Tuesday, 30 August 2016

Agreement “Not to Accept Business” Actually a Non-Competition Agreement: ONCA

When is a non-solicitation provision in an employment contract actually a non-competition agreement? The answer is, when it prevents the employee from “accepting business from” any former corporate accounts or customers.

In a short endorsement released August 30, 2016, Donaldson Travel Inc. v. Murphy, 2016 ONCA 649, the Court of Appeal for Ontario confirmed an earlier decision of the Honourable Justice David A. Broad of the Superior Court of Justice, dismissing the plaintiff employer’s claims for breach of contract, misappropriation of confidential information, inducing breach of contract and interference with contractual relations against its former employee travel agent and her new travel agency employer.

Tuesday, 23 August 2016

Why You Should Hire Me Before You Hire Another Employee

If you are an employer and you are looking to hire one or more new employees for your company, let me explain to you why you should hire me first to prepare your company’s employment contracts: it will (almost assuredly) save you money.

I know it sounds contradictory that you can likely save money by hiring a lawyer to prepare your employment contract, for which there will be a very reasonable cost, but believe me it is true. Please allow me to explain – there is no charge for reading and if you are not convinced by the end of this post, you can move on to something else and it will not have cost you a dime.

Sunday, 21 August 2016

Employer Ordered to Provide Particulars of Reasons for Termination Without Cause

Is a provincially regulated employer required to provide the reason that it terminated an employee’s employment if that employer does not allege that it had “just cause” to terminate the employment?

Conventional wisdom would be that the employer would not have to provide a reason. It is settled law that employers in Ontario may terminate the employment of any of its employees without cause subject only to two restraints: (1) the employer must provide the employee with reasonable notice of the termination; and (2) the reason for termination cannot be prohibited by law.

It was the second criterion, the reason for termination cannot be prohibited by law, that brought the issue of whether an employer had to provide its reason for the termination of employment into focus. According to a decision of Master Donald E. Short, Mezin v. HMQ, 2016 ONSC 5171 (CanLII), if an employee alleges that his employment was terminated in contravention of the provisions of the Human Rights Code, then the employer must provide particulars of its denial of such allegations.

Employees Not “Actively Employed” Still Entitled to Bonus Payments: ONCA

EA Sports, the makers of such videogame as NHL hockey and Madden NFL football, previously employed the motto, “If it's in the game, it's in the game”, meaning that if something happened in the real game, then it would appear in the videogame. More recently, the motto has been shorted to simply “It’s in the game.”

While it is highly unlikely we will see a member of Ontario’s judiciary on the cover on NHL 18, the court did just lay some serious body checks, figuratively speaking, on Ontario’s employers. Following two decisions from the Court of Appeal for Ontario Paquette v. TeraGo Networks Inc., 2016 ONCA 618 (CanLII) and Lin v. Ontario Teachers' Pension Plan, 2016 ONCA 619 (CanLII), both of which were released on August 9, 2016, Ontario’s employers would be prudent to heed this warning: “In determining damages for wrongful dismissal, Ontario’s court will typically include all of the compensation and benefits that the employee would have earned during the notice period.” Put another way, “If it’s in the game, it’s in the game.”

Sunday, 14 August 2016

Do Federally Regulated Employers Require Just Cause to Dismiss Non-Unionized Employees Employed for Less Than Twelve Consecutive Months?

Do federally regulated employers require legal “just cause” to terminate the employment of non-unionized employees employed for less than twelve consecutive months, e.g. those employees “on probation”? The question is not an academic one, but rather one certain to have a very real impact on the lives of those employed in the federally regulated sphere and the financial bottom lines of those who employ them.

The Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII), which was released July 14, 2016, finally resolved the debate concerning whether federally regulated employers require legal just cause to terminate the employment of non-unionized employees employed for more than twelve consecutive months: yes they do. However, that decision left unanswered the question of whether such employers also require just cause to terminate the employment of employees employed for a shorter period of time.

Although I must confess to having not researched this issue fully, such that this post may generate a definitive answer from someone who has looked at the issue, for the reasons that follow, it is my sense that federally regulated employers do require legal “just cause” to terminate the employment of non-unionized employees employed for less than twelve consecutive months.

Sunday, 7 August 2016

Is Protection from Workplace Harassment Only for Employees and Not Management?

In my last post, Employers Responsible for Protecting Employees from Harassment on Twitter, I looked at a recent labour award, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (ON Arb), in which a labour adjudicator held that the employer had failed to protect its employees from online harassment. I admit to having difficulty with that decision.

One of my greatest concerns with the TTC case is its seeming disparity with the decision reached by the Court of Appeal for Ontario in Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495.

Although there are some differences between the two cases, which will be considered below, at the heart of it both cases concerned objections to online vitriol directed toward workers just trying to do their jobs.

In the TTC case the adjudicator held that:

It is clear from the totality of the evidence that the TTC has failed to take all reasonable and practical measures to protect bargaining unit employees from that type of harassment by members of the community, as required by the [Human Rights Code], the [Collective] Agreement, and the Workplace Harassment Policy.

Yet, in a case concerning similar online vitriol, the Court of Appeal reasoned as follows:

[67] …Section 2(b) of the Charter protects a broad range of expressive activity, including “distasteful” expression. By the same token, it does not protect violent expression, and some expression, such as hate speech, does not enjoy equal treatment in determining an appropriate balancing of competing values under a s. 1 analysis. The [Human Rights] Tribunal understood these legal principles, stating that “the nature of the expression is a factor in the balancing of rights.” But, the blog postings in this case were not hate speech. They contained rude, distasteful, and sexist remarks which even [the respondent] acknowledged, upon reflection, appeared to him to have been “written by an ‘asshole’. [Citations omitted.]

So what gives?

Monday, 1 August 2016

Employers Responsible for Protecting Employees from Harassment on Twitter

Do employers have a legal obligation to protect their employees from the vitriol that may be hurled at them via social media? Put another way, is an employer obligated to take positive steps to attempt to protect its employees from being harassed online?

In a labour arbitration award dated July 5, 2016, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (ON Arb), Adjudicator Robert D. Howe said that the answer to those questions is “yes.”