Category: Employment Law

As climate change intensifies, so does the frequency and severity of natural disasters across Canada. Ontario, once largely insulated from climate-related disruptions, is now experiencing the increasing impact of wildfires, floods, heat waves, and severe storms. These events pose risks to public safety and create complex legal challenges for employers and employees alike.

Ontario’s Employment Law Framework

Ontario’s employment law regime is shaped primarily by the Employment Standards Act (ESA), common law principles, human rights legislation, and occupational health and safety laws.

When a workplace is closed temporarily due to a natural disaster, these legal frameworks intersect in complex ways. Some issues are clearly addressed under the ESA, while others rely on interpretation, precedent, or the terms of individual employment contracts.

Importantly, no specific statute in Ontario deals exclusively with employment rights and obligations during natural disasters, which means that many questions must be answered by applying general legal principles to novel and urgent circumstances.

Payment Obligations During Climate-Related Closures

A key question for employers and employees is whether wages must continue when a business is forced to shut down because of a wildfire, flood, or similar event. The answer depends largely on the nature of the closure, the type of employment, and whether the employee is able to work.

Salaried Employees

Employers are typically required to pay wages to salaried employees who are ready and willing to work, even if no work is available. This obligation does not disappear simply because of a disruption on the employer’s side. If the employer unilaterally prevents the employee from working, the employee remains entitled to pay, unless the contract provides otherwise.

There may be exceptions in extreme cases where the employment contract contains a valid force majeure clause, or where frustration of contract is invoked, but these are narrow and highly fact-dependent doctrines.

Hourly or Casual Employees

For employees who are paid by the hour and only for time worked, the obligation to pay wages may not arise unless the employee was already scheduled to work. Even in those cases, the Employment Standards Act does not guarantee payment unless the employee reported to work or was given insufficient notice of the cancellation.

Under section 21.2 of the ESA (also known as the “three hour rule”), employees who regularly work more than three hours a shift and who report to work but are sent home early due to an unexpected closure may be entitled to a minimum of three hours’ pay.

However, the three hour rule may not apply if the closure was due to a situation beyond the employer’s control, such as a natural disaster that made the premises unsafe or inaccessible. Again, the application depends on the specific facts and whether the employer acted reasonably and in good faith.

Layoffs and Termination During Prolonged Closures

If a workplace remains closed for more than a few days or weeks, employers may need to consider more permanent solutions, such as temporary layoffs or terminations. Ontario’s employment law imposes several essential restrictions.

Temporary Layoffs

Under the Employment Standards Act, employers may temporarily lay off employees for up to 13 weeks in a consecutive 20-week period or up to 35 weeks in a 52-week period if certain benefits or wages are continued during the layoff.

However, a critical and often misunderstood issue is that the ESA allows but does not grant a general right to lay off employees. Unless an employment contract, collective agreement, or industry custom expressly allows for temporary layoffs, imposing one may be considered a constructive dismissal by the courts. This means an employee could treat the layoff as a termination and seek damages for wrongful dismissal.

Employers must carefully review employment contracts before proceeding with layoffs in a climate disaster scenario. If no contractual right exists, the risk of a constructive dismissal claim increases significantly, even if an unforeseeable natural event caused the shutdown.

Frustration of Contract

In rare and extreme cases, a climate disaster may permanently prevent employees from performing their jobs. If the employment contract becomes “frustrated” (i.e. impossible to perform due to no fault of either party), the employment relationship may be terminated without the usual obligations to provide notice or severance.

Frustration is a high threshold and applies only where the impossibility is permanent, not temporary. Courts are cautious in applying this doctrine, especially where the employer’s inability to provide work is not total or indefinite.

Employers considering frustration of contract should seek legal advice and document all evidence supporting the conclusion that the employment has become impossible to continue.

Employer Occupational Health and Safety Obligations

Another major consideration during a climate-related shutdown is the employer’s obligation under Ontario’s Occupational Health and Safety Act (OHSA). The OHSA requires employers to take every reasonable precaution to protect workers.

If a workplace is damaged by fire, water, or structural failure, or if air quality is compromised (for example, due to wildfire smoke), it may be unsafe for employees to return. Employers must not compel employees to enter or remain in hazardous conditions. Doing so may expose the company to regulatory penalties, liability for injuries, or orders from safety inspectors.

Employees in Ontario also have the right to refuse unsafe work under the OHSA, and employers must follow the statutory process when such a refusal is made. This includes investigating the concern and, if necessary, involving the Ministry of Labour, Immigration, Training and Skills Development.

Communication, assessment, and documentation are essential during a climate disaster. Employers should consult engineers, environmental experts, or public authorities to determine when a facility is safe to reopen, and they must share that information with affected staff.

Remote Work and Continuity Planning

For employers with the technological capacity to do so, transitioning to remote work can provide a way to maintain business continuity during a natural disaster. However, this option is not universally available, especially in industries such as manufacturing, retail, or construction.

Where remote work is feasible, employers must ensure that employment terms and working conditions remain compliant with the Employment Standards Act and other applicable laws. This includes respecting limits on hours of work, break periods, and privacy considerations when using monitoring tools.

Employers should also ensure remote work arrangements are formalized in writing, ideally through an addendum to the employment contract or a remote work policy. These documents should address:

• Expectations around hours, availability, and communication;
• Use of employer-provided equipment and IT security protocols; and
• Health and safety responsibilities in the home work environment.

For employers with remote-capable roles, building disaster response protocols that include seamless remote work deployment can mitigate business disruption and reduce the legal risks associated with shutdowns.

Human Rights Considerations

Natural disasters do not suspend human rights obligations. If a shutdown or operational change disproportionately affects employees based on protected grounds, such as disability, family status, or age, employers may have a duty to accommodate.

For example, if a flood forces a workplace to relocate temporarily to a new city, employees with caregiving responsibilities or medical needs may be unable to travel. Employers must consider accommodation requests on a case-by-case basis and determine whether adjustments can be made without undue hardship.

The Ontario Human Rights Code requires proactive engagement with employees requesting accommodation. Blanket policies or failure to consider individual circumstances may result in discrimination claims, even if a natural event caused the initial disruption.

Proactive Disaster Preparation for Employers

As climate events become more frequent and disruptive, employers can no longer rely on ad hoc responses. Ontario businesses must integrate climate resilience and emergency planning into their employment policies.

