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The Legal Playing Field

Everything I needed to know about the law I learned on the softball diamond

Pinch Hitter Post: The Rules Are the Rules

Posted in Temporary Lay off

Every now and again, it comes time to bring a pinch hitter to the plate.

This week’s post comes from Jordan Kirkness

-  a fellow lawyer at Baker   McKenzie in Toronto, Ontario Canada.

Thanks for the post Jordan!  Dear Readers & Followers – enjoy!

When speaking of the Employment Standards Act and rulings in terms of constructive dismissal, there are times where the interpretation of the rules are more adhered to than the rules themselves.

Here is a case in recent history where the rules are truly the rules.

For years, courts have generally found, absent a specific term of contract, employers do not have the right to temporarily layoff employees.  Courts have often found a temporary layoff will constitute constructive dismissal where there is no written employment agreement (or a well-established industry standard) that provides for a contractual right to temporarily layoff an employee, requiring employers to provide termination notice, or pay in lieu.

This approach appears to be shifting.

The recent decision of Trites v. Renin Corp, 2013 ONSC 2715 (“Renin Corp.“) may signal a change in the common law that will broaden the range of circumstances in which an employer can temporarily layoff an employee without triggering a constructive dismissal.  If the reasoning in this decision is followed by courts in future cases, employers will often be able to temporarily layoff employees, even without a specific agreement that provides for temporary layoff.

Renin Corp. involved a middle management employee, Sandra Trites, who verified financial statements and accounts, and reported to a corporate controller.  Trites worked for the employer for over five years, but she never signed a written agreement.

Renin Corp. (“Renin”) was struggling financially.   Starting in 2008, many employees had been placed on temporary layoff, only some of which had been recalled prior to the end of the “temporary layoff” period as defined under the Employment Standards Act (“ESA“).

On November 15, 2011, Renin notified Trites she would immediately and indefinitely be placed on layoff.  In January of 2012, Renin advised Trites that she would be called back to work as of July 2012.  Thus, if Trites accepted the recall offer, she would be laid off for more than 13 weeks, but less than 35.  During the layoff, Trites was not provided with benefits, or otherwise subjected to circumstances which qualified her for  “temporary layoff” for up to 35 weeks under the ESA.

In any event, by the time of the recall, Trites had commenced an action against Renin claiming constructive dismissal.

At trial, Trites argued she had been constructively dismissed.  Her lawyer cited existing case law which stood for the proposition that a temporary layoff is a constructive dismissal in the absence of a contractual agreement providing otherwise.  Renin argued that because the ESA provided for a temporary layoff period, the common law of constructive dismissal was unavailable to Trites.

Surprisingly, the court found that “there is no room remaining at law for a…finding of constructive dismissal in circumstances where a temporary layoff has been rolled out in accordance with the terms of the ESA”.  This reasoning clearly suggests that employers can, absent a specific term of agreement, temporarily layoff an employee, without risking constructive dismissal, so long as the layoff does not exceed the definition of temporary layoff under the ESA.

So what is really the play by play?

  1. If this were a collective agreement then temporary layoff periods could be part of bargaining.
  2. The Employment Standards Actdefines a temporary layoff as not more than 13 weeks in any period of 20 consecutive weeks, (more notes in ESA Section 56 – use link)

This case stands for the proposition that you can be taken out of the line up for a period of time (in the EAS specification) and you do not have the right to claim constructive dismissal.  What the court has suggested here is that it has simplified the rule book for employers so that as the ESA states “a temporary layoff does not constitute a termination”, it really means that.

 

Coaching for Improvement

Posted in Employment, Minimum Wage, Strategy, Team Development

It’s not easy to be part of a committee with the tenuous role of developing a plan to implement minimum wage increase rules for the future of Ontario.

And with the numerous critics, advocates and voices that emerge, the task does not become easier.  Numerous articles and studies are out there including many mentioned in the past blog posts, and including the following:

And so many more.  And the debate will continue until the Committee reports back.

Clearly, this analysis will be a good thing for business.  With a good process and format in place, if increase occur, businesses will be able to plan for it. In the past, just ‘springing’ the increase on businesses has made the increases exponentially more difficult to react to  and properly implement, making the impact worse.

We will have to wait and see if this topic becomes a rally-killer or not.  In any case, coaching for improvement can work.

 

The Rally-Killer or Not?

Posted in Minimum Wage

The argument for increasing the minimum wage is definitely political.

