We are pleased to share a recent Benefits Canada article, “Employers seeking to withhold termination entitlements must prove wilful misconduct pre-planned: Ontario court,” with quotes from George Avraam. A recent Ontario Court of Appeal decision raises the bar for employers seeking to withhold minimum entitlements under the Employment Standards Act from employees dismissed for cause.
Click here to view the article.
This article was originally published in Benefits Canada.
In December 2021, the Ontario government passed Bill 27 – Working for Workers Act, 2021 requiring employers with 25 or more employees to create a “Disconnecting from Work Policy” by June 2, 2022. The Ontario government is following the lead of France, Spain and Portugal — all of which have adopted similar legislation in recent years.
In this In Focus video, our Labour and Employment lawyers share key considerations and important timelines for employers to know as they develop Disconnect policies for their workplaces.
Click here to watch the video.
For more detail, read the Law Times article McMaster University wins judicial review over removal of students for refusing COVID-19 vaccine.
In Render v. ThyssenKrupp Elevator (Canada) Limited Group, the Ontario Court of Appeal redefined wilful misconduct under the Employment Standards Act and confirmed the modern day approach to assessing sexual harassment in the workplace.
Mark Render was terminated for cause after slapping a female co-worker on her behind. The trial judge found that the incident caused a breakdown in the employment relationship that justified his dismissal for cause and the denial of all common law and statutory entitlements. Render appealed.
The Ontario Court of Appeal confirmed that the employer had just cause to terminate Render’s employment. But it also found that his conduct was not wilful misconduct. Thus, the Court found that Render was entitled to his minimum entitlements under the Employment Standards Act, but not common law notice. Since the Court had no evidence that ThyssenKrupp’s payroll exceeded $2.5M, Render was only entitled to termination pay and not severance pay.
In reviewing the statutory term of wilful misconduct, the Court reiterated the well-known principle that proving wilful misconduct is more onerous than just cause at common law. Although this was always a well-known concept, the Court of Appeal introduced what looks like a new element that employers need to establish—the misconduct must be preplanned and not just intentional. Here, the Court found that Render’s conduct was performed in the heat of the moment, in reaction to an insult. Thus, while ThyssenKrupp had just cause to terminate Render’s employment, disentitling him to any common law notice, it did not establish that there was wilful misconduct.
Employers now have the added burden of proving that an employee’s misconduct was both intentional and preplanned to meet the threshold of wilful misconduct.
The Court’s decision also confirms the modern view that an employer should not look at sexual harassment misconduct on a spectrum to determine whether it has cause to terminate an offender’s employment. The trial court determined that whether an act is sexual harassment, sexual assault, or common assault, the purpose is the same in that it is to assert dominance over an individual and demean or embarrass them in front of others. The Court of Appeal upheld this aspect of the trial court’s decision, showing the lack of tolerance courts will have for misconduct of this nature.
If you have any questions, please contact a member of our team.
On April 11, 2022 Bill 88, Working for Workers Act, 2022 received royal assent, introducing significant changes to a number of employment-related statutes, and introducing the Digital Platform Workers Rights Act, 2022.
The most important changes introduced by Bill 88 include:
Bill 88 has sweeping implications for employers. Employers with more than 25 employees should review their electronic monitoring practices and start developing a written policy in accordance with the new ESA requirements. Business qualifying as digital platform operators under the Digital Platform Workers Rights Act should review their payment, record-keeping, and other practices to ensure compliance with the obligations set under the new Act, which will come into force on a date yet to be determined. If you have any questions or need assistance with any of the above, please contact someone from our team.
Many thanks to Juliette Mestre for her assistance with this article.
Join us for a four-part webinar series as our moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. Multinational employers with business operations in Europe, the Americas, the Middle East and Africa, and Asia Pacific regions will hear directly from local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.
In each 60-minute discussion, we will explore:
We look forward to welcoming you at the sessions relevant to your business — no passport necessary!
To view the complete roster of presenters for each regional program, click here.
EUROPE
France, Germany, the Netherlands, Spain and the UK
Wednesday, June 1, 2022
9 am PT/ 12 pm ET
Click here to register.
THE AMERICAS
Argentina, Brazil, Canada, Colombia and Mexico
Wednesday, June 8, 2022
9 am PT/ 12 pm ET
Click here to register.
THE MIDDLE EAST AND AFRICA
Saudi Arabia, South Africa, Turkey and the UAE
Wednesday, June 15, 2022
9 am PT/ 12 pm ET
Click here to register.
