Termination of Employment

update your employment contracts
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Why Employment Contracts are Good

Our readers are probably sick of hearing us go on about employment contracts, but we will never stop recommending them!

An employment contract gives both employers and employees certainty about their entitlements both with respect to compensation and also on exit. 

Whether terms are written down or not, employment relationships will be governed by various terms. In the absence of a contract, courts read in implied terms of employment from the common law. It’s better to get those terms written down so you actually know what they are and don’t have to wait for a judge to tell you! 
Continue Reading Why you should update your employment contracts and why January is a good time to do so

free employment contract checklistAre your Employment Contracts Up-to-Date for 2022?  Not sure where to begin? 

Get a copy of our FREE Employee Contract Checklist

The checklist outlines affordable DIY contract options for small employers:

  • brainstorm what needs to be included in your contracts
  • cross-reference with any contracts you may already have in place
  • identify areas to add, remove and/or update


Continue Reading Get our free Employment Contract Checklist

ONCA upholds employer for-cause termination for sexual harassment
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Overview

In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Ontario Court of Appeal (ONCA) overturned the lower Court’s decision that found an employee had been wrongfully dismissed in relation to sexual harassment allegations and was awarded 20 months’ notice. In its reversal, the ONCA held that the employee had failed to fulfill remedial steps required by his employer; that he did in fact sexually harass his coworker; and that his for-cause termination was justified.  

Background

A senior, 20-year employee made several comments to his younger, female coworker on several occasions, including the following:
Continue Reading ONCA upholds employer for-cause termination for sexual harassment

A Proposed Ban on Non-Competes
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On October 25, Ontario Bill 27, Working for Workers Act, 2021 (“the Bill”) passed first reading. This Bill proposes amendments to our key Ontario employment statutes, including the Employment Standards Act, 2000 (the “ESA”) and the Occupational Health and Safety Act. In today’s post, we will review highlights regarding the proposed ban on non-competes and talk about how Ontario businesses can prepare. 

A Ban On Non-Competes

One much-discussed element of the Bill is the proposed ban on non-competition agreements in employment contracts. 

A non-competition agreement restricts – or tries to – an employee’s ability, for a period of time, to work for a competitor after leaving the employer. The restriction is usually somewhere between three months to two years. 
Continue Reading A Proposed Ban on Non-Competes

Job Consequences for Employees Refusing Mandatory Vaccination
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We are getting lots of questions from employers and employees about vaccination. We addressed many of these questions a few weeks ago in our post Unvaccinated Employees and Mandatory Vaccination. Now that a little bit of time has passed, we are getting more questions about the possible job consequences for employees who are unvaccinated. 

Why is the Employee not Vaccinated?

Before considering what job consequences might be appropriate, it’s crucial for employers to understand the employee’s reasons for being unvaccinated. In rare circumstances, an employee may be entitled to a legitimate exemption from a mandatory vaccination policy. Employees who have legitimate exemptions based on medical or religious grounds will be entitled to protection from discrimination by human rights legislation. While it still may not be appropriate to allow an unvaccinated employee with a legitimate reason for an exemption from attending in person at the office, they will be entitled to accommodation. The range of accommodations is wide, from placing an employee on an unpaid leave of absence to allowing them to continue their work remotely. For more information on legitimate reasons for exemptions and accommodation, see our past post
Continue Reading Job Consequences for Employees Refusing Mandatory Vaccination

IDEL COVID-19 Period Extended to January 1, 2022
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The COVID-19 period for Ontario’s Infectious Disease Emergency Leave (IDEL) has once again been extended, this time to January 1, 2022. The COVID-19 period for this leave which, at its inauguration was set to end on September 4, 2020, has been extended multiple times – first to January 2, 2021, then to July 3, 2021, then again to September 25, 2021, and now into the new year. 

To Whom Does this Leave Apply?

This IDEL applies to employees who were laid off or had their hours temporarily reduced from March 1, 2020 to January 1, 2022. Employees on this deemed IDEL are exempted, under a provincial regulation that amended certain segments of the Employment Standards Act, 2000 (“ESA”), from being deemed to have been terminated. These employees are not owed ESA notice or severance pay. 
Continue Reading IDEL COVID-19 Period Extended to January 1, 2022

employees duty to mitigate
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Employees who have been wrongfully dismissed from their employment have a legal duty to mitigate. In other words, these employees must look for new employment if they wish to seek a termination payment from their former employers. Regardless of whether an employee successfully secures new employment prior to the end of their notice period, the court will still look to see that the employee took reasonable steps to find alternative comparable employment. If the court is not satisfied that the employee has made proper efforts to do so, it may reduce or deny the termination pay the former employer would otherwise be ordered to pay to the employee. A recent decision, Lake v. La Presse (2018) Inc., 2021 ONSC 3506, underlines the repercussions an employee could face if they fail to take such reasonable steps to mitigate their damages.

The Case of Lake v. La Presse (2018) Inc.

In this 2021 Ontario Superior Court case, the Court reduced a former employee’s common law/reasonable notice period from eight to six months due to the employee’s failure to mitigate their damages. 
Continue Reading Failure to Mitigate and Reduction of the Notice Period

mandatory workplace vaccine policies
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Last week, the federal government announced that it will be making vaccinations mandatory for federal employees and also for those working in some federally regulated industries related to travel. You can read the news release here.

The government intends to require vaccinations for federal employees by the end of September. It projects that vaccinations will be required in the federally regulated transportation sector (airlines, rail, cruise ships) by the end of October. The requirement will also apply to travellers.

The Public Service Alliance of Canada — which is the union representing the majority of impacted workers —  is apparently on board with this move.
Continue Reading The Start of Mandatory Vaccinations in Canada?

reasonable termination notice
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How much notice should you give your employee on termination? A recent decision of the Ontario Superior Court in Herreros v Glencore Canada reiterates that when calculating the period of reasonable notice owed to a wrongfully dismissed employee, it is the circumstances at the time of termination that matter. 

The rule comes from a decision of the Ontario Court of Appeal in Holland v Hostopia.com. It states: “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”. We blogged about the rule here and here in our updates about employment litigation during the pandemic. 
Continue Reading Reasonable Notice: An Opportunity Not A Guarantee

IDEL and Constructive Dismissal
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The Ontario Superior Court has ruled once again on the right of an employee to assert a constructive dismissal in light of the O. Reg. 228/20: Infectious Disease Emergency Leave (“the Regulation”) under the Employment Standards Act, 2000 (ESA). In the latest decision, the court ruled that the Regulation does not preclude an employee from asserting a common law constructive dismissal. 

As discussed in previous posts, under the Regulation neither a reduction in the employees hours of work or wages constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period. The COVID-19 Period keeps changing on us, but it currently runs from March 1, 2020 to September 25, 2021.  There have been conflicting decisions about whether the Regulation also removes an employee’s right to assert a constructive dismissal under the common law. 
Continue Reading Another Ruling on the IDEL and the Employee’s Right to Pursue Common Law Constructive Dismissal