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Author Archive - Jeff Dutton, Dutton Employment Law

Jeff is a leading employment lawyer in Toronto. He represents both individual employees and management in all matters. Prior to founding Dutton Employment Law, Jeff was a prosecutor for the Ministry of Labour. He has been successful at the Ontario Labour Relations Board, Ontario Court of Justice and the Ontario Superior Court. Jeff is a frequent lecturer on employment law matters and has been widely published in newspapers and trade journals. Read more.

A discussion on performance improvement plans

If an employee has performance issues, and the employer is committed to providing the employee with the opportunity to correct poor performance before terminating their employment, the employer should use a performance improvement plan or PIP to identify in writing such performance issues and make a plan to fix them.

 

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The non-competition clause – Drafting and cautionary notes

A non-competition clause (or non-compete clause) is a passage in an employment contract which purports to prohibit employees from working for another employer or starting their own business which competes with their employer during and after employment.

 

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Why employers shouldn’t use severance calculators

Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors.

 

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Is drinking at work just cause for termination?

Just cause is the death penalty in employment law. Accordingly, in case of drinking at work, just cause can only be justified where the drinking at work causes grave concern.

 

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Startup employment contracts

Canadian startups and any company for that matter should have an employment contract for all new hires. An employment contract helps both parties understand the employment relationship, protects the start up in the event of the termination of employees and it can also serve as a useful mechanism to attract good employees.

 

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26 is the new 24 (Reasonable Notice)

The result of the Ontario Court of Appeal’s January 2016 decision of Keenan v. Canac Kitchens Ltd., which established, at this court level, for the first time that 26 months was reasonable notice in exceptional circumstances, thus confirming to the lower courts that there is no 24-month cap on notice.

 

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New Employment Standards in Ontario Poster

As a result of the much blogged about changes made to the Employment Standards Act, 2000 (the “ESA”), which came into force in the new year, Ontario’s Ministry of Labour drafted a new poster entitled “Employment Standards in Ontario” (the “Poster”) reflecting these changes.

 

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Top 10 employment law cases of 2017

Here is a list of the cases which changed employment law in Canada in 2017 (in no particular order). Note that some of these cases are not yet published on CanLII and therefore, there is no link available.

 

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Employers beware: Punitive damages for improper just cause allegations

Two recent Small Claims Court cases demonstrate the courts’ willingness to sanction employers for improper just cause allegations. These cases highlight the fact that employers need to be cautious in asserting just cause.

 

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Top 5 mistakes employers make in their contracts

Employment contracts are a useful tool for employers. But often, employers make mistakes when creating their contracts. Here are five of the main mistakes to watch out for.

 

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What happens if an employer fails to provide a timely Record of Employment (“ROE”) for departing employees?

Employers must issue the ROE within five days after the employee’s last day of work, regardless of the reason why the employee left (i.e. termination, resignation, etc.).

 

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Ontario Court of Appeal enforces simple probation clause

Employers generally owe their employees common law reasonable notice upon termination without cause. However, as shown in a recent Ontario Court of Appeal case, Nagribianko v. Select Wine Merchants Ltd, if the parties agree to a probation period in an employment contract, the right to common law reasonable notice can be ousted if the employee is terminated within the probationary period.

 

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Employers: Be careful of what you say about former employees to their new employers

Be careful of what you say about former employees to their new employers, warns Toronto employment lawyer, Jeff Dutton. As evidenced in Drouillard v. Cogeco Cable Inc., if a former employer suggests to another employer to terminate a certain employee, the former employer could be liable for damages to that employee by way of the tort of inducing breach of contract.

 

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Long-term construction employees may be entitled to reasonable notice of termination

Generally, construction employees are not entitled to termination or severance pay under the Employment Standards Act (the “Act”). Section 1 of Ontario Regulation 288/01 of the Act explicitly exempts them from such minimum employment standards. However, a long-term construction employee may still be entitled to common law reasonable notice, which is much more lucrative than what the Act provides for anyway. Nevertheless, how much notice a construction employee is entitled to under the common law remains an unsettled test in Ontario.

 

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Important decision regarding mitigation of damages following termination

The Ontario Court of Appeal, in Brake v. PJ-M2R Restaurant Inc., recently clarified the law of mitigation.

 

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