Friday, 2 December 2016

Employers Can Terminate Probationary Employees Without Cause

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Can an employer terminate the employment of an employee on probation without cause? That was the fundamental question that the Ontario Divisional Court had to answer in the case of Barton v. Bowerman, unreported, Divisional Court File No. 16-DC-2178 (Ottawa.)

In an earlier post, An employer can only dismiss a probationary employee for just cause” – Why that statement may have been correct, but it doesn’t mean what you think, I wrote about what it means to be on probation and the statement in the case of Mison v. Bank of Nova Scotia, 1994 CanLII 7383 (ON SC) that, “… an employer can only dismiss a probationary employee for just cause.”

In that earlier post, I wrote the following with respect to the termination of a probationary employee:

First, it is clear, settled law that a provincially regulated employer requires neither just cause nor even reason to terminate the employment of an employee who is not on probation. Meaning that those employees who either (a) are not placed on probation, see my next point below, or (b) ‘survive’ the probationary period, most certainly can be terminated without cause or reason.

Second, the placement of an employee on probation is wholly at the discretion of the employer; there is no automatic probationary period.

Third, the act of placing an employee “on probation” cannot possibly elevate the employee’s rights; that would be antithetical to the point.

So if all of those points are legally correct, and I would submit that they are, then why is an employer required to demonstrate just cause to terminate the employment of a probationary employee at all? Sure, it’s a modified test under Mison, but still, what is the legal basis for requiring an employer to show fairness to employee to whom it has arguably provided more notice of an intention to ‘fire at will’ than one to whom it has not? It simply makes no sense to me.

I then asked for comments on the issue of probation, and Professor David Doorey of Osgoode Hall Law School wrote the following:

I'd argue that a probationary clause does not oust the right of employer to terminate with notice, without alleging that termination is for cause. But once employer asserts termination is due to unfitness or failure to meet performance standards, a probationary clause allows court to assess the employer's decision on a low threshold standard of review (did employer fairly evaluate, give employee a reasonable chance, not act in bad faith, etc). The probationary clause introduces a lower standard of cause for employers who want to avoid notice and rely on summary dismissal. Having said that, if a probationary employee is terminated while a probationary clause is still in effect, a court may presume that the termination was due to performance or unfitness and consider the employer's decision in any event. Since notice period for a probationary employee would always be very short, at least if the contract requires only ESA minimum notice, I've never understand the value to an employer of including a probationary clause. If the probationary period is less than 3 months, no notice is required under ESA, if 3-12 months, it is one week's notice. Why not just give the notice and be done with it?

What Professor Doorey did not know at the time was that his position was exactly what I intended to argue before the Divisional Court and on November 30, 2016, I did make exactly that argument.

So are we right?

Sunday, 27 November 2016

Unrelated Employers Do Not Create Continuous Employment

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Taking on the employees of another business can create unexpected financial obligations for employers. For example, this blog has previously looked at cases of employers being found responsible for an employee's past year of service when that employer takes over or otherwise acquires a business, see Two Employers Under One Umbrella Both Get Soaked by Judge.

Those cases beg the question: When will an employer not be deemed responsible for ‎an employee's past years of service with another company? While the answer to that question is simple - when the two companies are wholly unrelated to one another - as the case of Paul Amaral v Verona Floors Inc., 2016 ONSC 5763 (CanLII) demonstrates, sometimes knowing when two companies are unrelated is a complicated question.

Wednesday, 23 November 2016

Ottawa Judge Awards $50,000 in Punitive Damages after Employer Fails to Provide Statutory Minimums and ROE

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Is asserting just cause for termination where it is not warranted, failing to provide an employee with his Record of Employment (ROE), and/or his statutory minimums, all in an attempt to negotiate a lower severance amount, “reprehensible” conduct warranting the imposition of punitive damages? It is according to a decision of the Honourable Justice Pierre Roger of the Ontario Superior Court of Justice sitting at Ottawa: Morison v Ergo-Industrial Seating Systems Inc., 2016 ONSC 6725 (CanLII).

