The state of emergency in Ontario ended on July 24, 2020. This means a new clock has started ticking for employers with employees on what were temporary layoffs but were then converted into deemed Infectious Disease Emergency Leaves (IDEL) by O. Reg 228/20. While this sounds confusing, basically if your employees are off work involuntarily (you told them to stop working vs. they asked to take a leave) then they have been on a deemed…
This Ontario Court of Appeal decision has been the talk of the town on all the Ontario employment law blogs and while we don’t like to be followers, we also wanted to make sure our readers did not miss this important decision. In Waksdale v. Swegon North America Inc. the Ontario Court of Appeal ruled on the enforceability of specific termination provisions in an employment contract, finding the “without cause” termination provision enforceable because of a flaw in the “with cause” provision.
Courts frequently come up with new ways of invalidating employer drafted termination provisions that would restrict an employee’s entitlement to notice. The enforceability of termination provisions is what lots of employment cases are about. A properly drafted termination provision in an employment contract can significantly limit an employee’s entitlement to notice of termination. For example, a long service employee terminated “without cause” could be entitled to as little as 8 weeks or as much as 2 years of notice depending on the contract.
We blogged about David Heller and his fight against Uber last May when leave to the Supreme Court of Canada was granted. You can catch up on the history and read that post here. If you’re a true nerd you can also watch footage of the arguments made in the Supreme Court here! The Supreme Court’s decision has now been released.
A Brief History
Heller, a driver for UberEats, brought a class action suit against Uber in 2017 alleging that he was an employee under the Employment Standards Act, 2000 (“ESA”). Uber, in response to this suit, said that Heller could not sue in Ontario because of the arbitration clause in his contract with Uber.
The Arbitration Clause
Putting aside the issue of whether Uber drivers are employees – entitled to things like public holiday pay, vacation pay, notice of termination etc. under the ESA – the suit became about the correct forum. Could Heller bring Uber to court in Ontario? Or did the arbitration clause in the contract with Uber apply?
The arbitration clause – which was contained in the standard-form click-through contract drivers agree to in order to become Uber drivers – stated that disputes would be resolved by the International Chamber of Commerce in the Netherlands.
Photo by mana5280 on Unsplash
In the wake of the killing of George Floyd and in the midst of protests and heightened awareness of anti-black racism across the world, two prominent Canadians have been “cancelled.”
Earlier this month Sasha Exeter, lifestyle blogger and influencer, called out Jessica Mulroney for “textbook white privilege.” Exeter explained, calling out Mulroney by name, that Mulroney took offence to her call to action for people with large public followings to use their platforms to address racial inequality and then proceeded to threaten Exeter and her brand. Soon after Mulroney’s reality show, “I Do, Redo” had been cancelled by CTV, and Cityline, Good Morning America, Hudson’s Bay and apparently Meghan Markle, had all cut their ties with the star.
Mulroney’s fall was preceded by CBC TV host Wendy Mesley’s suspension from her show “The Weekly,” pending an investigation into her use of a racist word during a meeting. Again, details are fuzzy, but Mesley said on Twitter that she “used a word that should never be used” and that she was “quoting a journalist we were intending to interview on a panel discussion about coverage of racial inequality.”
As many of our readers and clients know, we have been cautioning that the legality of certain layoffs and job changes necessitated by COVID-19 is uncertain. Generally, layoffs are only legal if the employment contract gives the employer the right to layoff, and many other job changes, such as reductions in hours or pay, raise the risk of constructive dismissal. We anticipated that at some point the Ontario government may weigh in and change the law – on Friday they did.
Note that none of these changes apply to unionized employees.
The provinces are opening back up and various guidance has been issued to employers regarding how to do so safely, but the virus still exists and it’s still contagious. Governments who have been encouraging people to stay home are now contemplating how to get people to go out when really conditions regarding the virus have not drastically changed. This juxtaposition will have an impact on workplaces.
Employee Work Refusals
We can anticipate that some employees will refuse to come back to work, even if they have been recalled and even where the employer has followed government guidance on how to make a return to work safe. What should employers do with these employees?
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In the rapidly evolving landscape of tech, Generative Artificial Intelligence (GenAI) is becoming a central player, especially in sectors like customer service, content creation, and…
In the world of employment law, terminations tend to steal the spotlight. But what about when the employee is the one ending the employment relationship?…
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