By Dayna Steinfeld

In Manitoba, The Employment Standards Code (“ESC”) establishes basic and minimum rights and standards for provincial employees. Where the ESC applies to a worker’s job, these rights and standards are mandatory. This kind of legislation is not unique to Manitoba. Employment standards statutes are found in every province and in the federal jurisdiction, and there are many general similarities between the Manitoba ESC and legislation in other provinces. However, each piece of legislation is distinct and there are differences in the specific rights and entitlements established through the legislation in each province. It is important for workers in Manitoba to know their rights under the ESC to help avoid being taken advantage of in their jobs. Below are some key areas where questions commonly arise for employees in Manitoba.

Can my employer make deductions from my wages?

Many workers have been faced with the situation of having the cost of a uniform or tools deducted from their pay. But is this permitted under the ESC?  

In  Manitoba, employers are generally prohibited from making deductions from employee wages, unless the deductions are required by federal or provincial law (such as EI or CPP contributions) or permitted by a court order. Employers are specifically prohibited from making deductions for uniforms and for any amount to cover any cost arising from faulty work of the employee or damage caused by the employee, or to cover a cash shortage such as in a “dine and dash” situation. 

There are certain circumstances where other deductions from pay are permitted:

• With the employee’s consent, the employer may deduct an amount for something that is provided as a direct benefit to the employee which the employee was not required to obtain from the employer.
• An amount for business supplies or tools may be deducted, but only if several requirements are met: the employee was not required to purchase the supplies or tools from the employer; the employee is able to keep the supplies or tools when they are no longer working for the employer; and the employer is not required by law to provide the supplies or tools to the employee.
• With the employee’s consent, the amount of a payroll error that benefited the employee or a cash advance paid to an employee may be deducted from wages (but the deduction cannot include any amount for interest, service charge, or fee).
• With the employee’s written authorization, the minimum amount payable by the employer for an offence committed by the employee that is being prosecuted against the employer for a photo radar or red light camera ticket may be deducted from wages.

When am I entitled to a leave of absence?

The ESC provides for a variety of leaves of absences that are available to employees should different circumstances arise in their lives. These are unpaid leaves of absence. The purpose of including the leaves in the ESC is to protect the rights of workers to take necessary time away from work while ensuring they will have a job to return to after their absence from the workplace. 

The leaves of absence in the ESC include bereavement, compassionate care, family responsibility (including the health of the employee), interpersonal violence, critical illness, serious injury or illness, maternity and parental leaves. The lengths of time available as protected leaves vary depending on the type of leave being taken. 

In Manitoba, there is also a new public health emergency leave. This is a temporary measure in the ESC that provides employees with job-protected leave related to the COVID-19 pandemic. It is available where an employee is unable to work due to circumstances related to the pandemic, such as a public health requirement to quarantine or providing care to a family member due to school or daycare closures, and is available for the length of time the circumstance persists. 

Significantly, the ESC prohibits employers from requiring a doctor’s note to support an employee’s eligibility for public health emergency leave or other protected leaves available under the ESC. This means that employees taking family responsibility leave for their own health cannot be mandated by their employer to provide a doctor’s note. 

Am I entitled to severance pay?

The term “severance” is often used in the context of an employee losing their job. You may have also heard about employers being obligated to pay “severance” under employment standards legislation. However, this term has no meaning under the ESC. Unlike other employment standards legislation, such as in Ontario, there is no obligation on Manitoba employers to provide severance pay on termination of employment. The requirement in the ESC is to provide notice of termination, or pay in lieu of notice, in accordance with the minimum amount of notice set out in the ESC. 

Employers or lawyers in Manitoba may still refer to offering or negotiating a “severance” package. That typically refers to a package or pay-out offered by an employer at the time of termination to satisfy its obligation, under the common law, to provide reasonable notice of termination. (For more information on the meaning of common law reasonable notice, see: “What is reasonable notice?”). Common law reasonable notice is an amount beyond the minimum required under the ESC that is intended to help bridge an employee from their old job to a new position. The question of whether you may be entitled to common law reasonable notice depends on the terms of your employment contract. However, the rights provided on termination under the ESC do not include a separate right to severance pay.

Conclusion 

The ESC establishes important rights for workers. It is Manitoba-specific legislation that contains unique standards, limits, and entitlements. Employees should be aware of the specifics of the rights and responsibilities in the ESC. A Manitoba employment lawyer can help address questions or concerns workers may have about whether the requirements of the ESC are being met by their employer. 

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

Wassim Garzouzi speaks to Ottawa Morning with Robyn Bresnahan on the Ontario Government’s proposed amendments to the Employment Standards Act, specifically as they relate to the right to disconnect.

On September 23, 2021, James Cameron presented as part of the County of Carleton Law Association’s second virtual Six-Minute Employment Lawyer update. James presented on the interconnections between Long-Term Disability claims, the duty to accommodate disabilities in the workplace, and wrongful dismissal cases.

In a significant win for workers in Ontario, the Divisional Court held that the obligation to provide severance pay under the Employment Standards Act (ESA) applies to all employers with a global payroll of $2.5 million, even if their payroll in Ontario is below that threshold. The landmark decision in Hawkes v. Max Aicher (North America) Limited means that multinational companies with small Ontario payrolls cannot use the small Ontario payroll to avoid providing severance pay upon termination to workers with a long service record. 

Severance Pay Under the ESA

Section 64 of the ESA states that employers must provide severance to dismissed employees with five years of service “if the employer has a payroll of $2.5 million or more.”  Previous decisions have been divided on the question of how to calculate the employer’s payroll under this provision — namely, whether a company’s global payroll or only its Ontario payroll is used to determine if the threshold of $2.5 million is met. 

