for some people and institutions to refuse to acknowledge its existence and classify it as an American problem.

If your experiencing Anti-Black Racism individually or systematically contact Preddie Law to determine the best approach for you to address the problem.

DISCRIMINATION

The Ontario Human Rights Code says that everyone has the right to be treated equally and not be discriminated against:

•  at work
• in housing
• in a union or professional group
• by a service provider, like a store employee, restaurant, or school

Under the Ontario Human Rights Code, every person has a right to equal treatment in the provision of services and facilities, occupation of accommodation, contracts and in employment. Employers, landlords, union representatives, and service providers are not allowed to discriminate for reasons that are against human rights laws.

Discrimination is not defined in the Code but usually includes the following elements:

A failure to individually assess the unique merits, capacities and circumstances of a person and instead, making stereotypical assumptions based on a person’s presumed traits. Discrimination also includes excluding persons, denying benefits or imposing burdens based on the above.

This means that, in most cases, you can’t be treated differently based on personal differences listed in the Human Rights Code. These include your:

• race, colour, or ethnic background
• citizenship or national origin
• religion
• age
• sex
• sexual orientation
• gender identity
• gender expression
• physical or mental disability, including an addiction
• marital status (for example, married, divorced, single, or living common-law)

or because you:

•  are pregnant
• have children
• are caring for a relative

In most cases, employers, landlords, union representatives, and service providers have a duty to accommodate you unless they can prove undue hardship.

Don’t suffer in silence contact Preddie Law today.

HARASSMENT

Under the Occupational Health and Safety Act, all employers are required to have a workplace harassment policy, program, information, instruction and protect workers from workplace harassment.

Harassment is a form of discrimination. It includes any unwanted physical or verbal behaviour that offends or humiliates you. Generally, harassment is a behaviour that persists over time. Serious one-time incidents can also sometimes be considered harassment.

Harassment occurs when someone:

• makes unwelcome remarks or jokes about your race, religion, sex, age, disability or any other of the grounds of discrimination;
• threatens or intimidates you because of your race, religion, sex, age, disability or any other of the grounds of discrimination;
• makes unwelcome physical contact with you, such as touching, patting, or pinching.

Workplace harassment can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating or demeaning to a worker or group of workers, in a workplace. It can also include behaviour that intimidates, isolates or even discriminates against the targeted individual(s).

For example this may include:

• making remarks, jokes or innuendos that demean, ridicule, intimidate, or offend;
• displaying or circulating offensive pictures or materials in print or electronic form;
• bullying;
• repeated offensive or intimidating phone calls or e-mails; or
• workplace sexual harassment.

This definition of workplace harassment is broad enough to include all types of harassment prohibited under the Ontario’s Human Rights Code, including sexual harassment.  Workplace harassment also includes what is often called psychological harassment or personal harassment

Workplace Violence & Harassment under the Occupational Health and Safety Act (“OHSA”)

Ontario Ministry of Labour, Training and Skills Development health and safety inspectors enforce the OHSA

The OHSA defines workplace violence as the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker. It also includes an:

• attempt to exercise physical force against a worker in a workplace, that could cause physical injury to the worker; and a
• statement or behaviour that a worker could reasonably interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

The OHSA defines workplace sexual harassment as:

• engaging in a course of vexatious comment or conduct against a worker, in a workplace because of sex, sexual orientation, gender identity or gender expression where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
• making a sexual solicitation or advance where the person making it is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know the solicitation or advance is unwelcome.

Harassment has the potential to wear down an employee until they become physically ill and can be costly for an employer.  Don’t suffer in silence contact Preddie Law.

PREGNANCY AND PARENTAL LEAVE

An employer cannot penalize an employee in any way because the employee is or will be eligible to take a pregnancy or parental leave, or for taking or planning to take a pregnancy or parental leave.

Pregnant employees have the right to take a pregnancy leave of up to 17 weeks of unpaid time off work. In some cases the leave may be longer. Employers do not have to pay wages to someone who is on pregnancy or parental leave.

All new parents have the right to take parental leave – unpaid time off work when a baby or child is born or first comes into their care such as through adoption. Birth mothers who take pregnancy leave are entitled to up to 61 weeks’ leave. Birth mothers who do not take pregnancy leave and all other new parents are entitled to up to 63 weeks’ parental leave.

Parental leave is not part of pregnancy leave; a birth mother may take both pregnancy and parental leave. In addition, the right to a parental leave is seperate from the right to pregnancy leave. For example, a birth father could be on parental leave at the same time the birth mother is on either her pregnancy leave or parental leave.

Employees on leave have the right to continue participation in certain benefit plans and continue to earn credit for length of employment, length of service, and seniority. In most cases, employees must be given back their old job at the end of their pregnancy or parental leave.

There are more than 12 types of Leaves under the ESA contact us to discuss which leave best meets your needs and ascertain your rights.

Contact Preddie Law for more information.

ONTARIO MINISTRY OF LABOUR COMPLAINTS

Changes to the ESA provide employers with the right to reduce hours of work or pay due to Covid 19. For employees who are still working it removes their ability to pursue termination and severance pay to the Ministry of Labour, Training and Skills Development until the end of the COVID-19 period (January 2, 2021) but that does not prevent court actions.

Contact Preddie Law for more information.

TEMPORARY LAY OFFS

An employee is on temporary layoff when an employer cuts back or stops the employee’s work without ending his or her employment. Note, however, that a lay-off, even if intended to be temporary, may result in constructive dismissal if it is not allowed by the employment contract.

