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Employment law: April Fools’ Day edition (believe it or not!)

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April 1st has for hundreds of years marked “April Fools’ Day”- the unofficial “holiday” on which the jesters and pranksters among us test their wit and creativity in staging practical jokes and hoaxes, large and small.

Many of us have fond memories of youthful hijinks, and tricks played on us (and by us) in our school-age days. Harmless fun . . . for the most part.

But what of April Fools’ Day in the workplace? At the risk of being branded a killjoy, my best advice is to “proceed with caution.” Notwithstanding that one’s employer, supervisor and co-workers may (possibly) have more of a sense of humour about things on April 1st than on other days of the year, April Fools’ Day provides no special dispensation to act in a manner inappropriate to the workplace.

Although a harmless joke is sometimes just a harmless joke, it is important to remember that humour is in the eye of the beholder; and taking things too far is never a good idea. What might be hilarious to one person may be tasteless to another.

Or it may be unlawful harassment.

Or it may be misconduct that gives rise to discipline or dismissal.

Or it may be downright hazardous to personnel and equipment. In fact, the Ontario Occupational Health and Safety Act expressly stipulates that “no worker shall . . . engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.” (And the Act provides no exception for April Fools’ Day.)

Generally speaking, most employers and employees are not interested in promoting humourless workplaces; however, the question of whether or not a particular joke or trick is acceptable ought not to be assessed based on the particular date, but based on the particular workplace, and on the common-sense standards of professionalism, safety and respect.

By way of our own effort at “legal humour”, and in honour of April Fools’ Day, the lawyers at Rubin Thomlinson have compiled the following half-dozen employment law oddities.

1. True or False: An employee who resigns during his or her period of “working notice” of dismissal is entitled to statutory severance pay.

FALSE (usually). If a worker is provided with advance written notice of termination and chooses to quit prior to the stipulated termination date, he or she normally forfeits any entitlement to further termination pay and severance pay.

The only exception to that rule (barring an explicit agreement that overrides the rule) is if “the employee gives the employer written notice of at least two weeks before resigning and the employee’s notice of resignation is to take effect during the statutory notice period.”

The upshot of that rather obscure provision of the Ontario Employment Standards Act, 2000 is that, by way of example, if an employee with 6 years of service (and who therefore has a statutory notice entitlement of 6 weeks) is provided with 4 months’ working notice of dismissal, and if he or she subsequently provides the employer with 3 weeks’ prior written notice of a resignation which will take effect 5 weeks before the scheduled termination date, he or she will be entitled to his or her statutory severance pay despite leaving 5 weeks early. That is because he or she has provided more than two weeks’ notice of a resignation that became effective during the last 6 weeks of the working notice period (i.e. during his or her 6 week statutory notice period).

2. True or False: An employer can control the temperature of the workplace at its sole discretion. An employee’s office can be 3°C or 30°C, and there is nothing that he or she can do about it.

FALSE. A regulation under the Occupational Health and Safety Act stipulates that most enclosed workplaces must be kept at a temperature that is: a) suitable for the type of work performed, and b) not less than 18°C. Interestingly, however, with exceptions for change rooms for underground workers and work chambers, there is no prescribed maximum temperature for enclosed workplaces!

Of course, the “general duty” clause set out in the Act requires employers to take all precautions reasonable to ensure the health and safety of their workers. Therefore, if the temperature in the workplace is so high as to present a health risk or other safety concern, the employer is obligated to adjust the temperature as required to eliminate the hazard.

3. True or False: Employees who leave work in breach of their employment contracts can be jailed.

FALSE (obviously). Although this is certainly not the case today, until 1877 employees could be jailed for a variety of employment-related matters, including: leaving work before the end of a contract, refusing to work, and injuring their employer’s property.

Under the current Employment Standards Act, 2000, the most severe sanction that can be imposed on an employee is dismissal without notice (or pay in lieu thereof) and severance pay, in circumstances of “willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer”.

4. True or False: “Bad temper and anger management problems” represent a disability that triggers an employer’s “duty to accommodate” under the Ontario Human Rights Code.

FALSE. In the recent decision of Gulick v. Ottawa Police Services, the Ontario Divisional Court rejected the proposition that a police officer with “anger management issues” was disabled for the purposes of the Ontario Human Rights Code.

That said, where anger management problems are symptomatic of alcoholism, drug abuse, post traumatic stress disorder, or any other recognized mental illness, a duty to accommodate may very well exist. Accordingly, it is very important that an employer faced with an employee exhibiting such behaviour consider the full context, and seek further information and advice as appropriate.

5. True or False: There is legislation that stipulates exactly what first aid supplies an employer must keep at the workplace—right down to the number of safety pins.

TRUE. Regulation 1101 to the Workplace Safety and Insurance Act, 1997 sets out minimum first aid requirements for all employers, with those obligations escalating based on the number of employees working on any one shift at the workplace. In that regard, the Regulation lists precise inventories to be maintained of various supplies, including safety pins.

6. And finally (with inspiration from the classic “War of the Worlds” hoax), True or False: Workers who become unemployed due to their workplace being vapourized by an alien spacecraft are entitled to termination pay and severance pay under the Employment Standards Act, 2000.

TRUE and FALSE. Under the Employment Standards Act, 2000, alien attack would result in the workers’ contracts of employment becoming “impossible to perform” or “frustrated by a fortuitous or unforeseeable event or circumstance”; and in such circumstances an employer is not required to provide notice of termination (or termination pay in lieu of notice).

On the other hand, statutory severance pay must be provided despite impossibility or frustration if the “fortuitous or unforeseen event” causes “a permanent discontinuance of all or part of the employer’s business”—as would almost certainly be the case pursuant to the vapourization of the workplace by alien invaders.

Happy April Fools’ Day to all!

Jason Beeho