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Posts Tagged ‘termination’

Constructive dismissal part 2: everything has its limits

Thursday, February 23rd, 2012

Constructive dismissal, while still a source of concern for employers, is likely less of a threat than it is sometimes thought of. Employees placed in potential constructive dismissal suits must be very careful, or else they may find they have very limited recovery. However, an employer in British Columbia has attempted to push the weaknesses of constructive dismissal to the extreme. In fact it appears to have tried to push the concept farther than it can reasonably bear.

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Tags: Allen v. Ainsworth Lumber Company, common-law notice period, constructive dismissal, contractual notice period, employment contracts, employment law, mitigation, termination, termination notice, working notice
Posted in Benefits, Compensation, Employee Relations, Employment Standards, Human Resources, Payroll | Make a Comment »

Court again confirms no upper limit with damages for non-management and low-level workers

Wednesday, February 15th, 2012

The case of Olivares v. Canac Kitchens (another in the long list of wrongful dismissal accounts against Canac Kitchens) arose from the termination of a 24-year employee. The employee was an uneducated shipping supervisor with poor English, who oversaw a team of loaders and coordinators. His salary was approximately $93,000, including overtime pay and benefits. He spent his entire Canadian working life with the company, communicating almost exclusively in Spanish. In May 2008, Canac Kitchens ceased its manufacturing operations and, as a result, Olivares was left looking for work…

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Tags: Bardal Factors, Canac Kitchens, Di Tomaso v. Crown Metal Packaging Canada, employment law, employment standards act, hiring a lawyer, Keays v. Honda, mitigation, Olivares v. Canac Kitchens, payment in lieu of notice, termination, wrongful dismissal
Posted in Employment Standards, Human Resources | Make a Comment »

Human Rights Tribunal barred from hearing application: no forum-shopping allowed

Friday, February 3rd, 2012

The Ontario Human Rights Tribunal recently examined an application before it and an earlier statement of claim made in court by the same person, and concluded that the claims were virtually identical. They were based on the same facts, made the same allegations and sought similar remedies…

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Tags: barred from hearing application, Civil court, Disability, discrimination, duplication of claims, employment law, forum-shopping, human rights code, human rights tribunal, ontario, Ontario Human Rights Code, reprisal, Return to work, sex, short-term disability leave, statement of claim, termination, wrongful dismissal
Posted in Employment Standards, Human Resources, Human Rights | Make a Comment »

Tax and employment insurance issues when settling dismissal claims

Thursday, February 2nd, 2012

Employment lawyers are generally quite adept at negotiating and resolving disputes arising out of the termination of an individual’s employment. We have all seen the statistics that only a miniscule number of dismissals result in a full trial and we know that in almost every case, it is better for the parties to reach a resolution than to proceed with litigation. That said, many traps exist in the settlement of a wrongful dismissal claim.

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Tags: Canada Revenue Agency, CRA, Dismissal, EI benefits, Employment Insurance Act, employment insurance benefits, employment law, Income Tax Act, lump sum severance, negotiating and resolving disputes arising out of the termination, retirement, retiring allowance, RPP, RRSP, salary continuance, T4, T4A, tax withholding, termination, termination disputes, termination settlement, wrongful dismissal
Posted in Benefits, Compensation, Employment Standards, Human Resources, Payroll, Source Deductions and Reporting | Make a Comment »

Failure to work notice period did not take away right to sue for damages

Friday, January 27th, 2012

Here’s an interesting case from the British Columbia Court of Appeal. When an employer left a termination letter on a bus driver’s seat for him to find, The Court found there was inadequate notice of termination. The fact that the bus driver left work immediately instead of working the notice period did not negate his right to sue for damages in lieu of notice.

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Tags: BC, breach of contract, British Columbia, common law, Damanges, employment law, inadequate notice of termination, reasonable notice, reasonable termination notice, repudiation of the contract, termination, termination letter, working notice, wrongful dismissal
Posted in Employment Standards, Human Resources | Make a Comment »

Navigating the minefield: Court of Appeal reiterates distaste for restrictive covenants

Monday, January 23rd, 2012

Hunter Harrison, the former Chief Executive Officer of Canadian National Railway (CNR), faces a dilemma in dealing with his obligations under a non-compete covenant to his former employer. Harrison is being pursued by CNR competitor Canadian Pacific Railway to assume the position of CEO, but taking that position might violate the non-compete agreement.

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Tags: Canadian National Railway, Canadian Pacific Railway, CNR, competing with former employer, competitive activities of former employees, employment contract, H.L. Staebler, injunctions, Mason v. Chem-Trend, non-compete clause, non-competition, overly broad, proprietary interest, restrictive covenant, Shafron, termination, time and geographic limits
Posted in Employee Relations, Human Resources | Make a Comment »

The debate over moral damages continues

Friday, January 20th, 2012

Since Honda v. Keays, employment law and human resources practitioners have been watching how the law regarding bad faith dismissals has developed, in particular, the assessment of moral damages. A recently published decision has added some clarity to the moral damages question. The case, Canada (Attorney General) v. Tipple (2011) dealt with the well known case of Douglas Tipple.

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Tags: bad faith, bad faith dismissals, bad faith termination, Canada (Attorney General) v. Tipple (2011), Douglas Tipple, employment law, grievance, Honda damages, Honda v. Keays, mental health effects, misleading and unduly insensitive, moral damages, psychological injury, reprisal, termination, workplace investigations
Posted in Employee Relations, Employment Standards, Human Resources | 2 Comments »

Employees that wish to withdraw resignations: what to do?