In a 2014 decision, Paquette, the Ontario Divisional Court considered this issue with respect to a corporation with a total payroll in Quebec and Ontario exceeding $2.5 million, but an Ontario payroll below $2.5 million. The court held that the ESA should be interpreted to provide protection to as many workers as possible, and that severance should be provided to all Ontario employees who work for companies with $2.5 million or more in total payroll. 

Mr. Hawkes at the OLRB

In October of 2017, Doug Hawkes was terminated from his employment with Max Aicher (North America) Limited, a subsidiary of Max Aicher GmbH & Co KG, a steel company located in Bavaria, Germany. After being terminated, Mr. Hawkes filed a complaint to the Ministry of Labour for his severance pay under section 64, as he had worked for the company for over five years. However, the Ministry denied Mr. Hawkes’ claim because Max Aicher (North America) Limited’s payroll in Ontario was below $2.5 million. The German parent company, on the other hand, had a payroll far exceeding $2.5 million. 

Mr. Hawkes filed an application with the Ontario Labour Relations Board (OLRB) to review the Ministry’s decision. Unfortunately, the OLRB declined to follow Paquette, relying instead on a line of prior cases that interpreted section 64 as including only Ontario payroll. The OLRB found that Paquette was distinguishable in that it only extended payroll to another province rather than another country.  

The Divisional Court Affirms the Importance of Severance for Long-Time Employees 

The Divisional Court disagreed with the OLRB and, following Paquette, held that it was clear that “payroll” under section 64 of the ESA was not limited to a company’s provincial payroll. Writing for a unanimous court, Justice Dambrot affirmed the broad, worker-friendly interpretation of the ESA’s severance pay provisions: 

“It is apparent that the underlying policy of the 1987 amendment to the severance pay provisions, and specifically to the calculation of payroll, was to better recognize the dignity and value of the people who work in this province by extending the protection of severance pay to as many employees as possible.”

Hawkes is an important victory for workers across Ontario. Severance pay under the ESA is intended to recognize the long service that an employee has provided to the employer and, as confirmed by the Court, should be extended to as many long service employees as possible. The exception to this obligation based on payroll was always intended to provide relief to small employers — if the payroll were calculated solely based on a company’s Ontario workforce, many large multinational companies would be able to avoid this obligation. The Court’s decision prevents big corporations from evading their obligations to long-time employees.

For further details and/or assistance regarding employment law, it is in your best interests to discuss such matters with an experienced and reputable legal professional. Our team at RavenLaw is happy to address your concerns in these and other areas of law. Contact us today to request an initial consultation.

Andrew Astritis and Amanda Montague-Reinholdt were co-counsel representing Mr. Hawkes before the Divisional Court.

Losing your job is an incredibly stressful event, even more so if you are pregnant. A recent decision of the Ontario Superior Court offers some comfort to pregnant employees who are terminated, by ruling that pregnancy can be a factor in assessing the appropriate length of a reasonable notice owed to a terminated employee.

Employees are entitled to reasonable notice of termination (either working notice, where you continue to work during the period, or pay in lieu of notice, where you receive a lump sum payment) when their employer terminates their employment without cause. The amount of reasonable notice is meant to reflect the amount of time an employee will need to find a new, comparable job. The reasonable notice period is usually calculated based on a list of factors, called the Bardal factors: age, length of service, character of employment, and availability of similar employment. Courts frequently state that these are not the only factors that can be considered, but few decisions have identified other factors when determining the reasonable notice period.  

In Nahum v Honeycomb Hospitality, Ms. Nahum, a 28-year-old employee with four and a half months of employment at Honeycomb, argued that her pregnancy should be considered as a factor in determining the length of the reasonable notice period. Given that she was five months pregnant at the time she was terminated from Honeycomb, Ms. Nahum argued that she would not be able to find new employment in a short period of time. 

The employer’s position was that Ms. Nahum would not need more than two months to find a new job. The employer argued that the court should not find that pregnancy could increase the length of a notice period because that would require the court to assume that her potential new employers would discriminate in their hiring practices by refusing to hire Ms. Nahum because she was pregnant.

The court disagreed with the employer. Ms. Nahum was awarded a five-month notice period, above what might have been expected based on previous court decisions. In making that determination, the trial judge noted:

At the time of her dismissal, Ms. Nahum was five months pregnant. In my view, it is unreasonable to expect she would be able to obtain new employment in the two-month period proposed by Honeycomb, given the point in her pregnancy at which she was terminated and the competitive job market in which she was seeking work.

The trial judge relied on a few other cases that accepted that pregnant employees are likely to have difficulty finding comparable employment after termination. In addition, the plaintiff brought evidence demonstrating that she, in fact, had faced difficulty finding a comparable mid-management position.

The court’s decision provides a rare expansion of the Bardal factors, allowing courts to consider pregnancy as a factor when determining the length of a reasonable notice period. Importantly, the court emphasized that pregnancy does not automatically extend the notice period; rather, it will depend on the particular circumstances of the case, as with all the Bardal factors. Pregnant employees who are terminated should consult an employment lawyer to determine their rights and the appropriate action to take to secure those rights. 

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated and believe that you have not received reasonable notice. 

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

On September 27, 2021, Morgan Rowe spoke to the University of Ottawa – Faculty of Common Law’s “Human Rights” class, as part of the class on emerging topics in human rights. Her presentation focused on topics related to sexual orientation, asexuality, and the regulation of personal relationships.

On October 1, 2021, Zachary Rodgers was called to the Bar in the province of Manitoba. He will assist the firm’s Manitoba clients with all matters related to labour, employment and administrative law. He joins Dayna Steinfeld, RavenLaw’s lead lawyer in Winnipeg, in providing legal services to workers in Manitoba.