Key steps include:

• Reviewing and updating employment contracts to include temporary layoff and force majeure clauses;
• Creating a business continuity plan that addresses employee communication, safety, and compensation;
• Establishing protocols for remote work deployment and IT infrastructure in the event of physical closure;
• Conducting health and safety audits of facilities vulnerable to climate risks; and
• Ensuring compliance with ESA, OHSA, and human rights obligations during emergencies.

In many cases, proactive planning will reduce legal exposure and build trust and engagement among employees, who increasingly expect their employers to take climate risk seriously.

Contact Willis Business Law for Comprehensive Employment Law & Business Continuity Planning Advice in Windsor-Essex County

The legal implications of workplace shutdowns caused by wildfires, floods, and other climate disasters are complex and evolving. The employment lawyers at Willis Business Law know that robust preparation is the best defence against future business disruptions. We help employers in Windsor-Essex County and the surrounding areas understand their legal obligations and proactively create resilient systems.

Our team ensures Ontario businesses can better navigate the uncertainties of a changing climate while protecting their workforce and minimizing liability. To discuss your employment law matter with our firm, please contact us online or call 519-945-5470.

In today’s hyper-connected world, where personal opinions are frequently shared on platforms like X (formerly Twitter), Facebook, Instagram, and TikTok, the lines between professional and private life are increasingly blurred. A common inquiry for Ontario employers is determining when they can discipline or terminate an employee for something they post online during their personal time.

While employees have rights to freedom of expression and privacy, those rights are not absolute, particularly when off-duty conduct intersects with workplace reputation, safety, or operations.

The Legal Landscape: Off-Duty Conduct and Employment Law in Ontario

In Ontario, employment is governed by a combination of statutes such as the Employment Standards Act, the Human Rights Code, and common law principles. None of these laws provides employees with carte blanche to act however they wish outside of work hours, nor do they permit employers unlimited discretion to police personal behaviour. Instead, the law tries to strike a balance between an employer’s legitimate interest in maintaining its reputation and operations, and an employee’s right to a private life.

Ontario courts and tribunals have recognized that off-duty conduct can, in certain circumstances, be grounds for discipline or dismissal, but only where there is a clear and material connection to the employment relationship. This threshold is difficult to meet, and employers carry the burden of proving that the conduct has harmed, or is reasonably likely to harm, the employer’s interests.

Defining Off-Duty Misconduct in a Digital Age

Off-duty misconduct generally refers to behaviour occurring outside of work hours and off work premises that an employer believes negatively impacts the employment relationship. Historically, this may have included incidents such as criminal charges, harassment of coworkers outside of work, or intoxication-related events. In the digital era, however, the definition has expanded to include online behaviour, particularly the content shared on social media platforms.

What distinguishes social media activity from other forms of off-duty conduct is its visibility and potential for viral amplification. A post shared in seconds can be screenshotted, shared widely, and preserved permanently, even if deleted. In some cases, posts that seem personal or private can easily be linked back to the individual’s employer, intentionally or not. This reality significantly influences the legal analysis of whether off-duty social media conduct justifies employer discipline.

Key Legal Principles on Social Media Use By Employees

Ontario case law provides some guidance on how tribunals and courts evaluate off-duty social media conduct. A leading principle emerges from the broader doctrine of “just cause” in employment law: for an employer to terminate an employee for off-duty conduct, it must demonstrate that the behaviour harmed the employer’s interests in a material and demonstrable way.

In cases involving social media, courts tend to ask: Did the employee’s post identify their employer? Did the post go viral? Was the content discriminatory, harassing, violent, or otherwise offensive? Did it attract negative attention to the employer? The more affirmatively these questions are answered, the more likely the discipline will be upheld.

Freedom of Expression vs. Harm to Reputation

A frequent point of contention is the employee’s right to freedom of expression. Although the Canadian Charter of Rights and Freedoms guarantees this right, it only applies to government action, not private employers. However, the principle of expressive freedom is not entirely irrelevant. Courts may consider whether an employee’s post constitutes a personal opinion shared privately, and whether the employer proportionately addressed that expression.

It is important to note that employees who work for public institutions, such as government departments, school boards, or hospitals, may have greater protections under the Charter. Even then, expression rights must be weighed against the employer’s duty to maintain a safe and respectful workplace and protect its public image.

When Employee Social Media Posts Cross the Line

Disciplinary cases based on social media conduct have become more common in the last decade, with outcomes varying depending on context. For example, an employee who posts racist or discriminatory remarks, even on a personal account, may be terminated if the post is linked to their employer, especially in sectors like education, healthcare, or government. Employers have successfully argued in some cases that such posts damage public trust, compromise the employer’s diversity commitments, or undermine workplace safety.

In contrast, courts have occasionally reinstated employees where the disciplinary response was found to be disproportionate to the conduct. If a post was vague, anonymous, or made without intent to associate with the employer, especially where the employee showed remorse, tribunals have sometimes concluded that a warning or suspension would have sufficed.

Employer Policies Must Be Clear and Reasonable

Employers who wish to regulate off-duty conduct, especially on social media, must ensure they have clear, written policies that are communicated to employees. These policies should outline expectations around respectful conduct, confidentiality, harassment, and the use of employer branding or logos. Employees should be made aware that misconduct on social media, even outside of work hours, may lead to discipline where it adversely affects the employer.

However, policies cannot be overly broad or vague. A policy that simply states “any conduct harmful to the company will result in termination” is unlikely to survive legal scrutiny. Moreover, policies must comply with human rights legislation, meaning they cannot be enforced in a way that discriminates against protected grounds such as race, religion, gender, or disability.

Human Rights Considerations

Social media posts may also touch on matters of religion, political belief, or other protected characteristics. For example, a human rights complaint may arise if an employee posts a personal religious view that some find controversial and the employer disciplines them. In such cases, legal analysis becomes even more nuanced, as tribunals must weigh freedom of belief against the right to be free from discrimination and harassment.

Best Practices for Ontario Employers

For Ontario employers, disciplining employees for off-duty conduct requires a careful balance between protecting business interests and respecting employee privacy and rights under employment and human rights laws.

