Canada, Fasken updates

Employment & Benefits

Contributed by Fasken
Religious freedom versus occupational health and safety
  • Canada
  • 19 February 2020

A great societal debate is taking place following the Quebec National Assembly's recent adoption of the Act Respecting the Laicity of the State, which regulates the wearing of religious symbols at the government level. In a recent case, freedom to wear religious symbols was pitted against employers' legal obligations to ensure and maintain occupational health and safety. The Quebec Court of Appeal held that occupational health and safety prevails over religious freedom, at least in this matter.

No time wasted: years as dependent contractor included in calculation of employee's notice of termination
  • Canada
  • 12 February 2020

The Ontario Court of Appeal recently confirmed that years spent as a dependent contractor may count when calculating notice of termination for a contractor turned employee who is terminated without cause. This decision leaves open the possible argument that prior service as an independent contractor may be included in length of service for notice of termination calculations.

To discipline or not to discipline: employers' prerogative
  • Canada
  • 05 February 2020

In recent years, several arbitration awards have considered the difference between disciplinary and administrative measures. The Quebec Court of Appeal recently upheld a decision, explaining that the difference between the two may be not only the wilfulness of the misconduct or other elements, but also the employer's intention to discipline.

"I quit! Wait, I changed my mind": impact of rescinded resignations on length of service
  • Canada
  • 29 January 2020

A resignation must be clear and unequivocal to end employment. Sometimes employees change their mind and try to rescind a resignation. A recent decision states that when this happens and the employee continues to work for the employer on the same terms and conditions without any interruption, the employee may be deemed to have lost all prior service with the employer.

Employer breaches duty of good faith and honest performance: now what?
  • Canada
  • 22 January 2020

Employers have a duty of good faith when they terminate an employee, which requires them to be honest and forthright with employees when doing so. The law has also developed to recognise a duty to perform a contract honestly and in good faith. The Supreme Court is now deciding what happens when an employer breaches that duty. Should a court award an employee money for incentive compensation that they would have expected to receive had it not been for the breach?

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