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Author Archive - Stuart Rudner

Stuart Rudner is a leading HR Lawyer and a founding partner of Rudner MacDonald LLP, a firm specializing in Canadian Employment Law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is the author of You’re Fired! Just Cause for Dismissal in Canada, a textbook and database of summary dismissal cases published by Carswell. Read more

The damages formerly known as Wallace – Are they still relevant?

It has been about eight years since the Supreme Court of Canada decision in Honda Canada v Keays, which dramatically altered the law with respect to damages relating to bad faith conduct in the course of dismissal. Is the topic still relevant? A recent Ontario decision confirms that it is.

 

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Ontario Court of Appeal addresses the issue of what constitutes mitigation income

The Court addressed the issue of what constitutes mitigation income for purposes of assessing any required deductions from common law entitlements.

 

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You can fire someone without saying so, but even “I quit” may not be a resignation

We all know that most Judges will try to protect employees when they can, as the perception is that employers have greater resources. In recent times, my firm has written about the dangers of accepting resignations too quickly and the need to allow an employee who purports to quit some time to cool down and reconsider. Another recent case adopted a similarly protection approach but in a very different context: the unintentional dismissal. While you may not have heard of this concept before, it is, apparently, a thing.

 

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Don’t accept a resignation too quickly

Imagine that you find yourself in a heated argument with one of your employees and, having apparently had enough, the employee announced that he is fed up and is done with the company. He then handed you his pass card and stormed out of the office. Can you proceed on the basis that he has resigned?

 

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Wood vs. Oudin: Clarity in termination provisions

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.

 

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Dealing with marijuana in the workplace

I am increasingly being asked to speak about this subject at HR conferences, as employers are concerned about the practical implications of medical marijuana and how employees using it should be treated. The issue of marijuana in the workplace has generated a lot of attention, but what have our courts, arbitrators and tribunals said about it? A review of decisions addressing dismissal for workplace usage or possession of marijuana shows an inconsistent treatment which is consistent with the early stages that we are in.

 

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The need for clear warning before dismissal

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.

 

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Termination clauses – The legal debate

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.

 

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Busting myths about employments standards: What employers need to know about overtime and vacation

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.

 

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Little judicial tolerance for zero tolerance policies

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.

 

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An employer’s right when it comes to imposing changes to the employment relationship

At its very core, the employment contract is a very simple one: an individual agrees to work, and the employer agrees to pay them for their effort. Of course, if everything were that simple, then employment lawyers, like myself, would not have very much to do. In addition to the plethora of other issues that can arise, we are often consulted by employers and employees in relation to proposed changes to the contract of employment. The question then becomes: what is an employer’s right to impose changes to the employment relationship/agreement?

 

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Refusing to relocate: Just cause for dismissal?

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?

 

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Drug testing in the workplace -An update

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.

 

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Accommodation of childcare

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.

 

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Interpretation and enforcement of probationary periods in employment contracts

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.

 

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