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I don’t know if this was worth waiting for, but here’s Alan’s response. I’m so sorry we kept you so long and I promise to be much more prompt in the future. Also feel free to contact me glennd@bongarde.com, if you want to follow up or get more info. Thanks and sorry. Glenn
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So the answer is another question.
Were the pay increments conditional on active service or just on “employment”.
If the later, then yes, the agreed upon hourly rates are binding on the employer.Alan
I apologize for taking so long to get back to you. First, I agree with the above approach the user in 6 jurisdictions follows. When in doubt, always follow the stricter/strictest requirement. The Manitoba ESC doesn’t address the issue of geographic scope. However, Section 3 of the Ontario ESA says that the Act applies if: (a) the employee’s work is to be performed in Ontario; or (b) the employee’s work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario. But there are exceptions to this rule, which I’ve pasted in below. It sounds like your employee is working in Manitoba. In that case, you should assume the Manitoba ESC applies unless any of the ESA exceptions below apply:
ESA applies if work done in Ontario, subject to following exceptions:
(2) This Act does not apply with respect to an employee and his or her employer if their employment relationship is within the legislative jurisdiction of the Parliament of Canada. 2000, c. 41, s. 3 (2).
Exception, diplomatic personnel
(3) This Act does not apply with respect to an employee of an embassy or consulate of a foreign nation and his or her employer. 2000, c. 41, s. 3 (3).Other exceptions
(5) This Act does not apply with respect to the following individuals and any person for whom such an individual performs work or from whom such an individual receives compensation:
1. A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled.
2. An individual who performs work under a program approved by a college of applied arts and technology or a university.
2.1 An individual who performs work under a program that is approved by a private career college registered under the Private Career Colleges Act, 2005 and that meets such criteria as may be prescribed.
3. A participant in community participation under the Ontario Works Act, 1997.
4. An individual who is an inmate of a correctional institution within the meaning of the Ministry of Correctional Services Act, is an inmate of a penitentiary, is being held in a detention facility within the meaning of the Police Services Act or is being held in a place of temporary detention or youth custody facility under the Youth Criminal Justice Act (Canada), if the individual participates inside or outside the institution, penitentiary, place or facility in a work project or rehabilitation program.
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 4 of subsection 3 (5) of the Act is repealed and the following substituted: (See: 2019, c. 1, Sched. 1, s. 17 (1))
4. An individual who is an inmate of a correctional institution within the meaning of the Ministry of Correctional Services Act, is an inmate of a penitentiary or is being held in a place of temporary detention or youth custody facility under the Youth Criminal Justice Act (Canada), if the individual participates inside or outside the institution, penitentiary or place in a work project or rehabilitation program.
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 4 of subsection 3 (5) of the Act is amended by striking out “Ministry of Correctional Services Act” and substituting “Correctional Services and Reintegration Act, 2018”. (See: 2018, c. 6, Sched. 3, s. 8)
5. An individual who performs work under an order or sentence of a court or as part of an extrajudicial measure under the Youth Criminal Justice Act (Canada).
6. An individual who performs work in a simulated job or working environment if the primary purpose in placing the individual in the job or environment is his or her rehabilitation.
Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 6 of subsection 3 (5) of the Act is repealed. (See: 2018, c. 14, Sched. 1, s. 2)
7. A holder of political, religious or judicial office.
8. A member of a quasi-judicial tribunal.
9. A holder of elected office in an organization, including a trade union.
10. A police officer, except as provided in Part XVI (Lie Detectors) or in a regulation made under clause 141 (2.1) (c).
11. A director of a corporation, except as provided in Part XX (Liability of Directors), Part XXI (Who Enforces this Act and What They Can Do), Part XXII (Complaints and Enforcement), Part XXIII (Reviews by the Board), Part XXIV (Collection), Part XXV (Offences and Prosecutions), Part XXVI (Miscellaneous Evidentiary Provisions), Part XXVII (Regulations) and Part XXVIII (Transition, Amendment, Repeals, Commencement and Short Title).
12. Any prescribed individuals. 2000, c. 41, s. 3 (5); 2006, c. 19, Sched. D, s. 7; 2017, c. 22, Sched. 1, s. 2 (2); 2020, c. 3, s. 1.***
I hope that helps and I apologize again for the delay.Hi,
We have employees in 6 different provinces, the employees follow their own provincial ESA, however, with some policies, we follow the Ontario ESA based on the company rule and if it is greater than what their local provincial ESA states then we are able to enforce the required process.
