The cost of downsizing junior high-tech employees • Fighting an order from a health and safety inspector
The cost of downsizing junior high-tech employees
Question: I run a small internet company in Ontario and have about 20 employees. The company is currently experiencing financial difficulties, and I am looking into the possibility of reducing some of my costs by terminating the employment of several junior employees. Would I be able to do so without running into any legal problems?
Answer: Canadian courts have generally held that employers who dismiss employees for financial reasons are not able to claim frustration as a way to relieve them of their contractual duties.
Furthermore this is not a factor an employer can rely on in asserting just cause. Essentially, if you were to dismiss the junior employees for this reason, you would be repudiating the employment contract and therefore be required to provide the employees with the requisite period of reasonable notice.
It should be noted, however, that in Ontario it is possible to temporarily layoff these employees for a period of less than 13 weeks for any period of 20 consecutive weeks, without contravening the Employment Standards Act, 2000. It is also possible for the employees to be temporarily laid off for a period of more than 13 weeks in any period of 20 consecutive weeks if the layoff is less than 35 weeks in any period of 52 consecutive weeks, and the employer continues to give the employees substantial benefits and payments.
If, however, the layoff extends beyond these periods the employment contract will be deemed to be terminated and the employer will be required to provide the minimum statutory notice requirements set out in the Employment Standards Act, 2000. In this case each employee’s individual entitlement would depend on how long she worked for the company.
It is also possible that certain employees could sue for wrongful dismissal, in which case the employer would also have obligations to provide them with common-law notice.
Fighting an order from a health and safety inspector
Question: I am an employer who operates a textile plant in Windsor, Ont. Recently, an Occupational Health and Safety inspector came to our plant unannounced. After completing his tour he provided me with an order to fix one of my machines immediately. In his opinion the machine was unsafe and could not be used again until it was repaired. This machine, however, is only five years old and I believe that it was, and still is, safe for use by my employees. Is there anything that I can do in order to appeal this decision and to continue using the device?
Answer: Under each provincial occupational health and safety scheme there is an appeal mechanism whereby a party may attempt to overturn an inspector’s order. In Ontario, s. 61 of the Occupational Health and Safety Act permits an employer, constructor, licensee, worker or trade union to appeal the order of an inspector.
It is important to note, however, that this appeal must come within 30 days of the making of the order. These appeals are made to the Ontario Labour Relations Board.
After the board is notified of the appeal it can allow a labour relations officer to look into the appeal.
This officer then reports to the board and attempts to settle the appeal. If there is no settlement the board will come to a decision.
The legislation makes it clear that the decision of the board is final. Despite this language, however, it would still be possible to judicially review the board’s decision in court.
It should also be noted that each province has different rules as to where the appeal will be heard.
In Alberta, for example, the appeal goes to a specialized tribunal or official within the health and safety bureaucracy and then to the courts on questions of law or jurisdiction.
Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].
Question: I run a small internet company in Ontario and have about 20 employees. The company is currently experiencing financial difficulties, and I am looking into the possibility of reducing some of my costs by terminating the employment of several junior employees. Would I be able to do so without running into any legal problems?
Answer: Canadian courts have generally held that employers who dismiss employees for financial reasons are not able to claim frustration as a way to relieve them of their contractual duties.
Furthermore this is not a factor an employer can rely on in asserting just cause. Essentially, if you were to dismiss the junior employees for this reason, you would be repudiating the employment contract and therefore be required to provide the employees with the requisite period of reasonable notice.
It should be noted, however, that in Ontario it is possible to temporarily layoff these employees for a period of less than 13 weeks for any period of 20 consecutive weeks, without contravening the Employment Standards Act, 2000. It is also possible for the employees to be temporarily laid off for a period of more than 13 weeks in any period of 20 consecutive weeks if the layoff is less than 35 weeks in any period of 52 consecutive weeks, and the employer continues to give the employees substantial benefits and payments.
If, however, the layoff extends beyond these periods the employment contract will be deemed to be terminated and the employer will be required to provide the minimum statutory notice requirements set out in the Employment Standards Act, 2000. In this case each employee’s individual entitlement would depend on how long she worked for the company.
It is also possible that certain employees could sue for wrongful dismissal, in which case the employer would also have obligations to provide them with common-law notice.
Fighting an order from a health and safety inspector
Question: I am an employer who operates a textile plant in Windsor, Ont. Recently, an Occupational Health and Safety inspector came to our plant unannounced. After completing his tour he provided me with an order to fix one of my machines immediately. In his opinion the machine was unsafe and could not be used again until it was repaired. This machine, however, is only five years old and I believe that it was, and still is, safe for use by my employees. Is there anything that I can do in order to appeal this decision and to continue using the device?
Answer: Under each provincial occupational health and safety scheme there is an appeal mechanism whereby a party may attempt to overturn an inspector’s order. In Ontario, s. 61 of the Occupational Health and Safety Act permits an employer, constructor, licensee, worker or trade union to appeal the order of an inspector.
It is important to note, however, that this appeal must come within 30 days of the making of the order. These appeals are made to the Ontario Labour Relations Board.
After the board is notified of the appeal it can allow a labour relations officer to look into the appeal.
This officer then reports to the board and attempts to settle the appeal. If there is no settlement the board will come to a decision.
The legislation makes it clear that the decision of the board is final. Despite this language, however, it would still be possible to judicially review the board’s decision in court.
It should also be noted that each province has different rules as to where the appeal will be heard.
In Alberta, for example, the appeal goes to a specialized tribunal or official within the health and safety bureaucracy and then to the courts on questions of law or jurisdiction.
Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or [email protected]. Address questions to [email protected].
