Under what set of circumstances can a non-unionized employee claim to have been constructively dismissed?
In a recent decision from the Supreme Court of Canada, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, Canada's top court confirmed that there are two possible ways by which an employee can be constructively dismissed.
How are trial judges to calculate the amount of reasonable notice to which a suddenly unemployed employee is entitled? In yet another decision to reinforce the position that the analysis set out in Bardal v Globe and Mail remains the preeminent method by which to calculate the same, Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (CanLII), the Court of Appeal for Ontario disapproved one judge’s approach of calculating the amount of time it would take to ‘bridge’ the employee to an unreduced pension.
In a landmark decision, the Federal Court of Appeal has said that terminations without cause are not automatically “unjust” as defined by the terms of the Canada Labour Code. In “breaking the tie” between competing lines of jurisprudence, the Federal Court of Appeal in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (CanLII) has unequivocally said that the purpose of the “unjust dismissal” provisions of the Canada Labour Code is not to elevate non-unionized employees to the same status as those who are unionized. Put another way, there is no longer any security of employment under the Canada Labour Code. For those employees working in such industries, this is huge.
NOTE: This is a summary of a decision of the Federal Court of Appeal. This decision has since been overturned by the Supreme Court of Canada.
A lot has already been said about Target’s abrupt decision to close all of its Canadian stores; but one story has dominated headlines more than others: Target’s ‘decision’ to provide its employees with 16 weeks of ‘severance.’ As some employees are discovering, that ‘severance’ is really nothing more than working notice. What is more, the ‘decision’ was pretty much already made for Target as the amount is dictated by Ontario law.
Working through the mechanics of the situation, one can see that Target’s ‘decision’ is hardly as generous as it was first touted.
The regulation of employment standards in Canada is complicated and confusing. Both the federal and provincial governments have the legal ability to regulate employment, but only within their own, separate spheres of influence. The power is divided; not shared. This division of powers can result in confusion and debate as to exactly which set of laws govern the workplace.
The debate is not wholly academic. For example, in Ontario “Family Day”, being the third Monday in February, is prescribed as a public holiday for the purpose of the definition of “public holiday” in section 1 of the Ontario Employment Standards Act, 2000. Family Day is a ‘statutory holiday,’ but only for employees whose employment is subject to that statutory law. Not all employees who work in Ontario are subject to the Ontario Employment Standards Act, 2000; some workers are subject to the provisions of the Canada Labour Code.
Deciding which statute applies to the employment relationship can be a frustrating exercise. More than once employers and employees have found themselves before Canada’s highest court seeking direction as to which law is to apply. The 2009 decision of the Supreme Court of Canada in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, [2009] 3 SCR 407, 2009 SCC 53 (CanLII) is a paradigmatic example of such a case.
The purpose of this page is to attempt to provide an overview as to the division of powers and which law may apply. The page should be read with caution, as resolving which law applies can be much more complicated than it first appears. A reading of the Consolidated Fastfrate decision should disabuse anyone of the notion that this is a straightforward issue. Employers and employees uncertain as to which employment standards legislation applies to their situation would be prudent to seek a formal opinion on the subject before acting.
How does requiring an executive to purchase shares in his employer’s company affect the employee’s reasonable notice period in the event that his employment is terminated without cause? According to the Honourable Mr. Justice G.E. Taylor of the Ontario Superior Court of Justice, the answer is that it tends to length the notice period.
In the case of Rodgers v. CEVA, 2014 ONSC 6583 (CanLII), Mr. Justice Taylor held that, “Based on the required investment in [the employer] I find there was at least an implied representation that the plaintiff was about to embark upon a long-term employment relationship with [his employer.]
Under what set of circumstances will an Ontario Superior Court judge say that it is “reasonable” for an employee to refuse to return to work for the employer that dismissed her as a means of mitigating her damages?
The law concerning the duty to mitigate is rather clear; employees who are dismissed by their employers have a duty to mitigate their damages and may be required to return to work for the employer that dismissed them in order to do so. However, as the Supreme Court of Canada observed in the case of Evans v. Teamsters Local Union No. 31, [2008] 1 SCR 661, 2008 SCC 20:
[30] The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer, it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.
But what exactly is “an atmosphere of hostility, embarrassment or humiliation”? In the case of Turner v. Inndirect Enterprises Inc. (2009), 2009 CarswellOnt 9666, [2009] O.J. No. 6345, 87 C.C.E.L. (3d) 306 (ON SC) affd 2011 ONCA 97 the Honourable Justice David Salmers said that a culmination of seemingly common factors created such an atmosphere. It is an interesting read.
