Sunday, 30 September 2012

Is the Workforce Adjustment Agreement approach harmful?

Two weeks ago saw reports (see here and here) of the tragedy of a federal civil servant committing suicide after both he and his wife received “affected” letters.

For those of us who live and work in Ottawa the question of whether or not someone is “affected” or “safe” has been common as of late. For those outside this city, or for those fortunate enough to have avoided the situation, the question refers to the process by which the federal civil service is thinning its numbers.

Pursuant to the Workforce Adjustment Agreement between the Treasury Board Secretariat and Canada’s federal civil service unions, employees caught up in the “Deficit Reduction Action Plan” or DRAP, have been receiving notifications over the past several months informing them that their position, but not necessarily themselves, has been “affected.”

What does notice that one’s position has been “affected” mean?

Saturday, 29 September 2012

Wrongfully Dismissed Employee Not Bound by Non-Competition Agreement

For those looking for general information about Wrongful Dismissal under Ontario law, please click this link.

For most people who find themselves suddenly unemployed, the most pressing concern is the reestablishment of an income stream. The easiest way to do that is to find new employment. However, for some dismissed employees there is a challenge: their employment agreement with the dismissing employer contained a provision whereby they agreed not to work for a competing company.

The question raised, and answered by the Alberta Court of Appeal in Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240 (CanLII) is: Is a wrongfully dismissed employee still bound by the provisions of a non-competition agreement?

Sunday, 16 September 2012

What's Really Being Put First?

This week saw two important and rather divergent developments in North American labour law. In Ontario the Putting Students First Act, 2012 S.O. 2012, c. 11 was brought into law and a Wisconsin judge struck down as unconstitutional a similar law passed by that State’s legislature. (For a report on the Wisconsin case, see here.)

Even without the Wisconsin case, questions about the constitutionality of the Putting Students First Act, previously Bill 115, were being asked. And, it should be noted, not only was the Wisconsin decision decided under American law, it was also only a trial level decision, meaning that there are still many levels, and years, of appeals to be had.

Returning then to this side of the border, do I feel that the PSFA is constitutional?

Tuesday, 11 September 2012

Compensation for Foreign Locally Engaged Employees

The Ottawa Citizen published a story today concerning an Ottawa woman who was fired from the American embassy after being on sick leave for an extended period of time. As the article explains, the Embassy did not defend the action and as such we are left wanting for answers as to how and why Ontario law would apply to this individual.  

This post will focus on the reverse situation: what if an American was injured while working for the Canadian embassy in Washington?

Sunday, 9 September 2012

Just Cause and Butt For

The expression “but for” is commonly used in the law. Usually “but for” is used in the context of causation analysis, that is, “but for” x, y would not have happened. However, butts (with two "t"s) are used for other things; like mooning.

Jason Selch has cojones, and given his actions it is possible that his employer has seen them. If readers have not already figured matters out, Mr. Selch mooned the board of his employer during one of their meetings. He was subsequently fired for just cause. His claim was dismissed on summary judgment by the circuit court of Cook County, Illinois. Mr. Selch appealed and reasons for decision were released at 2011 IL App (1st) 111434.

This post will consider Mr. Selch’s actions and the court’s decision.

Saturday, 8 September 2012

Employer Liable for Misrepresenting Position

I tend in this blog to focus on recent case law, a trend I do not intend to stop. However, from time to time, it is interesting to focus on the classics, the foundations of Canadian employment law.

One of the key cases in this area is Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] 1 SCR 87; a case often thought of as establishing the test for the tort of negligent misrepresentation. And, while it is true that Cognos is the leading case on that point, Cognos was also an employment case and the facts underlying it are unfortunately more common than they should be.

Monday, 3 September 2012

Employee Fired by Mistake had Duty to Return

“Baby come back, you can blame it all on me. I was wrong, and I just can't live without you.” Player in their 1977 hit “Baby come back.”

“In all seriousness however, what if an employer was fired by mistake? Could that employee still sue for wrongful dismissal?

Incredibly, that was the question that the Honourable Justice Richard Lococo was called upon to answer in the case of Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309 (CanLII).