In March 2014 the Ontario Court of Appeal released a brief decision on an employee's obligations when they have been constructively dismissed by their employer.
In the case of Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 it was established that an employee was constructively dismissed when his position was modified during a restructuring. The employee considered the change of position imposed on him, moving him from operations manager to purchasing manger, to be a fundamental breach of his contract and claimed 24 months of severance. At the Court of Appeal the employer argued that while they may have constructively dismissed the employee he should have remained at work during the 24 months for which he claimed severance. Previous court decisions have held that in certain situations an employee may be responsible to mitigate their damages in this way by continuing to work for an employer unless they are asked to leave or the workplace has become toxic. However, in the Citair case the Court of Appeal held that the employer could not expect that the employee remain at work during the 24 months for which he claimed severance without specifically offering this work opportunity to the employee - which it had not done.
The decision clarifies both the steps an employer must take if it wishes employees to remain at work following a constructive dismissal and the obligations of employees in the same situation. This fairly clear direction from the Court of Appeal should result in more certainty for both employers and employees when constructive dismissal has been alleged.
I was fired without cause. My employer has given me an offer. Should I take it?
Answer: Employers aren’t handcuffed to their employees. If they act in accordance with their statutory and common law obligations, employers are free to part ways with employees without cause. Typically, the employer is obliged to provide statutory or common law reasonable notice or payment in lieu of notice. Costs, benefits, risks and reward of bringing legal action, should all be considered, prior to starting a claim.
Needlessly pursuing litigation could potentially prejudice the employee. You could delay the settlement and run the risk of losing a fair offer. You may find another job in the weeks following termination. If this happens, then the employer’s settlement may be subject to mitigation which means that they are credited the wages you obtain from that new job. You may also pay more in legal fees then the additional notice you should have received.
There are cases where employees are grossly underpaid when it comes to severance, so I do advocate that everyone who faces termination seek counsel to go over any severance offer. Do not sign it blindly. Speak to a Lawyer and make sure the offer is fair. Employers will often expect and, if prudent, will insist that their past employees reach out to counsel when deciding to sign a severance offer. You should do so as soon as possible after receiving the offer.
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I own a small events and promotions business. Every so often I get emails from students asking if they could volunteer to learn about the business. I’ve never hired a student because they’re inexperienced but I’m considering hiring one as an intern this summer. I don’t have the budget for a full time employee but I would be willing to pay them a modest stipend. I’ve heard both paid and unpaid internships are illegal in Ontario. Is this true?
In Ontario, the rules around internships are strict and in recent years some employers have been required to change their internship programs as a result. If someone is receiving on the job training from a business they are considered to be an employee of the business under Ontario law. As an employee they are entitled to a minimum wage under the Employment Standards Act so paying them a stipend that does not meet the minimum wage is against the law.
There are two exceptions to this general rule which recognize the educational value of internships. The first is internship programs approved by a college or university which are permitted.
The second exception is internships that meet criteria set by the Ministry of Labour. These requirements include that the intern is receiving valuable training, is not taking someone else’s job, and has not been promised a job after their training. The most important feature is the educational component: the primary purpose of internships is to teach valuable skills, not to provide cheap labour to businesses.
The safest way to ensure compliance with the law is to have an internship approved as part of a college or university program. Alternatively, you should design the internship ahead of time to focus it around training and skills development.
Duty to accommodate – Where do employers draw the line?
Employers should do what they can to accommodate their employee’s disability, but there’s a line to be drawn between accommodation and frustration of the employment contract. If the contract is in fact “frustrated”, the employer can end the employment relationship without violating the Human Rights Code (Code). The question is whether the employer suffers undue hardship.
Section 11 of the Code allows the employer to show that a requirement, qualification or factor that results in discrimination is nevertheless reasonable and bona fide (legitimate). However, to do this, the employer must show that the needs of the person cannot be accommodated without undue hardship.
The duty to accommodate has both procedural and substantive obligations. The procedural component requires that the employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The employer bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship. The purpose of the duty to accommodate in an employment context is to ensure that an employee with a disability could continue to perform the essential duties of his or her employment if his or her needs can be accommodated without causing undue hardship to the employer.
The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of a disability are such that the proper operation of the business is hampered excessively or if an employee with such a disability remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. The duty to accommodate is compatible with general labour law rules, including both the rule that employers must respect employees' fundamental rights and the rule that employees must do their work. The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
In Nason v. Thunder Bay Orthopaedic Inc. the employee was terminated while on unpaid medical leave. The trial judge awarded damages for wrongful dismissal. The Court of Appeal ruled that the employer’s decision to put the employee on an unpaid leave of absence was not an infringement of his rights, at that time, since the employer had already attempted to accommodate the employee. The employee could not fulfill the basic obligations of his position, despite the accommodations he received. However, the Court rejected the employer’s argument that the employment contract had been frustrated.
The onus to prove that the contract was frustrated was on the employer. The employer believed that the employee’s limitations were permanent. However, the employer did not seek medical information to sufficiently explore and conclude whether there was no reasonable likelihood that the employee could be returned to work with accommodations in the future.
The employer must assure that the tasks required of the employee are actually necessary to meet the employer’s goals. If the employee could continue his/her employment while avoiding such tasks and while still achieving the employer’s requested goal, there is no undue hardship. The test was set out by the Supreme Court of Canada. To establish a bona fide occupational requirement, the employer must prove that the requirement:
- was adopted for a purpose or goal that is rationally connected to the function being performed (such as a job, being a tenant, or participating in the service);
- was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and
- is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
What does this mean for Employers?
Employers should err on the side of caution and seek counsel prior to claiming frustration of the employment agreement. If it’s done prematurely, the employer could be subject to a wrongful termination claim, giving rise to common law reasonable notice or a claim for discrimination pursuant to the Code. Employers should also run an individual investigation into the employee’s limitations. It’s one thing to say that the employee cannot meet the demands of the job regardless of available accommodations. The employer must prove it by way of a proper and full investigation into the employee’s limitations. Prior to claiming frustration of the contract, the employer should consider the following:
- whether it investigated alternative approaches that do not have a discriminatory effect;
- reasons why viable alternatives, if any, can’t be put in place;
- whether it can meet the legitimate objectives in a less discriminatory way;
- whether the job requirement is properly designed to make sure the desired qualification is met without placing an undue burden on the people it applies to; and
- whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.
British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3.
Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453.
Nason v Thunder Bay Orthopaedic Inc, 2015 ONSC 8097,  OJ No 6892.
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