We are signing off with a list of the top 10 most read First Reference Talks posts 2016. Human rights issues and rules for termination notice seem to have been hot topics this year with several blog posts on the topics making it on the list. The top 10 most read First Reference Talks posts […]
Three popular articles this week on HRinfodesk deal with the ban on e-cigarettes; an employee refusing to work the notice period; and, managing short-term absences.
Let’s begin with a point that comes as a surprise to many employees and employers: there is nothing legally wrong with providing an employee with working notice of their dismissal and requiring that they continue to attend at work and perform their duties throughout the notice period.
A recent French language decision from the Ontario Superior Court of Justice indicates that more employers could be subject to liability for an employee entitlement often relegated to the role of afterthought: severance pay.
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.
Employer’s unreasonable increase in duties and poor response to employee concerns constitutes constructive dismissal
Often constructive dismissal cases involving a change in duties arise from an employer’s unilateral reduction in an employee’s duties. However, Damaso v PSI Peripheral Solutions Inc, is just the opposite. An employee alleged that an employer’s unilateral increase in his duties resulted in his constructive dismissal.
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.
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.
The three most viewed articles on HRinfodesk this week deal with a company that was the author of its own misfortune when insisting on treating an employee as independent contractor; claims of working notice and constructive dismissal; and the reform of the temporary foreign worker program.
There is an implied term of the employment contract that when an employee is terminated without cause, they will be provided reasonable notice of termination. (Of course, an employer can avoid the reasonable notice requirement by including an express provision regarding termination in the employment contract.)
The recent firing of Toronto Transit Commission head Gary Webster makes it difficult for the city to claim it is trying to run like a business. Webster, a 37-year TTC employee, was a year away from the end of his contract, and his termination without cause will likely cost the city at least $500,000 in severance pay, not to mention the costs associated with replacing him.
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.
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.