Employers should implement a clear, consistently applied social media policy to mitigate legal risk. This policy should outline acceptable online behaviour, clarify expectations around brand representation, and specify the potential consequences of violating those expectations, even off the clock.

When an issue arises, employers must assess whether the social media activity in question has a legitimate and material connection to the workplace. To justify discipline, the post must reasonably harm the employer’s reputation, breach confidentiality, disrupt the workplace, or conflict with the employee’s duties. Knee-jerk reactions to controversial or unpopular opinions can expose the employer to liability if those posts do not actually impact the employment relationship.

Employers should document all findings, ensure the employee has an opportunity to respond, and consider progressive discipline where appropriate. Seeking legal advice before taking disciplinary action is strongly recommended to ensure that decisions align with employment law standards and minimize the risk of wrongful dismissal or discrimination claims.

Willis Business Law: Windsor-Essex Employment Lawyers Advising Employers on Off-Duty Employee Conduct

Navigating employee discipline for off-duty social media use is legally complex and highly fact-specific. A misstep can expose your organization to wrongful dismissal claims, human rights complaints, or reputational damage. At Willis Business Law, we help Ontario employers develop enforceable workplace policies, assess the risks of disciplinary action, and respond strategically to online conduct issues. Whether you’re drafting a social media policy or addressing a current concern, our employment lawyers offer practical, legally sound advice tailored to your business. To discuss your employment law matter, please call (519) 945-5470 or reach out online.

Return-to-work (RTW) programs support employees recovering from illness or injury. These programs are designed to help workers reintegrate into the workplace in a safe and timely manner. Ontario employers must understand the legal framework that governs these programs, including obligations, rights, and best practices under Ontario’s employment laws.

Return-to-work programs must carefully balance accommodating an employee’s medical needs and ensuring that business operations remain effective. Legal compliance and fostering a workplace culture rooted in respect, safety, and communication are essential.

The Legal Framework for Return-to-Work in Ontario

In Ontario, return-to-work obligations arise under several legal regimes, most notably the Workplace Safety and Insurance Act (WSIA) and the Ontario Human Rights Code (OHRC). These laws impose specific duties on employers, particularly when an employee is injured on the job and requires modified duties or accommodations to return to work safely.

Under the WSIA, employers have a statutory obligation to re-employ injured workers if they have 20 or more employees and the injured worker has been continuously employed with the company for at least one year prior to the injury. This duty applies for up to two years after the injury or until the worker is medically able to perform their pre-injury job, whichever is longer. Failure to meet this obligation can result in financial penalties and other consequences imposed by the Workplace Safety and Insurance Board (WSIB).

The OHRC, meanwhile, requires employers to accommodate workers with disabilities up to the point of undue hardship. This includes both physical and mental disabilities and extends beyond workplace injuries to any medical condition that affects an employee’s ability to perform their job duties.

What Is a Return-to-Work (RTW) Program?

A return-to-work (RTW) program is a structured plan developed to assist injured or ill employees in resuming employment safely. These programs often include transitional duties, modified schedules, or temporary reassignment to different tasks. The purpose is to facilitate a gradual and supported return to the workforce while considering the employee’s medical restrictions and abilities.

Employers are encouraged to develop RTW programs proactively before any incident occurs. A well-designed program includes clear communication strategies, documented policies, and procedures for assessing medical information, creating individualized return-to-work plans, and monitoring progress. Although not every employer is legally required to have a formal RTW program, doing so can significantly reduce the risk of disputes and legal complications.

Employer Obligations Under the WSIA

The Workplace Safety and Insurance Act sets out explicit responsibilities for employers whose employees suffer work-related injuries or illnesses. The most critical obligations include the duty to re-employ and cooperate in the return-to-work process.

The duty to re-employ means the employer must offer the employee suitable employment when they are medically able to return to work, even if they cannot yet perform their pre-injury duties. This may involve modified work or alternative roles that align with the employee’s current capabilities. Employers must make these offers promptly and be prepared to provide medical evidence or reports to support their decisions.

The duty to cooperate requires both employers and employees to participate in creating and implementing an appropriate return-to-work plan. This includes maintaining open lines of communication, sharing relevant information with WSIB, and accommodating the employee’s medical needs. Employers who fail to cooperate risk incurring penalties or facing legal action.

The Role of Medical Documentation in RTW Planning

Medical documentation plays a central role in return-to-work planning. Employers are entitled to receive information on functional abilities from the employee’s healthcare provider but cannot demand a diagnosis or detailed medical history.

This functional abilities information outlines the employee’s physical and cognitive capabilities, restrictions, and limitations. Based on this information, employers must assess what accommodations or modifications can be reasonably implemented. Confidentiality must always be maintained, and only individuals directly involved in the return-to-work process should have access to this sensitive information.

Employees are expected to cooperate by providing timely and accurate medical documentation. If they fail to do so, developing an appropriate return-to-work plan may be more challenging, potentially delaying the process or impacting benefits eligibility.

The Duty to Accommodate Under the Human Rights Code

When an employee has a disability—whether related to a workplace injury or otherwise—the employer must consider their duty to accommodate under the Ontario Human Rights Code. This duty applies to all employers, regardless of size or industry.

Accommodations may include modifications to job duties, work hours, equipment, or work location. Sometimes, accommodation could mean allowing an employee to return to work part-time or temporarily from home. Employers must assess each case individually and explore all reasonable options for facilitating the employee’s return.

However, this obligation is not limitless. Employers are not required to accommodate if doing so would cause undue hardship. Undue hardship is assessed based on factors such as cost, outside funding availability, and health and safety risks. Proving undue hardship requires objective evidence and is a high threshold to meet.

Employee Rights and Responsibilities in the Return-to-Work Process

Employees have the right to a safe and respectful return-to-work process. They cannot be punished, terminated, or demoted simply because they have experienced an illness or injury. Any such treatment could constitute discrimination or a violation of their rights under the Workplace Safety and Insurance Act or the Human Rights Code.

Employees also have responsibilities in the return-to-work process. They must provide relevant medical documentation, participate in developing a return-to-work plan, and make reasonable efforts to comply with modified work arrangements. If an employee refuses suitable work without valid medical justification, it may affect their entitlement to WSIB benefits or raise issues regarding their employment status.

