GOVERNMENT PROPOSED NEW LEAVES FOR ONTARIO WORKERS

The Ontario government recently proposed a new piece of legislation, titled the Employment Standards Act (Leaves to Help Families).   If passed, the three new leaves would be:

Family Care Leave

Under this leave, an employee would be entitled to a maximum of 8 weeks of unpaid leave in a given year.  The aim of the leave is to allow an employee the opportunity to provide care and support to a family member with a serious medical condition.  To be eligible, the employee would be required to produce a doctor’s note certifying that the applicable family member of the employee has a serious medical condition.

 Critically Ill Child Care Leave

Under this proposed leave, an employee may be entitled for up to 37 weeks of unpaid leave to provide care or support to a child who is critically ill.  This could be in addition to any Family Care Leave which the employee might have taken.  However, to qualify, the worker must have been employed by his or her employer for at least six consecutive months in order to be entitled.

Crime-Related Child Death and Disappearance Leave

Here, an employee may be entitled to up to 52 weeks leave of absence without pay, where the employee’s child has disappeared, as a result of a crime.  Where the child had died as a result of a crime, the employee would be entitled to up to 104 weeks of leave without pay.  One notable qualification in this section is that the employee would not be entitled to the leave if he or she is charged with the crime.  The leave would also not be available where it has been determined that the child was a party to a crime.  Also, like the Critically Ill Child Care Leave, the employee must have been employed with the employer for at least six consecutive months.

The passage of the proposed amendments to the Employment Standards Act would provide workers with increased job security.  Employees would have the assurance that their absence from work, due to family emergencies, could not be used by an employer to justify their termination.  Employers who violate these provisions would be liable for sanctions under the Employment Standards Act, as well as a civil claim for damages based on wrongful termination.

If you have any questions regarding your rights as an employee, or employer, feel free to contact one of the employment lawyers at Brown Litigation.

Posted by D. Jared Brown Lead Counsel

Fired? Get a Job!

If you have been dismissed from your job, there is a duty in contract law which states that you have an obligation to mitigate your damages.  This doctrine means that a dismissed employee must take steps to minimize the losses they suffered as a result of losing their job.  Basically, this means that you need to take steps to look for another job.

The leading case on the duty to mitigate is the Supreme Court of Canada decision of Red Deer College v. Michaels.  In this case, the Supreme Court explained the duty to mitigate as follows:

The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.  There reference in the case law to a “duty” to mitigate should be understood in this sense.

The Court held that the burden is on the defendant to provide proof that the plaintiff failed to mitigate her/her damages:

It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by contract.

The Court went on to emphasize that the onus on the employer is heavy, citing a previous decision, because “the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of a contract demands positive action from one who is often innocent of blame.”

Despite the burden being on the defendant to show that efforts were made, plaintiffs have been criticized by the courts for not making enough of an effort. In Chambers v. Axia Netmedia Corp., it was held:

Clearly, the efforts of Mr. Chambers [the plaintiff] were to a large extent confined to reading the local newspaper and forwarding his resume to employers. Although commendable, I am satisfied, by restricting his search to this one vehicle, the effort was too limited. Although there is no evidence as to whether these other efforts would necessarily have produced a positive result, earlier than he was able to find the employment he did, I am satisfied there was, to some extent at least, a failure to take all reasonable steps to mitigate

There are simple steps that a plaintiff can take to demonstrate that they attempted to mitigate their damages in an attempt to avoid an adverse decision like the one in Chambers.  We counsel our clients to keep a running log or mitigation journal outlining all the key events, dates, and information related to their job search post-termination including identifying job search efforts, networking, applications, and other career building steps.  This is typically done in the form of a diary or a calendar.  Second, retain copies of the letters, emails, or any other correspondence you sent in an attempt to secure a position.  Third, diversify your search.  You don’t need to limit to just one means.  You could add yourself to the social networking site LinkedIn, search on websites such as Workopolis, scan the newspapers and attend local networking events in your city.  Further, Human Resources Development Canada (“HRDC”) offers a range of free networking, job search, and outplacement services for qualifying dismissed individuals.  All of these steps will assist you in demonstrating that a genuine effort was made to secure new employment.

Posted by D. Jared Brown – Lead Counsel