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
February 9, 2015 Alison J. Bird Corporate Immigration, Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
It can be surprisingly difficult for an employer to rely on statements such as “I quit” to establish that an employee resigned, particularly if the employee later indicates that they want to return to work. Courts require proof of a clear intention to resign in order to find that an employee terminated their employment. While the statement “I quit” may seem clear, courts will inquire into the circumstances in which the statement was made in order to determine whether the employee actually resigned.
contract law, employment contract, employment law, Give me a raise or i’ll quit, Job offer, Kerr v Valley Volkswagen, objective intention to resign, resignation, retracted offer to resign, Return to work, terminate the employment relationship, wrongful dismissal action
January 12, 2015 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’ve written a number of times regarding cases that significantly depart from the so-called one month per year of service rule. Yet another case has illustrated the risk an employer runs in assuming their liability will be capped at one month per year of service.
common law notice, dismissing an employee, employment law, notice period, one month per year of service rule, reasonable notice, rule of thumb of one month notice per year of service, wrongful dismissal
December 8, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations, Wages and Compensation
It is a commonly held belief that employees must provide two weeks’ notice when they resign from their employment. However, this blanket statement does not necessarily reflect the applicable legal requirements. While two weeks’ notice is appropriate in many cases, some employees may be required to provide less notice, and other employees may be required […]
common law, Employee resignation, employment contract, employment law, Employment Standards legislation, enforceability of a contractual resignation requirement, How much notice of resignation must an employee provide?, HR Law, reasonable notice
November 10, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources
In Nova Scotia, employees with ten years of service are provided with special protections under the Labour Standards Code. Section 71 of the Code provides that, subject to certain exceptions, an employer can only dismiss an employee with ten years of service or more for just cause. This is called the tenured employee rule.
Director of Labour Standards, dismissing an employee, employment law, Employment release, just cause, Labour Standards complaint, Nova Scotia Labour Standards Code, pay in lieu of notice, reinstatement, release, tenured employee rule, termination, termination notice
October 6, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, Health and Safety, HR Policies and Procedures, HRMS, Human Resources, Human Rights, Payroll, Recruiting and Hiring, Training and Development, Wages and Compensation
Given the increasing number of older employees who are choosing to remain in the workplace and the (near) elimination of mandatory retirement, it is increasingly important for employers to ensure that they are engaging in appropriate performance management of older workers. However, employers must make sure that its performance management is carried out in a way that does not trigger liability for age discrimination.
age discrimination, Age Related Discrimination, discrimination, elimination of mandatory retirement, employer’s performance management of an older worker, employment law, objective performance standards, older employees, older workers, performance management
September 8, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Recruiting and Hiring, Wages and Compensation
While many employers may be aware of the difficulties in enforcing non-competition clauses, they may not be aware of another risk associated with such clauses: their potential to increase the reasonable notice period.
a reasonable notice factor, Bardal Factors, common law notice, employment contract, employment law, increase the length of the reasonable notice period, job security, longer notice period, non-competition clause, notice period, pay in lieu of notice, reasonable notice, restrictive covenant, termination, terminations, wrongful dismissal
August 11, 2014 Alison J. Bird Accessibility Standards, Employee Relations, Employment/Labour Standards, HR Analytics, HR Policies and Procedures, Human Resources, Human Rights, Integrated Accessibility Regulation, Recruiting and Hiring, Standard for Employment
The number of workers over the age of 65 has significantly increased in recent years, and a survey by Towers Watson found that one-third of all respondents and 42 percent of older workers have decided to delay retirement. This aging workforce demographic means that not only are there more older workers remaining in their employment, but also that there are many older workers seeking new employment.
age discrimination, aging workforce demographic, be careful not to discriminate against an applicant on the basis of age, date of birth on the application form, employment law, Human Rights considerations, job applicant, job applicant’s date of birth can trigger human rights liability, many older workers seeking new employment, older job applicant, older workers, older workers have decided to delay retirement, Ontario human rights commission, retirement, Statistics Canada, Towers Watson, workers over the age of 65, workforce
July 9, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll
A recent case from the Ontario Superior Court of Justice serves as a good reminder to employers that there is a high standard to dismiss an employee for cause, particularly if the employee has a good performance record and long service.
