Under the Ontario’s Human Rights Code (the Code), an employee cannot be terminated due to a disability. If the Human Rights Tribunal finds that the termination was based in part or in whole on a disability, this may be considered a breach of the Code. The matter was addressed in one of the first Tribunal decisions of 2017, Ben Saad v. 1544982 Ontario Inc.
Once upon a time, employees did not sign employment contracts with termination clauses and employment lawyers fought over the appropriate “reasonable” notice period. In 2017, however, employees now claim in addition to wrongful dismissal damages, human rights damages, moral or Wallace damages, punitive damages, and damages for the intentional infliction of mental stress.
In an application filed under the Human Rights Code of Ontario, once the matter has been heard, and the Tribunal has found the respondent to be liable, the next stage is that of remedy. Monetary and non–monetary damages may be awarded as was the case in Kohli v. International Clothiers, where the applicant, Ms. Kohli, had filed an application alleging discrimination in employment on the basis of sex.
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.
A recent decision of the BC Court of Appeal provides a cautionary tale for BC employers seeking to remedy a potential wrongful dismissal.
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.
The applicant alleged that she was terminated when on her first day of work she disclosed to her manager, Ms. Cinzia Conforti, that she was pregnant. In contrast, the respondents attributed her termination to the applicant’s alleged request to work part-time, although she had been newly hired for a full-time position.
The question of ‘what constitutes reasonable notice’ is one of the most frequently litigated issues in employment law. There are numerous decisions from every level of court in Ontario which discuss the obligations of an employer to provide a reasonable period of notice to dismissed employees. However, it is a relatively rare occurrence that the Court deals with the inverse – the reasonable period of notice due to an employer by an employee who resigns. While most of us are familiar with the old adage of giving your ‘two weeks’ notice, the recent decision in Gagnon may call into question the sufficiency of such short notice.
Does an employee have to be “sexually” harassed in order for there to be a breach of the Human Rights Code? This issue was determined in a recent decision from the Human Rights Tribunal of Ontario.
Summary judgment has increasingly become a process used to litigate wrongful dismissal actions. It can be attractive as it allows the parties to avoid going through a more costly and time-consuming trial. However, the efficiency of this process raises other issues. Because parties can bring a summary judgment motion early on in the proceedings, a decision may be rendered prior to the expiry of the reasonable notice period at common law. This raises the question as to how to deal with the issue of mitigation.
Even in the absence of a release, employee who accepted a termination package not entitled to additional damages
If an employee negotiates a termination package with an employer but does not sign a release, can they successfully claim additional pay in lieu of notice in a court action? Interestingly, the Ontario Superior Court recently held that the answer for one employee in these circumstances was “no”.
Since the Supreme Court of Canada’s decision in Honda v. Keays, dismissed employees have increasingly sought bad faith damages in severance negotiations and wrongful dismissal actions. A key issue in these claims is whether the employer’s conduct was sufficiently egregious to justify these damages. The courts are clear that not every perceived offence or instance of misconduct will give rise to a finding of bad faith.
In AMEC Americas Limited v. MacWilliams, 2012 NBCA 46, the New Brunswick Court of Appeal held that an employer’s defence that an employee failed to mitigate his damages by refusing to accept its settlement offers had no merit. As leave to appeal the decision was recently refused by the Supreme Court of Canada, the current answer to our question (at least in New Brunswick) is “no”.
Employee constructively dismissed, but no damages awarded because of failure to mitigate The Ontario Superior Court of Justice just decided that although an employee was constructively dismissed when he was suddenly “laid off,” the employer did not owe the employee any damages because he failed to mitigate his loss. New high-water mark for punitive damages […]