Employee Owed More Severance Because He was Fired in June

Does it matter in which month an employee is fired? According to decision from the Ontario Superior Court of Justice, Fraser v Canerector Inc., 2015 ONSC 2138 (CanLII), the answer is “yes.”

In his reasons for decision granting the plaintiff 50% more reasonable notice than he otherwise would have awarded, the Honourable Justice Sean F. Dunphy wrote:

I must also account for the time of year when his employment was terminated in assessing reasonable notice. Mr. Fraser’s employment was terminated in June and it was quite foreseeable that hiring decisions at his level might have needed to be delayed somewhat due to the summer months in order to account for vacation schedules of key decision-makers.

Termination from Employment While on Disability Leave

There is never a good time to be fired from one’s job. However, some times are worse than others. A particularly bad time to be fired is while absent from work on disability leave.

While there are few definitive answers when it comes to the law, this post will take a look at some of the most common questions concerning termination from employment during disability leave.

HRTO Awards $150,000 to Temporary Foreign Worker following Sexual Assault by Employer

The Human Rights Tribunal of Ontario ordered an employer to pay $150,000.00 to a former temporary foreign worker after finding that the owner and principal of the company had engaged in a series of prolonged unwanted sexual solicitations and advances against her, including sexual assaults.

O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII), now stands as the present ‘high-water mark’ for damages as compensation for injury to dignity, feelings and self-respect.

Are Workers, Locally Engaged by the Government of Canada, "Entitled" to Workers Compensation Benefits?

Are locally engaged employees of the Consulate General of Canada in Boston (i.e. those hired by the Canadian Government to work in the consulate, but who are not Canadian diplomats), who get injured in the course of employment, “entitled” to workers compensation benefits pursuant to the provisions of Canada’s Government Employees Compensation Act, RSC 1985, c G-5?

While that question may seem oddly specific, and it is, it is not only one of the questions that the Massachusetts Department of Industrial Actions was forced to answer in the case of Cynthia L. Merlini, it is the question on which I was summonsed to provide expert evidence.

On December 11, 2012, I testified as an expert witness in Ms. Merlini’s case. Following the hearing, the trial judge, Administrative Judge John G. Preston, found, on the basis of my testimony, that Ms. Merlini was not “entitled” to benefits from the Canadian Government as a locally engaged employee.

More recently, however, the Reviewing Board held that Ms. Merlini was entitled to benefits and for that reason, and for two other reasons specific to Massachusetts law, which will not be considered by this post, reversed the Order to grant Ms. Merlini benefits from the Massachusetts Workers Trust Fund.

For the reasons set out below, here is why I think the Reviewing Board got the “entitlement” question wrong.

Rushing to Judgment: How to Reconcile the Duty to Mitigate with Summary Judgment in Wrongful Dismissal Cases

How should the court account for a plaintiff’s duty to mitigate his damages following termination from employment, when summary judgment can be awarded before the expiry of the reasonable notice period?

More to the point, how can an employer ensure that the dismissed employee will take all reasonable steps to mitigate his damages if that dismissed employee is already in receipt of his pay in lieu of notice?

In the case of Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (released April 16, 2015), the Honourable Justice Andra Pollak held that the use of the “Trust Approach” previously approved by the Court of Appeal for Ontario in Cronk v. Canadian General Insurance Co. (1995), 25 OR (3d) 505 (CA) is no longer appropriate, given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

Should Employers be Allowed to Fire Employees for Their Off-Duty Conduct?

Should employers be allowed to fire employees for their off-duty conduct? Although this blog has repeatedly considered the issue of whether employers can fire employees for their off-duty conduct (they can; see e.g. Comments on Facebook "Just Cause" for Dismissal), the question that this blog has not yet really considered is whether employers should be able to do so.

In posing this question I do not wish to be taken as suggesting that any particular set of actions should go without punishment. Moreover, I do not intend to suggest that perhaps an employee should never lose his or her job for off-duty conduct. Rather the questions are really these:

• Is termination from employment ever an appropriate punishment for one’s off-duty conduct?
• If termination can be an appropriate punishment, after what sort of process should such a punishment be meted out?
• How serious must the off-duty conduct be in order to warrant termination from employment?

There is More to Employment Law in Ontario than Just the Employment Standards Act

There is more to employment law in Ontario than just the Employment Standards Act, 2000. While this point should be obvious, a recent article in the Toronto Star, Ontario allowing employers to fire workers without cause begs for this point of clarification.