The right to work in a safe and healthy environment is a cornerstone of modern employment rights. One of the ways that governments ensure and promote the health and safety of workers is through legislation. For employees who work in federally regulated workplaces, the applicable legislation is the Canada Labour Code. The purpose of the occupational health and safety provisions of the Code is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment.

On October 31, 2014, changes to the occupational health and safety provisions of the Code took effect. These changes have the potential to erode some of the key rights that workers had under the old version of the Code and may work against the Code’s stated purpose of preventing accidents and injury to health.

Application of the Canada Labour Code

The provisions of the Code apply to workers who are employed in federally regulated industries, including banks, railways, highway and air transport, radio and television broadcasting,  and (for some purposes) employees of the federal government as well as Crown corporations and agencies.

Occupational Health and Safety under the Canada Labour Code

The occupational health and safety provisions are contained in Part II of the Code. These provisions impose duties on employers and employees to ensure the health and safety of everyone in the workplace. The Code establishes three basic health and safety rights for employees:

1. The right to know about hazards in the workplace and information that will help protect employees’ health and safety;
2. The right to participate in health and safety processes in the workplace; and
3. The right to refuse unsafe work.

Amendments to the Canada Labour Code

The recent Code amendments contain a number of significant changes to the health and safety provisions. Perhaps the most significant changes are those which limit an employee’s ability to refuse unsafe work.

Definition of a workplace “danger” amended

The definition of danger is significant for accessing many of the rights contained in the Code, including the right to refuse unsafe work. Previously, “danger” extended to situations involving exposures that could result in chronic illness, disease or damage to the reproductive system. Under the new definition, for a situation to be a “danger”, there must be serious or imminent risk to life or health.

Increased powers to Minister to investigate, dismiss work refusals

Previously, if an employer investigated a work refusal and determined that there was a danger, it was mandatory for a health and safety officer to investigate the matter in the presence of the employee. The amendments create two significant changes to this process: first, it is now the Minister of Labour or the Minister’s delegate that performs the investigation. Second, and perhaps more significantly, the investigation is not mandatory—rather, the Minister can dismiss complaints without investigating if he or she is of the view that the matter can be dealt with under another procedure of the Code. The Minister can also dismiss a complaint without investigation if he or she is of the view that the matter is trivial, frivolous or vexatious or if the refusal to work is made in bad faith. If the Minister does not proceed with an investigation, the employee can no longer refuse to work.

The amendments may erode the right of workers to refuse unsafe work

The new provisions of the Code only recently came into effect and it is difficult to say exactly how workers will be affected. It remains to be determined whether the changes to the definition of danger will limit the circumstances in which workers can refuse work on the basis of a dangerous situation in the workplace, or whether courts will interpret “danger” in essentially the same way as under the old definition. While the implications of the change to the definition of danger are uncertain at this point in time, it does seem clear that the new powers of the Minister to dismiss complaints without investigation bestow wide-ranging discretion on the Minister. As an employee cannot continue to refuse to work if the Minister does not proceed with an investigation, the Minister’s ability to dismiss complaints without investigation could result in workers returning to unsafe conditions.  Worker advocates will be closely following how these amendments are interpreted and applied by employers and the courts.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On November 26, 2014, the Federal Court rendered its judgment overturning a decision of a grievance adjudicator under the Public Service Labour Relations Act. The Applicants were a group of employees who alleged they had been denied overtime opportunities contrary to their Collective Agreement. The adjudicator of their grievances rejected the arguments presented by the employer, but nonetheless dismissed the grievances on grounds that had never been argued or discussed during the hearing.

In its judgment (2014 FC 1136), the Federal Court held that the adjudicator had violated the Applicants’ rights to procedural fairness by denying them an opportunity to present evidence and arguments on the issue that formed the ultimate basis for the adjudicator’s decision. This decision confirms that, where an administrative decision-maker wishes to depart from the case as argued by the parties and render a decision on the basis of a new issue or argument, the decision-maker is obligated to give the parties an opportunity to make submissions on that new issue.

The Applicants were represented on the judicial review by Amanda Montague-Reinholdt of our firm.

Morgan Rowe spoke on November 21, 2014 to the University of Ottawa law school’s human rights law course on emerging areas in human rights law.