At any time in the Ontario economy, 1 in 10 people earn the minimum wage.  No doubt that hiking it would be politically advantageous – VOTES.  It may not necessarily be the right thing to do.

It’s a difficult task that Minister Naqvi has asked the Committee to work on:

  • Understanding that there are currently reduced opportunities for low skilled and young workers, how would hiking the minimum wage affect them as well as affect the business market?
  • Not equating poverty with the minimum wage – some of the minimum wage earners are not necessarily poor but perhaps just starting out in their chosen field, could still be living at home.  They are not necessarily householders living at the ‘poverty line’.
  • Setting a clear set of objectives and processes in place for future increases that are based on facts that help stimulate the economy as well as benefit business bottom-line, creating sustainability in the marketplace.

This is not for the faint of hear.  It is tenuous and requires leadership to not just respond to the pressure and act, but to seek counsel and coaching to put a good structure in place for the future.

Strike Three – You’re Out!

Posted in Employment, Minimum Wage

The last 2 posts focused on the business environment and the non-starter anti-poverty tactic of increasing the minimum wage in Ontario.

STRIKE THREE:

A clear thought must be brought to bear on our competitiveness in the Canadian market and of course, in the international business market.  Already, over the last decade, jobs have left Canada and Ontario specifically for lower paying locales to the South and beyond.

Thinking about this clearly, increases in wages directly affect the bottom line – profits.  We can say whatever we want about business, but the fact are, if I do not have profits, I usually won’t stay in business very long.

While there is something to be said for helping drive the economy by adding money into the pockets of the entry-level job workers, the fact remains that while minimum wage has not increased in the past 3 years, the rate of unemployed young workers is rising as seniors are taking over in those roles.

Watch for the Rally-Cry up next.

Strike Two Against the Increase

Posted in Minimum Wage

In my last post, you could see that Strike One focused on the business market.

STRIKE TWO:

Is the minimum wage really an anti-poverty tactic?  Is there a clear link between poverty and the minimum wage.  Think about this:

The poor tend to not have jobs at all.  If there is an adverse reaction in the business market to an increase in the minimum wage, this will only add to issues for ‘poor people’ as it would continue to limit their prospects.

Usually those who are getting the minimum wage are in entry level jobs.  The expectation is that these people would grow and develop in their roles and move forward with increases due to performance and time in position.  Many organizations have mechanisms in place to help this take place so that they can retain the talent they attract at all levels.

Strike Three coming up!

 

 

Strike One Against the Increase

Posted in Baseball, Minimum Wage

Every batter gets an opportunity to hit a home run, get on base or of course strike out.

In my last post, I described the opportunity and debate that has arise around the increase of the minimum wage in Ontario.

STRIKE ONE:

Many methods for increasing the minimum wage have been used in the past.  In historical figures, the increase have been ad hoc to say the least.  It does seem that increases over 10% have an adverse affect on the Canadian business market. (This article has some good arguments).

In the US it is the opposite, as people make themselves more available for work and the business community likes this.

If using the 10% rule, then you would current get a $1.00 increase in the minimum wage taking it to over $11.00 per hour.  How can small businesses, who are supposed to be the heart of future growth, development and innovation, be able to pay this on a regular level to their current workforce, not to mention the pro-rata increases that would need to take place at every other grade level in the organization?

What will most likely happen here is that less people will be employed and there is the potential to replace labour with capital (example: robotics, streamlined processes etc).

Stay tuned for STRIKE TWO.

 

 

Proposed Increase in Minimum Wage aka Seismic Increase

Posted in Employment, Minimum Wage

The current proposed increase of minimum wage in Ontario can be seen as a seismic in

creaseif it is to follow on what has occurred in past history.  The last increase to minimum wage in Ontario took place in March 2010…and now, activists are looking for a $14 minimum wage.  Current minimum wage is $10.25/hour.

 

If we look at the historical increases here is the breakdown:

A 50% increase in minimum wage in one (1) decade. What could be next?

The real question is how is this increase going to take place an when?

Labour Minister Yasir Naqvi has appointed a committee to report back after it looks at what the increase should be and how it should be determined.  Issues surrounding cost of living increase or indexed increases will be address as opposed to the random, ad hoc methods of the past.

Minister Naqvi has shown himself to be a pretty good manager in a relatively new position because he has not ignored the issue and instead referred the matter to a representative advisory panel to get good coaching on the increase platform – it’s appropriateness and how this should be handled in the future.