Wednesday, January 11th, 2012

Employers should never accept resignations from employees that are upset. It simply casts a “wider net of possible financial exposure” if things turn nasty. In other words, judges or juries probably won’t sympathize with the issue of resignation acceptance if the employee is genuinely and legitimately upset (not because someone misplaced their red stapler).

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Tags: employment law, Kieran v. Ingram Micro, mitigation, notice of resignation, notice period, offer to resign, quit or be fired, reasonable notice, resignation, termination, valid resignation, voluntary acceptance, withdraw resignation, wrongful dismissal, wrongful resignation
Posted in Employee Relations, Employment Standards, Human Resources | Make a Comment »

The sale of a business and some implications for employers and employees

Monday, December 12th, 2011

Last month I was consulted by a woman with respect to a new employment agreement that she wanted reviewed. The employment opportunity presented to her was by a company that had purchased the software company she was currently employed with for the past 19 years. Her salary remained the same, as did the total of her bonus, although the bonus structure was altered to reflect seemingly unattainable goals. While the new bonus structure did in fact reflect the purchasing company’s exact bonus structure with all of its existing employees, this arrangement was originally her main concern.

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Tags: canadian employment law, common law, common law obligations, company takeovers, employment law, employment standards act, ESA, ESA obligations, Nokes vs. Doncaster, novation, sale of a business, seniority, Sorel vs. Tomenson Whitehead, successor employer, termination, terminations, transitional contract, wrongful dismissal, years of service
Posted in Compensation, Employee Relations, Employment Standards, Human Resources, Payroll | Make a Comment »

Myths and misunderstandings regarding employees on leave

Thursday, December 1st, 2011

As more employees spend time on leaves of absence, employers seem to be struggling to understand their rights and obligations…

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Tags: accommodation, Costco, Disability, Disability benefits, disability insurance, disability management, downsizing, duty to accommodate, eligibility for disability benefits, employment law, frustration of contract, Leaves of absence, maternity leave, medical evidence, medical leave, ongoing absence, parental leave, pregnancy leave, Return to work, right-sizing, terminating employee on leave, termination, undue hardship, wrongful dismissal
Posted in Benefits, Employment Standards, Human Resources, Human Rights, Payroll | 3 Comments »

Was it a termination or a resignation? Credibility was key

Friday, November 25th, 2011

In a recent case coming out of the Court of Queen’s Bench of New Brunswick, the Court believed the employee’s story that he was terminated without cause, rather than the employer’s story that the employee resigned. When looking at the facts, the Court found the employee to be the more credible witness and awarded termination notice of 23 months.

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Tags: credibility, employment law, hefty damage awards, long-term employee, management skills, New Brunswick, promotion, resignation, social skills, statutory notice, termination, termination notice, trainng, wrongful dismissal
Posted in Compensation, Employee Relations, Employment Standards, Human Resources, Payroll | 4 Comments »

The fine art of determining notice for dismissal: ‘old habits die hard’

Thursday, November 24th, 2011

Probably the most prevalent misconception in the area of employment law is the notion that all employees are entitled to “one month per year” as notice of termination without cause. This has, in the past, been referred to as the golden rule. In spite of repeated judicial pronouncements that the rule no longer applies, human resources professionals continue to apply it.

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Tags: Bardal Factors, Bardal v. The Globe & Mail, character of employment, Dismissal, economy, employment law, length of employment, length of notice period, lump-sum payment, notice of dismissal, notice period, one month per year, re-employment prospects, salary continuance, specialized knowledge, statutory notice period, termination, termination package, termination without cause, unstable labour market, wrongful dismissal
Posted in Compensation, Employment Standards, Human Resources, Payroll | Make a Comment »

Case clarifies what is meant by ‘common employer’

Friday, October 28th, 2011

The Ontario Superior Court of Justice recently decided that an employee was wrongfully dismissed and entitled to $20,363 in damages. The problem was that the damage award was made against two companies that were no longer in operation and without assets to pay the judgment. A related company that did have assets to pay the award was found not to be a common employer and was thus not liable.

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Tags: common employer, common employers, connection between the employee and the owner, control, damage award, employment law, holding company, ontario, ownership and connection between interconnecting companies, related companies, termination, wrongful dismissal
Posted in Employment Standards, Human Resources | Make a Comment »

Unexpected risks of stock option plans

Thursday, October 27th, 2011

Stock options and stock grants have become normal and expected elements of executive compensation in Canada. Stock options are generally granted to executive employees as a means of creating a common purpose or goal between senior employees and the company. The valuation of these options, and the employee’s entitlement to exercise them, has been an issue in many wrongful dismissal actions.

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Tags: Corporations Act, employee shareholder, executive compensation, financial information, lawful termination, lump sum severance, oppression action, period of notice, securities act, severance, stock grants, stock option plan, stock options, termination, termination notice, vesting of stock options
Posted in Benefits, Compensation, Payroll | Make a Comment »

Landmark decision gives insight into workplace harassment and employer reprisal

Friday, October 21st, 2011

The Ontario Labour Relations Board has provided what some believe to be the most significant legal interpretation yet of workplace harassment and employer reprisal in the context of the recently enacted Bill 168 amendments to the Occupational Health and Safety Act (OHSA). The case, Conforti v. Investia Financial Services Inc., 2011, was decided on September 23, 2011.

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Tags: Bill 168, compliance, discipline, employment law, harassing email, occupational health and safety act, OHSA, ontario, reprisal, right to refuse work, risk assessment, termination, termination for cause, termination for harassment complaint, vexatious comment or conduct, whistleblowing, workplace harassment, workplace harassment investigation, workplace violence
Posted in Employee Relations, Health and Safety, Human Resources, Human Rights | Make a Comment »

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