Update on Just Cause Termination

A recent case at the Ontario Labour Relations Board (OLRB), Giggly Panda Baby Spa
Inc. v. Breanne Norris (Giggly), has again highlighted the difference between the
Ontario Employment Standards Act, 2000 (ESA) standard for termination without
notice and the common law “just cause” standard.

In Giggly, the employee was asked to work July 1st, a statutory holiday. She
only agreed to work if she received “double time”. Further communications took
place, and the employer eventually terminated the employee. The employer claimed
that the employee blackmailed and extorted it by asking for more pay and terminated her
for just cause.

The OLRB confirmed that the correct analysis for determining whether the conduct
amounts to “wilful misconduct, disobedience or wilful neglect of duty” (which is the
language used in the ESA) is whether the employee “consciously and deliberately
engaged in some positive act of misconduct or deliberately refrained from
performing duties or responsibilities that he or she was required to perform.” As
the employee was not obliged at law to work on the statutory holiday, the requests for
“double time” were not wilful misconduct, disobedience or neglect of duty. The
requests for more compensation were simple negotiations, as opposed to extortion or
blackmail.

The Giggly case follows the 2022 Ontario Court of Appeal decision in Render v.
Thyssenkrupp Elevator (Canada) Ltd., in which the Court found the employer liable for
notice pay under the ESA even though it agreed there was just cause for dismissal at
common law. Because the ESA test is more stringent than the common law test, an
employee fired for just cause may still be entitled to notice and severance pay under
the ESA.

Takeaway: Employers should be mindful of the difference between the wilful misconduct
standard under the ESA and the common law just cause standard when considering
terminating an employee without notice or pay in lieu. An employee may be entitled to
ESA notice/severance pay even if the employee’s conduct amounts to just cause at
common law.

Upcoming Changes to the Canada Labour Code

As of December 15, 2023, the Canada Labour Code (which applies only to federally-regulated
employers) will require employers to provide free menstrual products
(including tampons and menstrual pads) in all washrooms in the workplace, regardless of
whether the washroom is assigned to one particular gender. Covered disposal containers
for the products will also be required at every toilet in the workplace.

As of February 1, 2024, the minimum notice requirement under the Canada Labour
Code will increase for individuals who are terminated without just cause and who have
at least three years of continuous service. To satisfy the requirement, the employer can
choose to provide notice, pay in lieu of notice, or a combination of the two. The new
notice periods are set to increase as follows:

In addition, as of February 1, 2024, upon the termination of an employee, employers
will have to provide the employee with a written statement of benefits that includes the
employee’s vacation benefits, wages, severance pay and any other benefits and pay
arising from their employment. This statement must be provided no later than on the
effective date of termination when an employee is terminated with pay in lieu of notice.
If an employee is provided with working notice, the statement must be provided no later
than two weeks prior to the effective date of termination.

2023 AODA Compliance Report Deadline

Under the Accessibility for Ontarians with Disabilities Act (“AODA”), businesses and
not-for-profit organizations with 20 or more employees in Ontario, as well as designated
public sector organizations, have until December 31, 2023, to file their latest
Accessibility Compliance Report. The form is a self-reporting tool to advise the
Ministry for Seniors and Accessibility whether an organization is compliant with the
AODA and the Integrated Accessibility Standards Regulation (“IASR”). The form for
the Report is available online. Monetary fines may be imposed under the IASR if an
organization fails to meet its reporting obligations.

Please click here to obtain a copy.