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, 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.

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.”

Sunday 24 July 2016

No Cause? Then No Dismissal for Non-Unionized Federal Employees – The Supreme Court of Canada Shakes Up Canadian Employment Law

At the end of 2015, I proclaimed the Supreme Court of Canada’s decision to grant leave to appeal from a decision of the Federal Court of Appeal the most important decision to Canadian employment law of that year. (See Top Five Cases of Importance to Ontario Employment Law - 2015.) My reason for doing so was simple:

The Federal Court of Appeal’s decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 was unanimous: A federally regulated employer can dismiss an employee without cause. While that statement may sound obvious, given the provisions of section 240 of the Canada Labour Code the same was far from a given. Indeed, given the Supreme Court’s decision to hear the appeal I would suggest that it still is not.

It is the fact that the Supremes are willing to hear the appeal, which was unanimous, and which upheld a previous decision of the Federal Court suggests to me that the Supreme Court of Canada is not entirely certain that the Federal Court got it right.

Although I somewhat reserved my prediction on matters, it would turn out I was right: The Supremes did grant leave because they doubted the correctness of the Federal Court of Appeal's decision.

On July 14, 2016, the Supreme Court of Canada (“SCC”) laid down its decision in the case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.

In doing so, the Supreme Court has finally settled years of debate among Canada’s employment lawyers as to whether non-unionized federally regulated employees can be let go without cause, with a resounding “No!”.

Saturday 9 July 2016

Doubling Down Damages – The Ontario Court of Appeal Sends Strong Message to Discriminatory Employers

What is the penalty for embarking on a “campaign of abuse”, intentionally designed to force a disabled employee to quit her job? In a June 2016 decision from the Court of Appeal for Ontario, Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, Ontario’s highest court awarded nearly a quarter million dollars plus costs following the wrongful dismissal of a long-term employee who has harassed and belittled by her employer after losing her hearing.

Tuesday 28 June 2016

The ONCA’s Decision in Oudin v. CFT Leaves One 'Wundering' – Is Wunderman Dead?

Must the termination provision in an employment contract expressly employ the words “benefits” in order to be legally binding? Before the Court of Appeal for Ontario’s decision in Oudin v. Centre Francophone de Toronto, 2016 ONCA 514 (released June 28, 2016), I would have said “yes.” In fact, I said so rather emphatically in my earlier blog post “Benefits”: The Most Important Word in Ontario Employment Law. I mean, I declared the word “benefits” as “the most important word in Ontario employment law.” Perhaps I was mistaken.