Unit 5 - The ESA

Question 1

Greater Right or Benefit Principle

Answer 1

If an employer provides a right or benefit to an employee that is greater than the minimum prescribed in the ESA, then that provision will apply to the employee instead of the lower standard from the Employment Standards Act.

Question 2

Notice of Termination Entitlement

Answer 2

An employee is entitled to one-week of notice per year of service (up to eight years), with eight-week’s notice being the maximum, or payment-in-lieu.

Question 3

Severance Pay

Answer 3

Compensation that is paid to a qualified employee who has their employment “severed.” It compensates an employee for losses (such as loss of seniority) that occur when a long-term employee loses their job.

Severance pay is not the same as termination pay (payment in lieu of notice), which is given in place of the required notice of termination of employment.

Question 4

To qualify for severance pay:

Answer 4

1. An employee must have worked for an employer for five years.
2. Either the employer has an Ontario payroll of at least $2.5 million, or the employer has severed the employment of 50 or more workers in a six-month period because of a business closure.

Question 5

Factors used in calculating reasonable notice in common law.

Answer 5

1. The employee’s age
2. The character of employment
3. The length of service
4. The availability of replacement employment

Question 6

The three-hour rule

Answer 6

When an employee who regularly works more than three hours a day is required to report to work but works less than three hours, they must be paid.

Question 7

Minimum wage rate for federally regulated employees

Answer 7

Minimum wage is not stipulated in the Canada Labour Code, which is therefore determined by the standards set out at the provincial/territory level.

Question 8

Vacation Entitlement

Answer 8

<5 years - 2 weeks pay (at least 4% of wages)
>5 years - 3 weeks pay (at least 6% of wages)

When determining the employee’s employment period, both active employment and inactive employment are considered.

Question 9

Public Holiday Pay

Answer 9

This agreement entitles the employee to be paid public holiday pay plus premium pay for all hours.

or

The ee working on a public holiday is entitled to be paid regular wages for all hours worked and receive another substitute holiday for which they must be paid public holiday pay.`

Question 10

Public Holiday - First & Last Rule

Answer 10

An employee is entitled to a public holiday if they have worked all of their last regularly scheduled day of work before the public holiday or all of their first regularly-scheduled day of work after the public holiday.

Question 11

Pregnancy Leave

Answer 11

• Eligible if working for the employer at least 13 weeks prior to the due date (or expected due date) of the child. Do not have to be actively working during that time.
• Must provide medical certificate of pregnancy
• Eligible up to 17 weeks of leave until birth of the child (sometimes may be longer if late birth)

Question 12

Parental Leave

Answer 12

• A Birth mother who decides to take pregnancy leave is entitled to up to 61 weeks of parental leave.
• If the birth mother decides not to take pregnancy leave, she is entitled to up to 63 weeks of parental leave.
• Other parents are entitled to 63 weeks
• Requires 2 weeks’ notice

Question 13

The Occupational Health and Safety Act (OHSA)

Answer 13

The Occupational Health and Safety Act (OHSA) deals with enhancing health and safety in Ontario workplaces.

• The Minister of Labour is responsible for carrying out the OHSA’s objectives.

Question 14

Reprisal

Answer 14

HR professionals should ensure that their employer’s actions do not constitute a reprisal, which is an employer’s act of retaliation to punish an employee for acting in compliance with a statute, or an order.

If an employee believes that they have suffered a reprisal, the employee is within their right to file a complaint with the Ontario Labour Relations Board (OLRB).

Question 15

Bill-132, Sexual Violence and Harassment Action Plan Act (Update to the OHSA)

Answer 15

• Bill 132 covers provincially-regulated businesses in Ontario. It expands the definition of “workplace harassment” to include “workplace sexual harassment.”
• Require employers to investigate ALL allegations and incidents of workplace harassment.

Question 16

Bill C-65, Canada Labour Code amendment to harassment and violence

Answer 16

Made amendments to strengthen the existing framework for the prevention of harassment
and violence, including sexual harassment and sexual violence, in the workplace.

Question 17

Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009

Answer 17

This amendment to the OHSA made the employer specifically responsible for taking the steps necessary to act in a preventative manner against violence and harassment in the workplace.

To ensure the proper communication of anti-harassment policies, an employer with six or more employees must:
• Display policies in visible common areas.
• Providing employees with necessary information about preventing harassment in the workplace.

Question 18

Provincial Offences Officers

Answer 18

• Conduct proactive and reactive inspections of provincially-regulated workplaces.
• Issue requirements or administrative orders where there is a contravention of the OHSA or its regulations
• Investigate critical injuries, fatalities, work refusals, and health and safety complaints.
• Initiate prosecution under the POA to offences under the OHSA and/or its regulations.
• Inspectors may issue orders as a result of their inspection, which is binding.

Question 19

Strict liability offences

Answer 19

• Offences under the OHSA. It is not necessary for the law to show that an employer intended to violate an order or legislation to be found guilty.
• The Ministry just needs to show that an act, or a failure to act, by the employer or another employee caused the danger in the first place.
• Employers can raise a due diligence defense that they took reasonable steps in the circumstances to ensure the danger did not lead to injury or death.

Question 20

Pay Equity Act, 1990 (PEA)

Answer 20

Two key principles of the PEA:

1. Equal pay for work of equal value.
2. It is compliance-based, not complaint-based. This places a positive obligation on public and private sector employers to proactively take certain minimum steps towards pay equity.

Question 21

Provincially-regulated industries are governed by legislation such as:

Answer 21

• Employment Standards Act
• Ontario’s Human Rights Act
• Labour Relations Act
• Occupational Health and Safety Act

It is important to note that some federal statutes may apply to provincially-regulated industries.

Question 22

Federally-regulated industries are governed by legislation such as:

Answer 22

• Canada Labour Code - Regulates employment standards, collective bargaining, and health and safety.
• Canadian Human Rights Act - Regulates human rights and equity.
• Employment Equity Act
• Personal Information Protection and Electronic Documents Act

Note: PIPEDA applies to industries which sell information across provincial and territorial boundaries, whether they are provincially or federally regulated.