On November 12, 2014, Andrew Astritis spoke to a labour law class at the University of Ottawa law school about three cases in which Raven, Cameron, Ballantyne & Yazbeck appeared as an intervener before the Supreme Court: Mounted Police Association of Ontario v Attorney General of Canada, Robert Meredith v Attorney General of Canada, and Saskatchewan Federation of Labour v Her Majesty the Queen, in Right of the Province of Saskatchewan. Decisions in these cases, which involve labour rights and freedom of association, are currently pending from the Supreme Court.

On December 10, 2014, Andrew Astritis will be presenting at the 3rd Annual Human Rights Summit hosted by the Law Society of Upper Canada.  Andrew will be speaking on his recent, May 2, 2014, Federal Court of Appeal decision in Johnstone v. Canada Border Services Agency decision on family status accommodation. In this decision Justice Mainville  recognized that there “[t]here should be no hierarchy of human rights” and provided that “protection from discrimination for childcare obligations flows from family status in the same manner that protection against discrimination on the basis of pregnancy flows from the sex of the individual.  In both cases, the individual would not require accommodation were it not for the underlying ground (family status or sex) on which they were adversely affected.”  For additional information or registration, please go to the Law Society of Upper Canada’s website.

One of the questions employment lawyers hear most frequently is whether an employer is allowed to terminate an employee for no reason. The short answer? Yes. Unless your employment contract states otherwise, your employer does not need a good reason, or indeed any reason, to terminate your employment. A termination without a reason is called termination “without cause”.

Termination without a reason—termination with notice

A termination without cause does not mean you have no rights as an employee. Generally speaking, if you are terminated for no reason or “without cause”, then you must be provided with notice of the termination, or payment in lieu of notice. The amount of notice required is determined by the terms of your employment contract, relevant legislation, and common law legal principles. (See “Know Your Rights—Determining the Terms and Conditions of your Employment”  and “What is reasonable notice?”  for more information.)

Termination with a reason—termination for just cause

There are circumstances where an employer fires an employee for good reason, and as a result does not provide any notice to the employee. This is called a termination “for cause” or “with just cause”—if the employer has just cause to terminate the employee, the employer is not required to give notice of the termination. (See “What is just cause for termination?”  for more information.)

One reason the employer cannot terminate you—a discriminatory reason

There is an important exception to the rule that you can be fired for any reason: the employer cannot fire you for a discriminatory reason. For example, your employer cannot terminate you because of your sex, race, sexual orientation, age, or disability, because that would violate human rights legislation. You should consult an employment lawyer if you have reason to believe you have been fired for discriminatory reasons.

Conclusion

Absent any discrimination, your employer can terminate you without cause, but with notice; or it can terminate you with just cause, and without notice. If you believe you have been terminated without just cause, and without adequate notice, you may have a case of wrongful dismissal, and you should seek advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On November 24, 2014, the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC) and the Regroupement des artistes visuels du Québec (RAAV) reached a tentative agreement with the National Gallery of Canada on the terms and conditions for the exhibition and reproduction of works of art, as well as the provision of professional services by living Canadian artists at the National Gallery. As CARFAC/RAAV explain, “The parties are proud to have reached this ground-breaking agreement to remunerate living Canadian artists, a historic milestone that will undoubtedly contribute to the long-term sustainability of the visual arts in Canada.” The agreement will now proceed to a ratification vote by members.

The ability of CARFAC/RAAV to reach this historic agreement is due in large part to the Supreme Court of Canada’s decision in Canadian Artists’ Representation v National Gallery of Canada in June of this year. CARFAC/RAAV were represented by David Yazbeck, Michael Fisher and Wassim Garzouzi from RavenLaw in this successful appeal to the Supreme Court.

If your employer terminates you without just cause (see: “Can my employer fire me for no reason?” ), they are required to provide you with notice of the termination. That notice can be given in two possible forms: “working notice” or “pay in lieu of notice”.

 “Working notice” is when you are given advance notice that your employment is going to end, but you continue to work and receive your regular compensation for the length of the notice period. Once the notice period is up, your employment ends, and the employer has no further obligations. The theory is that the employer has given you sufficient advance notice that your employment will be ending, to permit you to look for other work.  During the notice period, you will be required not only to look for other employment, but also to perform your usual tasks at the usual standard.  Failure to do so could result in termination for just cause .  The employer should provide reasonable time off to attend job.

“Pay in lieu of notice” is the more typical form of notice received when an employee is terminated without cause. In this case, you stops work on the day of termination, but receive payment equal to what you would have received if you had continued working through the notice period.

Length of Notice

Whether notice is given to you as working notice or pay in lieu of notice, the important question becomes: what amount of notice is reasonable notice?

