With the right to disconnect now enshrined as law in Ontario, what happens to employees who do or do not respond to work calls after their shift has ended?

Not responding to an employer call when the policy permits disconnection, obviously, is no longer cause for discipline.

What will surprise most is that the Ontario Employment Standards Act may stipulate a minimum of three hours pay for an employee even for a 30-second, after-work call. This is not a change to the law. Section 21.2(1) states that “if an employee who regularly works more than three hours a day is required to present himself or herself for work but works less than three hours… the employer shall pay the employee wages for three hours.”

It has commonly been assumed that the section required employees to actually attend the office but, with so many working from home, it cannot be interpreted that way.

Even for those employees who work in the office, presenting oneself could well be interpreted to mean to make oneself available to perform work. That interpretation has not yet been tested, but employers contacting employees after hours will incur massive unexpected liability if the section is interpreted that way. This will not apply to salaried employees whose income includes work after hours.

The new issue has emerged as companies and their staff navigate the new post-COVID work era. Here are some of the other questions I received over the past few weeks.

Q: What are the key issues facing employees who are looking to resign? What should they be mindful of in terms of obligations to employers, restrictive covenants, etc.?

A: If they have non-competition covenants, they should determine their enforceability and, if enforceable, the likelihood that the employer will pursue them. As well, since courts will seldom provide injunctions but more often damages, has the company suffered any compensable loss as result of the breach?

There is also the law of ‘wrongful resignation’ where employees have to provide the employer sufficient advance notice of resignation so that the employer can find a suitable replacement.

If sufficient notice is not provided, the employer can sue for damages. Therefore, employees should attempt to resolve with the employer the advance notice that it requires. If they cannot come to a resolution, the employee should obtain legal advice as to the advance notice required. It is not the two weeks advance notice, which is the subject of common myth.

Employees should also be cautious to not take any confidential information or company documents or they can be sued. If they are fiduciaries, they must adhere to their fiduciary obligations even following resignation, including the obligation not to solicit their employers’ customers or business opportunities.

Q : I have heard of formulas for severance calculations equating length of service and termination payments. Are they valid?

A: Length of service is one of more than 100 factors referred to in my book, The Law of Dismissal in Canada, that courts can consider. It is often not even the major factor. Although employees with a very long service record are almost always entitled to many months of severance, the reverse does not apply. In one case, an employee terminated after only two weeks was awarded one year’s pay by the court. Senior executives will seldom receive severance of less than six months, regardless of their tenure and could be awarded substantially more, even with short service. There are many other factors which can influence a court to award significant severance to a short-service employee, two other major ones being re-employability and harsh treatment.

Q: Can I tape-record in the workplace?

A : It is not a criminal offence to record your own conversations — as opposed to leaving a recorder in a room to capture conversations where you are not involved —, but that does not mean you can do so with impunity. No one wants to work in an environment where they are concerned about being surreptitiously recorded, so such an action is generally cause for discharge. I believe an exception will be made for an employee who is being abused, has complained and is not believed by human resources or management. In that circumstance, I believe a court will permit them to tape-record an interaction to establish their point. But even that would not allow them to keep a recording permanently ongoing.

Q: Do I get employment insurance if I am terminated for refusing to be vaccinated as a term of employment when the company policy requires it?

A: I am told that EI has been instructed not to provide unemployment benefits in those circumstances. However, if there is no reason for the policy, i.e. the employee is permitted to work from home and has no contact with anyone, such a decision could be successfully challenged.

Q: Is there a minimum mileage allowance?

A: Employers could have employees drive their own cars for business purposes and pay no mileage allowance at all. There is no minimum and it depends on whatever is negotiated.

Q: What if I sign a two-year contract and leave before it is over?

A: The employer could sue you for damage for not providing notice until the end of the term. However, it would have to prove those damages and, to the extent it has any, those damages would be reduced by the amount your forgone salary is saving the company.