Author Archive - Vey Willetts LLP
There are few areas of employment law more in flux (and vexing to lawyers) than that surrounding the enforcement of termination clauses. Part of the frustration is when the Courts provide seemingly contradictory messages on whether termination clauses will be upheld. In January 2017 alone, the Ontario Superior Court of Justice released two decisions that appear, on their face, to be somewhat at odds.
The capacity to send and receive email on smart phone devices and laptops has fundamentally altered the working lives of many. The notion of the ‘9 to 5’ job has, in many industries, become a thing of the past. Our use of email has profoundly altered how and when we work: it has blurred the distinction between work and home lives; it has altered our view of what is appropriate communication and our expectation of how quickly people should respond. In many ways, it has simultaneously increased the volume of workplace communications and dramatically accelerated the pace at which it occurs.
A workplace is a team environment. It functions best when the atmosphere is positive. One of the biggest concerns for employers, in Ontario and elsewhere, is how to address and manage the presence of toxic employees in the workplace. In a recent report from the Harvard Business School, “toxic worker” was defined as someone who “engages in behaviour that is harmful to an organization, including either its property or people.”
With the internet playing an ever larger role in our lives (and our work), it is no surprise that there has been a corresponding increase in online employee misconduct. In this realm, one of the most frustrating situations for employers relates to anonymous postings that offend company policy. These occur in a variety of ways: from nameless comments on online message boards disparaging the workplace to videos uploaded to sites like YouTube as a form of workplace or co–worker harassment.
The outcome in the following case is another example of why employers should think twice prior to launching wrongful resignation claims.
Courts have previously recognized that older employees may struggle to find comparable re-employment. In a recent decision, the Ontario Superior Court of Justice awarded 24 months’ common law reasonable notice to a dismissed employee who was 61 years old at the time of dismissal. This decision provides some helpful direction and guidance for employers that move to terminate the employment of older, long service employees from their organization.
Despite workplace boredom being a mundane reality of some working lives, it may also be the catalyst for more serious workplace concerns. At the extreme, in limited circumstances, boredom could even form the basis for constructive dismissal.
By now you have likely heard of the new gaming phenomenon sweeping the globe: Pokémon GO. For employers, Pokémon GO has provided some great real world examples of how the introduction of a new technology can impact the workforce. Consider the following.
Employers who fail to incorporate a binding termination clause into their written employment agreements may face significant, and unexpected, liability for severance. This lesson was learned the hard way by Qualified Metal Fabricators (“QML”) in a recent case out of Toronto.
In our article last month, we discussed the growing attention being paid to the issue of unpaid internships in Ontario. Since then the Ontario Ministry of Labour has released the results of a second workplace blitz designed to assess whether employers in the province are in compliance with the requirements of the Employment Standards Act, 2000,
The use of unpaid interns has come under increased media and political scrutiny. Fuelled by horror stories of young interns collapsing under extreme workplace pressures, the issue reached the political agenda. In the summer of 2014, the Ontario Ministry of Labour carried out a highly publicized workplace inspection blitz to determine if intern rights were being respected. Rules governing the appropriate use of interns in Ontario are not new. They had been in place long before the summer 2014 blitz. The rules are set out in section 1(2) of the Employment Standards Act.
In the course of practice, employers have repeatedly made two fundamental mistakes when it comes to provision of commission pay: 1) not properly providing for vacation pay in the calculation of commission payments; and 2) failing to ensure commission payments comply with minimum wage requirements. While employer errors of this kind may be innocent or unintentional, significant financial liability can accrue as a result.
In February 2015 we wrote about a case where a former employee was ordered to pay $56,116.11 as a result of his failure to give reasonable notice of resignation. While these so-called wrongful resignation cases are rare, they should give anyone contemplating a hasty exit from their workplace second thoughts. However, as evidenced by a recent decision out of Sudbury, employers too should think twice prior to going to court on the basis of wrongful resignation.
Federal or provincial? Understanding employment and labour law jurisdiction for First Nations employers
One of the most complicated legal questions for employers is whether their operations are regulated by federal or provincial workplace rules. The answer to this question can have broad implications for employers, as the requirements of provincial workplace laws can differ considerably from their federal counterparts. The confusion over jurisdiction stems from Canada’s division of powers between its varying levels of government. While the Constitution Act, 1867 does provide a helpful list of federal and provincial powers it is far from complete.
When the T-1000 came from the future to destroy John Connor, Arnie made sure he was stopped in his tracks. While employers who have to date relied upon prohibitive time and costs to deter ex-employee claims might not face the wrath that Skynet did, given the recent decision of Cloutier v. Q Residential LP Corp (Cloutier), 2015 ONSC 4431 (CanLII), a rethinking of such approaches may be required.