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EMPLOYMENT LAW INTAKE Case code for Termination of

Employment:

8.02 Case code for Employment Standards: 8.01 Case code for Employment other: 8.04 Case code for Health and Safety: 8.03 Case code for Human Rights: 12.00

Incident Field: e.g. Terminated, Harassment, Unpaid wages, Discipline INTRODUCTION:

The following areas of law are dealt with under the title “Worker’s Rights”:

Employment Law (Wrongful Dismissal, Employment Standards,

Federally Regulated Employees and Occupational Health & Safety, Bad References/Blacklisting, Pardons/Criminal Records , Duty of Fair

Representation )

Employment Insurance (EI Denial, Problems with ROE) Injured Workers (WSIB/WSIAT)

Human Rights (Human Rights Intake)

FINANCIAL CRITERIA

 We only provide advice to clients within our income guidelines.

 If caller is going to lose their job they will not have income so we do not

count their current employment income.

CASE CRITERIA: SEE EMPLOYMENT LAW RIGHTS CASE CRITERIA MEMO

We do not represent clients who are/were members of a union.

(See Duty of Fair Representation, employment law referrals.)

CONFLICT CHECK: Record name of employer in opposing party field. REFERRALS FROM NORTHUMBERLAND COMMUNITY LEGAL CLINIC (NCLC):

 CALC has a formal collaboration agreement which provides that:

o CALC will provide service to workers from Northumberland on the issue of wrongful dismissal.

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o Northumberland assists CALC with WSIB matters.

Northumberland clients must be directly referred to us from NCLC.

NCLC will contact us by email or fax about these workers.

 Follow our standard intake practice for workers who have lost their job

(i.e. create a CMT summary, contact the worker and schedule a telephone appt etc.)

 Follow our intake process and get all of the information as set out below.

CURRENT / RED FLAG ISSUES:

SEARS and SWISS CHALET LAYOFFS: (Nov 2013)

 Sears has terminated 60 workers. Swiss Chalet has advised people that

they are closing and employees will need to reapply for jobs if the restaurant reopens. It is likely that both sets of workers will be given settlement packages of some kind. Please do usual intake for each caller. Information gathered should confirm they are being terminated by

Sears/Swiss Chalet as part of a mass termination (as opposed to being fired for cause or other issues - harassment etc.).

 We will take these calls as long as people meet basic income criteria (see

above).

 If the volume gets too high we will make arrangements for referrals to

private bar.

 If caller has an offer from Sears/Swiss Chalet and it looks like we will not

be able to get back to the caller in time for their short deadline for response (i.e. its Friday and Chris is in Trenton and Gina is not in office), tell them to contact employer to request an extension on the deadline to allow them to seek independent legal advice.

FIRST NATIONS.

Any call involving First Nations as employer should be put in for “Advice

Required” and the legal lead will review to determine service to be provided.

TRAVELLING OUTSIDE ONTARIO FOR WORK,

MILITARY/BANK/CABLE/PHONE COMPANY EMPLOYEE OR EMPLOYER FEDERALLY REGULATED

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 If the caller travels outside the province for work, works on the military

base, works for a bank or a cable or phone company or says his or her employer is federally regulated, put in for “Advice Required” and notify legal worker immediately.

HARASSMENT IS AN ISSUE

 If the caller is calling about a harassment issue, also record the name of

the person who is the alleged harasser. If we have a conflict with the alleged harasser, do not take any further information.

 Refer to Intake Manual, s.3.1(c) (Conflict of Interest)

 If the caller does not want to identify the employer or the harasser, make

note of this in the "notes" part of the CMT stat. It is still acceptable to schedule telephone appointments for those callers. Legal workers will have to decide what information and advice they can give in such circumstances.

COMMUNITY PARTNERS

If the employer is a community partner (such as Three Oaks, Mental

Health, Counselling Services of Belleville and District) we would not want to act against them.

Intake workers may provide summary information and refer them to the

Private Bar.

SUPERINTENDENTS

We do not provide summary advice to Superintendents for

employment law matters.

Intake workers may provide summary information and refer them to the

Private Bar.

STANDARD INTAKE QUESTIONS FOR EMPLOYMENT LAW:

Introductory Questions: Date of Birth?

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What is your family size? No. of Dependents?

What is your family’s source of income? (EI, OW, CPP, ODSP, WSIB) What is your current household income incl. spouse?