In a wrongful dismissal case in which the court was unable to award aggravated damages for bad faith on account of a dearth of medical evidence, Justice Roger nonetheless awarded $50,000 in punitive damages for “bad faith.”

Things may have just gotten easier for plaintiffs.

Monday, 21 November 2016

Div Court Finds No Frustration of Contract after 29-Month Disability Leave; Upholds Awards of Human Rights Damages and “Punitive” Costs

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Some decisions are just textbooks on employment law. They are ‘must read’ decisions for anyone looking to practice in this area. Boucher v Black & McDonald Ltd., 2016 ONSC 7220 (CanLII) is a key example of how to approach the following subjects: long-term absence; frustration of contract; human rights damages; and off-set of benefits for the receipt of long-term disability benefits.

The facts of the case are easy to understand and the statement of law is first-principles stuff. For anyone wondering what to do with an employee who has been absent from employment for a considerable period of time, here is a lesson in what not to do.

Saturday, 19 November 2016

“An employer can only dismiss a probationary employee for just cause” – Why that statement may have been correct, but it doesn’t mean what you think.

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Does an employer require “just cause” to terminate the employment of an employee “on probation”? For the reasons that will follow, I would submit that, in Ontario, provided that the employer is provincially regulated (for information on whether an employer is provincially regulated see Which Laws Apply?), they do not.

I agree that my position would appear to stand at odds with the following statement made by the Honourable Justice Epstein in Mison v. Bank of Nova Scotia, 1994 CanLII 7383 (ON SC):

[43] … an employer can only dismiss a probationary employee for just cause.

Stay with me, this is about to get complicated.

Tuesday, 15 November 2016

Refusal to Hire Foreigners in Order to Keep the “White Man Working” both Morally Repugnant and Illegally Racist

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Is it “illegal” to refuse to hire an immigrant simply because he is a “foreigner”? Of course it is. That question should be an absurd way to start a post on a blog about Ontario employment law. And yet, here I am.

Since the election of Donald Trump as the president-elect of the United States, there has at least been a perception of an increase, if not an actual increase, in the number of hateful acts being perpetuated on both sides of the border. Many point to Trump’s election as a form of license to engage in such shameful, ignorant behaviour.

Typically, racism in the employment world has been more subtle. Systemic preferences have yielded predictable but less overt results.

Sometimes, however, racist motivations are patent and obvious. The case of Bouraoui v. Ottawa Valley Cleaning and Restoration, 2014 HRTO 1303 (CanLII) is the quintessential archetype of overt, unabashed racism in employment. I highlight this case at this time for three reasons:

  1. I feel it important that Canadians stop lauding themselves as somehow above racist tendencies and address the systemic barriers in our own employment practices;
  2. I feel it important to remind Canadians that the election of Donald Trump did not suddenly create racism; and
  3. I feel it important to remind those who believe that they may now be permitted to engage in such ignorant behaviour that Ontario’s laws will not condone such actions. Period.

Sunday, 13 November 2016

When the Most Qualified Candidate Does Not Win

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Sometimes the most-qualified candidate for a position is not successful in her application. Where that candidate is also a member of a historically disadvantaged group, suspicions will arise that the candidate’s membership in that group was at least a factor in the decision to award the position to someone else. This suspicion can arise – and be quite legitimate – even in cases where the incumbent is also a member of a different historically franchised group. For example, where a woman is applying for a job currently held by a person of colour.

In cases of private employment, applicants who believe that their membership in a historically disadvantaged group was a factor in the decision to award the position to someone else can make an application to the Human Rights Tribunal of Ontario alleging discrimination in employment.

The case of Hussain v. Ottawa Police Services Board, 2016 HRTO 1386 (CanLII) demonstrates the challenges sometimes inherent in advancing such an argument.