Employment & Benefits, Fasken updates


Contributed by Fasken
Constructively dismissed? Maybe, but get back to work
  • Canada
  • 18 September 2019

A recent decision reaffirms that employees must return to work following a constructive dismissal to mitigate the damages that they caused where doing so would not be embarrassing, humiliating or degrading. In such cases, employers should consider whether it is appropriate to re-offer an employee the opportunity to return to work following an allegation of constructive dismissal, as this could greatly limit the damages and their potential liability in litigation.

Please hold the line: what to do when receiving calls from employment insurance officers
  • Canada
  • 11 September 2019

An adjudicator considering allegations of unjust dismissal under the Canada Labour Code recently ruled that an employer was prohibited from asserting dismissal for misconduct since the issue had already been decided by an employment insurance officer. The decision reminds employers to proceed with caution when communicating with employment insurance officers after a termination. They should also consider the potential ramifications of not appealing an officer's decision.

Unintentional discrimination is still discrimination
  • Canada
  • 04 September 2019

The Human Rights Tribunal of Ontario recently held that a law firm discriminated against an applicant because of his age and race, and by failing to investigate his discrimination complaint. This decision is an important reminder for employers to be careful in how they assess and treat candidates during the recruitment process. Among other things, employers should be courteous in their communications with all candidates and avoid engaging in arguments with them.

Is sex addiction a disability?
  • Canada
  • 28 August 2019

Can a unionised employee be fired for masturbating at work or is there a duty for employers to accommodate this conduct as a sex addiction? These were the novel questions considered in a recent case. The decision does not end the dispute about whether a sex addiction is a recognised medical condition that could be a disability, but it does reinforce the importance of progressive discipline in upholding a cause termination.

Does desire to work prevent employers from terminating employees who can't work?
  • Canada
  • 21 August 2019

Many employees struggle to manage disability leave. This is particularly difficult when an employee wants to work but their doctor says that they cannot do so for the foreseeable future. A recent decision provides guidance to employers dealing with this situation. For example, they should proactively manage disability leave by, among other things, staying up to date on an employee's potential to return to work.

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