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Author Archive - Stuart Rudner, Rudner Law

Stuart Rudner is a leading HR Lawyer, mediator and a founding partner of Rudner Law, a firm specializing in Canadian Employment Law. At Rudner Law, their approach is simple. They want to understand your circumstances, your concerns, and your goals. They will then ensure that you understand the legal regime along with your rights and obligations. Once that is done, they work with you to design a cost-effective strategy that meets your needs. They want to be your trusted advisor. Read more

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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Right to terminate BUT in good faith

The decision in this case confirms that termination clauses will not be voided where there is no good reason to do so.

 

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Accommodation of medical marijuana

The right to accommodation, and the widespread acceptance of medical marijuana, does not mean that employees have a right to use marijuana at work. Safety considerations will be taken into account and although zero tolerance policies will not be automatically enforced, they will be enforced when appropriate.

 

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$200,000 awarded by the HRTO for sexual harassment and assault of vulnerable employee

Employers would be well-advised to implement strong anti-discrimination, harassment and workplace violence policies which include provisions regarding processes, investigations and training.

 

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What happens to employment contracts when an employer sells the assets of its business?

The Court of Appeal for Ontario has confirmed that in an asset sale, a purchaser’s offer of employment to a seller’s employee can constitute consideration for changes in an employment contract — including a new termination clause.

 

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Non-competition clauses – Language should be clear and unambiguous

Employers should avoid using language that may introduce ambiguity and is broader than necessary to protect the employer’s legitimate interest. Courts will not fix a clause that they find to be ambiguous or overreaching

 

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Entitlement to bonus after dismissal: The debate continues

Employers would be wise to review their current agreements and policies with respect to bonuses and ensure that any eligibility requirements upon termination are clearly set out and have been expressly communicated to employees.

 

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Supreme Court of Canada confirms that all workplace harassment is protected – even by third parties

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada confirmed that human rights legislation is to be interpreted broadly and purposively and specifically found that the protection against workplace harassment is not limited to conduct perpetrated by an individual’s employer or co-worker. This decision will have significant implications for employers and employees alike.

 

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Negative employment references

A fear of defamation actions has prompted many employers to shy away from providing references for former employees or if they do provide a reference, it is limited to a “confirmation of employment” letter. Unfortunately, this means that prospective employers don’t get the information they need, which can hamper both employers and employees in their searches.

 

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When can an employer ask for an independent medical examination?

The Ontario Court of Appeal has confirmed that in certain circumstances, it is reasonable for an employer to demand an Independent Medical Examination (“IME”) to determine whether an employee needs accommodation and if so, how. In August 2017, the Court denied leave to appeal the Divisional Court’s decision that found the employer was justified in requesting an IME as part of the process of accommodation.

 

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The fork in the road: after-acquired cause for dismissal

In Canada, employers can dismiss employees in one of two ways: with cause or without cause. If an employer dismisses an employee without cause, and then later discovers that they had been stealing from the company for years, can they now allege just cause for dismissal?

 

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