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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

“Give me a raise or i’ll quit”: Has the employee resigned?

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.

 

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Beware of the one month per year of service “rule”, part 3

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.

 

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How much notice of resignation must an employee provide?

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 […]

 

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Releases may not protect employers from the tenured employee rule

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.

 

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Performance management of older workers

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.

 

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Beyond bardal: The presence of a non-competition clause as a reasonable notice factor

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.

 

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The older job applicant: Human Rights considerations

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.

 

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Employee misconduct: Is it cause for dismissal?

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.

 

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The latest: When does a constructively dismissed employee have to stay with their employer?

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:

 

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Beware of the one month per year of service rule: Part 2

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.

 

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Preventing an employee from working during working notice can be constructive dismissal

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.

 

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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.

 

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Executive chef loses attempt to unilaterally change status from independent contractor to employee

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.

 

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Employer successfully proves dismissal for cause of long-service employee for false sick leave

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.

 

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Lessons from the mistakes of others: Reliance on an unenforceable termination clause is costly

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 […]

 

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