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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

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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When your employee is arrested

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.

 

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Working through the notice period

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.

 

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Frustration of contract

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.

 

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Agreement to sign an agreement

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.

 

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Commencement of notice period when employee is dismissed while on disability leave

Sometimes, individuals will be dismissed from their jobs at a time when they are on disability leave. There is nothing wrong with this, as long as the decision to dismiss is entirely unrelated to the employee’s disability. For example, if an organization decides to eliminate a department of ten people, one of which is currently […]

 

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Alleged breach of settlement agreement

It happens every now and then: the parties to a wrongful dismissal dispute agree to resolve their differences, typically with the employer agreeing to pay the employee a certain amount of compensation, and the employer subsequently learns that the employee is working for a competitor. Typically, they will react out of anger, immediately stopping all payments pursuant to the settlement. Can they do so?

 

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A brief overview of just cause cases

As any follower of Canadian employment law already knows, there are many grey areas and very few “black-and-white” rules. One of the greyer areas is summary dismissal; evaluating when an employer has just cause to terminate the employment relationship is fraught with uncertainty. Contrary to popular belief, there are no absolute rules and there are no types of misconduct that will guarantee the existence of just cause for dismissal.

 

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Duty to conduct workplace investigations increasing

In recent years, there has been a dramatic increase in the role of investigations within HR and employment law. It is well-established that employers have a duty to investigate allegations of misconduct prior to taking disciplinary action. There is also a duty to investigate allegations of harassment or discrimination. There has been much emphasis on the manner of investigating such matters, and the need to be fair and impartial while also acting expeditiously. In the HR Law for HR Professionals course that I created for Osgoode Professional Development several years ago, investigations used to be a small part of one module. They now fill an entire day of the five day course. That is a clear indication of their growing importance.

 

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Summary dismissal in Canada is complex

By now, regular readers should understand that summary dismissal in Canada is complex, and assessing whether or not just cause for dismissal exists requires much more than consideration of the alleged misconduct in isolation.

 

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Using fixed-term contracts in a potentially misguided effort

It seems as though many employers have decided to use fixed term contracts in a potentially misguided effort to reduce their labour costs and limit their severance obligations. Unfortunately, this decision seems to be based upon a misunderstanding of the law, and can result in unexpected liability and costs. Furthermore, it does not always result in the cost savings that the employer anticipated, and in any event, there are often better ways to achieve those savings.

 

Contract or gratuitous promise: the need for consideration

Employment lawyers spend a lot of time assessing whether contracts of employment are enforceable or not. The first thing that I check, when I review a contract of employment, is the date. What I’m attempting to determine is whether the contract was signed before or after there was already a verbal agreement in place.

 

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Common traps that many Ontario employers fall into in the course of termination

This post is focused on common traps that many employers fall into in the course of termination. While it is written from the perspective of employers, each of these points applies equally to employees, since an individual that misunderstands these issues will fail to enforce their legal rights and end up leaving substantial amounts of money on the table when they lose their job.

 

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