It was almost a year ago when CBC’s Go Public reported a story about a female employee who successfully challenged her employer’s discriminatory clothing policies. Then there was the Mississauga firm that was fined $266,000 by Ontario’s top Court, following a campaign of abuse against a deaf employee.
Work is so central to our lives, it’s no wonder that the law regulates many significant aspects of the employer-employee relationship. Given the inherent power imbalance in such relationships, the law provides checks and balances for what employers can and cannot do. Ontario’s Employment Standards Act (ESA) and Human Rights Code are two important pieces of legislation that set out the rights and obligations of employers and employees in Ontario. Although the Code also applies generally to many other aspects of life as well, it is often relied upon in an employment context, as evidenced by the Human Rights Commission’s policy position on sexualized and gender-specific dress codes in the workplace.
It can be difficult to make sense of the applicable statues and case-law, and every case brings its own unique set of facts. Here is a list of five things your employer cannot do. This list does not contain references to human rights issues, and it focuses primarily on subject matters explicitly included in the ESA. 5) Taking Employees’ Tips
Section 14.1(1) of the Employment Standards Act defines a “tip or other gratuity” very broadly. The definition includes a payment voluntarily made to or left for an employee by a customer of the employee’s employer in such circumstances that a reasonable person would be likely to infer that the customer intended or assumed that the payment would be kept by the employee or shared by the employee with other employees.
Does that sound like a mouthful? So is the prohibition against taking employee’s tips.
Section 14.2(1) of the Act reads as follows, “An employer shall not withhold tips or other gratuities from an employee, make a deduction from an employee’s tips or other gratuities or cause the employee to return or give his or her tips or other gratuities to the employer unless authorized to do so under this Part…”
Although there are some exemptions and caveats (as there always seems to be in the law), generally speaking, tips must be wholly given to the employee who earned the tip, or redistributed among the employees, but not the employer. Interestingly, employers can share in receiving tips if he or she regularly performs to a substantial degree the same work performed by some or all of the employees who ordinarily receive tips. So if the owner of a restaurant, who is also your boss, is serving tables alongside you, then he or she can participate in the redistribution of tips as well.4) Reprisals
If you’ve ever felt afraid to stand up for your employment rights, or even ask your employer what your rights actually are, you were probably worried about your employer committing a reprisal against you. A reprisal is when an employer intimidates, dismisses or otherwise penalizes an employee (or threaten to do so) because the employee did something that he or she was entitled to do under Section 74(1) of the Act. These entitlements include (and extend beyond) the right to make inquiries about your rights, ask your employer to comply with the ESA, take a leave of absence when that type of absence is guaranteed under the Act or make a complaint with the Ministry of Labour.
Reprisals are prohibited under Section 74 of the Act, and the ESA is very strict about offences. Employers found guilty of an offence under the Act can be fined up to $50,000 or to imprisonment for a term of not more than 12 months, or to both. If the employer is a corporation, then the fine can be up to $100,000. Corporations a previous conviction can be fined up to $250,000 and up to $500,000 for corporations with more than one previous conviction. 3) Ignore Public Holidays
Holidays can be confusing, and many employees are unsure what exactly their employer has to do for them on a public holiday. First, Ontario has nine public holidays each year. They are, New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day (December 26).
Chances are, if you work in Ontario, you’re entitled to those nine days off work and be paid public holiday pay. On the other hand, you can also agree to work on the holiday and you will be paid public holiday pay plus premium pay for the hours worked on the public holiday. If that option doesn’t suit you, you can also agree with your employer that you will work at your regular rate for hours worked on the holiday, and then receive another day off with public holiday pay.
Just make sure any such agreement with your employer is in writing.
It’s important to keep in mind that, depending on your job, you may be required to work on a public holiday. To take the guess-work out of figuring out what rules apply to your job, the Ministry of Labour has a useful Special Rule Tool where you can check that information for yourself online.
Generally speaking, if you work in a hotel, motel, tourist resort, restaurant, tavern, hospital, or other establishment with continuous operations, you might also have to work on a public holiday. If you do, you should receive another day off with public holiday pay or be paid premium pay (that’s 1½ times your usual rate of pay) for all the hours you worked that holiday, plus receive public holiday pay.2) Fire You for Illness (or other lawful absence)
If your employer regularly employs 50 or more employees, then you are likely entitled to a leave of absence (without pay) because of a personal illness, injury or medical emergency. You can also use this time for a doctor’s appointment. Also, if a death, illness, injury or an urgent matter occurs concerning an immediate family member or grandparent, you’re also entitled to leave. The entitlement is limited to 10 days per year, and you cannot be fired for exercising that right. If your employer fires you for exercising that right, in most cases, you can either sue your former employer in civil court, or make a complaint to the Ministry of Labour.
There are many other situations that could also warrant a lawsuit or a complaint, other than leaves of absences. Regardless of the situation, it’s important to keep in mind that you taking action against an employer who has violated your rights requires you to choose between Court or a complaint to the Ministry, and you cannot pursue both avenues. You’ll want to speak to lawyer to decide which one of these two options, if any, is warranted in the circumstances. 1) Waive Your Rights
Regardless of whether or not you signed anything with your employer which indicated a waiver of your rights under the ESA, (for example, waiving your right to sick days), any such agreement is void and unenforceable in law. That being said, employees are often surprised to learn that they also have common-law rights that extend far beyond the minimum standards that are set out in the ESA. Those additional common-law rights are enforced by the Courts (and not through the Ministry of Labour), but they can be waived by the employee through a signed release. Consequently, it’s important to speak to a lawyer before you sign anything with your employer, especially if you are being terminated or believe you will be terminated in the near future.