Important Employment Law Questions in Ontario

In Ontario, most employment lawyers are often asked a variety of important legal questions and topics about their workplace situation. So, as a general information starting point, this blog will cover some of the most common topics that could require an employment lawyer consultation for specific legal advice on a person’s case or circumstances:

Right to refuse unsafe work

every employer and worker shares responsibility for occupational health and safety – the law is called the OHSA
aim is to ensure all “workers” have a safe workplace
OHSA applies to “workers” as not only an employee, but even unpaid interns and students (such as co-op placements)

Employers’ Duties – take all precautions to protect workers, such as providing and maintaining safe work materials, equipment and protective devices, and providing health and safety training

Workers’ Duties – follow employer’s health and safety instructions, such as using all materials, equipment and protective devices required by their employer, and reporting any workplace danger to the employer or health and safety violations

if a workplace is unsafe, all workers have a legal Right to Refuse Unsafe Work/The Right to Stop Work
some limited exceptions for police officers, firefighters, health care workers
however, to avail themselves of this right, there is a specific procedure to follow:

1^st Stage

worker has an honest belief that work is “likely to endanger” their own (or another worker’s) health and safety
any machine, equipment or tool that the worker is using or is told to use is likely to endanger himself or herself or another worker
the physical condition of the workplace or workstation is likely to endanger himself or herself
workplace violence is likely to endanger himself or herself
any machine, equipment or tool that the worker is using, or the physical condition of the workplace, is likely to endanger himself or herself or another worker
worker must immediately the supervisor or employer that the work is being refused and explain the circumstances for the refusal
the supervisor or employer must investigate the situation immediately

At that point, either:

Issue resolved – worker goes back to work.
Issue not resolved – proceed to the second stage
during this “first stage of a work refusal” as the employer is investigating, the refusing worker must remain in a safe place that is as near as reasonably possible to his or her workstation, and remain available to the employer or supervisor for the purposes of the investigation, until the investigation is completed

What if the refusing worker is not satisfied with the result of the first stage investigation?

2nd Stage

worker can continue to refuse the work if he or she has “reasonable grounds” for believing that the circumstances that caused the worker to initially refuse work continue
however, the employer must immediately call the Ministry of Labour
Ministry of Labour will send an Inspector will come to the workplace to investigate the refusal in consultation with the worker and the employer
the Inspector must decide whether the circumstance(s) that led to the work refusal is likely to endanger the worker (or another person)
the Inspector will provide a written decision
if the inspector finds that the circumstance is not likely to endanger anyone, the refusing worker is expected to return to work
if the inspector finds that the circumstance(s) is likely to endanger the worker or another person, the inspector will typically order the employer to remedy the hazard before the worker is required to return to work

– employee must receive their regular pay during investigation and cannot be disciplined

Minimum rights under the Ontario Employment Standards Act, 2000

(a) Issuing T4s

any business with employees is legally required to automatically deduct income tax each time they pay employees
a corresponding duty is for the employer to issue a T4 Slip to all employees from the past year by the end of February
for employees, the T4 slip represents the entire income earned and how much they paid in taxes throughout the year from the company that issues it
According to the CRA, there are a few key types of income you should report on T4 Slips:
Salary, wages (including pay in lieu of termination notice), tips or gratuities, bonuses, vacation pay, employment commissions, gross and insurable earnings of self-employed fishers, and all other remuneration you paid to employees during the year
Taxable benefits or allowances
Deductions you withheld during the year (income tax, CPP and EI)

(b) EI coverage

provides temporary income support to unemployed workers while they look for employment or to upgrade their skills, as well as for sickness benefits (up to 16 weeks), pregnancy/parental leave
typically, most people get 55% of their average insurable weekly earnings (salary, tips, bonuses, commissions), up to a maximum amount
can last from 14 weeks up to a maximum of 45 weeks, depending on the unemployment rate in your region at the time of filing your claim and the amount of insurable hours you’ve accumulated in the last 52 weeks

(c) Statutory (public) holidays

Ontario has nine public holidays:

New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, Boxing Day (December 26)

Most employees who qualify are entitled to take these days off work and be paid public holiday pay
Alternatively, the employee can agree in writingto work on the holiday and be paid:
public holiday pay plus premium pay for all hours worked on the public holiday and not receive another day off (called a “substitute” holiday);or
be paid their regular wages for all hours worked on the public holiday and receive another substitute holiday for which they must be paid public holiday pay
To qualify for public holiday pay, there is a “last and first rule” that applies:
employee must have worked all of their last regularly scheduled day of work before the public holiday and all of their first regularly scheduled day of work after the public holiday, unless they had reasonable cause to not have worked that day

(d) Vacation Pay

all employees are entitled to a minimum amount of vacation time and vacation pay based on their years of service with the employer (two separate entitlements)
- under 5 years – 2 weeks + 4% after each 12-month period
- over 5 years – 3 weeks + 6% after each 12-month period
generally, employers have the ability to decide when employees take their vacations (within reason!)
can be paid as a lump sum before they go on vacation, partially paid each pay cheque throughout the year