Employment Related Questions:

Employer Name? Does it have any other names such as a numbered company? Job Title?

Unionized worker? If a unionized worker, intake to advise we don’t provide legal advice and the caller should consult their union steward (unless it is a complaint about the union; see section on Duty of Fair representation) or the private bar.

Date of hire?

Obtain Brief Description of job duties.

If the caller says he/she is a driver or trucker or works in transportation, ask if he or she ever goes to other provinces or the U.S. for work.

Are you considered an employee or an independent contractor?  Do you pay your own taxes?

 Are deductions for CPP, EI taken off of your cheque?  Do you provide your own tools, car, computer for work?

Do you have an employment contract? Is it a permanent or temporary job? Are you in your probationary period?

Terms of Contract: Salary or Rate of Pay? Hours of Work? What is the issue you are calling about?

Are you still employed?

Note: If a caller says he/she was laid off, ask them to clarify if the layoff is expected to be “temporary,” meaning the employee expects to go back to work soon, or permanent.

If still employed, write a brief description of the problem and see one of the following sections if applicable (termination not an issue):

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Bad References/Blacklisting

Human Rights

Pardons/Criminal Records Duty of Fair Representation Occupational Health & Safety Employment Insurance

IF TERMINATED ALSO ASK THE FOLLOWING: Nature of Employment:

Other than your salary, did you receive any additional benefits? Such as:  Medical benefits

 Monthly/Annual bonus or Commission  Car expense/mileage

 Phone expense

How long did you work there? Date of hire:

Why were you terminated? (return from pregnancy leave, medical reason, poor performance, no work?)

Did you receive a termination letter? Date of termination:

Did you receive your Record of Employment (ROE)? Reasons for Termination on ROE?

Have you ever had any problems with your employer in the past? Record any previous warnings or similar problems the client has had before.

Did you receive any money from your employer when you were terminated? Has your employer offered you a settlement or severance package?

If so is there a deadline to sign the settlement offer/severance package? Have you applied for Employment Insurance (EI) benefits?

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Have you found work?

If so, what is your salary/rate of pay now?

Intake to advise clients that if a person is terminated, they must make efforts to search for work. They need to keep copies of all the places they have sent their resume, the dates they applied for work and the dates of any interviews.

HAVE THEY MADE AN EMPLOYMENT STANDARDS COMPLAINT?

RED FLAG: Note to Intake Staff - An ESA claim made to the Ministry can only be withdrawn within 2 weeks of filing. If a person brings an ESA claim they cannot bring an SCC claim for the same relief. If a caller has already submitted an ESA claim, please alert an employment legal worker to see if an earlier appointment can be scheduled.

INFORMATION INTAKE STAFF CAN PROVIDE: In the case of Termination or Layoff:

With all callers who have been terminated, ensure that callers are advised of their right to apply for EI and to apply for Ontario Works (and to call us if denied):

WHAT TO DO NEXT:

1. Schedule next available telephone appointment with legal worker. If there is a deadline or limitation that will occur prior to the next telephone appointment, the matter should be considered a PSM.

2. Ask the client to provide us with a copy of the following information, if possible before the telephone intake:

Copy of any employment contract

Copy of any letter of termination or lay-off notice Record of Employment

Copies of any warning letters

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If the client is unable to fax these to us, ask the client to have relevant documents with them when the caseworker calls.

REFERRALS/LINKS:

SEE FULL LIST OF EMPLOYMENT LAW REFERRAL NUMBERS (Intake Manual, Appendix 16)

CALC Employment Standards Tip Sheet -

http://www.communitylegalcentre.ca/legal_information/Tips/WR/Employment-Standards.pdf

THE FOLLOWING LEGAL WORKERS HANDLE EMPLOYMENT LAW MATTERS:

See: Legal Workers Who Does What Chart for Intake. NOTES TO LEGAL WORKERS & RESOURCES:

See Employment Law Rights Case Criteria Memo for details on services offered, at the back of this section.

See Wrongful Dismissal Checklist for issues to think about when dealing with terminations, at the back of this section.

See Due Diligence File Opening Checklist.

See CALC Employment Law - Memo on our Practices and Tips Tool to calculate the employer’s CPP contributions:

http://www.cra-arc.gc.ca/esrvc-srvce/tx/bsnss/pdoc-eng.html

See A summary Advice Primer: Remedies on Termination of Employment (IMSG, November 2, 2006)

See individual sub-sections listed above when dealing with specific issues. Further resources are attached.