Challenges and Best Practices

Despite clear legal obligations, implementing an effective return-to-work program can be challenging. Common obstacles include lack of communication, misunderstanding of medical information, and resistance to modified duties from the employer or coworkers. Mismanagement of these issues can lead to workplace tension, legal disputes, or even re-injury.

Employers can minimize these risks by establishing formal return-to-work policies, training supervisors on accommodation and disability management, and maintaining documentation of all steps taken during the process. Regular check-ins with the returning employee and their healthcare provider can ensure the plan remains appropriate as the employee’s condition evolves.

It is also advisable to involve employees in the design of RTW programs, as this can promote buy-in and create a more inclusive workplace culture. Early intervention, flexibility, and a clear understanding of legal duties are key components of a successful return-to-work strategy.

The Benefit of Experienced Legal Advice in RTW Matters

In some cases, the return-to-work process may become contentious. Disputes can arise over whether an accommodation is reasonable, whether the employee is fit to return, or whether the employer has met their obligations under the law. Legal advice may be necessary when there is uncertainty around compliance or the relationship between the parties has broken down.

A knowledgeable employment lawyer can assist employers in interpreting medical documentation, applying the concept of undue hardship, or managing competing obligations under the Workplace Safety and Insurance Act and the Human Rights Code.

Willis Business Law: Windsor-Essex Employment Lawyers Advising Employers on Return-to-Work Programs

Return-to-work programs are more than a legal requirement; they are critical to a supportive, inclusive, and productive workplace. Willis Business Law provides tailored advice to Windsor-Essex employers on the return-to-work process. Our skilled employment lawyers provide robust legal solutions that reduce the risk of costly disputes and contribute to employee morale, loyalty, and long-term organizational health. To book a consultation, please reach out online or call (519) 945-5470.

In Ontario, employers must navigate a complex landscape of employee rights and workplace regulations, particularly regarding leaves of absence. Understanding the various types of leave available to employees and the legal obligations imposed on employers is essential to ensuring compliance with employment laws and avoiding potential wrongful termination claims. Employers must accommodate legitimate leave requests and implement policies that align with the Employment Standards Act, 2000 (ESA) and other applicable regulations.

Types of Leave Available to Employees in Ontario

Ontario employment law provides employees access to several types of leave, each governed by specific rules and eligibility requirements. Employers must recognize and respect these entitlements to avoid Employment Standards-related complaints and foster a positive workplace culture.

Some of the more common leaves are set out below.

Parental Leave

One of the most common forms of leave is parental leave. Under the ESA, employees who have been employed for at least 13 weeks before the birth or adoption of a child are entitled to unpaid parental leave. Parental leave can be taken for a maximum of 61 weeks if the employee also took pregnancy leave or 63 weeks otherwise.

Sick Leave

Under the ESA, employees are entitled to up to three days of unpaid sick leave per calendar year, provided they have worked for at least two consecutive weeks. Sick leave can be used to recover from a personal injury, illness, or medical emergency.

Employees cannot take the leave for something unrelated to the illness, injury, medical emergency, or something that isn’t medically necessary. However, they are usually entitled to use sick leave for pre-scheduled surgery for an illness or injury.

In addition to the ESA, the Ontario Human Rights Code may require employers to accommodate employees with medical conditions beyond the ESA minimums.

Family-Related Medical Leaves

The ESA provides multiple job-protected leaves allowing employees to take unpaid time away from work to care for various family members.

Family caregiver leave allows employees to care for a seriously ill family member and can extend up to eight weeks per calendar year for each affected relative. This leave only applies to specified family members as set out under the ESA.

Family medical leave allows the employee to take up to 28 weeks off in a 52-week period to provide care or support to certain relatives or people who consider the employee to be a family member. To qualify for medical leave, a qualified health practitioner must issue a certificate indicating the family member has a serious medical condition with a significant risk of death occurring within 26 weeks.

Employees covered by the ESA may also be able to take critical illness leave to care for a critically ill family member. The ESA defines “critically ill” as “a minor child or adult whose baseline state of health has significantly changed and whose life is at risk of an illness or injury.” The employee may take up to 17 weeks of critical illness leave to care for an adult family member and up to 37 weeks to care for their minor child.

Other Leaves

Employees experiencing a personal emergency, such as illness, injury, or urgent family matters, may also be eligible for emergency leave. Employers must be prepared to respond appropriately to such requests, ensuring they follow proper procedures while respecting the employee’s rights.

Other statutory leaves include domestic or sexual violence leave, bereavement leave, and jury duty leave. Each category has its own set of rules regarding duration, eligibility, and required documentation. Employers must stay informed about these regulations and update their internal policies accordingly.

Employer Obligations Regarding Leave Requests

Employers have a legal duty to process leave requests fairly and in good faith. When an employee requests leave, assessing their eligibility under the ESA and other relevant statutes is crucial. Employers cannot refuse a request that meets the applicable legal criteria, nor can they take adverse action against an employee for exercising their rights.

Documentation & Privacy Concerns

In most cases, employees must provide advance notice of their leave, except in emergencies. Employers may require reasonable documentation to verify the need for leave, but they must ensure that any requests for evidence are not overly intrusive or in violation of privacy laws. For example, while an employer may ask for a medical certificate for an extended medical leave, they cannot demand specific details about an employee’s diagnosis.

Right to Reinstatement

Upon an employee’s return from leave, employers must reinstate them to their previous position or a comparable role with the same wages and benefits. Any reduction in hours, pay, or status could constitute a violation of the ESA and expose the employer to constructive or wrongful dismissal claims.

Best Practices for Avoiding Wrongful Dismissal Claims

One of the most significant risks employers face when handling leave requests is the potential for wrongful dismissal claims. Employees who believe they were dismissed due to taking or requesting leave may seek legal recourse, leading to costly litigation and reputational harm. There are several best practices employers can adopt to mitigate this risk.

Handle Leave Requests in Good Faith

Employers must ensure all termination decisions are based on legitimate, non-discriminatory grounds. If an employee’s role is eliminated while on leave, the employer must be able to demonstrate the termination was unrelated to the leave itself and was part of a broader restructuring or economic necessity.

Maintain Comprehensive Records

Proper documentation is key to defending against wrongful dismissal claims. Employers should maintain detailed records of leave requests, approvals, and any relevant communications with employees. Additionally, performance evaluations and disciplinary actions should be well-documented to show that any employment decisions were based on objective factors rather than retaliation.

