employee | Devry Smith Frank LLP

This blog is co-written by our former articling student, Janet Son.

Employers

When am I able to re-open my business?

The Province of Ontario presented a multi-phase plan to re-open the economy titled “A Framework for Reopening our Province”. The Province will follow a gradual approach to allow health officials to assess the conditions before moving on to the next phase. The City of Toronto provided a guide for Employers, Workplaces and Businesses on procedures to protect employees and customers.

As of May 16, 2020, the following businesses are allowed to re-open:

Golf courses, with clubhouses open only for washrooms and restaurants open only for take-out
Marinas, boat clubs and public boat launches for recreational use
Private parks and campgrounds to enable preparation for the season and to allow access for trailers and recreational vehicles whose owners have a full season contract
Businesses that board animals, such as stables, may allow boarders to visit, care for or ride their animal

As of May 19, 2020, the following businesses may re-open:

Retail services that have separate street-front entrances with measures in places, such as limiting the number of customers in the store and booking appointments beforehand
Seasonal businesses and recreational activities for individual or single competitors such as tennis, track and field and horse racing
Animal services, specifically pet care services, such as grooming and training, and regular veterinary appointments
Indoor and outdoor household services that can follow public health guidelines, such as housekeepers, cooks, cleaning and maintenance
Lifting essential workplace limits on construction
Certain health and medical services such as in-person counselling; in-person services, in addition to virtual services, delivered by health professionals; and scheduled surgeries

For businesses offering curbside pickup, Workplace Safety and Prevention Services produced a guide on health and safety for curbside pickup and delivery.

What do I do if my employee cannot return to work because they are responsible for childcare while their children are at home from school or daycare?

Under section 50.1 of the Ontario Employment Standards Act, the employee may be able to take unpaid Emergency Leave if they must perform childcare duties due to the closure of daycares and schools. The employee is required to advise their employer that they will be doing so and if they already started their leave, to notify their employer as soon as possible.

Under subsection (4.1) an employer is allowed to ask for evidence that is reasonable in the circumstances, however, they may not require the employee to provide a certificate from a qualified health practitioner as evidence. Finally, the entitlement to leave generally ends once the state of emergency is terminated.

Am I required to provide personal protective equipment to my employees?

The Public Health Agency of Canada provided a guide for employers on preventing COVID-19 in the workplace. Employers should provide the necessary facilities and cleaning products to maintain a safe and clean work environment. This includes providing employees with personal protective equipment recommended by occupational health and safety guidelines.

Employees

Can I refuse to work because I am worried about infection from riding public transit?

If you have a general fear of contagion and there has not been an order from the Medical Officer of Health, failing to attend work could be considered a “willful neglect of duty” and could lead to termination. However, if you are in a high-risk group, for example, you are over the age of 60, immunocompromised and/or suffer from another underlying health condition, you may have grounds under the Ontario Human Rights Code to discuss with your employer to ask for temporary accommodation. You may also be entitled to an accommodation if you live with someone who is considered high risk.

For how long can my employer temporarily lay me off?

According to section 56(2) of the Employment Standards Act, a temporary layoff is:

“(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks;

(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,

(i) the employee continues to receive substantial payments from the employer,

(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,

(iii) the employee receives supplementary unemployment benefits,

(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,

(v) the employer recalls the employee within the time approved by the Director, or

(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee […]”

In other words, a temporary lay-off can become a wrongful dismissal if it extends longer than 13 weeks in a period of 20 consecutive weeks without any other payments or benefits. Or after 35 weeks in a 52 week period if the employee receives payments or benefits from the employer or the government.

However, the employer does not have a common law right to temporarily lay off an employee. In other words, the employer may not be able to temporarily lay off an employee at all, unless there is a contractual provision which permits the layoff. In the absence of a contractual provision, the layoff may constitute a constructive dismissal.

My job has changed significantly, including duties and pay – is there anything I can do?

Typically, unilateral changes by the employer without the employee’s consent can amount to constructive dismissal. However, if the changes are made in order to abide by COVID-19 health recommendations or requirements, for example modifying an employee’s hours as part of an employer’s plan to stagger shifts to reduce the number of employees in the office to ensure that physical distancing is possible, such changes may not constitute constructive dismissal. The courts have not yet explicitly addressed these issues, however, the extraordinary circumstances of a public health crisis will be relevant to determine whether the changes were reasonable.

If you have more questions about employment law during COVID-19, contact employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

This blog is co-written by our former articling student, Janet Son.

In Andros v Colliers Macauley Nicolls Inc, the Ontario Court of Appeal recently addressed the issue of whether a wrongfully dismissed employee is eligible to receive a payment in lieu of bonus throughout the common law notice period.

If the bonus is non-discretionary and an integral part of the employee’s compensation package, damages for wrongful dismissal include bonuses earned in the year of termination, on a pro-rata basis, plus a payment in lieu of bonus throughout the common law notice period.

In this case, the respondent worked for the appellant, a large commercial real estate company. He left for other employment, however he returned and was promoted to the position of Managing Director, which included a base salary and a yearly bonus. In the last three years of his employment his base salary was $142,500 and his bonuses were $79,228.25, $127,933.80 and $49,757.51 respectively.

The Court found that the bonus was non-discretionary since he received the bonus every year and his employment agreement included both the base salary and bonus entitlement in the compensation section. Further, the Court concluded that the bonuses were integral to the employee’s compensation, given the bonus amounts.

The appellant argued that the employee was not entitled to any further bonus payments, because there was a term in his employment contract which stated that only employees who were in “good standing” were entitled to bonus payments. The Court applied the test from Paquette v TeraGo Networks Inc. to this case.

1. First, determine the employee’s common law right. Where the bonus is such an integral part of the respondent’s compensation, there is a common law entitlement to the bonus that the employee earned or would have earned.

2. Second, whether there is something in the bonus plan that removes the employee’s common law entitlement.

In arriving at the decision to award the employee a payment in lieu of bonus throughout the common law reasonable notice period, the court addressed the inherent unfairness in a scenario where the notice period expires the day before the date on which the bonus would be payable. As a result, the employee would get no part of the bonus that they earned throughout the course of their employment during that year and the notice period – which the Court concluded would be unfair to the employee.

However, an employer can contract out of the requirement to pay a portion of a yearly bonus for a partial year of service or throughout the common law notice period if this is set out clearly in the employment contract or bonus plan.

If you are unclear as to whether you are entitled to your bonus in a wrongful dismissal claim, contact human rights and employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca

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