Category: Employment Law

When organizations restructure, the human impact is immediate and significant. In Ontario, employers contemplating a large-scale layoff must navigate a detailed framework of Employment Standards Act requirements, collective agreement obligations (where applicable), and, if the business is federally regulated, Canada Labour Code (CLC) rules. Recent headlines underscore the stakes: General Motors’ decision affecting the CAMI facility in Ingersoll and Rogers Communications’ reductions in customer-service roles prompted difficult transitions for large employee groups and their communities. These examples are reminders that the legal and operational planning for a mass layoff must begin well before any announcement.

Why “Mass Termination” Status Matters in Ontario

Section 58 of Ontario’s Employment Standards Act (ESA) has special rules for “mass terminations.” Although not expressly called by that term, a mass termination occurs when an employer terminates the employment of 50 or more employees at an establishment within the same four-week period. An “establishment” is the location where the employer carries on business. Separate locations can constitute one “establishment” if they are located in the same municipality or if one or more employees have seniority rights that apply to multiple locations under a written contract and that employee(s) can displace another employee.

This four-week window under section 58 is rolling; the mass-termination rules are triggered once 50 terminations occur within that span. The ESA’s group notice periods replace the usual individual notice rules when a mass termination is triggered. As per Ontario Regulation 288/01, employers must provide at least 8 weeks’ notice if 50–199 employees are being terminated, 12 weeks for 200–499, and 16 weeks for 500 or more. Employers may provide working notice or pay in lieu, but the length of group notice is driven by headcount rather than service length.

Form 1 and When Notice Really Starts

Ontario’s process requires more than just telling employees. For mass terminations, the employer must file Form 1 (Notice of Termination of Employment) with the Director of Employment Standards, post a copy in the workplace, and give a copy to each affected employee. Crucially, the statutory notice period does not begin until the Director receives the completed Form 1. Failing to file properly can delay the notice clock and expose the organization to compliance risk.

Do Remote Workers Count Toward the 50?

Yes. The province has clarified that remote employees are included when counting whether the 50-employee threshold has been met for mass-termination purposes. This matters for hybrid or distributed teams and can push a restructuring over the threshold even if fewer than 50 on-site workers are affected.

What You Must Give Employees on Day One of the Notice Period

Beyond Form 1, Ontario added a practical support requirement: when a mass termination is initiated, employers must provide affected employees with information about provincially available employment services (e.g., Employment Ontario resources) at the outset of the notice period. Build this into your checklist and have the materials ready to distribute at the announcement.

Benefits Continuation During ESA Notice

Whether you provide working notice or pay in lieu, you must maintain benefit plan contributions (e.g., health, dental, life and disability) through the ESA notice period. Cutting off benefits too soon is a common misstep that can lead to Ministry orders and civil claims. Ensure your carrier understands “notice-only” status and that continuation is administratively feasible before you announce.

Termination Pay vs. Severance Pay: Distinct Entitlements

In Ontario, termination pay compensates employees when their employment ends without sufficient written notice. Under the Employment Standards Act, employers must provide either working notice or termination pay in lieu, calculated at one week of regular wages per completed year of service, to a maximum of 8 weeks. As mentioned above, special notice requirements apply in cases of mass termination.

Severance pay, also governed by the ESA, is a separate entitlement for long-service employees (those with at least five years of service) where the employer either (a) has a payroll of $2.5 million or more in Ontario, or (b) permanently discontinues all or part of its business and severs 50 or more employees within six months at the same establishment. Severance is calculated at one week of regular wages per completed year of service, plus the pro-rated amount for any additional months, up to 26 weeks. Severance pay is in addition to termination pay or notice.

“Temporary Layoff” vs. Termination

Employers sometimes hope a “temporary layoff” will avoid termination entitlements. Under the ESA, temporary layoff rules are narrow and, unless amended by contract, can quickly convert into terminations with full ESA consequences. Where an employer is federally regulated, different thresholds and definitions apply under the Canada Labour Code and related regulations. Treat temporary layoff strategies with caution and verify your industry’s regime.

Federally Regulated Employers and the Canada Labour Code Group-Termination Regime

Some high-profile employers in Canada, including telecommunications companies, are federally regulated and, therefore, governed by the Canada Labour Code (CLC) rather than the Employment Standards Act for minimum standards. Under the CLC, a group termination occurs when 50 or more employees at an industrial establishment are terminated within any four-week period. The employer must give 16 weeks’ written notice of the group termination to the Head of Compliance and Enforcement and provide copies to designated recipients. Individual notice obligations still apply.

The CLC also obliges the employer to establish a joint planning committee promptly after giving notice. This committee, composed of employer and employee representatives, develops an “adjustment program” within six weeks to reduce the need for terminations or, where inevitable, mitigate impacts and assist with re-employment. The Minister can appoint an arbitrator if the program stalls. This is a critical, time-bound governance step that federally regulated employers must not overlook.

Recent Large-Scale Layoffs: GM and Rogers

The GM case in Ingersoll illustrates how market shifts can ripple through a community and prompt significant production changes and layoffs. This spring, GM announced it would pause assembly at the CAMI plant for extended periods in 2025 and that BrightDrop/Chevy electric van production would cease. Local leaders and workers immediately focused on employment impacts, as a provincially-regulated automotive employer facing a mass termination in Ontario would need to determine whether headcount within any four-week window hits 50, file Form 1, ensure the notice clock starts correctly, and provide extended group notice and benefits continuation. Severance pay may also apply depending on payroll size or discontinuance criteria.

Rogers’ layoffs in early 2025 were framed as a “small percentage” reduction in customer-service roles as the company invested in digital tools and self-serve channels. Because telecoms are typically federally regulated, reductions of 50 or more within a four-week span at an industrial establishment would trigger the Canada Labour Code’s 16-week group-termination notice, a written benefits statement for affected employees, and the creation of a joint planning committee. Even when numbers fall below the 50-employee threshold, the CLC’s individual notice and other minimum standards still apply.

Unions and Collective Agreements

In unionized workplaces, collective agreements overlay ESA or CLC minimums. Many agreements include bumping and recall rights, wage-protection provisions, and consultation requirements that affect the sequence and scope of layoffs. Under the CLC, group-termination notice must be copied to any union representing affected employees, and the joint planning committee must meaningfully include employee representatives. Employers should audit the collective agreement well in advance to stage the announcement, bumping, and placement processes lawfully and to align with any early-retirement, redeployment, or severance-enhancement programs contemplated by the adjustment plan.

The Bottom Line of Mass Terminations in Ontario

Large-scale layoffs require more than a headcount decision; they demand a legally precise, human-centred process. Ontario employers triggering mass-termination rules must file Form 1, provide extended group notice, maintain benefits, and, where applicable, pay ESA severance in addition to termination entitlements. Federally regulated employers must follow the CLC’s group-termination regime, including a 16-week notice and a joint planning committee. Using recent examples, from GM’s CAMI-related changes to Rogers’ customer-service reductions, organizations can see how fast business realities can change and how important it is to have a compliant, respectful plan for affected employees.

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

If your organization is planning a large-scale restructuring, Willis Business Law can help ensure you understand your legal obligations under Ontario’s Employment Standards Act or the Canada Labour Code. Our employment and labour lawyers help employers navigate complex layoff and termination processes, minimize compliance risk, and protect both your business and your employees. Contact us online or call (519) 945-5470 for strategic guidance on managing workforce transitions lawfully and effectively.

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.