Establish & Communicate Leave Policies

Employers should establish clear leave policies that align with Ontario’s employment laws to create a legally compliant and supportive work environment. These policies should be communicated effectively to all employees, ensuring they understand their rights and responsibilities when requesting leave. All decision-makers, including personnel managers and HR staff, should understand the ESA, the Human Rights Code, and applicable case law to prevent inadvertent violations.

Regularly reviewing and updating leave policies in consultation with legal counsel will ensure continued compliance with evolving employment laws. By staying informed and proactive, employers can reduce legal risks and maintain a positive work environment that supports both operational needs and employee well-being.

Create a Safe Workplace Culture

Employers should also foster an open and accommodating workplace culture where employees feel comfortable discussing their leave needs without fear of reprisal. Encouraging dialogue and providing reasonable accommodations where necessary can help reduce workplace conflict and improve employee retention.

In conclusion, Ontario employers must approach leaves of absence with a thorough understanding of employee rights and legal obligations. By adhering to the ESA, handling leave requests fairly, and implementing best practices, businesses can minimize the risk of wrongful dismissal claims while fostering a compliant and inclusive workplace. Ensuring that policies are clear, procedures are followed, and employees are treated equitably will contribute to a positive and legally sound employment environment.

Contact Willis Business Law for Dynamic Employment Law Advice in Windsor-Essex County

Willis Business Law provides top-tier employment law advice and legal services to businesses in Windsor-Essex and the surrounding areas. Led by J.P. Karam, our team of talented employment lawyers represents employers across both the private and public sectors in industries such as manufacturing, technology, transportation, financial services, and agriculture. They also collaborate with in-house professionals, offering practical guidance and valuable insights into the daily challenges faced by human resources teams. To schedule a confidential consultation, please contact us online or call 519-945-5470.

In Ontario, as in the rest of Canada, an employer has the right to terminate an employee’s employment. However, if the termination or dismissal is based on “just cause,” the legal landscape becomes more complicated. Just cause terminations occur when an employer has a valid reason to dismiss an employee without providing notice or severance pay. While it may sound straightforward, this type of termination is fraught with potential pitfalls for employers. Failure to properly navigate these pitfalls can result in costly legal challenges and damages awards.

This blog outlines the common mistakes employers make when attempting just cause terminations in Ontario and how to avoid them.

What Is Just Cause Termination?

Before delving into the common pitfalls, it is essential first to understand what constitutes a just cause termination. In Ontario, just cause means that an employee’s behaviour or actions are so severe that they justify the dismissal without notice or pay in lieu of notice. The Ontario courts generally hold that just cause is a high standard to meet and will often favour employees if the employer cannot clearly demonstrate that the misconduct was serious enough to warrant termination without compensation.

Common reasons for just cause terminations include:

• Serious misconduct (e.g., theft, violence, dishonesty);
• Insubordination or willful disobedience;
• Persistent poor performance despite warnings;
• Frequent absenteeism or lateness, especially without valid reasons; or
• Breach of the employer’s policies or contractual obligations.

Common Pitfalls for Ontario Employers

While employers are entitled to dismiss employees for just cause in appropriate circumstances, several common mistakes can undermine a just cause termination and expose employers to liability. Below are some of the most frequent pitfalls employers must carefully avoid.

1. Failing to Provide Clear Documentation of Misconduct or Performance Issues

One of the most critical aspects of just cause termination is documentation. Employers must clearly demonstrate that an employee’s conduct or performance was unacceptable and that the employee was aware of these issues. Courts will not accept vague claims of poor performance or misconduct; there must be specific evidence of the employee’s behaviour and a record of any warnings or attempts to address the issue.

For instance, if an employee has been frequently late to work, it is essential to maintain a log of these occurrences, provide verbal and written warnings, and follow up with clear documentation of any corrective actions. Employers risk losing a just cause claim in court without adequate documentation, as the employer’s version of events may appear unsubstantiated.

2. Not Providing Adequate Warnings and Opportunities for Improvement

In Ontario, the general rule is that employers must give employees reasonable notice of issues related to their performance or conduct and opportunities to correct their behaviour before resorting to termination. In cases of misconduct, such as insubordination or workplace violence, the response may need to be immediate, but even then, employers must still act reasonably.

However, in cases of poor performance, employers should typically issue progressive discipline measures, such as verbal warnings, written warnings, and performance improvement plans (PIPs). Employers can demonstrate that employees acted fairly and in good faith by giving employees a chance to improve.

Without offering these opportunities for improvement, an employer may be seen as having acted precipitously or unfairly, and as a result, the termination may be deemed wrongful.

3. Inconsistently Applying Workplace Policies

Employers often have workplace policies addressing issues like attendance, harassment, performance, and behaviour. A common pitfall occurs when employers fail to enforce these policies consistently or apply them arbitrarily. For example, if an employer dismisses an employee for violating the attendance policy but has allowed other employees to get away with similar violations without consequence, the employer may be accused of inconsistent or unfair treatment.

Consistency is key when applying workplace policies. If an employer takes disciplinary action against one employee for a certain behaviour, they should be prepared to do the same for other employees who engage in similar conduct. Inconsistent enforcement of policies can weaken the employer’s argument for just cause.

4. Ignoring the Importance of Mitigating Factors

When assessing whether just cause exists, courts consider any mitigating factors that may have contributed to the employee’s behaviour. These may include personal issues, health problems, or stress that could have impacted the employee’s performance or conduct. Employers who fail to consider such factors may face challenges in justifying their decision to terminate an employee without notice or severance.

For instance, if an employee is struggling with personal health issues that affect their performance, the employer may have a duty to accommodate the employee under the Ontario Human Rights Code. Ignoring this duty and terminating the employee without considering the mitigating circumstances could result in legal action for wrongful dismissal.

5. Failing to Conduct a Fair Investigation

Before deciding to terminate an employee for just cause, employers must conduct a fair and thorough investigation into the alleged misconduct. Jumping to conclusions without gathering all the facts creates the risk of making an unlawful decision. The investigation should include interviewing the employee, obtaining statements from witnesses, and reviewing any relevant documents or evidence.

