First Reference Talks

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, 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…

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, Human Resources | 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, LinkedIn, 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 »

Workplace violence and privacy: what’s the connection?

Tuesday, June 28th, 2011

So here’s a question to ask yourself—what are your legal obligations under Ontario law when you see an online photo of your worker committing violent acts?

Tags: 12th Annual Ontario Employment Law Conference, Bill 168, employment law, facebook, harassment, health and safety, Kelly McDermott, occupational health and safety act, OH&S, OHSA, ontario, policies and procedures, Rioting, social media, Stanley Cup playoffs, Stringer Brisbin Humphrey, termination, twitter, workplace harassment, workplace violence, wrongful dismissal
Posted in Conferences, Health and Safety, Human Resources, Privacy and Security | Make a Comment »

Honda damages continue to be moving target

Wednesday, June 15th, 2011

A recent case from the Alberta Court of Appeal suggests that Honda damages, previously known as Wallace damages, are becoming less of a threat for employers in wrongful dismissal suits.

Tags: Alberta Court of Appeal, award of aggravated damages, bad faith behaviour, bad faith dismissal, Elgert v. Home Hardware Stores, employment law, extension of the notice period, Hadley v. Baxendale, Honda damages, Honda v. Keays, manner in which the termination was carried out, misconduct, moral damages, notice period, risk of damages, Supreme Court of Canada, terminations, Wallace damanges, Wallace v. United Grain Growers, wrongful dismissal
Posted in Employment Standards, Human Resources | Make a Comment »

A stunning example of mistreatment of migrant workers

Friday, June 3rd, 2011

This case is a stunning example of mistreatment of migrant workers: a live-in nanny recently launched a wrongful dismissal claim against her employer in the Ontario Superior Court seeking damages in the amount of $195,000 for breach of contract, unpaid wages, statutory holiday pay and vacation pay.

Tags: breach of contract, employment law, employment rights, employment standards act, Employment standards complaint, foreign national, Foreign workers, immigration agents, Immigration and Refugee Protection Regulations, isolated foreign workers, language barriers, Lilliane Namukasa, live-in nanny, Live-in-caregiver program, migrant workers, mistreatment of migrant workers, six month limit to recover unpaid wages, statutory entitlements, temporary work permit, terminated without notice, The Employment Protection for Foreign Nationals Act, two-year limitation period, unpaid statutory holiday pay, unpaid vacation, unpaid wages, wage theft, wrongful dismissal, wrongful dismissal claim
Posted in Corporate Immigration, Employment Standards, Human Resources | Make a Comment »

Moral damages: still an unsettled question

Wednesday, May 18th, 2011

A recent case out of the Quebec Superior Court Lysecky v. United Parcel Service of Canada Limited 2010 QCCS 5098 is indicative how the question of “moral damages” is still unsettled law.

Tags: bad faith during the termination, Civil law, common law, employment law, extension of the notice period, Fox v. Silver Sage Housing Corporation, Honda v. Keays, Lysecky v. United Parcel Service of Canada Limited, manner of dismissal, mental distress, moral damages, notice period, Quebec, Quebec Superior Court, Supreme Court of Canada, terminations, Wallace damages, Wallace v. United Grain Growers, wrongful dismissal
Posted in Employment Standards, Human Resources | Make a Comment »