Author Archive - Alison J. Bird

Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more

Termination clauses: Importance of clear language

November 7, 2016 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Union Relations, Wages and Compensation

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.

Bellini v Ausenco Engineering Alberta Inc., employment law, labour standards code, reasonable notice, reasonable notice entitlement, reasonable notice of termination, Termination clause, termination clauses

Human Rights Commission tackles racial profiling

September 12, 2016 Alison J. Bird Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Penalties and Fines, Training and Development

This year, a Nova Scotia Human Rights Board of Inquiry issued a highly publicized decision on racial profiling. In the case, the Board concluded that a woman had been discriminated against on the basis of her race and/or colour when wrongfully accused of shoplifting at a grocery store. In the wake of this case and research, the Nova Scotia Human Rights Commission has recently announced plans to take preventative measures to tackle this serious issue.

allegations of racism, discriminated against because of race, discrimination, employment law, human rights, human rights commission, Nova Scotia Human Rights Board, Nova Scotia Human Rights Commission, race and colour, racial profiling, racism, visible minority groups

Court of Appeal overturns finding that respondent must admit discrimination to settle a human rights complaint

July 11, 2016 Alison J. Bird Employee Relations, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Wages and Compensation

Under the Nova Scotia Human Rights framework, a Board of Inquiry must approve any settlement reached after a complaint is referred to a hearing before the Board. Recently, in Nova Scotia (Human Rights Commission) v Grant, 2016 NSCA 37, a Board of Inquiry refused to approve a settlement. The Board concluded that it could not approve a settlement unless the respondent admitted discrimination. As the respondent in this matter had not made such an admission, the Board refused to grant the necessary approval—barring a settlement that the parties were willing to accept.

admission of discrimination, discrimination, element of a settlement, employment law, human rights act, Nova Scotia Human Rights

Construction industry certification: Nova Scotia Court of Appeal weighs in

June 6, 2016 Alison J. Bird Employee Relations, Human Resources, Payroll, Source Deductions and Reporting, Union Relations

In Nova Scotia, an employer in the construction industry may become certified by a union if the Labour Board is satisfied that the applicant union “has as members in good standing more than fifty percent of the employees in the appropriate unit”. Accordingly, the definition of the bargaining unit is a significant issue in construction industry certifications because the employees in the unit materially impact whether the certification application is successful.

bargaining unit, Collective Bargaining, construction industry, Construction industry certification, labour board, Labour Law, Nova Scotia Labour Board, Trade Union Act, union certification, Unions

Beware of the one month per year of service “rule”, part 5

May 9, 2016 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation

I have written several times about cases which significantly depart from the so-called one month per year of service rule. There continues to be a seemingly never-ending stream of cases which confirm the perils of assuming that an employer’s liability for reasonable notice of termination will be capped at one month per year of employment.

employment law, notice period, one month per year of employment, one month per year of service rule, pay in lieu of notice, reasonable notice of termination, termination, wrongful dismissal

Update: Is the failure to provide parental leave “Top-Up” benefits discriminatory?

March 7, 2016 Alison J. Bird Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Union Relations, Wages and Compensation

I previously wrote a post about a Nova Scotia Human Rights Board of Inquiry Decision which considered whether an employer’s failure to provide top-up benefits to biological parents on parental leave was discriminatory. The Court of Appeal issued its decision on February 10, 2016.

Adoptive parents, collective agreement, discrimination, employment law, family status, human rights act, Labour Law, top-up benefits

Beware of the one month per year of service “rule”, part 4

February 8, 2016 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

'rule of thumb, employer’s liability for reasonable notice of termination, employment law, employment standards, notice period, one month per year of service rule, pay in lieu of notice, wrongful dismissal action

Can’t afford to keep them, can’t afford to fire them: Poor finances do not reduce termination obligations

January 11, 2016 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

Employee salaries and benefits can be some of the greatest costs borne by a business. As a result, when a company faces financial hardship, they will often terminate positions to reduce their costs. However, many employers may not realize that the obligation to provide reasonable notice of termination could negate any short-term cost savings they hoped to realize.

