Reason for optimism as employment world heads into a new year

By Tony Poland, LegalMatters Staff • Much like 2020 when the onset of COVID-19 forced the employment world to quickly pivot, the past 12 months brought new changes and challenges as the cloud of pandemic endures. But Ontario employment lawyer Nadia Zaman says there is reason to be optimistic as we usher in a new year.

“There was a great deal to take in during 2021. It was an upgraded version of the previous year with COVID-19 continuing to hang over people’s lives. Still, it was better than the doom and gloom of 2020,” says Zaman, an associate with Rudner Law.

“There were several new updates with respect to employment legislation in Ontario. There was much happening with respect to vaccination mandates, and there were also several interesting and important decisions that came out in 2021. 

‘I am optimistic that things will improve in 2022’

“With respect to case law and the legislative updates, the pandemic definitely left a footprint and it is continuing to significantly impact people, especially in the employment law context,” she tells LegalMattersCanada.ca. “However, I am optimistic that things will improve in 2022 in the sense that we will have further guidance and clarification both from the court and the government with respect to pandemic-related issues as well as non-COVID employment law issues.”

Zaman says she has noticed an interesting byproduct of the pandemic that should go a long way to improving employer-employee relationships.

“COVID has undoubtedly changed the way the world works and deals with a myriad of issues,” she says. “I am finding that employees and employers are more aware. Both are starting to treat the employment relationship as a legal relationship. I believe that prior to the pandemic, there was less understanding of the legal side in employment relationships.

“Employers who never had contracts and policies pre-pandemic now understand their importance. They realize they can actually maximize their rights and minimize their liability by having the proper contracts and policies in place,” Zaman adds. “With respect to employees, they are now becoming more enlightened about the need to seek legal advice before signing an employment contract or agreeing to changes that the employer is imposing. Both employers and employees are more aware of their rights and obligations. They are more attune to seeking the right legal advice to determine their options and the best strategy to proceed.”

People have become adept at adjusting to changes

Whereas the beginning of the pandemic left many “scrambling and to learn how to navigate” in the new reality, she says, more people have become adept “at keeping up with the changes as they come.” 

“More employers and employees were adapting to remote work practices in 2021. There’s probably going to be more of that in 2022,” says Zaman.

However, keeping up with those changes did not get any easier in 2021, she says.

“There were conflicting decisions regarding whether temporary layoffs due to the pandemic can be constructive dismissal under the common law. We had cases saying employees on Infectious Disease Emergency Leave (IDEL) can still sue for constructive dismissal and at least one decision that reached the opposite conclusion,” Zaman says. “Some of these decisions will likely be appealed so the hope in the employment bar is that we will have further guidance in 2022.”

Four decisions had an impact

She points to four decisions that had an impact on the employment world in 2021:

Waksdale v. Swegon North America Inc.: This was a wrongful dismissal case from 2020 where the Ontario Court of Appeal (ONCA) found that an unenforceable “for cause” termination provision in an employment contract renders the entire termination provision unenforceable. Leave to appeal the case was denied by the Supreme Court of Canada making the ONCA decision the precedent in Ontario. 

Rahman v. Cannon Design Architecture Inc: This decision rejected the plaintiff’s reliance on Waksdale in her argument that termination provisions in her employment agreement were unenforceable. The court noted her sophistication and the fact that she sought legal advice before entering into her employment agreement. However, two decisions that came after Rahman reached the opposite conclusion and found an invalid provision is still invalid, and the employee’s sophistication is irrelevant.

Taylor v. Hanley Hospitality Inc. and Coutinho v. Ocular Health Centre Ltd: In these two cases, the court ruled on whether workers who were deemed to be on IDEL could be constructively dismissed under common law, and reached opposite conclusions.

‘You have to be informed before assuming that risk’

“Decisions such as these can have a tremendous impact. When faced with contradictory judgments, both employers and employees have to be careful when they are making decisions,” Zaman says. “There is a level of risk in litigation so you have to be informed before assuming that risk.”

The business world faced challenges such as the hybrid work environment and the resulting policies to protect both the employers and employees, she says.

“In 2021, many people returned to the office. Several companies developed hybrid work policies and worked to ensure compliance with applicable laws as well as public health guidance,” Zaman says. “Employers had to be strategic with the use of contract and policies given the lessons learned in 2020.”

Rudner Law helped companies contend with the COVID vaccination issue, she says.

Employers scrambled to prepare policies

“Employers had to scramble to prepare mandatory vaccination policies, keeping government regulations and related arbitration awards in mind,” Zaman says. “We were there to guide employers who had to comply with the Ontario Human Rights Code and the Occupational Health and Safety Act to strike a balance between the rights of employees while providing a safe workplace for staff, clients and members of the public. We were there to ensure that they were taking every precaution reasonable in the circumstances.

“The Ontario Human Rights Commission provided guidance for employers, in terms of how to deal with employees who don’t have a medical or religious exemption to not be vaccinated, so we provided advice on dealing with that issue.”

Government regulations have also evolved over the course of the pandemic and that did not change in 2021. She says her firm dealt with issues involving IDEL and expects that could be an ongoing issue given that the program has been extended until the end of July. 

Ontario also introduced paid sick leave in relation to COVID in 2021 (i.e. paid IDEL), as well as the Working for Workers Act, 2021, designed to “promote a healthy work-life balance.” Under the Act, employers with 25 or more employees must have a written policy to allow workers to disconnect from their job at the end of the workday in an effort to allow them to spend more time with their families.

‘This legislation is important for both employers and employees’

“This legislation is important for both employers and employees because it addresses the right to disconnect, although we still do not have much detail with respect to what the policies employers are required to introduce need to contain,” Zaman says.

“In light of the pandemic and the rise of remote work, many employees were feeling overwhelmed because there is really no separation between work and home. And most employers were not really doing anything to address employee burnout and mental health.”

The legislation also bans “non-competition covenants, except for executives,” she says, which should help in clarifying a worker’s rights when leaving a company.

“Previously, employees would be concerned whether they were going to be prevented from competing against their employer even though these non-compete clauses were largely unenforceable to begin with. However, employers would often use such clauses to deter employees from moving on with their careers,” Zaman says. “This legislation is likely to reduce the prevalence of that practice.”

As the world grapples with the Omicron variant and its effect on everyday life, she says her firm is keeping an eye on emerging employment issues.

“The world, including the employment law landscape, has changed dramatically during the pandemic and COVID’s impact will continue to be felt in working relationships,” says Zaman. “We are ready to meet those challenges.”

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