Is an employee’s failure (or blatant refusal) to follow an employer’s directions to protect public health – during a global pandemic – cause for termination of employment?
In Garda Security Screening Inc. v. IAM, District 140 (Shoker Grievance), [2020] O.L.A.A. No. 162, Labour Arbitrator M. Brian Keller had no problem finding that it was.
Is the title “Vice President” sufficient to move the needle in the calculation of reasonable notice?
In George v. Laurentian Bank Securities Inc., 2020 ONSC 5415 (CanLII), counsel for the dismissed employee urged the court to find that there is a presumption at common law that senior management or executives who are wrongfully dismissed are entitled to a minimum of 12 months’ notice irrespective of the length of service. He cited Mulrooney v Terra Nova Brokers Ltd., CanLII 3970 (NL CA), Felice v. Cardinal Health Canada Inc. 2014 ONSC 1190 (CanLII) and Lovely v. Prestige travel Ltd., 2013 ABQB 467 (CanLII), for this proposition.
For reasons given and summarized below, the Honourable Madam Justice Susan Vella of the Ontario Superior Court of Justice disagreed – awarding only two months’ pay in lieu of reasonable notice or $11,359.98 gross of taxation.
Is refusing to apologize to a co-worker, after a company’s finding of your having made inappropriate comments to that co-worker cause for termination? Does it matter if, at the time the direction to apologize was made, the company elected not to terminate your employment at all (let alone for cause?)
In Hucsko v. A.O. Smith Enterprises, 2020 ONSC 1346 (CanLII), the Honourable Mr. Justice G.E. Taylor of the Ontario Superior Court of Justice held that an employer was not justified in summarily ending the employment relationship because the employee refused to apologize (after seeking legal advice) and could not use the previous findings concerning inappropriate comments to later justify the termination.
UPDATE: On October 15, 2021, the Court of Appeal for Ontario allowed the employer's appeal, reversed Justice Taylor's decision, and dismissed the plaintiff's claim. For my summary of that case see: “It's Too Late to Apologize” Court of Appeal Finds Refusal to Apologize For Inappropriate Conduct Just Cause for Termination of Employment
Should courts void contractual termination provisions if such provisions have even the remote potential to, at some later point in time, violate the strictures of the Employment Standards Act, 2000 even if, at the time of actual termination, there is no actual violation?
In Rutledge v. Canaan Construction Inc., 2020 ONSC 4246 (CanLII), Justice Judy A. Fowler Byrne of the Ontario Superior Court held that they should.
Sometimes it simply does not matter what a contract says; the court will not give effect to it.
Recently, this blog, and others like it, have devoted a considerable amount of attention to the subject of what it takes to draft a legally enforceable termination of employment provision. However, an even more frustrating decision, Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII) demonstrates that, even if what one writes in its employment contract is, on its face, legally enforceable, that does not mean that Ontario’s courts will be prepared to give effect to it when the time comes.
This is one reason why I am losing my hair.
EDIT: The Court of Appeal for Ontario allowed the employer's appeal: Battiston v. Microsoft Canada Inc., 2021 ONCA 727 (CanLII).