See Justice @ work Employment Law Training manual (Simcoe CLC) May 2008 http://www.cleo.on.ca/english/pub/onpub/online.htm

Also various resources in the library.

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Corporate

The Corporate search business is Documental - online at http://www.documental.ca/ - can do corporate profile searches. The results of corporate business searches are sent in a PDF, which is saved in the S:\General\CORPORATE SEARCHES directory.

To purchase these searches, please get the credit card number from Lynda. There is no username or password required. An invoice will be sent to you with a reference

number. You should provide Lynda with a filled out disbursement and this invoice for the clinic’s records.

Ministry of Transportation – Driver’s Licence Records

Lynda is to do all MoT searches. See OPPM 2.22 for more information on this type of search.

Real Property

The site is www.teranetexpress.ca Email user name is calc@lao.on.ca

Using Lynda Morgan as contact name on here Password is LegalCentre1

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Last Updated: December 2013

BAD REFERENCES & BLACK LISTING INTAKE Case code: Employment Other 8.04

Incident Field: Bad References/Blacklisting CASE SELECTION/FINANCIAL CRITERIA

 We only provide legal information on this issue.  Any caller can be provided with this information.

CONFLICT CHECK

W e do not represent clients who are/were members of a union (see Duty of Fair Representation, Employment referrals)

INFORMATION INTAKE STAFF CAN PROVIDE

ISSUE: BLACKLISTING / BAD REFERENCES

Caller: I've been black-listed by my former employer. Can I do anything about that? OR

I can’t get a job because my former employer keeps giving me a bad reference.

See Tip Sheet below. SEE FULL LIST OF EMPLOYMENT LAW REFERRAL NUMBERS

WHAT TO DO NEXT / NEXT STEPS FOR CALLER

 Provide the “Bad Reference” tip sheet; check PLE box in CMT

 Refer to the private bar (see employment referrals chart).  Place the stat in CD’s “advice required” for review.

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EMPLOYMENT – BAD REFERENCE

(Updated: December 2013) Pg 1 of 1

What can I do?

My former employer will not give me a reference, or gives me a bad

reference.

 An employer is not obligated to provide any reference to a former

employee. Therefore, you cannot force your former employer to give you a reference.

 If you can prove that your former employer gave you an improper

reference, and if you can prove that you did not get a job because of it, you may be able to sue your former employer. (The legal terms for this wrong include "defamation", injurious falsehood", "negligence" or

"negligent misstatement.")

 It is very difficult to prove both that the reference was improper, and that

you would have got the job if it were not for the bad reference. Even if you can prove that an improper reference was given, you still have to prove that you would have landed the job except for the reference. New employers will seldom, if ever, give you that information.

 The fact that an employer refused to provide a reference, or provided a

bad one, may increase your former employer's liability if you are suing your former employer for wrongful dismissal. The form of a reference letter and what will be said when new employer contacts your former employer is often negotiated as part of a wrongful dismissal settlement.

 Technically, the Consumer Reporting Act of Ontario prohibits prospective

employers from seeking a reference unless you have given permission in writing. Sometimes this permission is included in the application for employment. Employers are sometimes unaware of their obligations under this statute.

 If you request it, the Consumer Reporting Act also requires an employer

who does not hire you as a result of a negative reference to inform you of the negative reference and what was said. However, most employers are

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unaware of their obligations under the Consumer Reporting Act, and it is very difficult to enforce this claim.

Last Updated: April 1, 2011

EMPLOYMENT & CRIMINAL RECORDS, PARDONS INTAKE Case code: Employment other: 8.04

Case code: Human Rights: 12.0 (where pardon exists) Incident Field: Pre-employment Discrimination

CASE SELECTION/FINANCIAL CRITERIA

We provide legal information as outlined below to all individuals regardless of financial eligibility.

We provide a one time summary advice to all callers in respect of this issue. INFORMATION INTAKE STAFF CAN PROVIDE

See Tip Sheet below for information and resource links. SEE FULL LIST OF EMPLOYMENT LAW REFERRAL NUMBERS WHAT TO DO NEXT / NEXT STEPS FOR CALLER

1. If the caller believes that he/she has been denied employment because of a criminal conviction for which he/she has been pardoned, schedule the client for a telephone intake with a legal worker.