12 months’ notice of terminatio, Bardal Factors, Employee salaries and benefits, employment contract, employment law, enforceable termination clause, financial hardship, reasonable notice of termination, rule of thumb of one month of notice per year of service, termination notice

Pre-employment drug and alcohol testing

December 7, 2015 Alison J. Bird Employee Relations, Health and Safety, HR Policies and Procedures, Human Resources, Human Rights

The law of drug and alcohol testing in Canada is in a state of evolution. While the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., provided important guidance on the strict standard that employers must meet in order to subject employees to random testing, it raised many questions regarding how those principles would be applied to other forms of testing.

bona fide occupational requirement, drug and alcohol use, employment law, impaired at work, law of drug and alcohol testing, positive post-incident tests, pre-employment testing, random testing, Supreme Court of Canada

Nova Scotia – Application of restorative process to discrimination complaint

November 18, 2015 Alison J. Bird Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Training and Development

Since 2012, the Nova Scotia Human Rights Commission has adopted a restorative approach as the first option in addressing human rights complaints. If a complaint is referred to a Board of Inquiry, parties have the option to either proceed to a traditional hearing, or agree to a Restorative Board of Inquiry process.

Board of Inquiry, discrimination, discriminatory comments, duty to accommodate, employment law, general damages award, human rights complaints, human rights education training, human rights policies, restorative approach, Restorative Board of Inquiry process, Return to work

Court finds extraordinary circumstances justify 30 months’ notice

October 20, 2015 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

The dismissal of a long-term employee who is entitled to common law reasonable notice can result in significant liability for an employer. As the determination of the appropriate notice period is contextual, it can be difficult for an employer to accurately assess their potential liability.

common law notice, common law reasonable notice, dismissal of a long-term employee, employee’s notice entitlement, employment law, notice period, termination, terminations

The duty to accommodate: When is the point of undue hardship reached?

August 10, 2015 Alison J. Bird Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Union Relations

Under human rights legislation, employers have a duty to accommodate an employee’s needs related to a prohibited ground of discrimination to the point of undue hardship. It can often be difficult for employers and their legal counsel to assess when the point of undue hardship is reached.

bona fide occupational requirement, duty to accommodate, employment law, human rights act, human rights commission, human rights legislation, LeFrense v IBM Canada Ltd, Nova Scotia Human Rights Board of Inquiry, Physical disability, point of undue hardship, prohibited ground of discrimination

Is the failure to provide parental leave “top-up” benefits discriminatory?

July 7, 2015 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Union Relations, Wages and Compensation

In Adekayode v Halifax (Regional Municipality), a Nova Scotia Human Rights Commission Board of Inquiry recently considered a complaint alleging that an employer’s failure to provide a top-up of employment insurance benefits for biological parents during a parental leave was discriminatory.

collective agreement, discrimination, discrimination based on how the parent/child relationship, employment insurance benefits, employment law, family status, human rights act, Human Rights Commission Board of Inquiry, leave policies, parental leave, supplemental employment benefits, top-up, top-up benefits, top-up of employment insurance benefits

All pay and no work? That’s constructive dismissal!

April 9, 2015 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Recruiting and Hiring, Wages and Compensation

This newest post deals with the dangers of preventing an employee from working, and the importance of carefully drafting employment contracts.

Termination of benefits for employees over 65

March 9, 2015 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Human Rights, Payroll, Pensions and Benefits, Union Relations, Wages and Compensation

The number of workers over the age of 65 has risen significantly in recent years. The increasing number of older employees who are choosing to remain in the workplace, combined with the (near) elimination of mandatory retirement, has raised many considerations that employers have not previously addressed.

benefits coverage for older workers, changing workforce demographic, discrimination based on age, elimination of mandatory retirement, employment law, human rights code, long-term disability benefits, LTD, LTD benefits, older employees, terminate benefits at age 65, Termination of benefits for employees over 65