If an employer fails to provide the employee with an opportunity to explain their actions or defend themselves, they may be found to have acted unfairly, even if just cause existed. In addition, any disciplinary measures or terminations based on incomplete or biased investigations may lead to legal complications.

6. Relying on a Single Incident of Misconduct

While a serious single incident of misconduct (e.g., theft or violence) can constitute just cause for termination, employers should be cautious when relying solely on one isolated incident to justify dismissal. Courts may be more inclined to find in favour of the employee if there is no clear pattern of misconduct or prior warnings.

For example, if an employee with a long history of good performance commits one serious mistake, the employer may be expected to consider whether the incident warrants immediate dismissal or if a less severe disciplinary measure would be more appropriate. An employer who acts too hastily in such cases risks being found to have terminated the employee without just cause.

7. Not Seeking Legal Guidance Before Terminating an Employee

Employers often overlook the importance of seeking legal advice before proceeding with a just cause termination. Consulting with an employment lawyer can help employers avoid missteps and follow the proper procedures. Employment lawyers can review the evidence, assess the strength of the employer’s case for just cause, and help craft a strategy that minimizes legal risks.

Failing to seek legal advice can leave employers vulnerable to wrongful dismissal claims or other legal challenges that may result in significant financial and reputational damage.

Willis Business Law: Providing Windsor-Essex Employers With Innovative Employment Law Solutions

Just cause termination and wrongful dismissals are complex areas of employment law. While employers are entitled to dismiss employees without notice or severance in cases of severe misconduct or poor performance, the legal bar for just cause is high. At Willis Business Law, our knowledgeable employment lawyers provide comprehensive advice to employers considering dismissing a worker for just cause. We help address all related issues, including workplace policies, performance improvement plans, and workplace investigations.

From our convenient location in the heart of downtown Windsor, we proudly serve clients throughout Windsor-Essex County and the surrounding areas. To discuss your employment law matter with our team, please call us at 519-945-5470 or reach out online.

As Ontario’s economy grows, businesses increasingly rely on Temporary Foreign Worker Programs (TFWP) to address labour shortages and meet workforce demands. While these programs provide invaluable opportunities for both employers and foreign workers, they are governed by strict laws and compliance obligations. Employers must navigate federal and provincial regulations to avoid penalties, ensure fair treatment of workers, and protect their businesses.

This post explores the legal framework governing Temporary Foreign Worker Programs in Ontario, the key compliance requirements, and common challenges employers face.

What Is the Temporary Foreign Worker Program (TFWP)?

The Temporary Foreign Worker Program allows Canadian employers to hire foreign nationals when qualified Canadian citizens or permanent residents are not available to fill specific roles. Administered by Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC), the TFWP requires employers to meet specific criteria before recruiting foreign workers.

There are two key components of the program:

1. Labour Market Impact Assessment (LMIA) – Employers must demonstrate that hiring a foreign worker will not negatively affect Canada’s labour market.
2. Worker Permits and Authorization – Foreign workers must secure valid work permits before commencing employment.

Types of Temporary Foreign Worker Programs

Employers must select the appropriate TFWP stream based on their needs and the nature of the work. The most common categories include:

1. High-Wage Stream:
   For roles offering wages equal to or above the provincial/territorial median wage. Employers must meet stricter advertising and recruitment requirements to prove no local workers are available.
2. Low-Wage Stream:
   For positions paying below the median wage. Employers face additional compliance obligations, such as covering worker travel costs, ensuring adequate housing, and registering with provincial authorities.
3. Agricultural Stream:
   Designed for employers hiring foreign workers to perform on-farm primary agricultural work. The Seasonal Agricultural Worker Program (SAWP) is a popular subcategory under this stream, primarily supporting short-term seasonal needs.
4. Global Talent Stream:
   This fast-tracked stream targets highly skilled professionals in technology and other specialized fields. It aims to help Canadian businesses innovate and compete globally.

Each stream imposes specific requirements on employers, including recruitment efforts, wage compliance, and record-keeping.

Legal and Compliance Issues for Ontario Employers

Hiring temporary foreign workers involves securing approval from federal authorities and significant legal obligations at the federal and provincial levels. Non-compliance can lead to fines, bans from hiring foreign workers, and reputational damage.

1. Labour Market Impact Assessment (LMIA) Requirements

To obtain a Labour Market Impact Assessment (LMIA), employers must:

• Advertise the Position: The employer must demonstrate that they actively sought to hire Canadian workers through mandatory advertising.
• Pay Fair Wages: Employers must offer wages equal to or above the median wage for the position in Ontario.
• Provide Job Details: The terms of employment (job duties, hours, wages, and benefits) must align with those offered to Canadian workers.

Failure to meet these requirements may result in the LMIA being denied, thereby delaying or halting the hiring process. It is also important to note that while most provinces and territories follow the same requirements for an LMIA, Quebec has its own specific process.

2. Compliance with Employment Standards in Ontario

Temporary foreign workers are protected under Ontario’s Employment Standards Act, which sets minimum standards for:

• Wages (minimum wage compliance);
• Overtime pay;
• Breaks and meal periods; and
• Vacation time and statutory holidays.

Employers must provide foreign workers with working conditions equal to or better than those promised during the LMIA process. Misrepresentation of employment terms can result in penalties or suspension from TFWP participation.

3. Housing and Living Conditions

Employers are often required to provide adequate housing for workers hired under the Low-Wage Stream or Agricultural Stream. Specific standards include:

• Ensuring the housing is safe, clean, and compliant with local building codes;
• Covering the costs of accommodation where required (e.g., agricultural workers); and
• Conducting inspections to verify living conditions.

Neglecting housing obligations can harm worker well-being and trigger government investigations.

4. Workplace Safety Compliance

Under Ontario’s Occupational Health and Safety Act (OHSA), employers must:

• Provide a safe work environment for temporary foreign workers;
• Offer proper training, equipment, and hazard prevention; and
• Report workplace injuries and incidents to authorities.

Employers in sectors like agriculture, construction, and manufacturing must take extra precautions, as these industries carry heightened safety risks.

5. Record-Keeping and Monitoring

Employers must maintain accurate records to demonstrate compliance with Temporary Foreign Worker Program conditions, including:

• Worker contracts, wage payment records, and job advertisements;
• Proof of housing (where applicable); and
• Evidence of recruitment efforts to hire Canadians.

