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| Ellen Low |
Revisions to the Worker for Workers Act coming in 2025 is reason enough to take stock but the new year is always a good time to re-evaluate your policies and contracts. It makes sense to do it now. After paying out bonuses in anticipation of tax season employers should reassess where they stand with their workplace policies.
The Working for Workers Six Act, 2024 was introduced in November 2024 and will impact many Ontario workplaces. For instance, there is an amendment to the Occupational Health and Safety Act (OHSA), a portion of which is either going to be
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There will be mandatory minimum fines of $500,000 for corporations convicted of repeat OHSA offences which result in the serious injury or death of workers within a two-year period.
Change is commonplace in the employment world. That has been especially so in the period during and after the pandemic when almost all levels of government turned their attention to working conditions with an eye to protecting employees. We are still seeing the results of that increased interest.
Employers need to remain vigilant. But that does not necessarily mean companies need to draft new employment agreements. Most contracts include a kind of catch-all, stating that the employer intends to comply with the Ontario Employment Standards Act (ESA) and all subsequent amendments at all times.
As an example, that catch-all would cover the provincial government’s introduction of a 16-week job protected leave for adoptive parents and parents through surrogacy “to ensure they have adequate time to meet the demands of the adoption or surrogacy process, attach and welcome their child into their new home.”
The move will align with upcoming federal changes to create Employment Insurance (EI) benefits for adoption.
Also added to the ESA is a 27-week long-term illness leave “for employees unable to work due to a serious medical condition as defined by a medical practitioner, such as cancer, multiple sclerosis or Crohn’s … [that] would ensure workers with a serious medical condition have the time away from work they need to get treatment and recover, without risking their jobs.”
Of course, it will be interesting to see how the new illness-leave provision exists outside the legislative vacuum. For example, an employee goes on leave fully expecting that they will be able to return to their existing position and many people are operating under the illusion that they are protected from any kind of termination; however, as long as the reason for the dismissal is entirely unrelated to their leave, then that would be a permissible business reorganizational decision.
Further, it is not only new legislation that employers should heed. There are now more employment-law practitioners who are targeting the applicability of legislation, as well as all kinds of different pieces of the employment law puzzle, with the aim of invalidating the contract.
We are seeing a bit of a perfect storm since courts have returned to full swing after gearing back up following the pandemic. More novel arguments are finally being heard.
Even those outside the legal profession have noticed. Business owners find that almost every time they turn around there is a new court case, there is a new piece of legislation, or there's something else they have to do to stay compliant.
Two recent court decisions should be warning enough to employers to revisit their employment agreements.
In Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029, court held that the termination provisions of a fixed-term employment contract were illegal and unenforceable because they did not comply with the Employment Standards Act.
Meanwhile, the Ontario Court of Appeal in Waksdale v. Swegon North America Inc., 2020 ONCA 391 found if any part of a termination provision in an employment agreement was in breach of the ESA, the entire provision is unenforceable. We noted at the time that the ruling “caused a stir in the employment world since the words that were found to invalidate the termination provision — ‘its sole discretion’ and ‘at any time’— are commonly used in employment contracts.”
We do our best as employment lawyers to craft termination provisions, non-competition provisions and non-solicitation provisions that are enforceable and hold up to scrutiny. But then either the legislation is updated or there is a court ruling that changes what was once acceptable.
More people are increasingly aware not only of new legislation, and court cases, but of the penalties for getting it wrong either in the contract or for having an out-of-date policy or no policy at all.
With all the changes to the employment landscape in recent years it wouldn’t be unexpected for employers to experience some kind of information fatigue. However, they must maintain their due diligence, which includes conducting annual employment contract and policy reviews.
While regular contractual reviews have been our advice from day one, year one, each new year is the perfect time to look back and look ahead.
Ellen Low has been working exclusively in employment and human rights for over a decade. She obtained her law degree from the University of Ottawa, articled at Gowlings and practised as a partner with a boutique Toronto employment law firm and founded her own firm, Ellen Low & Co. Employment Law, in 2018.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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