First Reference company logo

First Reference Talks

News and Discussions on Payroll, HR & Employment Law

decorative image

common law reasonable notice

Update on probationary clauses from Ontario Court of Appeal

Recently, the Ontario Court of Appeal affirmed that the probationary clause, which provided, simply, “Probation…six months”, was enforceable, and that the employee was not entitled to anything more than the one week of pay in lieu of notice of dismissal pursuant to the Ontario Employment Standards Act, 2000 (“ESA”).

 

, , , , , , , , , , , , ,

Ontario Court of Appeal enforces simple probation clause

Employers generally owe their employees common law reasonable notice upon termination without cause. However, as shown in a recent Ontario Court of Appeal case, Nagribianko v. Select Wine Merchants Ltd, if the parties agree to a probation period in an employment contract, the right to common law reasonable notice can be ousted if the employee is terminated within the probationary period.

 

, , , , , , , , , , , ,

“Age is an impediment”: Fair severance for older employees in Ontario

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.

 

, , , , , , , , , , , , , ,

Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with an independent medical examination; wilful misconduct; and, 27 months of common law reasonable notice.

 

, , , , , , , , , , , , , ,

Court finds extraordinary circumstances justify 30 months’ notice

The dismissal of a long-term employee who is entitled to common law reasonable notice can result in significant liability for an employer. As the determination of the appropriate notice period is contextual, it can be difficult for an employer to accurately assess their potential liability.

 

, , , , , , ,

Employees and independent contractors: The changing nature of employment

Organizations are increasingly retaining the services of individual contractors rather than hiring employees in order to increase the organization’s flexibility and obtain special expertise on an as-needed basis. Historically, organizations have been subject to statutory and common law duties in relation to their employees which have not been applied when organizations retain independent contractors. Case law over the past ten years suggests that the classic distinction between employees and independent contractors is becoming blurred.

 

, , , , , , , , , , , , ,

Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with enforceability of ESA based termination clause; maternity leave and bonus payment; and accessibility certification program.

 

, , , , , , , , ,

Avoiding liability pitfalls when dismissing short service employees

All too often short service employees are overlooked in terms of an employer’s potential liability. After all, such workers can often be dismissed with minimal severance and without great fear of litigation. However…

 

, , , , , , , , , , , , , , , , ,

Failure to mitigate damages leads to a reduction in termination notice

The Supreme Court of British Columbia confirmed that following the termination of a senior employee who had over 20 years of service with the employer, the employee was entitled to a reasonable notice period of 17 months considering the Bardal factors. However, due to the employee’s extremely passive attitude towards finding new employment, the notice period was reduced to 14 months. In a nutshell, the employee just did not do enough to seek alternate employment.

 

, , , , , , , , , ,

No duty to mitigate where employment contract stipulates severance

On June 21, the Ontario Court of Appeal reversed the trial decision in Bowes v. Goss. It held that the duty to mitigate does not apply where an employment contract contains a clause setting out an employee’s severance entitlement arising from a termination without cause. However, the decision maintains the duty to mitigate where it is expressly incorporated in the employment contract.

 

, , , , , , , , , ,