Employees should be treated with dignity and respect. Accordingly, employers risk breaching an employment contract by condoning harassment in the workplace and creating a hostile work environment, which – in turn – may give rise to a constructive dismissal claim. Employers facing a constructive dismissal claim resulting from workplace harassment should assess whether the claim falls within the jurisdiction of workers' compensation legislation, rather than the civil courts.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.