Much like an employee’s general terms and conditions of employment (see: “Know Your Rights—Determining the Terms and Conditions of your Employment” ), there are three main places to look when calculating your notice period: legislation, your employment contract, and the law as developed through legal decisions.

In Ontario, the Employment Standards Act sets out a notice period based on an employee’s length of employment. This is the minimum amount that most employees in Ontario are entitled to. The basic entitlements under the Act are:

Your contract may also contain terms which specify the notice period that will apply if you are terminated without cause. If your contract contains a notice period term, this calculation will apply in most – but not all – circumstances, unless it is inconsistent with the minimums outlined in the Employment Standards Act.

Where there is no provision in your contract, however, you are not restricted to the minimum notice periods set out in the Employment Standards Act. Instead, you are entitled to “reasonable notice,” which is calculated based on the law as it has been developed through legal decisions.

Determining a reasonable notice period requires a review of your individual circumstances with the aim of estimating how long you will take to find a new, comparable job. The main factors that are considered are age, length of service, character of employment (for instance, an employee’s level of responsibility), and the availability of similar employment. In special circumstances, other factors can be considered, such as whether you were induced to leave a previous position by the employer.

A very general rule is that you are entitled to one month per year of service with the employer, up to a maximum of 24 months. This general rule is modified by the criteria listed above, as well as your duty to mitigate and other factors (see Mitigation ). Individual cases are very fact-dependent, and require legal advice.

Conclusion

You are entitled to notice of termination, usually in the form of a working notice period or pay in lieu of that working notice period. Notice periods may be set out in your contract or by reference to the Employment Standards Act. Where no notice period is set by contract, you are entitled to reasonable notice. Because reasonable notice is calculated through an individualized, case-by-case assessment, you should consult an employment lawyer for assistance estimating what a reasonable notice period would be in your circumstances.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On December 9, David Yazbeck will be appearing in Federal Court on a judicial review of a decision of the Public Sector Integrity Commissioner. In the decision under review, the Commissioner dismissed a complaint by Charbel El-Helou that the Courts Administration Service took reprisals against him after he made protected disclosures of wrongdoing, pursuant to the Public Servants Disclosure Protection Act (“PSDPA”).

Our firm is arguing on behalf of Mr. El-Helou that the decision of the Commissioner should be set aside because Mr. El-Helou was treated unfairly in the process. The judicial review also raises important questions involving the proper legal framework for determining if reprisals were taken against a whistleblower after making a protected disclosure under the PSDPA.

Unless your employment contract states otherwise, your employer does not need a reason to terminate  your employment as long as it provides you with sufficient notice  of your termination or payment in lieu of notice.  Your employer can, however, terminate your employment without any notice if it has “ “just cause” to do so.  This will include situations in which you have breached your terms of employment either through misconduct, disobedience, or incompetence.

Contextual Approach to Just Cause for Termination

What constitutes just cause depends on a number of factors. In Canada, the courts use a contextual approach to determine whether an employee was terminated for just cause.  They consider the nature and extent of the misconduct, the context and surrounding circumstances and whether the termination or dismissal is warranted (in other words, whether the punishment fits the crime).

Grounds for Termination

1. Neglect of Duty

Whether or not you have a written employment contract, you have an obligation to perform your employment duties. Failure to perform your duties can lead to dismissal. Constantly arriving late for work or simply not showing up for work on a regular basis may be also considered just cause for dismissal if you do not have a reasonable explanation for this behavior.

2. Dishonesty

Trustworthiness is a key factor in any employment relationship. Acts of dishonesty may therefore constitute just cause for dismissal depending on the context and the circumstances of the case. For example, lying to your employer about an important qualification for the position can constitute just cause for dismissal.  Lying to the employer in order to cover up misconduct can also lead to dismissal unless there are mitigating circumstances such as an immediate retraction of the lie.  Whatever the circumstances, honesty is always the best policy.

3. Theft and Fraud

Theft and fraud constitute serious misconduct which, even if isolated, may amount to just cause for termination. Examples of such behavior include improper use of company funds, wrongful use of the employer’s property, abuse of sick leave and conducting personal business on company time. Because these are serious allegations, an employer must be able to prove that you intended to steal or commit fraud. As stated above, the context and surrounding circumstances must be considered in order to determine if there is just cause for dismissal.  For example, an employer may not have just cause to terminate an employee who makes an error in judgment if there was no dishonest motive.  Given the seriousness of allegations of theft or fraud, the employer must also give an employee an opportunity to provide a reasonable explanation for his conduct.

