Sunday, October 24, 2010

A clarification on the laws of dismissal

Yes, the law is much stricter here in Canada than it is in the US in regards to firing someone. There is really no such thing as employment-at-will here, unless you count cash under the table type work. That said, it has come to my attention recently that some people have a misconception in regards to the rights of the employee; a misconception that may cost people their job. Thus, I clarify.

An employer can, at will, fire an employee for any reason. This is true whether you are a salaried or hourly employee. Where it does matter whether you're salaried or hourly; whether they have a good reason or not; whether their behaviour is appropriate or not; etc is when it comes to what you get as they throw you out the door. As a Canadian employee, you are entitled to what is known as notice. Notice comes in 2 ways; (a) income in-leiu of notice and (b) time worked. (a) is obviously the most commonly chosen by employers, seeing as they tend to fear retribution unless they escort you out with security the second you're given the news. According to the ESA, statutory notice breaks down as such:



This is, of course, assuming they detailed in the contract that they will be providing you with statutory notice if dismissed. Many contracts miss this, so if you are dismissed and no such clause is in your contract you're entitled to reasonable notice as determined by a civil court (this is generally more generous, and includes considerations such as age, experience, ability to find new work, tenure, management level, etc), but you will have to pay a lawyer.

Finally, as I mentioned one of the impacts on notice is whether they had a valid reason. I believe this is where most misconceptions lie - this does not mean that if you don't agree with the reasoning they it was not just cause. Just cause dismissal means they feel you have breached the employment contract to a point where the contract itself has been made void, ergo you're owed nothing but a kick to the behind out the door. If you don't agree, sue, but think long and hard before you do. Just  cause is very difficult to prove, and generally employers would rather pay notice even with just cause just to avoid possible litigation, so if they have indeed used just cause, they may have a fairly strong case. Standard reasons include severe breach of trust (violating company rules in a way which endangers jobs, cases, etc), breaking the law on the job, breaking the law off work hours in a way that very negatively reflects on the company, etc.

This is just a brief overview, but it seemed necessary. While we're better off than our neighbours to the south, an employee's job is generally not as safe as I've come to believe some of our compatriots believe, and I feel it is my duty to put such myths to rest.

For more on the subject refer to the ESA.

Wednesday, October 6, 2010

Holiday pay

Just in time for Canadian Thanksgiving, I wanted to do a post just briefly reminding my readers about their rights for statutory holiday pay, and remove any misgivings some may have about what they may or may not be entitled to. Now, the Employment Standards Act is an excellent source of information for those in Ontario, and there are respective legislations in every other province, and in each American state for that matter.

For those in Ontario though, this coming Monday is a statutory holiday, and for us hourly workers that means statutory pay, and furthermore, confusion. That said, here comes a bit of clarity.

According to ESA, so long as you work your regularly scheduled shift before and after the holiday, you're entitled to holiday pay (the calculation itself is fairly complex, but essentially uses an averaging of the hours you worked the two weeks prior to the holiday). Holiday pay is thus essentially a paid day off work. That said, if you choose to (or are kindly requested to) work on the statutory holiday, the ESA is very clear about the expectations on part of the employer. You are still entitled to the holiday pay you would have received if you had not worked. Beyond that, you are also entitled to holiday pay, generally at a rate of 1.5 times your regular rate.

In the words of the ESA:
Most employees who qualify are entitled to take these days off work and be paid public holiday pay. Alternatively, they can agree in writing to work on the holiday and they will be paid:
  • public holiday pay plus premium pay for the hours worked on the public holiday; or
  • their regular rate for hours worked on the holiday, plus they will receive another day off (called a "substitute" holiday) with public holiday pay. If the employee has earned a substituteday off with public holiday pay, the public holiday pay calculation is done with respect to the four work weeks before the work week in which the substitute day off falls.
One thing to keep in mind though, is that not all jobs qualify for holiday pay. The ESA provides a lengthy al bight incomplete list of professions not covered by holiday pay, so before yelling at your boss, check to see if they're required to pay out here. I am curious as to the reasoning behind farm workers and tourism industry employees are excluded from this holiday pay.

For those getting the long weekend off, I hope you enjoy it, it looks like it'll be quite beautiful in most of Ontario.