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Employment Standards Act - 2011 Update


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Employment Standards Act - 2011 Update

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Employment Standards Act - 2011 Update

  1. 1. PRESENTER: CHUCK TAHIRALI Employment Standards Act Recent amendments and Notable Developments
  2. 2. NEW ESA COMPLAINT PROCEDURES As of January 19, 2011, employees must: • Notify employer of violation and, if dispute relates to “wages”, amount of wages at issue; and • Advise the Ministry in writing of the notification, about what information was provided to the Employer, how it was provided, and the Employer’s response. Employment Standards Act
  3. 3. NEW ESA COMPLAINT PROCEDURES Employees may notify Employers: • In-person, by regular mail, registered mail, courier, e-mail, fax or by telephone. If Employee fails to take these steps: • Complaint will not be assigned to an Officer; and • If steps not taken within 6 months of filing Complaint, an Officer will be deemed to have refused to issue an Order. Employment Standards Act
  4. 4. NEW POWERS FOR ESA OFFICERS • Officers have the power to attempt to settle Complaints. If settled, Complaint deemed withdrawn. • Officers have the power to give notice notice to the parties requiring them to provide evidence or submissions within specified time frame. • Failure to attend meeting or provide information on time may result in Officer deciding in absence of party or without requested information. Employment Standards Act
  5. 5. NEW ESA COMPLAINT PROCEDURES • Ministry has discretion to assign a Complaint for investigation even if steps not taken. • For example, discretion may be exercised if: o Workplace closed down or employer bankrupt; o Employee is young or afraid to make contact or has a language issue or disability making contact difficult. Employment Standards Act
  6. 6. EXEMPTION – REG. 288 NO entitlement to notice, termination pay or severance pay: An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. Employment Standards Act
  7. 7. Oosterbosch v. FAG Aerospace • Court satisfied employer had demonstrated just cause for termination of the plaintiff. In the Court’s view, the persistence of the plaintiff’s misconduct despite on-going coaching sessions and warnings constituted a repudiation of the employment relationship. • Plaintiff demonstrated a sustained course of casual and careless conduct that was inconsistent with the continuation of his employment, but the Court did not accept that his conduct amounted to wilful misconduct/neglect of duty under the ESA. Employment Standards Act
  8. 8. NEED TO KNOW • Wilful misconduct or wilful neglect of duty under the Ontario Employment Standards Act may be HIGHER standards to meet than “just cause” under common law. • It is possible to have “just cause” for dismissal and still owe statutory entitlements to employee. • What about “just cause” under a collective agreement? Employment Standards Act
  9. 9. What is Wilful Misconduct? • Conduct that seriously interferes with either the performance of the employee’s job duties or that of his or her co-workers. • Normally the Employer would have to demonstrate that harm has been done to its operation; and • The misconduct amounts to a repudiation by the employee of the employment contract. Employment Standards Act
  10. 10. What is Wilful Misconduct? Two (2) general categories of serious misconduct: 1) Single acts, such as insubordination, theft and dishonesty, and physical violence against other employees, which may, on their own, meet that standard of seriousness. 2) Less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. Employment Standards Act
  11. 11. What is Wilful Misconduct? • “Proper handling” by Employer means: • Employer explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination; and • Subsequent to these warnings, there must be a culminating incident. Employment Standards Act
  12. 12. What is Wilful Misconduct? IN ADDITION: • Employer must demonstrate that the conduct complained of is wilful. • Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. Employment Standards Act
  13. 13. EXEMPTION – REG. 285 NO entitlement to overtime pay: A person whose work is supervisory or managerial in character and who may perform non-supervisory or non- managerial tasks on an irregular or exceptional basis Employment Standards Act
  14. 14. Glendale GC&C and Sanago Ontario Labour Relations Board (OLRB) found: • Duties clearly indicate fundamental character of the position is managerial and/or supervisory: Could hire, fire, administered large budget, could affect the working lives of others. • Realities of short-staffed kitchen obliged Chef to perform line cooking for 2 months. Employment Standards Act
  15. 15. Glendale GC&C and Sanago OLRB found: • Being managerial in character not enough. • Pursuant to language of new exemption, must also determine whether Chef performed non-supervisory or non-managerial tasks, and if so, whether he performed these tasks on an irregular or exceptional basis. Employment Standards Act
  16. 16. Glendale GC&C and Sanago • Irregular implies that, although the performance of non- supervisory or non-managerial duties is not unusual or unexpected, their performance is unscheduled or sporadic. • If a pattern forms or they are performed on a daily basis, the frequency with which such duties are performed and the amount of time spent performing them may be relevant. Employment Standards Act
  17. 17. Glendale GC&C and Sanago • Exceptional suggests that non-supervisory or non- managerial duties may be performed so long as they are being performed outside of the ordinary course of the employee’s duties, i.e., something “out of the ordinary”. • Board found that duties not preformed “irregularly”, but they were performed on an “exceptional” basis. Employment Standards Act
  18. 18. Glendale GC&C and Sanago • Therefore, Executive Chef was an exempt position. • However, Board found that he was still entitled to overtime pay because of s.22(9) of the ESA. • 55% of time spent line cooking; 45% of time managing. Employment Standards Act
  19. 19. SECTION 22(9) OF ESA If an “exempt” employee: • Performs non-exempt work (e.g., non-supervisory or non- managerial tasks) in a particular work week, in addition to his/her regular exempted duties; • Then the employee is entitled to overtime pay for any overtime hours worked that week unless the time spent by the employee performing the exempt work was less than half the time worked that week. Employment Standards Act