First Reference company logo

First Reference Talks

News and Discussions on Payroll, HR & Employment Law

decorative image

pay in lieu of notice

Ontario court: “Total payroll” must be considered when assessing employer severance pay obligation

The Wissing case is an important decision for Ontario employees and employers alike. It confirms that in assessing an employee’s entitlement to statutory severance pay, the Courts will look at the employer’s total payroll, not just that of its Ontario operations.

 

, , , , , , , , ,

Why bother with employment contracts?

I had a client recently ask why he would bother going through the cost and efforts of doing up an employment contract, if he was going to have to fight with ex–employees’ lawyers and pay out a package in a without cause situation anyway. Good question.

 

, , , , , , , , ,

An employer’s right when it comes to imposing changes to the employment relationship

At its very core, the employment contract is a very simple one: an individual agrees to work, and the employer agrees to pay them for their effort. Of course, if everything were that simple, then employment lawyers, like myself, would not have very much to do. In addition to the plethora of other issues that can arise, we are often consulted by employers and employees in relation to proposed changes to the contract of employment. The question then becomes: what is an employer’s right to impose changes to the employment relationship/agreement?

 

, , , , , , , , , , ,

Three popular articles this week on HRinfodesk

The three popular articles this week on HRinfodesk deal with: A case that applies a three-part test to determine just cause; a case that provides a reminder that both employers and employees are required to give reasonable notice of termination at the conclusion of an employment relationship; and a case where an employee failed to provide sufficient medical evidence supporting her absences, therefore her termination was deemed justified.

 

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

Beware of the one month per year of service “rule”, part 5

I have written several times about cases which significantly depart from the so-called one month per year of service rule. There continues to be a seemingly never-ending stream of cases which confirm the perils of assuming that an employer’s liability for reasonable notice of termination will be capped at one month per year of employment.

 

, , , , , , ,

Employee or contractor? That is the $64,000 question

For over 25 years, clients have been asking me whether a person is an employee or a contractor in various legal contexts.

 

, , , , , , , , , ,

Beware of the one month per year of service “rule”, part 4

I have written several times about cases which significantly depart from the so-called one month per year of service rule. There continues to be a seemingly never-ending stream of cases which confirm the perils of assuming that an employer’s liability for reasonable notice of termination will be capped at one month per year of employment.

 

, , , , , , ,

Harsh or “draconian” terms in employment contract not enough for unenforceability

In Kielb v. National Money Mart Company, a dismissed employee sought to have the termination and limitation clauses in his employment agreement found unenforceable. His goal was to recover his bonus for the year during which he was terminated, as well as his contractual pay in lieu of notice, which he waived, in accordance with his employment contract, when he refused to provide Money Mart with a full and final release after his termination.

 

, , , , , , ,

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.

 

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

Three popular articles this week on HRinfodesk

Three popular articles this week on HRinfodesk deal with wilful misconduct; family status and eldercare; and, criminal negligence causing death under OHSA.

 

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

Dismissal without just cause: not necessarily “unjust dismissal” under the Canada Labour Code

In Wilson v. Atomic Energy of Canada Limited, the Federal Court of Appeal has clarified the impact of the Canada Labour Code on an employer’s ability to dismiss employees without cause.

 

, , , , , , , ,

Superior Court applies the “Johnstone test” for family status discrimination in wrongful dismissal action

We have written before on the decision of the Federal Court of Appeal in Johnstone v Canada (Border Services), which helpfully crafted a clear and balanced test for family status discrimination in the context of childcare (the “Johnstone test”). The Ontario Superior Court has released the first reported decision in Ontario to apply the “Johnstone test” in the context of a wrongful dismissal action.

 

, , , , , , , , , , ,

Releases may not protect employers from the tenured employee rule

In Nova Scotia, employees with ten years of service are provided with special protections under the Labour Standards Code. Section 71 of the Code provides that, subject to certain exceptions, an employer can only dismiss an employee with ten years of service or more for just cause. This is called the tenured employee rule.

 

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

Beyond bardal: The presence of a non-competition clause as a reasonable notice factor

While many employers may be aware of the difficulties in enforcing non-competition clauses, they may not be aware of another risk associated with such clauses: their potential to increase the reasonable notice period.

 

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

Are your employment contracts enforceable?

2014 Ontario Employment Law Conference

Many employers prepare written employment agreements that limit employee entitlements on termination of employment. In the absence of an enforceable termination provision, employees are entitled to notice of termination at common law, or pay in lieu thereof.

 

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

Previous Posts