ASIA PACIFIC
Australia, China, Japan, the Philippines and Singapore
Wednesday, June 22, 2022
3 pm PT/ 6 pm ET
Click here to register.
To view these programs in a different time zone, click here.
Please “register” for a copy of the recording and materials if you are unable to attend live.
CLE Accreditation
Each program is approved for 1.0 general California CLE credit, 1.0 general Illinois CLE credit, 1.0 areas of professional practice New York CLE credit, and 1.0 general Texas CLE credit. Participants requesting CLE for other states will receive Uniform CLE Certificates. Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for both experienced and newly admitted New York attorneys. Baker & McKenzie LLP is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE.
Each 1-hour activity can be applied towards the 9 Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Ontario.
**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.
Many thanks to our colleagues in New York, Paul Evans, and in London, Yindi Gesinde, moderator, and Monica Kurnatowska, for co-presenting.
Moving the Dial on Inclusion & Diversity in Your Organization
Creating a diverse and inclusive workforce remains a business imperative for global employers. Despite stakeholder and social pressure to accelerate progress, many companies have been unable to move the dial towards greater equality and diverse representation in the workplace. Stubborn I&D challenges are showing no sign of disappearing of their own accord.
A campaign to improve diversity must be fought on many fronts. Join our panel of Inclusion & Diversity experts on May 11th as they discuss the findings of our recent Mind the Gap Survey and the steps diversity and HR leaders are taking to accelerate I&D progress and the challenges they are encountering.
Guest Speaker: Dr. Stefanie Johnson
Best-selling author Dr. Stefanie Johnson studies the intersection of leadership and diversity, focusing on (1) how unconscious bias affects the evaluation of leaders and (2) strategies that leaders can use to mitigate bias. Dr. Johnson works with the best companies in the world to create more inclusive leaders, including presenting her work at the White House for a summit on diversity in corporate America on National Equal Pay Day.
Her latest Wall Street Journal best-selling book, Inclusify: Harnessing the Power of Uniqueness and Belonging to Build Innovative Teams, shares the surprising ways the leaders undermine inclusion and provides actionable ways that leaders can pivot to build more inclusive teams.
Wednesday, May 11 | 90 minutes
8:00 am PST (Los Angeles) / 10:00 am CST (Chicago) /
4:00 pm GMT (London) / 5:00 pm CET (Frankfurt)
Click here to register.
Continuing Education Credit | Approved for 1.5 elimination of bias California CLE credit, 1.5 diversity and inclusion Illinois CLE credit, 1.5 areas of diversity, inclusion and elimination of bias New York CLE credit. Pending approval for 1.5 ethics Texas CLE credit. Participants requesting CLE for other states will receive Uniform CLE Certificates. Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for experienced New York attorneys only. Baker & McKenzie LLP is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE.
This 1 hour and 30-minute program has been applied for EDI credit under the Law Society of Ontario. Approval pending.
**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.
Across Canada, provincial governments have begun lifting most of the COVID-19 related public health measures and employers are now grappling with what safety protocols to maintain for their workplaces given the recent shift towards a pre-pandemic “normal.”
In this In Focus video, our Labour and Employment lawyers explore considerations for employers before scrapping the restrictions entirely, provide guidance on responding to possible employee pushback, and deliver an update on the legal landscape of mandatory vaccination policies in Canada.
Click here to watch the video.
In a recent episode of Canadian Justice, Andrew Shaw joined a legal panel talking about the employee right to disconnect. Shaw discussed proposed employment legislation regarding the ability of people to disconnect from work, like emails or text messages, during non-work hours, and the implications for employers.
Click here to watch the interview.
This interview was originally posted in The News Forum.
On February 14, 2022, the Ontario government announced that the province will be moving to the next phase of reopening earlier than anticipated, with further restrictions being eased on February 17, 2022 at 12:01 a.m.
The new measures include:
Capacity limits in other indoor public settings such as grocery stores, pharmacies, retail and shopping malls will be maintained at, or increased to, the number of people who can maintain two metres of physical distance.
Effective March 1, 2022, the province expects to further lift restrictions, including:
See the official announcement from the Office of the Premier here. As the latest public health measures related to COVID-19 continue to affect how employers operate, please contact our team with any questions about what the upcoming measures could mean for your business.
Many thanks to Eleanor Dennis for her assistance with this article.