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2. If the caller wants information on how to make a Pardon Application, refer them to Resources below.

3. A copy of the Criminal Records, Criminal Pardons and Employment Tip Sheet can be sent to the client for further information.[SEE TIP SHEET]

4. Place in legal worker’s advice required and schedule a telephone appointment.

THE FOLLOWING LEGAL WORKERS HANDLE (AREA OF LAW) MATTERS: See: Legal Workers Who Does What Chart for Intake

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Criminal Records and Your

Employment

(Updated: Jan 2014) Pg 1 of 2

Criminal Record – Getting a Job

"Criminal record" generally refers to documentation of a person's criminal conviction that is kept on file by government agencies, most commonly court and police records.

The main source of information about criminal records in Canada is the automated Canadian Police Information Centre (CPIC) maintained by the RCMP.

An employer may be able to refuse to employ you if you have a criminal record, for which a record suspension (formerly called a pardon) has not been granted. The Ontario Human Rights Code and the Canadian Human Rights Act generally prohibit an employer from discriminating against you because of your criminal record if you have a record suspension. However, even if you have received a record suspension, there may be certain circumstances in which an employer may refuse to employ you because of your past convictions. You should seek legal advice if this happens to you.

The Canadian Human Rights Act applies to employment in the areas that the federal government regulates, for example, airlines, radio and TV stations, banks, shipping lines, federal civil service and railways. The Ontario Human Rights Act applies to other employers in Ontario.

Criminal Record – Record Suspension

If you were convicted of a criminal offence and received an "absolute discharge" you cannot apply for a record suspension (pardon). Records of your conviction will automatically be removed from the CPIC one year after your conviction.

If you were convicted of a criminal offence and received a "conditional discharge," you cannot apply for a record suspension (pardon). Records of your conviction will automatically be

removed from the CPIC three years after your conviction.

Most employment application forms ask the question "do you have a criminal record for which you have not received a record suspension or pardon?" That is an acceptable question. It would not be acceptable to ask "have you ever been convicted of a criminal offence?" or "have you ever been to jail?"

An employer may conduct a criminal record check on you with your permission. The employment application itself may ask you "Do you have a criminal record for which a record

suspension/pardon has not been granted?" and the fine print on the bottom of the application form may be a permission to the prospective employer to verify that the statements made are

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true.

Criminal Records, and your

Employment

(Updated: Jan 2014) Pg 2 of 2

A criminal record check will not show convictions for which there has been a record suspension (pardon). The records of the offences for which you have been pardoned will be kept separate from other criminal records. They can be accessed, but only in a circumstance such as a later conviction for a serious offence.

A record suspension (pardon) will not erase a criminal conviction.

The RCMP allows third parties (e.g. law enforcement agencies in Canada and the U.S.) access to the CPIC database. Information held by third parties may not be the most up to date version of records.

RESOURCES

Record Suspension Guide (and application forms), published by the Parole Board of Canada. Most clinics, MPP offices and MP offices have these in hard copy. They are also available on the Parole Board of Canada website: http://www.recordsuspension.gc.ca. (Some Ontario Works offices may pay for all or part of the cost of the Pardon Application using discretionary funds. Ask your

caseworker.)

 The John Howard Society in Belleville, 613-968-6628 assists with Record Suspension applications. The John Howard Society has published an excellent guide called Understanding Criminal Records, and a

Pardons Fact Sheet available at http://www.johnhoward.ab.ca. The Ontario

John Howard Society has published a Tip Sheet #19 entitled:

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http://www.johnhoward.on.ca/research/facts.html.

The Parole Board of Canada provides telephone assistance completing the Application: 1-800-874-2652

Ontario Works (Hastings County) - http://www.hastingscounty.com/

They will cover the costs of the pardon application for those on Ontario Works. They also hold pardon workshops every Wednesday in Belleville at the John Howard Society at 19-21 Wallbridge Crescent, next to Gleaners. Call the John Howard Society for an appointment. Ontario Works

Offices: Belleville: 613-966-8032 Trenton: 613-392-1387 Madoc: 613-473-5258 Bancroft: 613-332-3410.

Ontario Works (Prince Edward and Lennox & Addington) -

http://www.pelass.org/

They do not have the same program as Hastings but you should ask your worker about “discretionary benefits.”

