Archive for ESA Articles
The importance of properly drafted employment agreements
Posted by: | CommentsThe case of Dwyer v. Advanis, found here, details the importance of properly drafted employment contracts and why employers should not use “boiler plate” contracts or re-use or modify older employment law 
contracts. This case also deals with minimum notice provisions in employment contracts. The Plaintiff was hired in sales in April of 2004. He signed an employment law contract that noted a termination provision “if there was not a good fit between [the Plaintiff’s] skills and the requirements of the job”. At that time Mr. Dwyer had no history with the company. From 2004 to early 2006 the Defendant did have concerns about the Plaintiff’s “skills” in sales. However, it modified his job responsibilities in the Spring of 2006 to provide a better fit to his skills. He was promoted from sales to “Chief Marketing Officer.” A letter dated September 7, 2006 detailed his new salary. It then represented to the government and to company personnel that the Plaintiff was a valuable member of its management team and a key player in the company’s future. He was fired in November of 2007 “because his skills were unsuited to his redefined employment responsibilities”. At the same time he was told he was terminated because the company had lost close to a million dollars that year. Was it skills or finances?
On it’s own wording the clause is inapplicable. In terminating the Plaintiff, the Defendant Advanis relied on an express provision in the older employment contract that should it be determined at any time that there is not a fit between the Plaintiff’s skills and the requirements of the job, his employment with Advanis would be terminated and he would receive severance as determined by the applicable provincial Employment Standards Act. Judge Aston noted that in the 2006 promotion letter, there was no provision relating to termination of the Plaintiff’s employment. The Judge also noted that in the context of changing the Plaintiff’s job description and a letter detailing his new terms of employment and compensation, the wording of the original employment contract became inappropriate. It was no longer appropriate to relate “a fit between your skills and the requirements of the job” to the new job specifically designed to provide employment responsibilities tailored to the demonstrated job skills of Mr. Dwyer. The judge noted that although an original contractual provision for termination can continue or survive other changes to the employment contract, in some cases as a matter of law, the facts of this case lead him to conclude that the original provision was no longer part of the mutual understanding of the parties after the Plaintiff assumed the new role of Executive Vice-President, Sales and Marketing in 2006. In short, he was fired because of company finances, not his skill set.
In addition, with respect to the termination, the Judge noted that the clause is at least ambiguous as to whether it limits the Plaintiff’s entitlement to “the applicable Employment Standards Act” and nothing more. He noted that any ambiguity should be construed against the Defendant as the author of the document, particularly given the disparity in the bargaining position of the parties.
Finally, under s. 57 of the Employment Standards Act, the Plaintiff was entitled to four weeks notice of termination and under s. 60 of that Act the Defendant was required to maintain his employee benefits during that period. It did not do so. The Defendant should not be afforded the protection of a contractual provision it breached itself.
You can see how it is important to not only have employment agreements drafted that are suitable to each hire, but if there is a promotion or extension – you should never rely on the old agreement. Never rely on boiler plate agreements…more importantly, when you change an agreement, ensure that there is proper consideration given. The best thing to do is a complete effective re-draft instead of providing amended agreements. Don’t rely on original provisions or original contracts when you promote an employee.
If you have any questions please call Matt Lalande at 905.639.8894
What are public holidays and how do employers deal with them?
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What are public holidays and how do employers deal with them?
Firstly who gets paid public holiday pay?
Qualified employees can be full time or part time employees, permanent employees or contract employees. They can also be students. It does not matter how recently they were hired, or how many days they worked before the public holiday.
What are the public holidays in Ontario?
We have nine statutory holidays in Ontario:
• New Year’s Day;
• Good Friday;
• Victoria Day;
• Canada Day;
• Labour Day;
• Thanksgiving Day;
• Christmas Day; and
• Boxing Day.
You are not required to give your employees a holiday on Easter Sunday, Easter Monday, the first Monday in August, or Remembrance Day. While some employers do, it is not required under the Employment Standards Act, 2000.
If a public holiday falls on a day that would ordinarily be a work day the employee is entitled to a day off with public holiday pay. See an employment lawyer to discuss how this is calculated.
If Christmas falls on a Monday, you are still entitled to pay your employee for Christmas day. Alternatively, you can agree in writing with your employee that he or she work on the holiday and he or she will be paid public holiday pay plus premium pay for the hours worked. Premium pay is time and a half. If your employee receives premium pay for working on a public holiday, the hours are not taken into consideration in calculating any overtime pay. The alternative is to pay the employee their regular rate for hours worked on the holiday, plus they will receive another day off with public holiday pay. Regular wages does not include any overtime or premium pay payable to an employee.