(e) Over-time over 44 hours

under the ESA, the general rule is that an employee is entitled to overtime pay should they work over 44 hours a week
the overtime pay rate is one and a half times the employee’s regular hourly rate. Example, if worker earns $21 an hour, their overtime hourly pay rate would be $31.50 ($21 X 1.5)
The overtime pay for an employee who is paid a fixed salary can be calculated using weekly salary / 44 Hours a week = regular hourly rate of pay x 1.5 = overtime pay rate
- For example, an employee’s salary is $1000 a week. They worked 48 hours this week. Their overtime rate of pay would be:
- $1000 / 44 Hours a Week = $22.73 (Regular Hourly Rate)
- $22.73 x 1.5 = $34.10 (Overtime Rate)
although most employees in Ontario are entitled to overtime pay if they have worked more than 44 hours a week, there are a few exemptions under the ESA:
- Supervisors and Managers, and certain professional occupations (lawyers, public accountants, engineers, architects are exempt from overtime pay)

(f) Appealing EI denial

if an employee disagrees with Service Canada’s decision, such as to deny EI benefits claim, they can “Request a Reconsideration” within 30 days after they were told of the decision they want to appeal
complete, print and sign the online request for reconsideration of an EI decisionform
submit it to Service Canada , who will then review it to determine whether the original decision could change

(f) Employee Quitting with Reason

an employee may be able to justify a decision to quit with valid reason – typically called an involuntary resignation (or a constructive dismissal)
could include serious workplace harassment (hostile or poisoned workplace)
risky decision – if cannot justify to a court they had a valid reason to quit their job, they could end up losing/forfeiting termination pay or severance pay that they otherwise would have been entitled to receive if the employer chose to terminate them instead
likewise, if an employee quits their job without just cause, Service Canada could deny their claim for EI benefits
always important for an employee to consult with an experienced employment lawyer before making the decision to quit their job to get proper legal advice on their rights, options and best strategy

(h) Equal work and equal wages

under the ESA, equal pay for equal work requires all employees to receive the same amount of pay for doing the same work – regardless of their gender
means same kind of work for the same employer, that requires the same amount of effort and is performed under similar working conditions
Employees can make a complaint against to the MOL if they feel they’ve been incorrectly paid
Exceptions – even if employees of different genders are doing equal work, they can be paid different rates of pay if the difference is due to:
- a seniority system
- a merit system
- a system that measures earnings by production quantity or quality
- Employees who perform equal work can also be paid different rates of pay if the difference is based on any other factor other than sex

(i) Discrimination at work how to report it

under the HRC, every employee who has a right to be treated equally at work by the employer
in other words, employers cannot treat employees unequally because of a personal characteristic that is prohibited by human rights law, such as their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability
this applies to any work decisions, such as hiring, promotions, terminations and employer’s certain policies/rules (such as dress code)
employers also have a duty to “accommodate” (support) employees based on the basis of an employee’s disability, including modified work schedule or duties
if an employee believes they faced discrimination, they should consider first reporting it internally if they are comfortable doing so (usually to HR), and otherwise, they can file a discrimination claim with the HRTO
always important to consult with an experienced employment lawyer before doing so and as soon as they believe they experienced discrimination – as there are important legal deadlines to start a discrimination claim

(j) Termination Notice & Severance Pay

under ESA, employees who are fired (terminated) are generally entitled to receive prior notice of termination (or termination pay) equal to 1 week/year of service, as well as in some cases severance pay of 1 weeks’ wages/year of service
exceptions:
- employees who voluntarily quit their jobs
- employees fired for wilful misconduct wilful misconduct, disobedience or wilful neglect of duty that is not trivial and that has not been condoned by the employer
sometimes employees who recently started their job and are still on their 3-month probation
the rules under the ESAabout termination and severance of employment are minimum requirements – some employees may have rights under the common law that are greater than the rights to notice of termination (or termination pay) and severance pay under the ESA
an employee may want to sue their former employer in court for “wrongful dismissal” and negotiate a severance package with the help of an employment lawyer
always important for employees to obtain legal advice from an experienced employment lawyer to understand their rights and options – especially immediately upon a termination of employment

Book a Consultation with an Employment Lawyer in Toronto

At Bune Law, we understand and are familiar the complexities of workplace law and are committed to helping both employers and employees navigate these challenges. Whether you are an employer or employee dealing with employment contracts, workplace disputes like a wrongful dismissal or constructive dismissal, or simply need guidance on your rights and obligations for a severance package review and negotiation, our experienced employment lawyer is here to assist you.

Book a confidential consultation with our Toronto employment law firm to protect your legal rights to understand your options and protect your rights.

Why Choose Bune Law When You Need an Ontario Employment Lawyer?

Experience in all areas of workplace law, including wrongful dismissal claims, constructive dismissal claims, severance package reviews, severance package negotiations, discrimination and human rights disputes, and employment contract reviews.
Proven track record of successfully resolving workplace disputes through negotiation, mediation, and employment litigation.
Compassionate and personalized approach to each case, ensuring tailored solutions that meet your specific needs.

If you need a Toronto employment lawyer who is committed to delivering strong results and proactive solutions, please contact Bune Law online or by phone today at 647-822-5492.