Category Archives: Employment Contracts

Minimum Wage to Rise June 1st

Regardless of what happens with the upcoming provincial election, one thing is for certain come this June; the minimum wage in Ontario will rise as of June 1st. Employers should therefore make sure they are familiar with the various rate changes described below.

The general minimum wage rate applies to most employees. The current rate is $10.25 per hour and it will rise to $11.00 per hour.

The student minimum wage applies to students under the age of 18 who work 28 hours a week or less when school is in session, or work during a school break or summer holidays. The current rate is $9.60 per hour and it will rise to $10.30 per hour.

The liquor servers minimum wage is lower and reflective of the additional income earned through tips in that industry. It applies to employees who serve liquor directly to customers or guests in licensed premises as a regular part of their work. “Licensed premises” are businesses for which a license or permit has been issued under the Liquor Licence Act. The current rate is $8.90 per hour and it will rise to $9.55 per hour.

The homeworkers minimum wage applies to employees who do paid work in their own homes. The work performed by individuals as homeworkers can be extremely varied. The Ministry of Labour provides the following examples: sewing clothes for a clothing manufacturer, answering telephone calls for a call centre, or writing software for a high-tech company. The current rate $11.28 per hour and it will rise to $12.10 per hour.

Finally, there is a special rate for hunting and fishing guides, which is based on blocks of time rather than an hourly rate.  Individuals employed in these jobs get a minimum amount for working less than five consecutive hours in a day, and a different amount for working five hours or more in a day. The current rates are $51.25 for less than five consecutive hours, and $102.50 for working five or more hours, regardless of whether the hours are consecutive. These rates will rise to $55.00 and $110.00 respectively.

 

 

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Filed under Employment, Employment Contracts, Employment Standards, Employment Standards Act

The Risks of Self Representation

Recently an individual represented himself in a wrongful action before the Ontario Court of Appeal. He was appealing the decision of Mr. Justice Morgan from November 28, 2012 dismissing the action [Musoni v. Logitek Technology Ltd., 2012 ONSC 6782].

The decision of Morgan J. outlines a number of other proceedings brought by Musoni, including a complaint against a lawyer who had been referred to him by the defendant, as well as a human rights application.

In the trial decision, Morgan J. found that Musoni had been hired in October of 2005. On April 17, 2006 the parties had executed an employment agreement that ‘…governed the terms of the Plaintiff’s employment with the Defendant”. It provided as follows (in part):

“LOGITEK or EMPLOYEE shall have the right to terminate this agreement by notice in writing. A fifteen (15) days’ notice period will be required by the appropriate party, if agreement is terminated.”

The decision makes no reference to any additional consideration provided for the terms of this contract. It states he did not have legal advice but had several weeks to review it before he signed it.

There were two problems with the contractual term, at least one of them fatal. First, courts have determined in numerous cases that for an employment contract which significantly reduces common law rights to be enforceable it must have consideration other than continued employment if it is signed after the employment has commenced. There is no discussion in the decision of any such fresh consideration.

Second, a termination clause cannot provide less notice than could be required by relevant employment standards legislation, in this case Ontario’s Employment Standards Act, 2000 (the “ESA”). Following a Supreme Court of Canada decision on point such clauses have been ruled to be void ab initio and common law rights are read in.

In this case, Musoni apparently indicated that he had read and understood the contract and conceded it to be ‘valid and in force’. As a matter of law, however, that was incorrect. The clause should have been found to be void and unenforceable, and Musoni should have been entitled to common law notice.

Musoni appealed the decision to the Court of Appeal. In a surprising and very short judgement issued on October 11, 2013, the Court of Appeal ruled that Mr. Musoni was paid the amount specified in the contract and found no error in Morgan J’s conclusions. No mention was made in either judgment of what have been found to be fatal errors in termination clauses of this sort in numerous other judgments. Whether or not the trial court and/or the Court of Appeal were made aware of the clear law in this area they neither discussed nor applied it. Clearly, Musoni was not aware of it.

Musoni had costs awarded against him both at trial and at the Court of Appeal. According to the facts as articulated by Morgan J., he should have won!

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Filed under Employment, Employment Contracts, Human Rights

Canada’s Temporary Foreign Worker Program and the Labour Market Opinion

An employer who wishes to hire a foreign worker (a non-Canadian or permanent resident) must first obtain a positive Labour Market Opinion from Service Canada. Certain exemptions apply, but in most cases a Labour Market Opinion is required.

When applying for a Labour Market Opinion, the employer must demonstrate the following:

  • The employer made reasonable efforts to hire Canadian citizens or permanent residents;
  • The employer offers wages and working conditions in line with the current provincial standards; and
  • The benefits of hiring the foreign worker. For example, the foreign worker might help create or retain Canadian jobs and might transfer new skills and knowledge to Canadians.

In short, the employer must demonstrate that there is no Canadian or permanent resident who can fill the position, which necessitates bringing in a worker from outside of Canada.

Once a positive Labour Market Opinion is received, the employer will provide a copy to the foreign worker they wish to hire. The foreign worker will include this with her Work Permit application.

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Filed under Employment, Employment Contracts, Immigration