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Last Updated: April 1, 2011

DUTY OF FAIR REPRESENTATION INTAKE Case code for Employment Other 8.04

Incident Field: Duty of Fair Representation CASE SELECTION/FINANCIAL CRITERIA

We do not represent clients who are members of a union or who were represented by a union prior to their recent termination.

CONFLICT CHECK

As per Employment Law Intake Section.

INFORMATION INTAKE STAFF CAN PROVIDE

If an employee feels they have not been properly represented by their union, they can make an application to the Ontario Labour Relations Board (OLRB). The duty of fair representation only applies to a union’s representation of an employee in connection with his/her employer such as union decisions to process grievances, including those involving termination, Employment Standards Act entitlements and in conducting negotiations.

The union is not obligated to represent an individual in relation to a workplace injury (i.e. WSIB/WSIAT).

The Duty of Fair Representation states that a trade union must not act in a way that is “arbitrary, discriminatory, or in bad faith” when representing employees. Information to give to caller:

If you feel that your union did not take into account all the circumstances in your case, discriminated against you or did not consider or follow-through with your complaint or grievance you may have a right to file an application with the OLRB. WHAT TO DO NEXT / NEXT STEPS FOR CALLER

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The client should then be referred to the OLRB website

(http://www.olrb.gov.on.ca) for further information and to the Private Bar. The following Tip Sheet should be sent to the client and the PLE box should be checked off on the CMT stat.

The summary advice should be placed in GC’s advice required for review. SEE FULL LIST OF EMPLOYMENT LAW REFERRAL NUMBERS

ADVOCACY/STRATEGY TIPS FOR LEGAL WORKERS:

Legal Workers should review Bulletin No. 12 (September 2007) from the OLRB website for more information.

LEGAL REFERENCES OR OTHER RESOURCES: (list available websites (as hyperlinks) – ask client if they have access to web)

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What to Do If Your Union Is Not

Representing You

1 of 2

Updated September 2013

Introduction

When an employee is a member of a union and is a part of a collective agreement with an employer, there are different rules about employment issues. Although the

Employment Standards Act (ESA) applies to all employees, members of unions cannot make their own complaints under the ESA. Their rights must be pursued by the union. In the same way, the collective agreement will provide for a mediation and arbitration process through which disputes of members with the employer, including termination of employment, will be resolved. It is not open to the union member to choose to sue the employer in Court. The union member’s rights flow through the union.

Periodically, union members complain that the union is not adequately protecting or pursuing their rights against their employer. The employees' right is to make a complaint against their union.

The Duty To Fairly Represent

If a union member feels that he or she has not been adequately represented by their union, the legal remedy is to make a s. 74 Duty of Fair Representation Complaint to the Ontario Labour Relations Board (OLRB). The OLRB hears the complaint and, if satisfied that the union has acted in a manner that is arbitrary, discriminatory, or in bad faith, will instruct the union to take whatever steps it deems appropriate.

Under the Ontario Labour Relations Act, s. 74, a union has a duty to fairly represent its members. In making decisions, the union may not act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of its members. The union is

required to honestly consider their members’ concerns. This is not a high standard for a union to meet. Valid defences to a complaint can be that the issue is not significant enough to warrant the time and expense the union would have to invest in pursuing the grievance or that success in the grievance would have a negative effect on other

members of the union.

However, although most unionized employees in Ontario are governed by the Ontario

Labour Relations Act, employees of banks, railways, airlines and trucking firms may be governed by the Canada Labour Code (CLC).

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What To Do if Your Union Is Not

Representing You

2 of 2

Updated September 2013

It is recommended that before making a Fair Representation Complaint, the union member attempt to resolve the issue with the union by taking the following steps: 1. Speak to your shop steward and ask for a meeting to discuss the grievance. 2. If you do not trust the shop steward, speak to another steward or to one of the

executive – the president, vice-president, or other member who seems approachable and trustworthy.

3. If you are still not satisfied, speak to the union representative who is assigned to the bargaining unit. Request a meeting away from the workplace to explain the

situation. If you do not know who this person is or which local you belong to, the information can be found on the internet, by calling the local Labour Council, or the Ontario Federation of Labour (1-800-668-9138).