Government inspections can occur at any time, and failure to produce proper records can result in financial penalties or disqualification from hiring temporary workers.

6. Human Rights and Anti-Discrimination Laws

Temporary foreign workers are protected under the Ontario Human Rights Code, which prohibits discrimination based on race, citizenship, place of origin, or other protected grounds. Employers must treat all foreign or domestic workers fairly and equitably. Practices like unfair termination, wage disparities, or workplace harassment can expose employers to human rights complaints.

Common TFWP Challenges Employers Face

Despite the clear benefits of the Temporary Foreign Worker Program, employers in Ontario often face challenges navigating the legal and compliance landscape. Some common challenges include:

• Complex Paperwork and Deadlines: Labour Market Impact Assessment applications, worker permits, and ongoing compliance reporting demand precision and timeliness. Errors can delay hiring or lead to rejection.
• Changing Regulations: Federal and provincial laws governing TFWP evolve regularly. Staying current with wage thresholds, safety standards, and new compliance rules requires diligence.
• Cultural and Language Barriers: Employers must accommodate workers’ cultural and linguistic needs while integrating them into their operations.
• Balancing Privacy and Disclosure: Employers must balance the privacy of foreign workers with legal obligations to provide documentation during audits or inspections.

Penalties for Non-Compliance

Non-compliance with Temporary Foreign Worker Program obligations carries serious consequences, including:

• Administrative fines of up to $100,000 per violation;
• Suspension or revocation of LMIA approvals;
• Being blacklisted from hiring foreign workers under the TFWP; and
• Reputational harm that can impact future hiring and business operations.

In some cases, severe violations may lead to criminal charges, especially where worker exploitation, unsafe working conditions, or fraud are involved.

Tips for Ontario Employers to Stay Compliant

To ensure legal compliance and mitigate risks, Ontario employers hiring temporary foreign workers should:

• Consult Legal Counsel: Work with experienced employment and immigration lawyers to navigate TFWP requirements.
• Maintain Accurate Records: Implement systems to track wages, contracts, recruitment efforts, and compliance steps.
• Train HR and Management Teams: Educate staff on workplace safety, Employment Standards, and anti-discrimination policies.
• Conduct Regular Audits: Proactively assess housing, safety, and employment conditions to ensure compliance.

Willis Business Law: Advising Windsor-Essex Employers on Temporary Foreign Worker Program Compliance

The Temporary Foreign Worker Program (TFWP) provides employers with vital access to skilled and unskilled labour, but the program comes with significant legal responsibilities. The knowledgeable employment lawyers at Willis Business Law help employers maintain compliance with TFWP requirements, including Labour Market Impact Assessments (LMIA), employment standards issues, and workplace safety laws. Our robust legal solutions enable employers to streamline the process, mitigate risk, and protect their business interests while ensuring fair and safe working conditions for foreign workers.

Willis Business Law is centrally located in Windsor’s financial district, with a scenic view of the riverfront. The firm is just steps away from key landmarks, including the courts and government offices, ensuring convenience for clients. To schedule a consultation, call 519-945-5470 or reach out online.

On October 28, 2024, Ontario’s Working for Workers Five Act, 2024 received royal assent, marking a significant milestone in the province’s employment landscape. This comprehensive legislation introduces a series of amendments to various employment-related statutes, including the Employment Standards Act, the Occupational Health and Safety Act, and the Workplace Safety and Insurance Act. This latest addition to the “Working for Workers” Acts enacted over the past few years in Ontario aims to enhance worker protections, improve workplace safety, and foster a more equitable work environment.

Key Changes Introduced by the Working for Workers Five Act

Enhanced Rights for Job Seekers

The Working for Workers Five Act introduces two critical protections for job seekers under the Employment Standards Act:

• Transparency in Job Postings: Employers must now disclose whether a position is for an existing vacancy in publicly advertised job postings. This aims to prevent employers from posting jobs without genuine intent to fill them. Promoting transparency in job postings helps ensure fair recruitment practices and reduces frustration and disappointment for job seekers.
• Mandatory Response to Job Applicants: Employers must respond to applicants they have interviewed within a specified timeframe. This provision promotes respectful and timely communication with job seekers, ensuring they are not left in the dark. Future regulations will prescribe certain information to be provided to candidates.
• Retention of Interview Information: Employers are now required to retain job postings and related information for three years after the information was provided to the job applicant.

Improved Washroom Facilities for Workers

Critical changes to the Occupational Health and Safety Act include a requirement for constructors to provide clean and sanitary washroom facilities for workers’ use. Other employers must also keep their workers’ washrooms clean and safe. This change aims to create a healthier and more dignified work environment.

Additionally, employers are now required to maintain and make available records of washroom facility cleaning, as prescribed by regulations. This measure enhances accountability and transparency, allowing for effective monitoring and enforcement.

Expanded Definition of Workplace Harassment

The definitions of “workplace harassment” and “workplace sexual harassment” under the Occupational Health and Safety Act now include certain virtual activities. The new definition now reads:

“workplace harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in the workplace, including virtually through the use of information and communications technology, that is known or ought reasonably to be known to be unwelcome; …

“workplace sexual harassment” means,

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace, including virtually through the use of information and communications technology, because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, … [emphasis added]

Abolition of Sick Note Requirements

The Working for Workers Five Act changes the sick leave provisions under the Employment Standards Act by eliminating the requirement for employees to provide a medical certificate (sick note) to justify their absences due to illness.

Employers are still permitted to require an employee who takes sick leave to provide reasonable evidence of their entitlement to sick leave without being able to demand a sick note specifically. This change simplifies the process and reduces the administrative burden on both employees and healthcare providers.

Increased Penalties for ESA Violations

Penalties for contravening the provisions of the Employment Standards Act are now more severe. The maximum fine for individuals convicted of violating the Employment Standards Act has been doubled to $100,000. This increased penalty underscores the seriousness of workplace violations and serves as a deterrent.

Strengthened Protections for Frontline Fire Workers

The Working for Workers Five Act amends the Workplace Safety and Insurance Act (WSIA) to extend protections to specific frontline workers. It grants presumptive coverage under WSIA for post-traumatic stress disorder to wildland firefights and wildland fire investigations.

