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duty to mitigate

Three popular articles this week on HRinfodesk

The three popular articles this week on HRinfodesk deal with: how an employee’s decision to retrain affected his right to damages after termination, improvements to CRA services for small and medium businesses and union-friendly changes to the certification process included in Bill 148, Fair Workplaces, Better Jobs Act.

 

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HR law and payroll 2017, what is in store?

At the beginning of a new year, it’s good to wonder what is in store in 2017 for HR law and payroll? Let’s discuss and provide practical steps HR and payroll can take to prepare for these trends and changes.

 

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Illness or disability during the notice period

Interestingly, the events following termination of employment do not affect an employee’s entitlement to notice. This includes the situation where an employee is terminated and shortly thereafter becomes ill or disabled. Our courts have dealt with this situation by suggesting a longer notice period may be warranted because the employee may find it more difficult to find alternate employment.

 

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More bad news for fixed term contracts

A few months ago we commented on a case where a fixed term contract caused an employer significant liability because it did not allow for early termination prior to the end of the fixed term. The Ontario Court of Appeal recently released a decision, Howard v. Benson Group Inc., which provides a further warning about the use of fixed term contracts.

 

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Three popular articles this week on HRinfodesk

The three popular articles this week on HRinfodesk deal with:An Ontario human rights case where an employee’s dismissal by her employer for having lied about when she found out about her pregnancy was ruled to be non-discriminatory; a decision that clarifies that the duty to mitigate does not apply when an employer terminates a fixed-term employment contract before its end date; and an FAQ that looks at an employee who is looking for accommodation to care for their child because they cannot afford daycare.

 

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Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with employer vicarious liability for employee misconduct; reasonable notice and the failure to mitigate; and, the legal definition of “immediate family” for the purpose of bereavement leave.

 

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Employers must “trust” employees to account for mitigation earnings during notice period

A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues. First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment. Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period? Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.

 

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Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with Ontario AODA requirements for 2016; EI premium rates for 2016; and the duty to mitigate.

 

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Poor drafting leads to finding of fixed term contract

Recently, the British Columbia Supreme Court released a decision whereby poor contractual drafting on the part of the employer resulted the court finding that there was an operative three-year fixed term that could only be terminated early by paying the balance of the contract as damages minus any amounts earned as mitigation.

 

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Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with the disclosure of mental illness and a breach of employee privacy; the notice period and duty to mitigate; and, inducement, recruitment and reasonable notice.

 

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Danger of fixed term contract avoided

The recent decision in Tossonian v. Cynphany Diamonds Inc. highlights the importance for both employees and employers to clearly specify the fundamental terms of an employment contract in writing including the “term” of the contract.

 

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Ontario Human Rights Tribunal decision offers clarity on workplace sexual harassment

With the allegations against CBC Radio personality Jian Ghomeshi dominating the news over the past several weeks, it is useful to examine how the Ontario Human Rights Tribunal addressed allegations of workplace sexual harassment in the recent case of Horner v. Peelle Company Ltd. (2014) HRTO 1211.

 

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Failure to mitigate reduces damages in Human Rights claim

In the wake of the Divisional Court’s decision in the Hamilton-Wentworth District School Board v Fair, human rights damages have been a hot topic. As you may recall, the Human Rights Tribunal of Ontario awarded significant damages in that decision which included an award of back pay for a period of approximately 10 years.

 

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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.

 

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Wrongful dismissal law: Summary judgment motions – the way of the future

Since the Supreme Court of Canada’s decision earlier this year in Hryniak v. Mauldin 2014 SCC 7 (CanLII) more and more employees are bringing summary judgment motions to resolve their wrongful dismissal cases.

 

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