Saturday, 27 April 2013

Changes to Canada Labour Code Limit Rights to Claim Overtime Pay

The issue of unpaid overtime in federally regulated workplaces, banks and railroads being chief among them, has been a hot topic in Canadian employment law over the past few years. There have been no fewer than three proposed class actions on the subject: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 (CanLII); Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444 (CanLII); and McCracken v. Canadian National Railway Company, 2012 ONCA 445 (CanLII).

A recent change to the Canada Labour Code has now changed the amount of recovery an underpaid worker can recover.

Tuesday, 23 April 2013

Is the Right to be Reinstated After Pregnancy Leave Guaranteed?

Is the right to be reinstated after pregnancy leave absolutely guaranteed? According to a recent decision from an adjudicator appointed under Part III of the Canada Labour Code, the answer is no.

Saturday, 13 April 2013

Workplace Harassment Complaints and Bill 168

Are the changes to Ontario’s Occupational Health and Safety Act really capable of influencing the way we approach workplace harassment cases? For the reasons that follow, I would argue that they are not.

Thursday, 11 April 2013

Judge Says Winner Has to Pay Losing Side's Legal Costs


When is a win not a win? When the winner has to pay the losing side’s legal expenses.

In a recent decision from the Ontario Superior Court in Ottawa, Goulding v. Street Motor Sales, 2013 ONSC 1904 (CanLII), the Honourable Justice Robert N. Beaudoin held that notwithstanding the plaintiff’s success in his wrongful dismissal case, because he brought the case in the wrong court, he would have to pay the losing side’s costs. Ouch.

Saturday, 6 April 2013

Pregnant Employees are Entitled to Greater Notice of Dismissal

Is a pregnant woman entitled to a greater amount of notice of her dismissal than other employees? Does firing an employee while she is pregnant merit an award of punitive damages?

At least one Ontario Superior Court judge has said yes to both questions.

Thursday, 4 April 2013

Written Notice of Termination for Employees off Work May Not Satisfy ESA Requirements


Must an employer provide an employee absent from work (whether for disability reasons or on account of maternity leave) with actual cash in lieu of notice, or is written notice of termination sufficient?

In a blog post earlier today on the Employers’ Edge it was reported that:
A recent decision of Arbitrator Randy Levinson found that the Employment Standards Act, 2000 (“ESA”) does not require an employer to pay termination pay to disabled employees if the employer wishes to provide written notice of termination instead.  In Quality Meat Packers Limited and the United Food and Commercial Workers Canada, Local 175 (as yet unreported), Arbitrator Levinson based his decision on the fact that the disabled employees did not provide any services to the employer and were therefore not entitled to any compensation.
For the reasons that follow I find myself at odds with that decision.

Wednesday, 3 April 2013

The Waiting is the Hardest Part


Tom Petty once famously observed that "the waiting is the hardest part." (See video.) That observation raises the question, how long does an employee have to wait before he can assume that his old employer will not take him back? At least more than one day it would appear.

In a short endorsement released by the Court of Appeal for Ontario earlier today, Spiers v. The Manufacturers Life Insurance Company (Manulife Financial), 2013 ONCA 200 (CanLII), the Court of Appeal allowed an appeal from a decision dismissing a request to amend a Statement of Claim to plead wrongful dismissal on the basis of the expiry of the applicable limitation period.

Tuesday, 2 April 2013

I quit! ... Just kidding!

Can you ‘joke’ about quitting your job? Yesterday was April Fools' Day. It also saw embattled Senator Patrick Brazeau tweet “I will step down from my position!” Later adding “Official annoucement tomorrow at 10am.” He was kidding.

But, the question remains, can 'regular' working people joke about quitting?

Monday, 1 April 2013

Termination Provisions in Contract Unenforceable Without Continuation of Benefits

In a decision released in October 2011, Stevens v. Sifton Properties Ltd., 2012 ONSC 5508 (CanLII), the Honourable Justice Ian F. Leach held that where an employment contract failed to provide for the continuation of benefits throughout the applicable notice period - even though the employer actually maintained the benefits throughout the notice period - the contractual provision was of no force or effect.