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pay in lieu of notice

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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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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.

 

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Preventing an employee from working during working notice can be constructive dismissal

In Allen v Ainsworth Lumber Co Ltd, 2013 BCCA 271, the British Columbia Court of Appeal upheld a lower court decision which held that an employer’s refusal to allow an employee to work during a purported “working notice” period constituted constructive dismissal.

 

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Three of the most popular articles this week on HRinfodesk

Three of the most popular articles this week on HRinfodesk deal with Ontario’s private member’s bill to curtail unpaid internships; statutory pay in lieu and WSIB; and balancing retirement income with disposable income.

 

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Advising the dismissed employee

For those of us that specialize in employment law, advising the recently-dismissed employee can be among the most challenging of experiences. In many cases, the employee is quite emotional, and more often than not, they have been filled with ideas about what the law requires by their colleagues, family, and friends. Not only do we have to encourage them to approach the situation objectively, but we also have to dispel them of many of the notions that have filled their head.

 

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Supreme Court of Canada confirms pension benefits should not be deducted from damages for wrongful dismissal

In the recent decision of IBM Canada Limited v. Waterman 2013 SCC 70 (CanLII), the Supreme Court of Canada confirmed that an employee’s pension benefits should not be deducted from his/her common law entitlement to pay in lieu of notice arising from a wrongful dismissal.

 

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What responsibility does your company have to workers with cancer?

Cancer is the leading cause of premature death in Canada and is one of the leading causes of death in the country, responsible for approximately 30 percent of deaths each year. Forty percent of Canadians will develop some form of cancer in their lifetime. As a result, employers must deal with both the risk and effects of both occupational and non-occupational cancers in their workplace.

 

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Beware of using one month notice per year of service ‘rule of thumb’

One of the questions at the forefront of many employers’ minds when they are considering terminating an employee without cause is how much it is going to cost. Unless there is a written employment contract with an express termination clause, an employer’s obligation is to provide reasonable notice of termination. Since there is no set formula for determining the appropriate length of the reasonable notice period, employers (or their legal counsel) must estimate what they think the notice period could be, having regard to the employee’s age, length of service, character of employment, the availability of similar employment, and the employee’s skills and training. Often, employers and their legal counsel will use a rough rule of thumb of one month notice per year of service (although the courts have denied that such a rule of thumb exists).

 

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Working notice: A refresher

Most of the time when employers look to terminate an employee they opt for pay in lieu of notice. Yet pay in lieu of notice can be costly, it can discourage mitigation and it may hurt productivity (if a suitable replacement has yet to be found). An often overlooked approach is providing working notice that satisfies both statutory and common law obligations.

 

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Proving cause remains an up-hill battle

A recent decision of the Ontario Court of Appeal, confirming a trial decision, once again demonstrates the difficulty employers will face in satisfying courts in this province that there was cause for dismissal.

 

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Misconceptions of a probationary period can expose employer to liability

Most people assume that they know what a probationary period is and how it works in Canada. Unfortunately, however, there are many misconceptions with respect to the law in this regard, and many employers unknowingly expose themselves to significant liability when they hire new employees.

 

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