First Reference Talks

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.

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, Finance and Accounting, Human Resources, Internal Controls, 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.

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 »

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).

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 »

Constructive dismissal: a tough call for employees

Wednesday, December 21st, 2011

Constructive dismissals are something that most employers are aware of, but many may not be aware that constructive dismissals are in fact very difficult cases for employees to win. This is illustrated by a recent case out of Nova Scotia, Gillis v. Sobeys Group Incorporated 2011 NSSC 443.

Tags: breach of contract, canadian employment law, constructive dismissal, Constructive dismissals, Dismissal, employment contract, employment law, essential term, Farber v. Royal Trust Company, Gillis v. Sobeys Group Incorporated, notice period, Nova Scotia, substantial change, wrongful dismissal
Posted in Compensation, Employee Relations, Employment Standards, Human Resources, Payroll | 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.

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, Finance and Accounting, Human Resources, Internal Controls, 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…

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.

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.

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.

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, Finance and Accounting, Human Resources, Internal Controls | Make a Comment »

Is severance pay required when an employee is terminated?

Thursday, September 29th, 2011

When I speak at conferences, I am often asked the following question: “Is severance pay required when an employee is terminated?”

Before this question can be answered, we have to first confront the difficulty that some payroll terms traditionally used to describe both termination, as well as any payments resulting from this event, haven’t always been defined with the greatest of clarity. My preference has always been for those terms that convey the clearest meaning of the related employment standards and source deduction requirements.

Tags: constructive dismissal, death benefits, employment law, layoff, loss of employment, Notice, payments on separation, retiring allowance, separation payments, Severance pay, statutory notice, Statutory severance, termination, termination for cause, termination without cause, wages in lieu of notice, wrongful dismissal
Posted in Compensation, Employment Standards, Human Resources, Payroll | Make a Comment »

Can I be disciplined for off-duty behaviour?

Tuesday, September 27th, 2011

“I am at a party on my day off and a coworker hurls racial insults at me or makes sexual suggestive comments to me.” Am I protected by my employer’s harassment and discrimination policy? Likewise, if I am the one doing the hurling or suggestive commenting, am I subject to discipline under my employer’s policies?

Tags: Bill 168, canadian employment law, discrimination, Dismissal, employee discipline, employment law, harassment, HR issues, off-duty acts, off-duty conduct, off-duty hours, policies and procedures, policy manual, prevention workshops, terminations, workplace code of conduct, workplace harassment, wrongful dismissal
Posted in Employee Relations, Human Resources, Human Rights | 4 Comments »

Written agreements in the employment relationship are valuable

Thursday, August 25th, 2011

I have written in this blog and elsewhere, of the value in written employment contracts, written offers of employment, and written employment policies. Much like the break up of a marriage, the parties to the dissolution of the employment relationship often have widely divergent recollections of the understanding of the terms of the relationship when they were entered into. In particular,…

Tags: constructive dismissal, employment contract, employment contracts, employment law, employment policies, employment relationship, hiring process, negligent misrepresentation, offers of employment, resignation, severance package, written agreements, wrongful dismissal
Posted in Employment Standards, Human Resources, Recruiting and Hiring | Make a Comment »

Working notice: destined to fail?

Thursday, August 4th, 2011

I always advise clients to consider their options when they must dismiss an individual (assuming it is without cause). Rather than automatically offering a package, and paying the employee not to work, I encourage our clients to consider whether a period of working notice could be viable. By doing so, at least they would get some value for their money. However, I often think back to a comment made by Mr. Justice Donnelly of the Ontario Superior Court of Justice, who, in the course of considering a wrongful dismissal claim, opined that “[w]orking notice is an institution almost invariably predestined to fail.”

Tags: Elg v. Stirling Doors, employment law, notice period, Ontario Superior Court of Justice, pay in lieu of notice, terminate an employee without cause, termination, termination notice, wilful misconduct, working notice, working notice of termination, wrongful dismissal
Posted in Compensation, Employment Standards, Human Resources, Payroll | 4 Comments »

Motions for judgment in wrongful dismissal − the court of appeal’s latest statement

Tuesday, July 5th, 2011

One of the difficulties faced by plaintiffs’ counsel in wrongful dismissal litigation is the length of time it can require to get a case to trial and obtain monetary compensation for the dismissed employee. Obviously, a plaintiff without a job is sensitive to the costs and delay which may result. This issue can often be addresses by way of a Motion for Summary Judgment.

Tags: accrued vacation pay, Bardal Factors, Bardal v. The Globe & Mail, canadian employment law, Di Tommaso v. Crown Metal Packaging Canada LP, employment law, employment standards act, monetary compensation for the dismissed employee, Notice of termination, notice period, Ontario Court of Appeal, Ontario Superior Court, summary judgment in wrongful dismissal actions, Supreme Court of Canada, temporary employment, termination, the end of the notice period, working notice, wrongful dismissal, wrongful dismissal damages, wrongful dismissal litigation
Posted in Employment Standards, Human Resources | Make a Comment »