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Author Archive - Earl Altman

Earl Altman was a partner at Garfinkle, Biderman and now heads his own consulting firm. Earl has practiced commercial and employment litigation. Earl’s practice focuses on employment disputes, including acting for employees and employers in wrongful dismissal claims, and in breach of contract and breach of fiduciary duty claims. Read more

Better the devil you know? employee’s obligation to accept an alternate position

Ever since the Supreme Court of Canada decision in 2008 in a case Evans v. Teamsters Local Union, the courts have recognized the obligation of an employee, in certain circumstances, to accept an offer of alternate employment from their employer following dismissal. This has put many employees in the awkward position of determining whether or not the offer of employment is one that must be accepted based on the Evans’ reasoning. The difficulty faced by many employees’ counsel is the degree of difference in the position being offered, and whether such difference justifies the employee rejecting the offer of employment.

 

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Contracting out of the Ontario Employment Standards Act

The Employment Standards Act in Ontario is legislation designed to protect the rights of all workers in the province. Under section 3, the Act specifies that it applied to any employee in the Province of Ontario, or any employee who is performing work outside of Ontario that is “…continuance of work performed in Ontario.” The Act contains numerous protections for Ontario employees, such as limiting the maximum hours of work in a week, providing an entitlement to overtime pay, and creating entitlements such as parental leave, vacation and personal leave. The Act also provides for the employee’s rights in the event of a termination of employment. Many employers have perceived these entitlements as onerous in some circumstances. In order to attempt to avoid such payments, or other obligations under the Act, employers have sought to have employees sign contracts containing provisions which purport to surrender the employee’s rights under the Act. This is generally referred to as “contracting out”.

 

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Picky, picky: How selective can a dismissed employee be in mitigation efforts?

When advising a wrongfully terminated employee as to her legal rights and obligations, I always point out that a wrongful dismissal claim is not like winning the lottery. While employers are obligated to provide reasonable notice of termination or payment in lieu of such notice, terminated employees must make “reasonable efforts” to find new employment. As is often the case, the devil is in the details. What must a dismissed employee do to meet her obligation to mitigate? What have courts determined to be reasonable steps? What conduct has been held to be unreasonable? From whose perspective will reasonableness be judged–the employers or the employees?

 

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What is the impact of mental health issues on the duty to mitigate

It has often been said that termination from employment is the capital punishment of employment law. While perhaps too extreme an analogy, there is no doubt that termination is an emotionally draining experience. The courts have grappled with the issue of plaintiffs in a wrongful dismissal claim who argue that the emotional upheaval of their dismissal resulted in an inability to look for replacement work for a period of time.

 

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There is more to a job than compensation

It has always been clear in Ontario law that employers cannot unilaterally alter the most important aspects of the employment contract – compensation, location of work, hours of work – without the employee’s consent or providing adequate advance notice of the change. If it does, it may lead to a claim of constructive dismissal. But what if the change imposed in the contract is not as important as some of these? How can the employee respond to a change in his position that he perceives to be a demotion, even if the title remains the same.

 

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The latest Ontario defeat for non-competition covenants

Readers of this blog have read of the difficulty encountered by employers in Ontario in drafting and enforcing non-competition covenants. The obstacles to enforcing such covenants were highlighted in a decision of the Superior Court released on April 5, 2013, the employer was faced with a concerted effort by three of its employees to open a competitive business within its market…

 

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When is a temporary layoff – not a temporary layoff

Employers will often seek to respond to downturns in their business by temporarily reducing head count, with the hope of having those employees return to work when the business improves. This is often referred to as a temporary lay off. Many employers inquire as to their right to temporarily lay off employees, generally in response to financial constraints of the business.

 

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Old employment contracts can come back to bite you – or help you

A recent decision of the Ontario Superior Court considered the termination of an employee of Open Text Corporation who had been working for Open Text and its predecessor corporations for 17 years. There was no agreement governing his employment with the first company and it received little updating through two more acquisitions. When he was terminated, he complained that the original contract was void due to the transitions and sued for common law notice…

 

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Deferred compensation: You can take it with you (sometimes)

Deferred compensation in the form of future bonuses, retention payments, and stock options has become a standard element of executive compensation. While there are countless variations of such plans, they are all designed to incent employees to remain with their employer, and to perform to the employee’s highest capability while he is there. In order to meet these goals, such plans will often include a deferral of the benefit once it is earned, in order to create an incentive to remain with the employer.

 

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Where to sue – A complex issue of jurisdiction in wrongful dismissal

Through mergers and expansion many Canadian companies now have substantial foreign operations. As a result, employees often find themselves, whether by choice or compulsion, transferred to a foreign country. When a dispute arises with the employer while the employee is working in that foreign country, the question arises as to which justice system will take jurisdiction over that dispute. Clearly, the obligation on the employee to sue in the foreign jurisdiction will increase both the cost and the inconvenience of enforcing her rights under her contract of employment, whether written or oral.

 

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Proving cause remains an up-hill battle

A recent decision of the Ontario Court of Appeal, confirming a trial decision, once again demonstrates the difficulty employers will face in satisfying courts in this province that there was cause for dismissal.

 

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Does an employee have the common law right to procedural fairness in the manner of their termination

It is assumed by most H.R. professionals that employees are entitled to procedural fairness and, in particular, to be advised as to the reasons for dismissal from employment. In fact, there is no such right in private companies. Employees in private companies (i.e. non-governmental entities) have no common law right of procedural fairness in the manner of their termination, whether the termination is for cause or not. Similarly, employees have no legal right to an opportunity to respond to the alleged reasons for dismissal.

 

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Understanding the rights of pregnant employees in Ontario

Pregnant employees or those employees intending to become pregnant, enjoy significant protection under various provincial and federal statutes. This article will explore the protections provided by the Ontario Human Rights Code, Employment Standards Act, and the Employment Insurance Act.

 

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The impact of human rights legislation on the interview process

Many H.R. Departments pride themselves on the skill with which they can interview prospective employees in order to assess their qualifications for the position being advertised, the fit of the employee with the organization, and the likelihood that the employee will stay with the organization for a reasonable period of time. What employers are often not cognizant of is the limitation imposed on this process by the provisions of various provincial and federal Human Rights statutes.

 

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Impact on employees in company mergers can be significant

Anyone following the financial news over the last number of years has no doubt noticed the increasing frequency with which corporations are merging, or being bought out by other corporations. This often results in efficiencies for the corporations, hopefully leading to greater profit. However, the impact on the employees is often overlooked. Whether the transaction is a share purchase, asset purchase, or other type of structure, the impact on the buyers and sellers is clear. However, the impact on the employees is often less certain.

 

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