Of course with any play on the field there is the opportunity to strike out the batter.  In the next posts, you will see the 3 strikes against common arguments for increasing the minimum wage.

 

Sometimes a Swimming Pool is Just a Swimming Pool

Posted in Baseball, Strategy

This  was the comment of the Ontario Court of Appeal in the Occupational Health and Safety Act case, Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 decided in February of 2013.

“The Pitch”

The Blue Mountain case dealt with the application of the OHSA employer reporting requirements under Section 51(1) and the preservation of the accident scene requirements of Section 51(2) of that Act.  A guest at the Resort had drowned in an unsupervised swimming pool at the Resort.  No worker was present. No Report of the incident was made to the Ministry of Labour under Section 51 of the OHSA or otherwise in 2007.

A Ministry of Labour Inspector subsequently ordered the Resort to Report based on Section 51(1) which reads, in part,  as follows:

“Where a person is killed or critically injured from any cause at a workplace, … the employer shall notify an inspector … immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence…” 

“The Error”

The position of the Ministry of Labour, upheld at the Ontario Labour Relations Board and on Judicial Review by the Supreme Court of Ontario was essentially that every place is a workplace because a worker may, at some point, be at that place.  According to the Court of Appeal, such an interpretation would mean that virtually every death or critical injury, to anyone, anywhere, whatever the cause, must be reported and the applicable site shut down under Section 51(2) of The Act until a Ministry of Labour  Inspector released the site. The Court of Appeal properly found this to be an interpretation which would be absurd and therefore found that the decision by the OLRB should be overturned as unreasonable.

This reminds me of the time I attended Umpire’s School to receive Softball Rule interpretation guidelines for the coming year only to be forced to endure endless blathering about the alleged interpretation of the Rule governing how a base runner could be put out by a fielder who touches the  base runner, while the base runner is  off a base, with the ball contained in the fielder’s glove.  The Umpire in Chief, obviously a lawyer wannabe, pronounced that the Rule in question  could certainly be interpreted to mean that the fielder could touch the base runner with his empty hand while the fielder simultaneously was holding the ball in his glove hand,  and thus put the base runner out. This was also patently absurd but nonetheless a literal reading of the applicable rule, as it then was.

“The Call”

In Blue Mountain the Court of Appeal ruled that an employer is required to report an occurrence and Section 51 of the Occupational Health and Safety Act will apply, if: 

  • ·         either a worker or non-worker is killed or critically injured within the meaning of the Act and Regulations;
  • ·         the incident occurs at a place where either a worker is carrying out his duties when the incident occurs, or, where a worker might reasonably be expected to be carrying out his duties in the ordinary course; and,
  • ·         there is a reasonable nexus between the hazard  giving rise to the death or critical injury and a realistic link to worker safety at the workplace. 

The Court of Appeal concluded that: “ … there was no evidence that the Blue Mountain guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.”

Accordingly, the Retail Store presumably does not have to report an occurrence and close down a portion of the store just because a customer suffers a heart attack in the store.  However, what if a customer breaks his leg due to a slip hazard in an aisle or if material falls off the top shelf and strikes the customer causing unconsciousness?  Is there a nexus between the hazard giving rise to the subject critical injury and worker safety at the workplace?  Obviously, the facts still need to be assessed in each case, however, the Ontario Court of Appeal has done its best to clarify the “Rule Book” and establish a decision making framework in such circumstances.

 

A Snitch in Time

Posted in Baseball, Strategy

The Canadian Federal Government Budget, delivered on March 21, 2013, was indeed a “conservative” financial recipe for baking the future Canadian economic pie..  The Budget contains  very modest, but well conceived, spending initiatives aimed at: job creation; skills training; and infrastructure;  as well as much needed help for the Manufacturing Sector .  However, the Budget also focuses on collecting more revenue for the Federal Government so as to attempt to balance the Budget by 2015.  What caught my eye was the initiative to offer cash incentives to persons who “blow the whistle” on people allegedly, and inappropriately, seeking to evade taxes by moving money to off shore safe havens..  Be afraid, be very afraid.  The Fed’s have just enticed your neighbours to snitch on you, just like a bitter ex-spouse.

 

Stealing the sign or the sign for stealing…..are you going to snitch?