4. If the union is still not assisting, you can contact the union’s regional or national office to request assistance.

Making a Fair Representation Complaint

Commencing a Fair Representation Complaint is not difficult and is free. Step by step instructions as to how to make the complaint are provided at the Ontario Labour

Relations Board website at http://www.olrb.gov.on.ca/english/infob/infbul11.htm . Links to the relevant forms that must be completed are set out at that website.

Further helpful information regarding these Complaints is found at

http://www.olrb.gov.on.ca/english/infob/infbul12.htm (Duty of Fair Representation – What Does it Mean?).

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The process requires the union member to complete an Application form (which could be done in handwriting) and serve it with two other forms on the union before filing it with the Board. For union members without access to the web, the Ontario Labour Relations Board may be reached at 1-877-339-3335.

There is no time limit for filing a Fair Representation Complaint, but excessive delay without a good explanation may cause an application to be dismissed.

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Last Updated: April 1, 2011

OCCUPATIONAL HEALTH & SAFETY INTAKE Case code for Health & Safety: 8.03

Incident Field: Unsafe work environment; Termination due to Reprisal CASE SELECTION / FINANCIAL CRITERIA

As per the Employment Law Intake section. See Worker’s Rights Case Criteria for services offered in this area.

CONFLICT CHECK: As per Employment Law Intake Section

STANDARD INTAKE QUESTIONS:

SEE: EMPLOYMENT LAW INTAKE SECTION QUESTIONS WHAT TO DO NEXT:

Once the issue of termination for reprisal due to a health and safety concern has been identified intake should set the client up for a telephone intake with a Legal Worker to determine merits and representation in accordance with the Worker’s Rights Case Criteria.

For all other OH & S issues, clients should be advised that at present we provide limited services in the area of OH & S.

Schedule a telephone appointment.

THE FOLLOWING LEGAL WORKERS HANDLE OH&S MATTERS: See: Legal Workers Who Does What Chart for Intake

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Generally, we receive very few OH&S calls from clients. When we do receive a call, it most likely relates to a termination due to reprisal as a result of raising a health & safety concern.

Remember that workplace bullying now falls under the OH&S Act.

Legal Workers should monitor the type of OH &S calls we receive in order to assess whether this area of law should be expanded to include other

issues/services.

ADVOCACY/STRATEGY TIPS FOR LEGAL WORKERS:

SEE Tip Sheet on Occupational Health and Safety below for general information. SEE FULL LIST OF EMPLOYMENT LAW REFERRAL NUMBERS

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Occupational Health & Safety:

Reprisal Tip Sheet

Legal Information:

The Occupational Health and Safety Act (OHSA) imposes obligations on most employers concerning training, provision of safety equipment, maintenance of machines to certain standards, making safety information available, setting up health and safety committees, and taking every precaution reasonable to protect workers.

 The OHSA gives most workers the right to refuse unsafe work. The process of refusing work is well set out in WorkSmart Ontario site noted below. If you do not follow the proper process for refusing unsafe work, the OHSA may not protect you from being fired.

 The OHSA prohibits reprisals by the employer against an employee who assert their rights under the OHSA. A reprisal means any type of discipline or

termination. If you believe that the employer has disciplined you because you tried to assert your rights, contact us immediately for further assistance. The Ontario Labour Relations Board has very broad powers to order reinstatement if there has been an employer reprisal.

Resources:

 Workers Health and Safety Centre www.whsc.on.ca (this includes a "Question" service, by which people can ask general and specific questions.

 Ministry of Labour, Occupational Health and Safety

http://www.labour.gov.on.ca/english/hs/index.php

 Canadian Centre for Occupational Health and Safety www.ccohs.ca  Workplace Hazardous Material Information Systems (WHMIS)

 http://www.hc-sc.gc.ca/ewh-semt/occup-travail/whmis-simdut/index-eng.php

 Young worker awareness program http://ywap.ca/

 Toronto Workers' Health and Safety Legal Clinic http://www.workers-safety.ca/

 Workplace Safety & Insurance Board, Health and Safety http://www.wsib.on.ca/

(Click Workers, then Health & Safety from left hand column) or use

http://bit.ly/1kAooVR

 East Central Ontario Training Board, www.focusontraining.com. This website contains an excellent publication entitled "Your Guide to Safe Workplaces and Prevention" (see Focus on Information)

 Occupational Health Clinics for Ontario Workers www.ohcow.on.ca  WorkSmart Ontario www.worksmartontario.gov.on.ca

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Legal Workers

EMPLOYMENT LAW RIGHTS CASE CRITERIA

NOTE TO LEGAL WORKERS:

Many of the issues dealt with under the Employment Law section of the Workers’ Rights Group will require a determination on the part of the legal worker

regarding whether we should represent.