If the public holiday falls on a day that would not ordinarily be a working day, then you need to substitute another day that would ordinarily be a working day your employee to take off work and receive public holiday pay. If Christmas falls on a Saturday, then you would give your employee the monday off.
Generally, employees qualify for the public holiday entitlement unless they fail without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday (this is called the “Last and First Rule”.) The “last regularly scheduled day of work before the public holiday” and the “first regularly scheduled day of work after the public holiday” do not have to be the days right before and right after the holiday. For example, an employee might not be scheduled to work the day right before or after the holiday. As long as the employee works all of his or her last regularly scheduled shift before the holiday and all of the first one after it, or provides reasonable cause for not working either of those days, he or she meets this qualifying criterion.
Public holiday pay will also fail if yrou employees, without reasonable cause to work their entire shift on the public holiday if they agreed to or were required to work that day.
What happens if you don’t pay the publich holiday pay?
If you don’t pay your public holiday pay, or pay it incorrectly, your employee has the right to file a claim that their minimum standards have been violated. An employment standards office will investigate and you may be ordered to pay a minimum amount to the Ministry of Labour (up to $10,000) until the issues is cleared up either by the employment standards office not finding a contravention, or your appealing to the Labour Relations Board to have a Vice Chair hear the case.
If you have been served with complaint for violation of the Ontario Employment Standards Act, please do not hesitate to contact Matt Lalande at matt@employment-law.ca. This is not legal advice.
Back to Basics: What is minimum wage in Ontario?
Posted by: | CommentsI help out a lot of small businesses in the Halton region. Surprisingly I often get this question. Minimum wage in Ontario is the lowest paid hourly rate that you can pay your employees – no matter if that employee is full time or part time, paid a salary of a flat rate. There are jobs that are exempt. If you have any questions please give me a call.
You can read more by clicking here.
Minimum Wage Rates
| Minimum Wage Rate | March 31, 2009 Current wage rate |
March 31, 2010 |
|---|---|---|
| General Minimum Wage | $9.50 per hour |
$10.25 per hour |
| Student Minimum Wage | $8.90 per hour |
$9.60 per hour |
| Liquor Servers Minimum Wage | $8.25 per hour |
$8.90 per hour |
| Hunting and Fishing Guides Minimum Wage | $47.50
$95.00 |
$51.25
$102.50 |
| Homeworkers Wage (110 per cent of the general minimum wage) |
$10.45 per hour |
$11.28 per hour |
Back to Basics: Record Keeping for employers
Posted by: | CommentsEmployers: it is the law in Ontario that you are required to keep certain written records about each person that you hire. The employer must also ensure that the records are readily available for inspection.
What must you keep?
You must retain the employee’s name, address and starting date of employment for three years after the employee stopped working for you.
You must keep the employee’s date of birth if the employee is a student under 18. This must be kept for either three years after the employee’s 18th birthday or three years after the employee stopped working for the employer, whichever happens first. You must also keep a record of the hours worked by the employee each day and week. This must be kept for three years after the day or week of work.
If your employee receives a fixed salary for each pay period and the salary does not change (except with overtime) you are only required to record your employee’s hours in excess of those hours in the employee’s regular work week and the number of hours in excess of eight per day (or in excess of the hours in your employee’s regular work day, if it is more than eight hours).You are not required to record the hours of work for employees who are exempt from overtime pay and the provisions for maximum hours of work.
You must retain copies of every agreement made with an employee to work excess hours or to average overtime pay for three years after the last day on which work was performed under the agreement.
You are also required to keep records of the vacation time earned since the date of hire but not taken before the start of the vacation entitlement year, the vacation time earned, and vacation time taken (if any) during the vacation entitlement year (or stub period).
You must also keep records of the vacation pay paid to your employee during the vacation entitlement year (and stub period, if any) and how that vacation pay was calculated. These records must be made no later than seven days after the start of the next vacation entitlement year (or first vacation entitlement year if the records relate to a stub period) or the first payday after the stub period or vacation entitlement year ends, whichever is later.
Lastly you must also keep all employment documents relating to an employee’s pregnancy, parental, family medical, personal emergency, declared emergency, or reservist leave. These records must be kept for three years after the day the leave expired.
This is not legal advice. It is a summary reiteration of legislated law.
