Latest updates
Employer breaches duty of good faith and honest performance: now what?
Fasken- Employment & Benefits
- 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?
School no excuse for excessive absenteeism: arbitrator rules in upholding termination
Fasken- Employment & Benefits
- Canada
- 15 January 2020
In a recent arbitration decision, an arbitrator upheld the termination of a grievor for excessive absenteeism under the employer's absenteeism policy. In doing so, the arbitrator rejected the union's submission that the grievor's absenteeism should be excused since she was studying for a professional degree to better herself.
Unionising the gig economy: contractor or employee?
Fasken- Employment & Benefits
- Canada
- 04 December 2019
One of the main disputes regarding the rise and proliferation of the gig economy is whether its workers are employees or contractors. Companies treat such workers as independent contractors, but some workers have been pushing back, claiming that they are employees. This has implications for their ability to unionise. The Ontario Labour Relations Board will soon be ruling on this issue when it determines whether Foodora couriers have the right to unionise.
Only buying assets? Look out for surprise employment liabilities!
Fasken- Employment & Benefits
- Canada
- 20 November 2019
A recent Ontario Superior Court ruling highlights how employers can end up with unexpected employment liabilities after an asset purchase deal. It also highlights the importance of careful wording when hiring employees in those situations. In light of this decision, purchasers in an asset deal should be aware of the new employer's fate. In such cases, proper employment offers are key.
Employer flexibility does not modify employment contracts
Fasken- Employment & Benefits
- Canada
- 13 November 2019
Employees sometimes need flexibility to start or leave work at different times than originally agreed with their employer (eg, because of childcare issues). A recent appellate decision confirms that employer flexibility in granting occasional requests does not always modify the underlying employment contract.
Showing nude photos to supervisor justifies termination of long-service employee
Fasken- Employment & Benefits
- Canada
- 06 November 2019
A recent arbitration decision has confirmed that termination can be the appropriate penalty for long-service employees with clean disciplinary records when they engage in sexual harassment, including showing a nude photo to a supervisor. This case highlights how seriously arbitrators look at sexual harassment in the workplace – particularly in the #MeToo era – and reminds employers of the importance of taking detailed notes during an investigation, including with respect to an individual's demeanour.
Bonus entitlement on basis of reasonable expectation
Fasken- Employment & Benefits
- Canada
- 23 October 2019
A recent British Columbia Supreme Court ruling has clarified that even where the terms of a bonus plan expressly state that payment of a bonus is discretionary, an employer's conduct can affect whether the bonus is treated as discretionary on termination of employment. Employers should be aware of, and adhere to, the terms of bonus plans. Further, employers must be mindful of the pattern and history of discretion exercised in awarding bonuses during an employee's employment.
Thirty-month notice of termination ruling overturned
Fasken- Employment & Benefits
- Canada
- 16 October 2019
The Ontario Court of Appeal recently reaffirmed that the upper limit for reasonable notice remains 24 months, absent exceptional circumstances. This decision is a reminder of the importance of well-drafted employment contracts, particularly with regard to an employee's entitlements on termination.
If it looks like a farm and acts like a farm... it's a farm: farm worker exemption
Fasken- Employment & Benefits
- Canada
- 09 October 2019
Ontario's Divisional Court recently found that a farm's employees were exempt from the overtime provisions of the Employment Standards Act 2000. The court's decision is now the leading authority on the farm exemption and provides critical clarity to the farming community, which often relies on overtime work to produce agricultural products. It also provides guidance on the interpretation of employment standards legislation.
Upcoming federal elections: employees' right to vote
Fasken- Employment & Benefits
- Canada
- 02 October 2019
The Canada Elections Act provides that every employee who is an elector is entitled to three consecutive hours off work to vote. With election day looming, employers may be wondering what their obligations are towards their employees. This article sets out those obligations as well as employees' rights in this regard.
What's in a tweet? Employer does not have to pay settlement funds after grievor takes to Twitter
Fasken- Employment & Benefits
- Canada
- 25 September 2019
In a recent case, the arbitrator found that the employer need not pay the agreed settlement funds because the grievor's tweets breached the settlement's confidentiality provisions. This case is an important reminder of the significance of confidentiality in the settlement of labour disputes and the need to include clear and unequivocal confidentiality provisions in settlement agreements.
Constructively dismissed? Maybe, but get back to work
Fasken- Employment & Benefits
- 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
Fasken- Employment & Benefits
- 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
Fasken- Employment & Benefits
- 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?
Fasken- Employment & Benefits
- 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?
Fasken- Employment & Benefits
- 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.
Extended leave and holiday pay: is differentiating between protected employees discriminatory?
Fasken- Employment & Benefits
- Canada
- 14 August 2019
A recent arbitration decision reminds employers that distinctions between different classes of protected employee may be discriminatory. As such, employers should review their policies and agreements in light of this decision to ensure that differential treatment is not applied to employees in different protected classes on leave, as this may provide a basis for a successful discrimination claim.
Major changes to Canada Labour Code on horizon
Fasken- Employment & Benefits
- Canada
- 07 August 2019
The federal government recently made numerous significant announcements regarding employee entitlements under Part III of the Canada Labour Code. It is now clear that many new employee entitlements will come into force on 1 September 2019. The government also announced a consultation process concerning further regulatory changes relating to Part III of the code and made changes to the Canada Labour Standards Regulation.
Are your non-competition and non-solicitation clauses enforceable?
Fasken- Employment & Benefits
- Canada
- 31 July 2019
A recent Ontario Superior Court of Justice ruling is a helpful reminder of the factors that the courts will assess when determining the enforceability of agreements not to compete with an employer or solicit its customers after the end of an employment agreement. In order for a restrictive covenant to be enforceable, an employer must be able to justify it as being no more than is reasonably required to protect its valid proprietary interests.
Amendments to employment legislation affect all British Columbia businesses
Fasken- Employment & Benefits
- Canada
- 24 July 2019
The spring session of the British Columbia legislature recently ended, and both the Employment Standards Amendment Act and the Labour Relations Code Amendment Act were proclaimed into law. These two acts represent the most significant changes to employment and labour legislation in two decades and all British Columbia employers should be aware of the impact on their businesses.