The types of employment issues that we currently see falling under the relevant employment statutes, do not encompass the broad spectrum of issues that could potentially arise. For this reason, I have not delineated exactly what types of issues we would represent on. Rather I have indicated the depth of service/type of service we will provide, with guidelines as to the types of

clients/circumstances we would provide representation.

If there are particular issues that intake staff can provide information and referrals on, we obviously would not represent. This has been made clear in the case criteria and the relevant Employment Law in-take sub-sections.

It is therefore imperative that the Legal Worker’s continue to discuss and monitor new legal issues that arise under each of the employment law areas and

determine the depth of service that the clinic will provide vis a vis the issue. Lastly, it is expected that over time, as we focus on employment law and raising our profile in this area, the case criteria, the areas of law staff can provide information/referrals on, summary advice, brief service and representation, will be refined.

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EMPLOYMENT LAW CASE SELECTION CRITERIA

(Wrongful Dismissal, Employment Standards, Employment Insurance and Occupational Health & Safety, Federally Regulated Employees).

I. WRONGFUL DISMISSAL & OTHER EMPLOYMENT MATTERS (Common Law):

Casework Priorities:

 To assist clients in pursuing appropriate remedies as a result of violations to their employment rights.

 Special regard will be given to employees who have been terminated as a result of human rights violation.

Legal Information & Referrals:

 Provided to all callers in accordance with the Employment Law Intake section

Summary Advice:

 Legal advice only-no document preparation, no legal research and no 3rd party contact

Brief Services:  Includes:

o Preparation and review of documents where total service does not exceed 2.0 hours.

o Research where total service does not exceed 2.0 hours.

o Interventions with third parties (not involving meetings with employer) where total service does not exceed 2.0 hours.

When to Open a File:

A file should be opened where

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 Negotiations with employer will take place;

 Where work on the file will take more than 2.0 hours. Where, a Small Claims Court (SCC) claim will be filed (see below).

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Representation at the SCC:

 Representation at the SCC only when:

o There is merit to the case AND

o The case has been case conferenced with another lawyer AND

o The value of the recovery is minimum $3,000.00 OR o The case deals with a systematic employment issue in

the community, e.g. a problem employer OR o It is a legal test case OR

Representation should not take place where:

o The client can receive representation from some other source, e.g. PB lawyer.

II. REGULATED STATUTORY RIGHTS

A. EMPLOYMENT INSURANCE

Casework Priorities:

 To assist clients in obtaining EI benefits in cases where they have been denied EI benefits because they have quit or have been fired. Pursuing appropriate remedies as a result of violations to their employment rights. Summary Advice:

 Legal advice only-no document preparation, no legal research and no interventions

 Assist client with self-advocacy, whenever possible first. Brief Services:

 Includes:

o Reviewing an EI client decision and determining if there are merits to proceed to appeal.

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o Research where total service will be less than 2.0 hours  Brief Service will not exceed 2.0 hours.

File opening and Representation:

o Files to be opened and representation on all EI benefit entitlements where merit exists to proceed to an Appeal to the Board of Referees or the Umpire.

o If further representation is required to the Umpire, a separate analysis will be undertaken for merits and a new retainer will be signed.

B. EMPLOYMENT STANDARDS ACT:

Casework Priorities:

 To assist clients in pursuing appropriate remedies as a result of violations to their employment rights.

 Special Regard may be given to cases where a breach of the leave

provisions (Part X1V) has occurred and where there is a case of employer reprisal (Section 74).

Summary Advice:

 Legal advice only-no document preparation, no legal research and no interventions

 Assist client with self-advocacy, whenever possible first. Brief Services:

 Provided to all callers.  Includes:

o Review of Employment Standards Act claims prior to filing by client o Drafting of Employment Standards Act claims:

 AND where total service does not exceed 2.0 hours. o Research where total service does not exceed 2.0 hours.

