TOP 10 EMPLOYMENT LAW DEVELOPMENTS OF 2018
1. Minimum wage changes, and changes again.
Under the Wynne government, the Ministry of Labour announced big changes to the Employment Standards Act, including increasing the minimum wage to $14/hour starting in 2018, and to $15/hour starting in 2019. However, with Doug Ford being elected, his Ministry of Labour scrapped the increase to $15 and kept the minimum wage at $14/hour.
2. All employees got 2 paid sick days, which the MOL subsequently took away.
In addition to scrapping the minimum wage increase, the Ministry of Labour took away the two paid sick days (and for other personal emergency situations) that Ontario employees gained under Wynne. In 2018, employees were entitled to ten sick days, with the first two days being paid. Further, employees were not required to obtain a doctor’s note. Starting in 2019, employees will be entitled to three sick days, two bereavement days, and three days for family responsibility. None of these days would be paid. Employers can also require employees to get a doctor’s note.
3. Employees can claim enormous bad faith damages in addition to severance
Courts appear to award more money, in addition to severance, for the unfair treatment of employees during their termination. For example, Walmart had to pay $750,000 for its deplorable, mean conduct to one of its employees, and another employer had to pay $30,000 for the way it terminated an employee over Christmas.
4. Workplace Investigations into Harassment and Discrimination Are a Must
Under the Occupational Health and Safety Act (OHSA), all employers are required to investigate allegations of workplace harassment. However, there is no such similar duty under the Ontario Human Rights Code for discrimination allegations. While there may be no such duty, employers definitely should conduct workplace investigations into discrimination as the failure to do so may lead the Ontario Human Rights Tribunal awarding damages against the employer. For example, see this Human Rights Tribunal decision.
5. Correctly Interpreting Termination Clauses Continues to Affect Severance Pay in Ontario
Termination clauses in employment contracts continue to be the defining factor in determining how much severance an employee is owed when they are terminated. The courts have continually flip flopped on how to interpret these clauses. This year definitely favoured employers, especially with this Ontario Court of Appeal decision. However, employees may be favoured going into 2019 with the recent decision of the Divisional Court.
6. Ontario Human Rights Commission Report on Racial Discrimination from Toronto Police Service
The Ontario Human Rights Code not only protects employees from discrimination, but also individuals from service providers such as customers from restaurants, and definitely the public from the police. The Ontario Human Rights Commission released its interim report with some glaring statistics about racial profiling from the Toronto Police Service towards the Black community. These stats include the fact that a Black person is 20 times more likely than a White person to be involved in a fatal shooting, despite making up only 8.8% of Toronto’s population.
7. Taking Benefits From Workers at 65 is Unconstitutional
This year saw a big change in human rights and discrimination, when the Ontario Human Rights Tribunal ruled that taking benefits away from employees aged 65 or older was discrimination based on age. This should lead to employers re-examining their benefit plans to ensure that older employees are not discriminated against based on their age.
8. Federally Regulated Employee Rights Continue to be Ironed Out
In 2016, the Supreme Court of Canada held that federally regulated employees, such as those working for banks, airlines, telecommunications, and transportation, have union-like protections in that they can only be terminated for cause. Employers cannot simply just dismiss an employee and give them severance. If an employer did not have cause to terminate an employee, it would be an “unjust dismissal” and the employee could get their job back through reinstatement. This area of the law is still refining itself. We saw this year that one decision maker ruled that employees cannot make a claim for severance if they qualify for making an unjust dismissal complaint, and the Federal Court appeared to endorse an adjudicator’s ability to reinstate an employee to a lower position.
9. Parental Leave, Maternity Leave, and Pregnancy Leave Changes
In December 2017, the Ministry of Labour increased the length of maternity leave, pregnancy leave, and parental leave to be aligned with the changes to the federal changes to employment insurance (EI). Parents can now take up to 63 weeks of parental leave while receiving EI at a reduced rate.
10. EI Fraud is Up as Government Seeks Overpayments.
CTV reported that there were more than 104,000 incidents of EI fraud amounting to almost $177 million. Employees should be aware about their obligations for employment insurance obligations, including EI reporting online, keeping a job search log, reporting income, repayment of EI if they receive severance, and securing their record of employment (ROE) and working with Service Canada.