Malcolm MacKillop's Blog, page 12

Pay Transparency Act Introduces New Requirements For Employers Aimed at Addressing Gender Wage Gap

On April 26, 2018, the Ontario Legislature passed the Pay Transparency Act (the Act) to tackle the wage gap in compensation between men and women in Ontario. The Act seeks to achieve this goal by introducing new requirements for employers in both the hiring process and on an ongoing basis. The Act, which comes into effect on January 1, 2019, will require all employers to follow certain hiring practices and require certain employers to prepare an annual report containing workplace payment info...

The Significance of Keeping Records After a Termination

Employment litigation is highly contentious and issues are often determined on the basis of credibility: in a “he-said-she-said” situation, the more believable party will succeed. Employers can avoid such a situation by retaining and maintaining the integrity of their employee records.

In the litigation context, employers often bear the onus of justifying certain employment decisions: for example, terminating an employee for just cause, or accommodating an employee under the Human Rights Cod...

The Tort of Intrusion Upon Seclusion May Impact Employers

A tort, in common law jurisdictions, is a civil wrong that causes another individual to suffer loss or harm and results in legal liability for the person who actually committed the tortious act. In the case of Jones v. Tsige (“Jones”), 2012 ONCA 32, the Ontario Court of Appeal recognized for the first time a tort called “intrusion upon seclusion”. This developing tort may have important implications for employers.

In Jones, both Jones and Tsige both worked at a bank. Tsige became involved wit...

Imperfections of a Notice Period

The decision by the Ontario Court of Appeal in Love v. Acuity serves as a reminder for employers that caution should be exercised when setting a notice period. The simple rule to follow is that you need to tailor-make each individual notice period to the specific circumstances of the employee.

Love v. Acuity
In this case, Love was a 52 year old Senior Vice President, one of a few shareholders, earned $650,000 per year and had 2.5 years of service. The trial judge initially awarded Love five (...

Employer’s President Found Guilty of Manslaughter for Workplace Accident

A recent decision out of the Court of Québec Criminal and Penal Division indicates that directors and supervisors could face jail time where criminal negligence results in a fatal workplace injury. In R. c. Fournier, 2018 QCCQ 1071, the president of an excavation company was found guilty of criminal manslaughter for the death of a worker after failing to follow workplace safety standards. This is an indictable offence under the Criminal Code that carries a penalty of life imprisonment.

The ch...

Getting Fired for Absenteeism and Lateness

Lateness and absenteeism can justify dismissal when the conduct of the employee is found to have amounted to “willful disobedience” of an employer’s order or policy. In determining whether the lateness or absenteeism amounts to just cause for termination, the court will consider a number of factors, including:

the seriousness of the absenteeism/lateness, taking into account the employer’s work environment and the nature of employment; whether the employee has been warned in the past for sim...

Breaching a Non-Compete does not Nullify a Settlement

Wilson v. Northwest Value Partners Inc ., 2015 ONSC 4726

This case serves as a reminder to employers to make sure former employees are abiding by their non-solicit or non-compete obligations before agreeing to settle any wrongful dismissal action.

In this case, the plaintiff Mr. Wilson was a senior executive with Northwest Value Partners Inc. (“Northwest”). The plaintiff had signed a non-competition agreement that prevented him from working for a competitor of Northwest for 24 months after th...

Reducing the Risk of Violence in the Workplace

An incident that occurred on April 9, 2014, in a North York office complex highlights how important it is that employers turn their mind to identifying and preventing workplace violence. At approximately 9:30 a.m. on that Wednesday morning, a 47-year-old man, armed with a knife, attacked his co-workers in an act of retaliation for his being terminated. The attacker was apprehended by police and charged with numerous crimes including attempted murder and assault, which sent four victims to the...

Drafting an Enforceable Non-Solicitation Clause

An enforceable non-solicitation clause can be an effective way for employers to avoid the solicitation of their customers and valued workers by former employees. Whether a non-solicitation clause is legally enforceable depends on whether the clause is reasonable to the situation. While this is a difficult task, the Ontario Court of Appeal’s decision in Smilecorp Inc. v. Pesin, 2012 ONCA 853 (“Smilecorp”) provides some helpful commentary on what types of non-solicitation clauses Canadian Court...

Is the Flu a Disability under the Human Rights Code?

As we are in the midst of flu season, the question may arise as to whether the flu and other similar ailments are considered “disabilities” under the Ontario Human Rights Code (the “Code”). While employers have a duty to accommodate employees with disabilities under the Code, in Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960 (“Burgess“), the Ontario Human Rights Tribunal (the “Tribunal”) clarified that common ailments, such as the flu, are not disabilities that trigger an...