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Author Archive - Rudner Law, Employment / HR Law & Mediation

Rudner Law specializes in Canadian employment law and Alternative Dispute Resolution. They provide clients with strategic advice regarding all aspects of the employment relationship, and represent them before courts, mediators and tribunals. Read more

Can accommodation include a reduction in pay?

One issue that arises occasionally when an employee is being accommodated is whether the employer can adjust their compensation to bring it in line with their new reduced hours and/or duties.

 

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“Desire to Work” is not enough: Appellate court upholds dismissal for frustration of contract

The decision in this case makes it clear that it is not enough for an employee with a disability to merely inform his or her employer of a desire to return to work. The employer’s duty to accommodate will only be triggered when the employee provides the employer with evidence of his or her ability to return to work, including any disability-related needs or restrictions.

 

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Reinstatement is a potential remedy, but not in this case

While monetary damages are the usual result of legal actions, we all know that in some contexts, reinstatement is a potential remedy. It can occur in grievance arbitrations, human rights claims, and other circumstances.

 

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Ontario Court of Appeal confirms 24 month cap on notice periods absent exceptional circumstances

For as long as I have been practicing, we have referred to a “24 month cap” of notice when it comes to reasonable notice of dismissal pursuant to common law.

 

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When sharing is not caring: The high cost of breaching confidentiality

Only a very small percentage of disputes proceed all the way to a hearing or trial. The vast majority settle at some point, for reasons that are fairly well known. One of the key reasons in many cases is confidentiality; often, the parties want to avoid a public hearing and a published judgment that sets out all of the intimate details of the case, as well as the findings of the judge with respect to fault and blameworthiness.

 

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How a bad hire could lead to damages for constructive dismissal

In the wake of the #metoo movement, one question that has arisen, and which our firm has commented upon is how employers are to react when those individuals attempt to return to the workforce.

 

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Duty to accommodate may be triggered even when employee does not request accommodation

As we all know, employers are required to accommodate individuals to the point of “undue hardship” where the need for accommodation relates to a ground protected by human rights legislation, such as disability.

 

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If the punishment fits: The Court of Appeal upholds Ruston v. Keddco Mfg. (2001) Ltd.

Our legal system is designed to implement a stringent appeals process. When an unsuccessful party truly believes that the Court ‘got it wrong,’ either because they wrongly assessed the facts or wrongly applied the law (or in some cases both), they have the power to appeal to a higher court who can review the ruling and issue their own determination, as was the case with Ruston v. Keddco Mfg.

 

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Is 36 months the new 24?

For a long time, the common law notice period had an “unofficial” cap of 24 months, which was generally reserved for very long-service, senior level management. In recent years, things have changed and longer notice periods are becoming the norm.

 

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Not a litigation tactic: The dangers of unfounded allegations of just cause for dismissal

The vast majority of employment relationships can be terminated at any time so long as the employer provides appropriate notice or pay in lieu of notice.

 

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No skirting around the issue: Gender identity and sexual orientation discrimination appear to be on the rise

Employers who fail to take action when there are complaints of unlawful discrimination in the workplace are exposing themselves to serious potential liability, both from a financial and a reputational perspective.

 

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Court awards six months’ pay in lieu of notice to employee terminated after six months

In this case, the BC Supreme Court awarded an employee six months’ pay in lieu of notice after he was induced to leave his job for a new position, only to be dismissed six months later.

 

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“It ain’t over ’til it’s over”: When does illness frustrate a contract?

When an employee is out for a long stretch due to illness, it is always best to keep in periodic but regular communication with them, both to see how they are doing and to see if they know when they may be able to return to work.

 

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Can an employer sue an employee for compensation?

The case detailed here does not mean that employers can sue employees for any losses that arise out of their employment. It will be difficult, if not impossible, to obtain compensation for negligent work, or mistakes. However, where there is deliberate misconduct like in this case, remedies are available to the employer beyond dismissal for cause.

 

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Employee vs independent contractor: The dangers of misclassification

It is essential that employers understand and consider the risks of misclassifying employees as contractors, even when the individual themselves is the one requesting or proposing the contractor relationship.

 

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