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Author Archive - Stringer LLP

Stringer LLP is a leader in Canadian HR law. For over 45 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation and pay equity, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more

Generous termination clauses: Think twice before making promises #learnthelatest

Many employers include termination clauses in employment contracts to limit their liability when dismissing employees. When employers draft generous termination provisions providing for more than statutory minimums, they must follow through on that generosity when terminating employees. Failing to do so could leave employers exposed to full liability under the common law.

 

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The thin legal line: Resignation vs termination #learnthelatest

Has an employee who hands over his keys and company cell phone to his employer and declares “I’m done” resigned their employment? The Newfoundland and Labrador Court of Appeal has said that, in at least one case, the answer is no.

 

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Using independent contractor not a “get out of jail free” card

A business’ obligations to its workers will depend on whether the workers are employees or independent contractors. However, a recent decision reminds us that, even where a worker is a true independent contractor, this distinction may not preclude a business being liable to third parties, such as customers, when the worker does something wrong.

 

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Constructive dismissal? A question of interpretation

The employee in this case acted hastily, and the employer prevailed against his constructive dismissal claim. However, the employer may have avoided the time and expense of litigation if the bonus agreement had contained clear, concise language.

 

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Probationary clauses: A double-edged sword for employers

Many employers find it necessary to assess new employees’ performance on the job before making a final determination about whether an individual is suitable for a position. In the absence of an express term in an employment contract, employees in Canada are entitled to reasonable notice of termination at common law when they are dismissed without just cause. Many employers put terms in their employment contracts, such as probationary clauses, which limit this entitlement. However, employers may not always be clear on the implications of such clauses.

 

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When a resignation isn’t really a resignation

How do you know when an employee has quit their job? It may seem like a simple question, but the answer recently eluded an Ontario employer, who improperly took an employee’s apparent resignation at face value.

 

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Medical evidence and employee absences

A recent decision from the Ontario Superior Court of Justice confirms that employers are within their rights to require medical notes when employees are absent from work. However, this decision stands as a warning to employers that although they can ask, they may not be able to summarily terminate an employee who fails to comply.

 

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Just cause termination: Employers need “reasonable basis”

The Court acknowledged that an employer may allege just cause, and later abandon that claim at any time. The Court held that it wouldn’t be appropriate to penalize an employer for changing its mind if it initially had a reasonable basis to believe it had just cause to terminate an employee. As such, it is important to investigate and document any evidence of employee misconduct, and to act accordingly.

 

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Discretion is the better part of bonus plans – Limiting employee entitlement to post-termination bonus payments

Employees who are terminated without notice can sue employers for the total compensation, including bonus payments, which they would have otherwise received during the notice period if reasonable notice had been given.

 

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Supreme Court decision may protect defendants charged with OHSA offences from unreasonable delay

A recent decision from the Supreme Court of Canada could have the effect of allowing corporations charged under the OHSA to seek remedies when a trial is unreasonably delayed in a considerably broader swath of cases.

 

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Putting on the brakes: The limits of the common employer doctrine

One of the more deceptively complex questions in some cases can be: Who is the employer?

 

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After the accident: Pitfalls to avoid for employers after workplace accidents #learnthelatest

The obligations on employers, constructors and other workplace stakeholders once a workplace accident occurs are heavy. The Occupational Health and Safety Act (the “Act”) requires that these parties take positive actions immediately from the time that an accident occurs. These actions can have important implications for later legal proceedings. Failing to comply with these obligations is itself a breach of the Act and can lead to legal liability distinct from and in addition to any liability flowing from the accident.

 

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It takes two to tango: Superior Court rules on employees’ duty to facilitate in the accommodation process

Employers have a duty to accommodate employees with disabilities to the point of undue hardship, including facilitating the return to work of employees who require disability-related accommodation. An important aspect of this duty is procedural, i.e. the steps taken to search for a reasonable accommodation. Even if an employer ultimately cannot accommodate without undue hardship, failure to engage in the procedural aspect of the duty to accommodate is a violation of the Human Rights Code.

 

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More time, more money: New, unique Employment Standards Act leaves proposed by legislature #learnthelatest

There are currently two Bills before the Ontario legislature which would designate new leaves under the Employment Standards Act, 2000 (“ESA”). Outside of introducing the new leaves and obligations on employers, these Bills could be the canary in the coalmine for further extensive increases to leave entitlements under the ESA.

 

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Fixed-term fiasco: Employee profits off of termination of term contract #learnthelatest

Canadian employees are presumptively entitled to “reasonable notice” of termination. Although this entitlement can be limited to some extent by contract, an employee will generally be entitled to some advance notice of the end of their employment. If advance notice is not given, then the employer can satisfy this obligation by making a payment equivalent to the earnings the employee would have received over the notice period.

 

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