cause for dismissal, Dismissal, employee misconduct, employment law, high standard to dismiss an employee for cause, incident of misconduct, long service, performance record, termination, termination for cause, terminations, wrongful dismissal
June 9, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations
In 2008, the Supreme Court of Canada issued Evans v Teamsters Local Union No. 31, [2008] 1 S.C.R. 661, one of the leading decisions on constructive dismissal in Canada. In that case, the Court held that a constructively dismissed employee must mitigate their damages by continuing to work with the dismissing employer if a reasonable person would accept this mitigation opportunity. In determining whether it is reasonable to mitigate by working for the dismissing employer, the Court stated that one should consider the following factors:
a constructively dismissed employee must mitigate their damages, constructive dismissal, continuing to work with the dismissing employer, duty to mitigate, employment law, Evans v Teamsters, Farwell v Citair Inc. (General Coach Canada), mitigate damages, mitigation, notice period, Supreme Court of Canada, termination, terminations, working conditions
May 12, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
Last October, I wrote a post cautioning employers to beware of using the one month per year of service “rule of thumb”. A recent case from the Ontario Superior Court of Justice has again affirmed that, depending on the circumstances, courts are willing to award short service employees significantly more than one month per year of service.
'rule of thumb, Bardal Factors, Beware of the one month per year of service rule, common law notice, dismissing an employee, dismissing an employee without cause, duty to mitigate, employment law, HR Law, length of service, notice period, one month per year of service, termination, terminations, Wellman v The Herjavec Group Inc.
April 7, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
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.
alternate employment during the notice period, constructive dismissal, contractual severance, Dismissal, duty to mitigate, employment contract, employment law, Notice of termination, notice period, pay in lieu of notice, resignation, termination, Termination clause, termination clauses in employment contracts, termination letter, termination without cause, terminations, working notice
March 10, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation
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.
ability to perform duties, condonation, constructive dismissal, disability leave, Dismissal, duty to mitigate, Employer refused to give him a raise, employment law, hostile work environment, increase in duties, increase in salary, job description, job responsibilities, pay in lieu of notice of termination, salary, termination, termination letter, terminations, working notice, working notice of termination, workload
February 10, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Penalties and Fines, Recruiting and Hiring, Source Deductions and Reporting, Wages and Compensation
Many of the cases I have reviewed in recent years on the question of whether a worker is an independent contractor or an employee have inevitably determined that the worker is an employee. While there are some notable exceptions to this trend, I find myself surprised whenever I read a decision that concludes that the worker is in fact an independent contractor. Therrien v Minister of National Revenue, 2013 TCC 116 is one such case.
1392644 Ontario Inc v MNR, employment contract, employment insurance benefits, employment law, Employment status, HRSDC, income tax filings, independent contractor, Tax Court of Canada, Therrien v Minister of National Revenue, trained executive chef, type of employee, unilaterally change the terms of a contract, whether a worker is an independent contractor or an employee, written contractual relationship
January 13, 2014 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, HRMS, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits
It can be very difficult to establish cause for dismissal, particularly when the employee has lengthy service with the employer. However, on the right facts, it is possible to do so. MacBurnie v. Halterm Container Terminal Limited Partnership, 2013 NSSC 361, is a recent example of an employer that successfully proved at trial that it had dismissed an employee for cause.
Absences, advance notice of time off, canadian employment law, cause for dismissal, discipline, dismissal for cause, dismissing an employee, doctor's note, Employee absence, employee’s dishonesty, employer conducted surveillance on the employee, employment law, false sick leave, long-service employee, sick leave, surveillance video, termination, terminations, warning the employee
December 9, 2013 Alison J. Bird Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll
A recent judgment of the New Brunswick Court of Appeal has once again affirmed the importance of carefully drafting termination clauses in employment contracts. In this case, the Court upheld a trial judgment that a termination clause which purported to limit the employee’s notice entitlement to 20 days was not enforceable. The Court of Appeal’s […]
carefully drafting termination clauses in employment contracts, common law, common law reasonable notice period, compensation in lieu of reasonable notice, dismissal for just cause, duty to mitigate, employee’s notice entitlement, employment contracts, employment relationship, employment standards act, limit the employee’s notice entitlement, minimum notice requirements of the Employment Standards Act, minimum statutory standards, notice of resignation, Notice of termination, notice period, reasonable notice, reasonable notice of dismissal, severance package, termination clauses, termination without cause, unenforceable termination clause
We are splitting the total number of employees into two groups - on a weekly rotation basis. One group is coming one week and another... – Mar 25, 5:13 PM
If they are not sick or caring for someone because of COVID-19 they should not be entitled to this leave. That being said, if they... – Mar 25, 11:53 AM
