Sunday, 20 April 2014

BCCA: Refusing to Allow Employee to Work during "Working Notice" is Termination

Has an employee who is ‘walked to the door’ by his employer been fired or has he simply been subjected to a fundamental change in employment?

What if the employee was provided with “working notice” before being escorted to the door? Can someone be both: (a) escorted out of the building, told not to return, and announced as having “left the company”; and (b) an employee of that company at the same time? Or are those two positions mutually exclusive? Those were the question the Court of Appeal for British Columbia was asked to answer in the case of Allen v. Ainsworth Lumber Co. Ltd., 2013 BCCA 271 (CanLII).

Saturday, 19 April 2014

Ontario court forces BlackBerry executive to work out notice period... or did it?

"Ontario court forces BlackBerry executive to work out notice period." That was the headline of an article posted earlier this week by the Financial Post (article here,) following the decision of the Ontario Superior Court in the case of BlackBerry Limited v. Marineau-Mes, 2014 ONSC 1790 (CanLII). While the case is likely subject to appeal in any event, it is important to note exactly what it is that the court ordered Mr. Marineau-Mes to do and how the case came to be.

Thursday, 3 April 2014

ONSC Awards Four Months Notice to Employee With Less Than One Year of Service

What is the appropriate notice period for an employee dismissed after less than one year of employment? While the answer will always be “it depends,” in a decision released today by the Honourable Justice Catherine D. Aitken of the Ontario Superior Court of Justice sitting at Ottawa, Wellman v. The Herjavec Group Inc., 2014 ONSC 2039 (CanLII), the reasonable period for an employee who had worked for only 51 weeks was found to be four months.

Saturday, 22 March 2014

HRTO: Frustration is not Discrimination

Can an employer in Ontario legally fire someone who gets injured at work and then, as a result, becomes unable to work? According to a recently decided case from the Human Rights Tribunal of Ontario, Gahagan v. James Campbell Inc., 2014 HRTO 14 (CanLII), the answer is: yes, as long as you can demonstrate an inability to accommodate that person in employment and that it is clear that the employee will unlikely be able to ever work again.

Thursday, 20 March 2014

The Duty to Mitigate: Employees Not Required to Accept a 'Bird in the Hand'

How selective can an employee be in pursuing new employment in order to “mitigate his damages?” In the recently decided case of Tsakiris v. Deloitte & Touche LLP, 2013 ONSC 4207 (CanLII), the Honourable Justice Michael A. Penny was asked to answer just that question.

Saturday, 15 March 2014

ONCA: No Duty to Mitigate Unless Offer Made After Termination

Where an employer’s restructuring serves a legitimate business interest and is not merely a pretext for terminating an employee, should that employee be obliged, as part of his duty to mitigate, to return to work for the same employer? According to a recent decision from the Court of Appeal for Ontario, Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 (CanLII), the answer is unclear. What is clear, however, is that in order for an employer to avail itself of the argument that an employee has failed to mitigate his damages by returning to work for the dismissing employer, (see: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII), [2008] 1 SCR 661,) the employer must offer the alternate position to the dismissed employee after termination, not before.

Not All Employees are Entitled to Severance

A common misconception among both employers and employees is that anyone who is fired from his or her job in Ontario is entitled to severance; that simply is not the case. However, saying that a dismissed employee is not entitled to “severance” does not mean that the employee is not entitled to anything. What employees are entitled to varies.