As an employment lawyer, my consistent advice to employers is, whether you have one employee or one hundred employees, every employer needs to have written employment contracts. There are a number of ways that employment contracts can avoid or reduce liability, but the single most valuable term to include is a termination clause. In a written employment contract, employers have the opportunity to limit what can otherwise be a significant liability to their employees for termination pay, also referred to as severance or reasonable notice of termination.
While we often help employees who did not receive reasonable notice of termination from their employer, it is often forgotten that employees also owe a similar duty to provide notice to the employer before resigning. This common law duty was the subject of the recent case of Consbec Inc. v Walker. In this case, the BC Court of Appeal reaffirmed the existence of the duty owed by employees to the employer.
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.
Cessation of an employee’s employment can happen by way of termination of employment by the employer or resignation by the employee. In the case of a voluntary resignation, while the employer may feel as though it is losing a beneficial employee, the upside is that the employer is not liable for the dreadful “reasonable notice of termination”. This blog discusses some of the best practices for employers when handling a resignation.
The recent decision of Keenan v. Canac Kitchens, confirms that dependent contractors are entitled to reasonable notice of employment termination. The required notice period can extend to years, and such as in this case, amount to 26 months.
In recent years, there have been many decisions on the enforceability and interpretation of termination clauses in employment contracts—which employers and their legal counsel read with both interest and apprehension. The Nova Scotia Supreme Court has now weighed in on the debate.
It appears that the saga of judicial interpretation and consideration of termination clauses will continue, with predictably unpredictable results. Courts will enforce termination clauses that limit an individual’s entitlement to notice of dismissal, but the onus will be on the employer to show that the clause should be enforced.
The outcome in the following case is another example of why employers should think twice prior to launching wrongful resignation claims.
In its recent decision in Keenan v. Canac Kitchens, the Court of Appeal for Ontario confirmed that dependent contractors are entitled to reasonable notice of employment termination. The required notice period can extend to years, and such as in this case, amount to 26 months.
The three popular articles this week on HRinfodesk deal with: a case where an employee was deemed to be constructively dismissed after a temporary layoff; a decision that leaves employers questioning their bonus policies; and salary projections for 2017 released by The Conference Board of Canada.
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly. A prime example of employer misconduct for failing to accommodate and providing reasonable notice is the case of Strudwick v Applied Consumer & Clinical Evaluations Inc. This case highlights a number of important lessons for employers.
The three popular articles this week on HRinfodesk deal with: legislative amendments that expanded the access to Employment Insurance benefits; a case where a former employee was awarded six months’ compensation in lieu of notice after she had declined a severance package offered to her by the employer; further recent updates regarding the Accessibility for Ontarians with Disabilities Act.