Canadian HR Reporter - Ontario

CANADIAN HR REPORTER DECEMBER 2018 EMPLOYMENT LAW 5 Lisa Bolton and Gerald Griffi ths LEGAL VIEW 2013 RANKED Your workplace experts. Employment Law Labour Law sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz If you're an employer, we're the only call you need to make. 24 HOUR 416.420.0738 At Sherrard Kuzz LLP we collaborate with our clients to anticipate and avoid human resources problems. We know proactive steps today will prevent Murphy's Law tomorrow. From human rights to health and safety, and everything in between… JOINT VENTURE BY: Bill 47: Making Ontario Open For Business Act A look at key proposed amendments In 2017, Ontario's Liberal government intro- duced and passed Bill 148, referred to as the Fair Workplaces, Better Jobs Act. Con- troversial on many fronts, Bill 148 made sweeping changes to Ontario's employ- ment and labour landscape. In October 2018, Ontario's Con- servative government under Pre- mier Doug Ford introduced the Making Ontario Open For Busi- ness Act, 2018 (Bill 47) which, when passed, will in large part re- turn Ontario's employment and labour laws to their pre-Bill 148 status, with some exceptions. If passed in their present form, the amendments to the Employ- ment Standards Act, 2000 (ESA) will take eff ect on the later of Jan. 1, 2019 and the date of royal as- sent. e amendments to the La- bour Relations Act, 1995 (LRA) will come into force on the date of royal assent. In this article, we focus on the ESA amendments: Minimum wage • Minimum wage will remain at $14 come Jan. 1, 2019. • Recent increases to the mini- mum wage under Bill 148 will not be rolled back. • Increases to minimum wage will be paused for 33 months with annual increases tied to infl ation starting in 2020. Bill 148's abrupt increase to the general minimum wage was troubling for employers given the direct impact this has on labour costs and competitiveness. Early in its mandate, the Ford government signaled the mini- mum wage would not increase to $15 in Jan. 1, 2019, as contemplat- ed by Bill 148. However, there had been speculation as to whether the $15 increase would be pushed to 2020 or beyond. Cost-of-living increases commencing in 2020 give employers a period to adjust to the signifi cant increase intro- duced in January 2018. Scheduling Bill 47 repeals all of the scheduling provisions that were to come into force on Jan. 1, 2019. Specifi cally: • e right to request a change to schedule or work location after an employee has been employed for at least three months. • A minimum of three hours' pay for being on-call if the employee is available to work but is not called in to work, or works fewer than three hours. • e right to refuse a request or demand to work or be on-call on a day an employee is not sched- uled to work or to be on-call with fewer than 96 hours' notice. • e requirement to pay three hours' pay in the event of can- cellation of a scheduled shift or an on-call shift within 48 hours before the shift was to begin. • All of the record-keeping pro- visions introduced to address these new scheduling provisions. e repeal of these provisions allows employers to maintain fl exibility in scheduling practices. For a business with unpredictable workforce requirements, such as in the retail, hospitality and homecare industries, the Bill 148 amendments were not realistic. ree-hour rule Bill 47 introduces an amendment to the "three-hour rule" similar to that which was included in Bill 148. Where an employee is regu- larly scheduled to work more than three hours a day but works fewer than three hours, even if available to work longer, the employee will be entitled to the greater of (i) the amount earned for the time EQUAL > pg. 6 Source: Retail Council of Canada Minimum wage rates across Canada of Ontario small and medium-sized employers said they laid off workers with Ontario raising the minimum wage to said they raised prices, while reduced or eliminated plans to hire young workers. Yukon British Columbia Northwest Territories Alberta Nunavut Saskatchewan Manitoba Ontario Quebec Newfoundland/Labrador New Brunswick Nova Scotia Prince Edward Island $11.51 $12.65 $13.46 $15 $13 $11.06 $11.35 $14 $12 $11.15 $11.25 $11.00 $11.55 Notable cases Teneva v. 946900 Ontario Ltd., 2016 CarswellOnt 1003 (Ont. Lab. Rel. Bd.). A motel owner hired an independent contractor to clean rooms. When the worker asked for full pay at minimum wage, the motel dismissed her. Ontario's Labour Relations Board found the woman was an employee, not an independent contractor. She was expected to be available all day, every day, so the motel controlled her hours of work, as well as the equipment she used. The owner was ordered to pay the worker three months' full-time wages at the minimum wage rate, plus damages for the harsh manner and bad faith of her dismissal. Eva's Initiatives and CUPE, Local 4358-02 (Watson), Re, 2015 CarswellOnt 6317 (Ont. Arb.). Kareem Watson was a youth services worker at a shelter, which prohibited sleeping on the job and back-to-back shifts, since workers had to be aware and alert. After Watson worked a double shift, a video later showed him entering an offi ce, turning off the lights and sitting in a chair with his feet up for half-an-hour. Management determined he was sleeping and terminated his employment. The arbitrator found Watson was guilty of serious misconduct when he created conditions likely to cause him to fall asleep, but it was the result of "an extremely long shift resulting from a scheduling error that was no fault of his own, as opposed to a fl agrant disregard for his employment responsibilities." Eva's was ordered to reinstate Watson with a 10-day suspension. Providence Care, Mental Health Services and OPSEU, Local 431 (Winton), Re, 2011 CarswellOnt 15998 (Ont. Arb.). An employee's medical note, on a prescription slip, said: "The above patient was absent from work for medical reasons." Although most employers accept a simple "certifi cate" like that, Providence Care was not obliged to do so, said an arbitrator, who found the slip patently defi cient, and said the employer was entitled to a description of the general nature of the illness or injury, without technical medical details, diagnosis or symptoms. Source: Canadian Federation of Independent Business

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