Saturday, 28 April 2012

You Can’t Do That on The Internet

Twenty or so years ago there was a television show called “You Can’t Do That on Television.” A frequent question emerging in employment law is what an employee can and cannot do on the internet.

Saturday, 21 April 2012

Employer Cannot Dismiss CLC Employees Absent Due to Workplace Injury

(c) istock/davidmariuz

In an earlier post, I commented on the effect of O.Reg 288/01 on the doctrine of "frustration" with respect to employment contracts governed by the Ontario law. However, not all employees who work in Ontario are governed by the Ontario Employment Standards Act, 2000. As more fully explained on my page Which Laws Apply?, some people working in Ontario are governed by the Canada Labour Code (the "CLC").

In an Ontario Labour Arbitration Award, Kingsway Transport v Teamsters, Local Union 91 (John Sears Grievance), 2012 CanLII 20111, Arbitrator Lorne Slotnick decided that section 239.1 of the CLC forbade an employer from terminating the employment of an employee who had been on disability for 21 years.

Tuesday, 17 April 2012

E.I. E.I. Oh!

Wrongful dismissal cases can take time to resolve; even the most efficient case can take six to nine months to resolve . Unfortunately, while the case winds its way through the system bills and other realities do not wait. For some the only option is to collect Employment Insurance (“E.I.”) benefits. The receipt of those benefits can create a bit of challenge when the wrongful dismissal case resolves if people’s minds are not turned to the issue.

Sunday, 15 April 2012

The Benefit of Benefits

(c) istock/olm26250

An area too often overlooked in wrongful dismissal cases is that of disability benefits. Often, dismissed employees, who previously participated in group benefit plans, are informed at the time of dismissal that their short and long-term disability benefits will terminate at the end of the “statutory notice period,” typically eight weeks for long-term Ontario employees.

Employees are typically informed that this period of time is as long as the group disability insurer will permit the employee to remain on the plan. But, is that the end of the argument? “No” says Ontario law.

Are Older Employees Entitled to More Severance?

Are older employees entitled to more severance?

While it is often repeated by Ontario employment lawyers that the ‘rough upper limit’ for notice periods is 24 months, baring “exceptional circumstances” (see e.g. Lowndes v. Summit Ford Sales Limited, 2011 ONCA 469), the case of Hussain v. Suzuki (2011), 209 A.C.W.S. (3d) 101 (ON SC) demonstrates that the employee’s advanced age can qualify as “exceptional circumstances” warranting a greater amount of reasonable notice.

Employees’ Rights to Privacy with Work Equipment

Do employees have a reasonable expectation of privacy in employer-provided technology?

Although it was a criminal case, the case of R. v. Cole, 2011 ONCA 218, presented an interesting question: Whether a high-school teacher had a reasonable expectation of privacy in the contents of a work computer on which he was entitled to store personal information.

The decision is even more interesting because it was authored by Justice Karakatsanis, now of the Supreme Court of Canada.

Thursday, 12 April 2012

That’s How One Makes Fundamental Changes!


In an earlier post I commented on the case of Chandran v. National Bank, 2012 ONCA 205.  In that post I commented that, “the bank’s more tactical move should have been to terminate Mr. Chandran’s employment as a senior manager - on appropriate notice - and then offered him the alternative positions within the bank.  Had proper notice been provided, the bank may have removed the possibility of a suit and its related costs.”

In making that comment I was employing the analysis set out in the Ontario Court of Appeal’s decision in Wronko v. Western Inventory Service Ltd., 2008 ONCA 327.  A recent case from the Ontario Divisional Court, Kafka v.Allstate Insurance Company of Canada, 2012 ONSC 1035 would appear to affirm that position.

Saturday, 7 April 2012

Workplace Assault Not Just Cause for Termination

(c) istock/Nomadsoul1

Is assaulting a co-worker just cause for termination of employment?

In the 2012 case of Shakur v. Mitchell Plastics, 2012 ONSC 1008 Justice David Broad of the Ontario Superior Court of Justice found that an employer did not have "just cause" to terminate an employee who slapped a co-worker.

Consequential Damages awarded to Terminated Journeyman Apprentice

The British Columbia upheld an award of $25,000 in “consequential damages” where an employer wrongfully terminated a journeyman apprentice who was thereafter unable to find another apprenticeship position.

Friday, 6 April 2012

Is Two Weeks Too Little?

Can an Ontario employment contract legally provide that an employer may terminate an employee’s employment without cause provided that the employer provides two weeks pay in lieu of notice.

The legal question is: could the employer enforce this provision to only provide the employee with two weeks pay in lieu of notice?

The short answer is probably not, but like most everything in law, the real answer is, “it depends.”

Wednesday, 4 April 2012

Blue Pencils Cannot be Used to Remove Date from Non-Competition Agreement

(c) istock/Tzido

“Blue-pencil severance” is an extraordinary remedy, by which a court will strike out certain words of a contract in order to give effect to the true meaning (if not the actual wording) of a contract. The concept is most familiar to employment lawyers from the Supreme Court’s 2009 decision in KRG Insurance Brokers (Western) Inc. v. Shafron, 2009 SCC 6.

In Veolia ES Industrial Services Inc. v. Brulé, 2012 ONCA 173, the Court of Appeal for Ontario ruled that it was not appropriate to employ blue-pencil severance to remove the start date from a non-competition contract.

Tuesday, 3 April 2012

Man or Muppet? Employee or Contractor?


In the recent Muppet movie human protagonist Gary finds himself asking “Am I Man or am I Muppet?”  Unfortunately many employees find themselves asking a similar question when their services are no longer required by their employers.

Although many workers may think themselves “independent contractors” either because they wish to be or, more commonly, because their employers told them they were at the time of hire, such may not necessarily be the case.

Sunday, 1 April 2012

Taking the Managing out of a Problematic Manager

The recent Ontario Court of Appeal case of Chandran v. National Bank, 2012 ONCA 205, highlights some of the considerations an employer must make when deciding to change the fundamental aspects of an employee's job – even when those changes are demonstrably required.  The failure to properly follow the correct procedures can result in an employee's successful claim for constructive dismissal.

Frustration of Contract need not be Frustrating

Many employees who become chronically ill, are injured in a workplace accident, or get hurt in some other type of accident and are unable to return to work for medical reasons often believe that they have no option but to quit their job. By the same token, it is not uncommon for employers to take the position with their employees that the employee must either return to work or quit.

However, as this post will demonstrate the forced options of “return to work or quit” are, in fact, a false dichotomy. Employees have other options and employers have further responsibilities.