An example would be that we provide 5 paid emergency days, this meets Ontario ESA and is above the Manitoba ESAhope this helps.
in reply to: Answer for Ontario but we are federally regulated #87326The problem is that I don’t have access to the CSA standard. But I’m sure many of our members do. Would you be willing to post this as a question for the whole OHSI membership or do you prefer to keep it confidential? If the latter, would you be willing to gmail the relevant excerpts from the standard so I can have a look. glennd@bongarde.com. One way or another, we’ll help you work through this.
in reply to: Answer for Ontario #87325That’s highly problematic under human rights laws because it excludes entire groups based on national origin. That means you’d have to justify it as what’s called a bona fide occupational requirement (BFOR), for example, not hiring a person to drive a truck because he’s blind. To make out a BFOR defence you must show the policy:
- was adopted for a purpose that’s rationally connected to job performance
- was adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose
- is reasonably necessary to accomplish that legitimate purpose-This requires the employer to demonstrate that it is impossible to accommodate the employee without the employer suffering undue hardship
Prongs 1 and 2 are pretty easy because safety is a legit purpose and a case can be made that English-only serves that purpose. But as is usually the case in a BFOR situation, Prong 3 is the hard part. Basically, the question that will be asked is whether there were less discriminatory ways to accomplish the safety objective, i.e., ensuring proper communication. Maybe you could have provided bilingual instructions or used nonverbal signs or signals. So, they’re going to ask you to prove that you considered these alternatives/accommodations. And then they’re gonna ask why you decided not to adopt them. To pass scrutiny, you’ll have to show that the alternatives would have imposed undue hardship. Maybe they cost millions of dollars; maybe they would have required you to lay off people; etc. But undue hardship is a tough thing to prove.
Bottom Line: Don’t do the English-only policy without first talking to a lawyer and walking through the 3-part BFOR test. And don’t put the policy into effect unless and until the lawyer verifies that you’re on solid ground for all 3 prongs.HERE’S SOME GUIDANCE FROM ONTARIO HUMAN RIGHTS COMMISSION: Language and discrimination
On its own, language is not a prohibited ground of discrimination under the Code. However, both the OHRC’s Policy on discrimination and language[3] and jurisprudence recognize that language can be an element or factor in discrimination[4] based on related Code grounds such as ancestry, ethnic origin, place of origin, race, citizenship and creed.
We often associate the language a person speaks, or their accent and fluency in a language, with their ancestry or ethnicity or the place they are from. Some people even associate an individual or group’s language with race or creed. These associations can sometimes lead to stereotypical assumptions, prejudice and discrimination. For example, factors such as language and religion can contribute to a unique and complex experience of racial discrimination and harassment based on an intersection of multiple grounds.[5]
Treating people differently because of language in association with protected grounds in areas like employment, services, and housing, can be discrimination under the Code. There are some exceptions under the Code for membership and employment in special interest organizations that serve the needs of a particular community.
Differential treatment based on language is not discriminatory when unrelated to any Code ground. For example, an organization might show that proficiency in a certain language is a legitimate requirement related to job performance and/or service delivery.[6]My suggestion is to hit the RESET button and end the current probationary position on the basis of lack of suitability and offer the other position on a probationary basis, effective the date of acceptance. This clarifies the employee’s status and relieves you of liability for termination notice to the extent the employee’s overall service time surpasses the period under which employee ESA rights vest. I think that’s 3 months in BC but I’m not 100% sure. The only potential red flag would be if the new position was substantially like the current one, in which case the new offer/employment agreement could be construed as an illegal attempt to extend the probationary period. Even if that’s not the case, I’d be sure that the new agreement acknowledges that the original agreement has ended and that service time under it doesn’t count under the new agreement.
Of course, you could just go ahead and keep the existing agreement in place if you feel that there’s enough time left in the probationary period to make a fair evaluation of the employee’s suitability for the new position.Thank you. You have been very helpful.
Yes, no GST on travel allowances. There would only be GST if the employer purchased air line tickets, for example, and provided these to the employee. But that would not be an allowance.
I really can’t answer that question because I’d be providing you legal counsel, which I’m neither qualified nor legally allowed to do. Moreover, there may be other facts about your situation that I don’t know. I would really advise you to run this by legal counsel. If getting access to counsel is an issue, I’d suggest speaking to your officers and making the case that the liability risks to your organization justify the expense in this situation. Sorry I couldn’t help you land the plane but it sounds like you’re on top of things. Glenn
Thank you for your response. We are confident in our termination process in this particular case as this employee initially received a written warning about specific concerns, re-offended, was given a second warning and a suspension, returned from suspension, re-offended and was terminated. It was during the termination she resigned.
Given our exposure for constructive dismissal and wrongful dismissal are somewhat equal, would accepting the resignation be the better of the two options?”Wow Wow Wow. There are a million questions here. And if you’re dealing directly with a disciplinary situation, you need to talk to a lawyer. Here are some general principles you can use to sort things out and order your thoughts:
- How do you KNOW he was drinking on the job? Did you catch him in the act? Did he fail an alcohol test. You need to be sure the guy was impaired before u do anything.