Under the ESA, a “temporary layoff” can last:

• not more than 13 weeks of layoff in any period of 20 consecutive weeks,  or
• more than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks, where:

1. the employee continues to receive substantial payments from the employer; or
2. the employer continues to make payments for the benefit of the employee under a legitimate group or employee insurance plan (such as a medical or drug insurance plan) or a legitimate retirement or pension plan; or
3. the employee receives supplementary unemployment benefits; or
4. the employee would be entitled to receive supplementary unemployment benefits but isn’t receiving them because he or she is employed elsewhere; or
5. the employer recalls the employee to work within the time frame approved by the Director of Employment Standards; or
6. the employer recalls the employee within the time frame set out in an agreement with an employee who is not represented by a trade union;
7. where the employer recalls an employee who is represented by a trade union within the time set out in an agreement between the union and the employer.

If an employee is laid off for a period longer than a temporary layoff as set out above, the employer is considered to have terminated the employee’s employment. Generally, the employee will then be entitled to termination pay.

Under the ESA, where an employee is laid off for a period longer than a temporary layoff, the employee is considered terminated by their employer and would generally be entitled to termination pay (and in certain cases severance pay). However, under this regulation, a non-unionized employee is not considered laid off if their employer temporarily reduces or eliminates their hours of work for reasons related to COVID-19.

During the COVID-19 period (March 1 2020-January 2021), a non-unionized employee is “deemed” (or considered to be) on a job-protected infectious disease emergency leave if their employer has temporarily reduced or eliminated their hours of work because of COVID-19.

January 2021 is a long time for your bills to wait. Contact Preddie Law for more information.

DUTY TO ACCOMMODATE

Under the Ontario Human Rights Code (the Code”), employers and unions, housing providers and service providers have a legal duty to accommodate the Code-related needs of people whose protected grounds and social areas are adversely affected by a requirement, rule or standard.

Protected Ground

• Age
• Ancestry
• Colour
• Race
• Citizenship
• Ethnic origin
• Place of origin
• Creed
• Disability
• Family status
• Marital status (including single status)
• Gender identity, gender expression
• Receipt of public assistance (in housing only)
• Record of offences (in employment only)
• Sex (including pregnancy and breastfeeding)
• Sexual orientation
• Protected Social Areas
• Accommodation (housing)
• Contracts
• Employment
• Goods, services, and facilities
• Membership in unions, trade, or professional associations

Accomodation

Accommodation means making adjustments to policies, rules, requirements and/or the built environment to ensure that people with Code-related needs have equal opportunities, access and benefits. Accommodation is necessary to address barriers in society that would otherwise prevent people from fully taking part in, and contributing to, the community. Accommodation does not mean lowering essential qualification standards, which are the skills or attributes that one has to meet for a particular job, to graduate from a class or program.

Accommodation is a shared responsibility. Everyone involved, including the person asking for accommodation, should cooperate in the process, share relevant information, and jointly explore accommodation solutions.

The Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but that have an adverse effect on people identified by Code grounds. The Code provides for an organization to show that a requirement, qualification or factor that results in discrimination is nevertheless reasonable and bona fide (legitimate). However, to do this, the organization must show that the needs of the person cannot be accommodated without undue hardship.

Human Rights Complaints tend to be user friendly and some complainants may even qualify for free legal assistance from the Human Rights Legal Support Centre https://www.hrlsc.on.ca/en/frequently-asked-questions.  Regardless if you qualify for free legal assistance or not please feel free to contact Preddie Law with any questions or concerns.

EMPLOYMENT INSURANCE AND TERMINATION/SEVERANCE PAY

In all cases employees should apply for employment insurance at least 4 weeks from the last day worked to preserve their employment insurance claim.
If you receive employment insurance and then subsequently receive termination/severance pay that covers the same period you will have to pay back the employment insurance you received.

Most employment settlements can be drafted in tax advantage ways that may also skirt being recouped by Employment Insurance depending on the nature of the claim.

Contact Preddie Law Office for creative legal solutions.

EMPLOYEE VS INDEPENDENT CONTRACTOR

There is no universal test to distinguish an employee from an independent contractor.  However, in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983, the Court’s central question was whether the person who has been engaged to perform the services is performing them as a person in business or on his own account.  

The following factors were considered:

• the level of control the employer has over the worker’s activities;
• whether the worker provides his or her own equipment;
• whether the worker hires his or her own helpers;
• the degree of financial risk taken by the worker, 
• the degree of responsibility for investment and management held by the worker;
• the worker’s opportunity for profit in the performance of his or her tasks

The relative weight of each will depend on the particular facts and circumstances of the case.

EMPLOYMENT CONTRACTS

An employment contract is a binding understanding between the employer and employee that governs the working relationship. It’s beneficial to have a contract reviewed by a lawyer before and after the employment relationship has ended to determine if any or all the provisions of the employment contract should be negotiated and are enforceable.

DISABILITY IN THE WORKFORCE

The Ontario Human Rights Code (the Code) is the law that provides for equal rights and freedom from discrimination.  It protects people with disabilities in the areas of employment, housing, goods, facilities and services, contracts, and membership in unions, trade, or professional associations.

In employment, people with disabilities are entitled to the same opportunities and benefits as other employees, independent contractors, and volunteers.

The Ontario Human Rights Commission describes the Code as prohibiting discrimination based on someone’s disability in all aspects of the employment relationship. This includes job applications, recruitment, training, transfers, promotions, apprenticeship terms, dismissal, layoffs and situations where an employee returns to work after a disability-related absence. It covers rates of pay, overtime, hours of work, holidays, benefits, shift work, discipline and performance evaluations. It also includes the “extended workplace” e.g. business trip.

Under the Code, employers have a duty to accommodate the needs of people with disabilities to the point of undue hardship, to make sure they have equal opportunities, equal access and can enjoy equal benefits. When possible an employee with a disability should ask their employer for an accommodation in writing.  However, if the employer is aware that an employee has a disability they should be alert to the fact that the employee may need an accommodation even if the employee has not asked.