Author Archive - Stuart Rudner
In Wood v Fred Deeley Imports Ltd., the Ontario Court of Appeal seemed to make a definitive statement about the interpretation of termination provisions in employment agreements: a court will invalidate them when they contain actual or technical deficiencies. However, the same Court’s decision last year in Oudin v Centre Francophone de Toronto seemed to reach a different conclusion: the court will apply contractual certainty to give effect to the parties’ intentions. Can the two be reconciled? Closer inspection reveals that each decision is specific to the employment agreements in each.
I have often discussed the need for warnings in the context of summary dismissal. While some situations will justify dismissal based upon a single incident, in many cases our courts and arbitrators will require progressive discipline. Whatever the steps may be, it is critical that the messaging to the subject employee be clear: the conduct or behavior is unacceptable, and further instances will lead to discipline, which can include termination for cause.
It appears that the saga of judicial interpretation and consideration of termination clauses will continue, with predictably unpredictable results. Courts will enforce termination clauses that limit an individual’s entitlement to notice of dismissal, but the onus will be on the employer to show that the clause should be enforced.
When it comes to employment standards legislation, employers must remember that just because an employee agrees to something, that does not make it lawful. More importantly, parties cannot contract out of employment standards requirements, and employers that breach employment standards legislation expose themselves to significant risk, even if the employee in question appears to have acquiesced. This often arises when it comes to overtime or vacation.
Employers often adopt zero tolerance policies and assume that doing so will give them the right to immediately fire someone for a breach. These are often used for transgressions that are considered particularly egregious, such as harassment. Although we consistently advise employers to address misconduct such as harassment and make it clear that such behaviour is unacceptable, the reality is that courts will not be bound by zero tolerance policies and will conduct their own assessment of whether summary dismissal is warranted. Saying that “we have a zero tolerance policy” will not be the end of the story.
It is not uncommon for an organization to move their offices, or to “transfer” an employee from one location to another. Sometimes, the move is across the street, while other moves are across the country or farther. What happens if an employee refuses to relocate?
Nobody likes tests. I remember school days when pop quizzes always meant wondering if you remembered everything, or whether what the teacher taught that day you were sick would be on the questions she asked. In today’s workplace, tests are still looked upon as something you wish you could just skip, or avoid altogether. This is especially the case with random drug testing in the workplace.
In the following case, a breach of human rights legislation was found where the employer refused to allow the employee to have the summer off in order to look after her autistic child.
When hiring a new employee, employers will often characterize the first several months of employment as a “probationary period”, the purpose of which is generally to give both parties an opportunity to assess whether the employee is a good fit for the workplace.
What is an employer to do when it discovers that one of their employees has been arrested? In many cases, the employer’s knee-jerk reaction will be to dismiss the employee, particularly where the charges relate to more unsavoury conduct. However, the law is clear that like most off-duty conduct, being charged with a criminal offence will not, in and of itself, be just cause for dismissal.
Let’s begin with a point that comes as a surprise to many employees and employers: there is nothing legally wrong with providing an employee with working notice of their dismissal and requiring that they continue to attend at work and perform their duties throughout the notice period.
The concept of frustration of contract continues to frustrate employers as we enter the year 2016. Unfortunately, many employers confuse their own frustration with absent employees with frustration at law.
The issue of whether termination clauses contained within employment agreements will be enforceable is one that routinely arises. As I have discussed on many occasions, many employers weaken their legal position by entering into a verbal agreement, or presenting an “offer letter”, and then subsequently asking their new employee to sign a far more detailed employment agreement that is designed solely for the benefit of the employer.