4. Misconduct

An employee may be terminated for cause for engaging in serious misconduct. Such misconduct is usually incompatible with the employee’s duties and prejudicial to the employer’s business.  Examples may include sexual harassment or assault of a co-worker and off-duty criminal conduct which is prejudicial to the employer’s reputation.  Once again, whether the misconduct constitutes just cause for dismissal will largely depend on the nature of the misconduct, the context and surrounding circumstances and whether the termination is reasonable.

5. Incompetence

An employer may not terminate you simply because he is dissatisfied with your performance. In order for an employer to allege just cause in terminating you for incompetence, the employer will have to show that you were warned that you were failing to meet objective standards of performance and that, despite these warnings and the opportunity to improve, you continued to underperform.

Conclusion

Many factors need to be taken into consideration in order to determine whether the employer had just cause to terminate your employment. If you have been terminated without notice for “just cause”, you should seek advice from an employment lawyer.

We are here to help. Consult one of our experienced Employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated from your employment.

 [This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

The scheme recently enacted under the Canada Labour Code to address workplace violence was recently subject to its first interpretation by the courts: in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

Part XX of the Canada Occupational Health and Safety Regulations

Part XX of the Regulations, titled “Violence Prevention in the Work Place”, was enacted in 2008. It forms part of the health and safety scheme under the Code, and therefore its purpose is to prevent accidents and injury to health.

Part XX defines workplace violence as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” The Regulations impose several obligations on employers to address workplace violence, including:

• To develop a workplace violence prevention policy;
• To identify the factors that contribute to workplace violence;
• To assess the potential for violence in the employer’s workplace, and to develop and implement controls to eliminate or minimize violence;
• To train employees on the factors that contribute to workplace violence.

Section 20.9 of the Regulations requires the employer to appoint a “competent person” to investigate any allegation of workplace violence that comes to the employer’s attention. A “competent person” is defined as someone who is impartial and seen to be impartial, has expertise related to workplace violence, and has knowledge of the legislation. It was the interpretation of this provision that formed the subject matter of the recent Federal Court decision.

Federal Court judgment interpreting Part XX of the Regulations

On January 27, 2014, an Appeals Officer of the Occupational Health and Safety Tribunal Canada issued the Tribunal’s first decision interpreting Part XX of the Regulations. The Appeals Officer found that the complaint at issue in the case—a complaint of psychological harassment by a supervisor—did not constitute an allegation of workplace violence, and therefore the employer was under no duty to appoint an investigator. The Federal Court overturned that decision in its judgment, dated November 13, 2014. The Court’s judgment clarifies the interpretation of section 20.9 in several key respects, and supports a broad reading of the Regulations and the obligations on employers to respond to complaints of workplace violence.

1. Harassment may constitute workplace violence

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, thus flatly rejecting the Appeals Officer’s finding that workplace violence excludes harassment. The Court held that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.”

2. The Employer may not unilaterally act as investigator of a complaint of workplace violence

The Court found that employers are permitted to engage in fact-finding in order to facilitate possible resolution of employee complaints, but an employer representative cannot act as the investigator, unless the employee agrees that the representative is an impartial person. The Court therefore held that the member of management who purported to conduct an investigation in this case was not competent to do so.

3. The obligation to appoint an impartial investigator is mandatory

The Court made a clear finding that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint. The Court therefore overturned the Appeals Officer’s decision, which permitted the employer to conduct its own inquiry into the bona fides of the complaint before deciding whether to appoint an investigator.

Important gains for federally regulated workers

The Court’s conclusions in this case corrected obvious errors in the Appeals Officer’s decision: the finding that harassment may constitute violence within the meaning of the Code brings this area of the law in line with the Tribunal’s past cases interpreting similar provisions. Interestingly, it is also consistent with the definition of workplace violence articulated by the government agency established to promote workplace health and safety—the Canadian Centre for Occupational Health and Safety defines workplace violence broadly, and as including harassment and verbal abuse.

This judgment was nonetheless an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. Harassment is a difficult issue, and it is often inadequately addressed by employers’ internal harassment policies. It is therefore encouraging to know that the process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment. The regime under Part XX differs significantly from traditional mechanisms to address harassment: the emphasis is on taking measures to prevent a recurrence. Time will tell whether this approach, rather than one focused on discipline or monetary compensation, is more effective at resolving situations of workplace harassment.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]