Stealing Signs” 

Isn’t paying tax snitches a lot like the practice of “stealing signs” in a baseball game.  It may not break the Rules per se but the tactics employed can prove to be a bit unseemly.  No one seems to mind that a runner at second base may steal the Catcher’s sign to the Pitcher and relay the same to the Batter, that is just a traditional game within the Game.  But when a team hides a spy in the outfield bleachers using high tech means to steal the same signs and relay the information to the Batter, that makes news and is generally viewed  as beyond the pale. 

A Toronto morning radio host recently referred to the old joke:    “Surely you remember the famous Russian magician, … who turned his Family in to the K.G.B.”

Kathleen Wynne’s Victory is Good News for Organized Labour and potential bad news for the NDP

Posted in Baseball, Collective Bargaining, Employment, Labour Law, Strategy

The victory by Kathleen Wynne at the Provincial Liberal Party Leadership Convention is a “Home Run” for trade union’s in Ontario.

It now appears that among Ms Wynne’s first acts as Premier Designate will be to call the Teacher’s unions and invite them and their fellow travellers, such as  the  Canadian Union of Public Employees,  to meet her and her Team to discuss how they can all play nice on the sandlot.

Ms Wynne will use her prior good working relationship with Teacher’s unions, forged as a former provincial Education Minister,  to demonstrate that she intends to rebuild the effective working coalition between the Liberal’s and organized labour.

It says here that one of the main reasons Liberal Party  delegates selected Ms Wynne over her main rival Sandra Pupatello was that Ms Wynne,  a professionally trained  mediator, is  perceived as more likely to resolve the open conflict/hostility with Teachers and to buy more time, in a minority Parliament,  for the  new Liberal Lineup  to distance itself from the failed and patently unpopular policies and practices  of Premier Dalton McGuinty, before the next  Provincial Election takes place.

The unions will understand that they have real short term  leverage  with the new Liberal squad and its newly appointed Skipper.

The Premier Designate knows that she and her Red Team desperately  need the Teacher’s unions, and their  legendary campaign assets in her Team dug out.  She also understands that she  must appease the “Working Families Coalition”, a.k.a. organized labour,  if she is to keep the NDP and its rookie Skipper,  Andrea Horvath, playing defense from  the outfield.

But how to accomplish all of this without entirely throwing her prior Team under the bus.  Always remember, “…all evil is in the past.”

The answer is to signal a profound commitment to consult on and ultimately implement:  education reform;  labour law reform;  as well as fiscal sustainability.  (This was exactly the formula that kept successive Ontario Progressive Conservative. Governments in power,  in minority government conditions,  for the years between 1971 – 1985.)

The theory will be that labour peace and economic growth and sustainability go hand in hand.

Look for prominent Cabinet appointments of left leaning members to the Education and Labour Ministerial  portfolios.  (In Ontario politics, like baseball,  it is clear that you need a supply of “port siders pitching on your staff.) In the same manner,   don’t rule out  a possible defection of a prominent NDP caucus member to cement the Liberal/trade union relationship.

But apart from a plethora of consultation (talk and more talk is cheap),  what kinds of real  labour and employment  law reforms would potentially turn the trick in garnering trade union support while protecting the Liberals from attack,  from the right,  as economically profligate:

1. “Card based certification” under the Labour Relations Act, for all sectors not just the construction sector.  (While this is truly just  inside baseball stuff for everyone other than trade unionists, it is a real wedge issue with the Tory party);

2. Pension reforms  aimed at securing pension benefits for all existing    pensioners and providing extended plan funding relief for fund sponsors. (This will potentially rip a plank out of the NDP election platform); and,

3.  Collective bargaining and arbitration reforms designed to ensure that the bargaining process,  in at least the public sector, is treated as virtually sacrosanct going forward.  (This will be very attractive to all Public Sector Union’s and their membership and will go some distance to eliminate the sting of Bill 115 with the Teachers).

Each of the above-noted moves, if implemented quickly,  will  almost certainly score immediate RBI’s  and will potentially keep the Liberal “Big Red” Team on the playing field,  and  at bat,  for an extended  Inning.  All of which would be music to the ears of  nervous Liberal MPP’s on the bench and  staring down certain demotion to the Minor Leagues if their Parliamentary Game ends prematurely.

Fans are advised: to watch the Waiver Wire;  keep their  score cards handy; and,  to hold onto their  caps.  “…It’s never over till the last out is made.”