Additionally, on a date to be proclaimed in the future, presumptive coverage for primary-site skin cancer will be extended to firefighters and fire investigators as set out in the WSIA regulations. To be eligible under this new protection, the worker will have had at least 10 years of service before being diagnosed.

Implication for Ontario Employers

The changes introduced by the Working for Workers Five Act have far-reaching implications for employers in Ontario. To ensure compliance, employers should take the following steps:

• Review Employment Policies and Procedures: Conduct a thorough review of existing employment policies and procedures and update them to ensure they align with the new legislative requirements.
• Train Human Resources and Management: Provide comprehensive training to HR and management staff on the new requirements. This will help them understand their obligations and implement the necessary changes.
• Communicate with Employees: Inform employees about the changes introduced by this new legislation, emphasizing the importance of workplace health and safety, transparency, and fairness. Encourage open communication with staff and address their concerns or questions.
• Consult with Legal Counsel: Consult with a knowledgeable employment lawyer to obtain tailored guidance on implementing these changes to the particular circumstances of your workplace.

Contact Willis Business Law for Cutting-Edge Employment Law Advice in Windsor-Essex

The Working for Workers Five Act represents a significant step forward in protecting the rights and well-being of Ontario’s workforce. By addressing issues such as job security, workplace safety, and employee dignity, the Act aims to create a fairer and more equitable employment landscape.

At Willis Business Law, our professional employment lawyers help Ontario employers stay informed about legislative changes impacting their rights and obligations. We create innovative legal solutions that empower employers to proactively mitigate risk, enhance employee morale, and foster a productive and profitable work environment. To discuss your workplace matter with a member of our team, please call 519-945-5470 or contact us online.

Ontario employers have several options to resolve conflicts outside of the traditional court system when faced with employment disputes. Two popular alternatives are mediation and arbitration. Both processes offer a more efficient and less adversarial approach to resolving disputes than litigation. However, they differ in their structure, outcomes, and implications. This blog delves into the key distinctions between mediation and arbitration in the context of Ontario employment law.

Mediation for Employment Disputes

Mediation is a voluntary process where a neutral third party, known as a mediator, facilitates communication between the disputing parties. The mediator’s role is to create a safe and conducive environment for the parties to discuss their issues, identify common ground, and explore potential solutions. The mediator does not impose decisions or judgments but rather helps the parties reach their own agreement.

Key Characteristics of Mediation

Mediation has several features that make it attractive as a dispute resolution option in the employment context.

• Voluntariness: Both parties must agree to participate in mediation. This also can help both parties be invested in the process and outcome.
• Flexibility: The process is highly flexible and can be tailored to the specific needs and circumstances of the dispute.
• Confidentiality: All discussions and information exchanged during mediation are typically confidential.
• Non-Binding: As the outcome of mediation is not legally binding, the mediator cannot issue a final decision. If the parties reach an agreement, it is typically formalized in a written settlement agreement.

Arbitration for Employment Disputes

Arbitration is a more formal process where a neutral third party, known as an arbitrator, acts as a decision-maker. The arbitrator listens to evidence, arguments, and cross-examination and then issues a binding decision that is enforceable in court.

Key Characteristics of Arbitration

The added formality of arbitration offers unique benefits that may make it a better fit for resolving certain disputes, but it also has drawbacks.

• Binding Decision: The arbitrator’s decision is legally binding on both parties.
• Formal Process: Arbitration follows a more structured process, like a court trial, with rules of evidence and procedure.
• Limited Appeal Rights: There are limited grounds for appealing an arbitration award.
• Cost and Time: Arbitration can be more costly and time-consuming than mediation, especially for complex disputes.

Choosing the Right Dispute Resolution Process for Employment Disputes

Whether to choose mediation or arbitration depends on various factors, including the nature of the dispute, the parties’ preferences, and each process’s potential benefits and drawbacks. Some key considerations include:

• Nature of the Dispute: Complex disputes involving multiple parties or intricate legal issues may be more suitable for arbitration, while more straightforward disputes or those requiring a more collaborative approach might benefit from mediation.
• Preservation of the Working Relationship: If preserving a working relationship is important, mediation can be a more suitable option. It fosters communication and understanding and is also less adversarial than arbitration or litigation.
• Cost & Time: Mediation is generally less expensive and time-consuming than arbitration. However, if a quick resolution is crucial, arbitration might be preferable.
• Control Over Outcome: Mediation allows parties greater control over the outcome, while arbitration involves a third-party decision-maker. Arbitration may be preferable in complex disputes requiring a formal process and binding decision.
• Privacy: Both mediation and arbitration offer a more private setting compared to litigation, but the level of confidentiality can vary depending on the specific process.
• Employment Contracts: Many employment contracts contain arbitration clauses, requiring disputes to be resolved through arbitration. In unionized workplaces, the Collective Agreement will likely set out requirements for a particular dispute resolution process.

Hybrid Approaches: Med/Arb and Arb/Med

In some cases, a hybrid approach combining elements of mediation and arbitration can be beneficial.

• Med-Arb: In this approach, mediation is attempted first. If a settlement is not reached, the mediator can transition into the role of an arbitrator, making a binding decision.
• Arb-Med: In this approach, arbitration is conducted first. If both parties do not accept the arbitrator’s decision, a mediator can be brought in to facilitate a settlement. Arb/Med processes may also incorporate a “mini-trial” to present evidence to the arbitrator, followed by mediation to negotiate a settlement.

Willis Business Law Advises Windsor-Essex Employers on Dispute Resolution Processes

Both mediation and arbitration offer valuable alternatives to litigation in the context of Ontario employment law. By carefully considering the abovementioned factors, employers can select the most appropriate dispute resolution process to address their needs and achieve a satisfactory outcome. The skilled employment and labour lawyers at Willis Business Law provide multi-faceted advice and guidance to private and public sector employers across Windsor-Essex County facing workplace disputes. The firm’s wealth of experience and dedication to the community empower it to help employers foster a healthy, profitable workforce.

Based in the heart of Windsor’s financial district and conveniently located close to the courts and various government offices, Willis Business Law proudly serves Windsor-Essex County and the surrounding areas, including Amherstburg, Chatham-Kent, Kingsville, Lakeshore, LaSalle, Leamington, Pelee, Tecumseh, and Sarnia. To discuss your employment law matter with our team, please call 519-945-5470 or contact us online.