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News and Discussions on Payroll, HR & Employment Law

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Author Archive - Occasional Contributors

In addition to our regular guest bloggers, First Reference Talks blog published by First Reference, provides occasional guest post opportunities from various subject matter experts on the topics of payroll, employment and labour law, payroll, HR analytics, corporate immigration, accessibility related issues in Canada. If you are a subject matter expert and would like to become an occasional blogger, please contact Yosie Saint-Cyr at editor@firstreference.com. If you liked this post, subscribe to First Reference Talks blog to get regular updates.

Have you amended your pension plan?

The Pension Benefits Act (Ontario) was recently amended. In this communiqué, we briefly review those amendments.

 

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Former employee successfully sued for defamation for Facebook posts

In recent years, careless, or let’s say, less than sensible comments on social media have gotten countless employees in trouble with their boss. Employees who have used Facebook as a forum for posting threatening language and vile insults about a supervisor or offensive accusations about the company they work for have quickly been shown the door; and arbitrators and labour boards are often prepared to uphold these dismissals.

 

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Unionized workers hiring their own lawyers: 3 issues

I often receive requests for consultations from unionized workers dissatisfied with their employer, their union or both. Frequently, this dissatisfaction arises out of the worker having a grievance with the company, but he or she feels that they are not receiving proper representation from their union. Before going ahead and hiring a lawyer outside of their union for advocacy, there are 3 challenges that people in this position should know.

 

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Constructive dismissal and employer prestige

In 2016, the Court of Appeal of Quebec has clarified that reduced employer prestige cannot, in itself, serve as grounds for constructive dismissal in the specific context of business acquisitions.

 

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Le congédiement déguisé et employeur prestige

En 2016, la Cour d’appel du Québec a conclu que, dans le contexte de l’aliénation d’une entreprise, le fait pour un employé de passer à un employeur moins prestigieux ne peut, en soi, constituer un congédiement déguisé.

 

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Probationary periods in Canada: Are they legal?

Probationary periods in employment… for something seeming so simple, they still cause a lot of confusion, and employees and employers alike are frequently mistaken about the legality of probationary periods and how they apply to the non-unionized worker. Employees who are terminated during probationary periods often accept their lot without ever receiving legal advice, while employers often terminate ‘probationary’ employees without providing any compensation, only to be surprised by a demand letter or civil action claiming wrongful dismissal. So where do these challenges come from? And how can they be remedied?

 

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Illness or disability during the notice period

Interestingly, the events following termination of employment do not affect an employee’s entitlement to notice. This includes the situation where an employee is terminated and shortly thereafter becomes ill or disabled. Our courts have dealt with this situation by suggesting a longer notice period may be warranted because the employee may find it more difficult to find alternate employment.

 

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Can NAFTA address your company’s labour shortages

Many Canadian companies face ongoing labour shortages in a variety of positions. The frustration of their recruiters and HR professionals is palpable, for despite offering above average wages, group benefits and other perquisites of employment, finding quality personnel to fill vacancies is harder than ever for some professions. One possible solution is often overlooked.

 

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Defending a lawsuit is not the new black, or: If you stick your head in the sand for six years, the most likely outcome is suffocation

You have probably heard about the recent allegations of sexual assault against a WestJet pilot, and how WestJet failed to properly handle the allegation. Here is a quick summary: a former WestJet flight attendant, Mandalena Lewis, has filed a claim in the B.C. Supreme Court alleging that, after she reported that she was sexually assaulted on a layover in Hawaii in 2010, WestJet did not properly investigate the allegation. In fact, they chose to protect the pilot and eventually fired her for pursuing the matter.

 

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Using summary trials in a wrongful dismissal action

The high costs of litigation and the long delays to have a matter heard in court have raised serious concerns with respect to access to justice in Canada. This challenge can be felt particularly acutely with somebody who has recently been wrongfully dismissed from their employment. While the common law may tell us that a terminated employee may be entitled to receive several more months compensation for their termination than what their employer is offering, often the high cost of litigation require the worker to accept less than they deserve. The high costs of litigation and the long delays to have a matter heard in court have raised serious concerns with respect to access to justice in Canada. This challenge can be felt particularly acutely with somebody who has recently been wrongfully dismissed from their employment. While the common law may tell us that a terminated employee may be entitled to receive several more months compensation for their termination than what their employer is offering, often the high cost of litigation require the worker to accept less than they deserve. But what if someone can have their day in court without the time and expense of trial and discoveries? In many wrongful dismissal cases, a summary judgment application may provide just that.

 

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In camera meetings – Closing the door doesn’t make it private

In camera (or closed–door) meetings exclude the public from participating and, by their very nature, they enjoy an aspect of privacy that open meetings do not. Additionally, if an administrative body is carrying out a public function, the privacy of the contents of in camera meetings can be further protected by a legal principle called “deliberative secrecy”. However, in certain circumstances, the courts may require that parties give evidence of what transpires in these meetings—in particular where they relate to administrative bodies acting as employers, rather than carrying out public functions.

 

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The virtual office: Working from home considerations

With the advancement of technology, employers looking to cut overhead costs, and family and lifestyle accommodations growing, working from home is becoming more and more common. However, there are some considerations that must be explored before such practices are approved.

 

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What injured workers need to know about WSIB

If you sustained a workplace injury and are in receipt of Workplace Safety and Insurance Board benefits for the first time, there are essential pieces of information that you should be familiar with…

 

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Separation anxiety: Prepare for employee exits

The recent death of Justice Antonin Scalia highlights the duality of employee exits. For exits like Justice Scalia’s, it is unlikely that within hours of death, friends and family ponder the vacuum and replacement challenges the employer will face. Exits like Justice Scalia’s may precipitate introspection by remaining employees – resolutions to focus on family and work-life balance; or a realization that regardless of the power or indispensability of a role, in the end it really is “just a job”, because, as far as we know, we leave it all behind.

 

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Changes in the Criminal Code: Employee rights in a time of legal chaos

In 2016, employees may be faced with requests from employers or from others whom the employees serve to participate in activities that are prohibited by the Criminal Code. There are two areas, in particular, of potential legal conflict in the workplace:

 

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