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Representation to Adjudication:

 Representation at an Employment Standards’ Officer’s Fact-Finding Meeting, an Ontario Labour Relations Board (OLRB) mediation, or an OLRB appeal only when:

o There is merit to the case AND

o The value of the recovery is minimum $1,000.00 OR o The case deals with a systematic employment issue in

the community, e.g. a problem employer OR o It is a legal test case OR

 If representation is to be given for an OLRB appeal, a separate

analysis will be undertaken for merits and a new retainer will be signed.

C. OCCUPATIONAL HEALTH & SAFETY:

Casework Priorities:

 To assist clients in pursuing appropriate remedies as a result of violations to their employment rights.

Summary Advice:

 Legal advice only-no document preparation, no legal research and no interventions

 Assist client with self-advocacy, whenever possible first. Brief Services:

 Provided to all callers.  Includes:

o Research where total service will not exceed 2.0 hours.

o Review of employee documents and facts in order to determine merits for filing a complaint.

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File opening and Representation:

o We will only open a file and represent a client in cases of employer reprisal (section 50 complaints) and where there is merit to file a complaint to Ontario Labour Relations Board (OLRB)

D. Federally Regulated Employees (Canada Labour Code): In most cases the issue will be in relation to a Termination. Casework Priorities:

 To assist clients in pursuing appropriate remedies as a result of violations to their employment rights.

Summary Advice:

 Legal advice only-no document preparation, no legal research and no interventions

 Assist client with self-advocacy, whenever possible first. Brief Services:

 Includes:

o Research where total service will not exceed 2.0 hours

o Review of employee documents and facts in order to determine merits for filing a complaint.

Representation to Adjudication:

 Representation to the Canadian Industrial Relations Board (CIRB): o There is merit to the case AND

o The value of the recovery is minimum $1,000.00 OR o The case deals with a systematic employment issue in

the community, e.g. a problem employer OR o It is a legal test case

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Last Updated: April 1, 2011

WRONGFUL DISMISSAL CHECKLIST FOR LEGAL WORKERS THRESHOLD QUESTIONS:

 Independent Contractor vs. Employee -- LEADING CASE HERE o Does client meet the definition of employee?

o If not, only remedy is in SCC

 Is client within his/her Probationary Period?  Is the client represented by a Union?

PRE-EMPLOYMENT CONSIDERATIONS: Was the employee induced?

 Were representations/agreements made about his/her job that did not come to fruition?

NATURE OF CONTRACT

 Fixed term contract vs. indefinite term contact?

o Successive term contracts –LEADING CASE HERE  Oral vs Written Contract?

o If written contract, is there a limitation on notice? o Is the contract outside ESA requirements?

o LEADING CASE HERE TERMINATION:

 Is there just cause?

o Dishonesty/Theft o Poor work performance o Absenteeism/Lateness o Insubordination

o Other?

 Have there been previous incidents or warnings/counseling etc.?  Is the employer claiming Quit, Abandonment of Position or

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 Constructive Dismissal due to o Harassment

o Significant change of job duties o Demotion or change of job o Change of job location o Other

Has the client received an offer of settlement?

ESTABLISHING NOTICE PERIOD—Bardal v Globe & Mail Ltd. [1960] & Collins v. St. John’s Publishing Co.

o Part-time or Full-Time? o Length of Service >4 years o Level of Remuneration

o Character of Employment (manager, labourer etc.) o Chances of obtaining alternate employment

o Age of Individual

o Health of Individual ???? o Other relevant factors

NB: Courts have rejected the “one month per year of service” but this is still a useful guide to determining entitlement. There is no maximum compensation available under the common law.

NOTICE:

 Did the client receive working notice or pay in lieu of notice?

 Was there an offer of working notice in a comparable position? SEE UNION CASE

 Did he/she receive ESA minimum?

 Is the client entitled to more notice or other damages? DAMAGES:

 Wallace Damages (humiliation causing depression etc.): LEADING CASE

 Other Benefits entitled to? o Medical benefits o Bonus

o Car expenses/mileage o Commission

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o Overtime Pay o Pension Plan o Other?

 Punitive/Aggravated – see KEYES CASE MITIGATION:

 Has the client found work? When?  Is the client searching for work?

 If so, is the client documenting their job search? (Interviews, who submitted resumes to)

 Did the client refuse a reasonable offer of employment during their notice period?

 Did the client refuse a reasonable offer of employment by a potential employer?

HELPFUL RESOURCES FOR LEGAL WORKERS Wrongful Dismissal Book

Spring Training Materials Case Names

References

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