- When and if you can establish that he was, in fact, impaired, how you proceed depends on whether the employee is a casual drinker or has an alcohol-related problem or addiction.
- If he’s just a casual user, you can go ahead and discipline him for violating your Drug/Alcohol Policies, Safety Policies, etc.–assuming, of course, you actually have such policies and they’re clearly written. Degree of discipline will depend on lots of factors like whether his job is safety-sensitive, whether he has a history of discipline, the actual harm he caused by being drunk (did somebody get hurt or did property get damaged), his truthfulness and willingness to accept responsibility, etc. You also have to strictly follow your progressive discipline procedures.
- If he has an alcohol dependency, he’s considered to be “disabled” under human rights laws and you must accommodate him to the point of undue hardship. Figuring out the right accommodations is a tricky process in which you both must engage. Undue hardship is reached when you have to endanger safety. In other words, accommodation doesn’t require you to allow employees to work while impaired, especially if they’re safety sensitive. But time off and all that needs to be worked out.
- It gets even trickier if he has to go into rehab. From your question, I’m assuming that you don’t have a company policy addressing this, including who has to pay for rehab. If you do, just follow the policy. You can probably require the guy to enter into a Last Chance Agreement providing for reinstatement upon completing rehab and requiring him to undergo testing–perhaps random testing if he’s safety sensitive–during rehab and for a limited time after he’s reinstated.
Bottom Line: These are monster issues and you need to talk to a lawyer, explain all the facts and then figure out a strategy. Good luck.
I apologize for keeping you waiting, but I had to enlist a payroll expert on this one. And here’s his reply. Great questions, BTW; try to be a bit faster the next time. . .
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To answer your specific questions.- My suggestion is that there be a flat dollar amount, payable at the start of every month, as a retainer. For this, I would promise to reply to questions asked within 12 hours of receiving them, barring unforeseen circumstances. Since the volume will vary from time to time, my suggestion is $200/month Canadian, plus GST. If there was some large, significant increase in the volume of questions, that might indicate this dollar amount would have to be reviewed.
- There seems to be some confusion around the status of a travel allowance that would be reportable in T4 box 14 and code 32. I assume by “allowance”, they mean “non-accountable allowance”, in other words a pre-determined cash payment that does not directly reflect the actual travel expenses incurred. If this assumption holds, the allowance is a cash payment, an earning that falls into the definition of salary and wages. There is no GST on salary and wages paid to employees. Questions about GST, including any possible employer remittance or Input Tax Credits do not apply. Page 38 of T4130-20 (right hand column) says no GST is deemed to have been collected on the payment of allowances. At the same time, page 41 of the same guide says you can’t claim an ITC if the benefit provided was exclusively for the employee’s personal use.
I see no reason why you couldn’t and shouldn’t accept his resignation–especially if it relieves you of responsibility to pay termination notice under the Labour Standards Act. But for that same reason, I’m also puzzled at why the employee is doing this. Why deliberately cheat yourself of termination notice? Is it just a matter of pride? Or do you suspect he has something else in mind. One possibility is preserving his right to sue for constructive dismissal. But he’d still have been able to sue for wrongful dismissal if you fired him. Feel free to contact me directly at glennd@bongarde.com if you want to further discuss.
in reply to: Answer for Returning from Parental leave #87316Hopefully, your organization has an established accommodations process. I suggest requiring the employee to formally request an accommodation and submit the medical information necessary to support it, i.e., provide a note from a doctor or medical provider verifying that he has a physical limitation/disability. At that point, you have the right to require the employee have his doctor/provider fill out an evaluation form describing his current capabilities and limitations so you can determine how best to accommodate him. If he refuses to cooperate, you can end the accommodations process and send the employee on his way. Hopefully, it won’t come to that. And if it does, be sure to talk to a lawyer about the case before deciding upon termination.
Good question and I hope that helps. Glennin reply to: Answer for Transfer VS. Termination #87315Constructive dismissal is certainly a risk here. Take a look at this analysis HRI did on the very issue, which is based on cases dealing with whether forced relocation is constructive dismissal. https://hrinsider.ca/hr-legal-briefing-is-requiring-an-employee-to-relocate-constructive-dismissal/
IF–and I’m not advising that this is what you should do–you do decide to make him transfer, be sure to get him to put his resignation in writing if he refuses. The letter should indicate that he’s decided to resign and specify the reasons for the decision. The employee may still be able to sue you for constructive dismissal (see article above). But having a letter documenting the reasons: a. minimizes the risk of surprises later; and b. might help refute other constructive dismissal claims, i.e., complaints about other things you did to constructively dismiss you, in a subsequent lawsuit. -
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