Termination of Employment

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Buying a Business

This post will explore some of the employment law issues that should be considered if you’re purchasing a business.  Employment law-related factors to review when selling or closing your business were covered in Part I.

This post focuses on businesses with non-unionized workforces.  Unionized workplaces have their own distinct issues that must be addressed when purchasing a business and a lawyer should be consulted regarding those as well.

Strong entrepreneurial spirits truly are critical components of any healthy economy.  Many people dream of being their own boss – directing the growth of a company and taking an active role in their own future prosperity while providing a product or service that they are passionate about.  Purchasing a business with an established business model and customer base can be a great way to give yourself a head start on these goals, but it’s essential to consider all of your possible risks and liabilities when doing so.  Completing a fulsome review of your potential employment law risks as part of your due diligence is the best first step to protecting your investment.  You can’t know what other actions will be helpful without taking this initial step. Continue Reading Selling, Closing, or Buying a Business? Consider Your Employment Law Liabilities! (Part II)

Rehiring a Past Employee

In our recent blog, we addressed boomerang employees and, specifically, the HR issues surrounding them. We know you’ve been eagerly awaiting part two where we promised to address the employment law implications of rehiring a past employee, so here we go! Below we will do a deep dive into the various legal issues that may arise when hiring boomerang employees. Continue Reading Boomerang Employees Part 2 – The Employment Law Implications of Rehiring a Past Employee

Duty to Mitigate in Claims of Wrongful Dismissal

Employees suing former employers for wrongful dismissal damages are obligated to “mitigate” their damages, and a failure to do so may lessen the damages awarded by a Court. In Part 1 of this series, we provided a general overview of the employee’s duty to mitigate. In Part 2, we are delving into specific mitigation issues: whether an employee is required to seek out lower paying positions after an unsuccessful period of searching for a more comparable role; whether job titles of the positions applied for matter; and how employers meet the onus of showing an employee has not met their duty to mitigate. These questions were answered by the Ontario Court of Appeal in Lake v. La Presse, 2022 ONCA 742. Note that the decision discussed here overturned Lake v. La Presse (2018) Inc., 2021 ONSC 3506, which we covered in a previous blog post. Continue Reading Mitigation Part 2: No Requirement to Search for Less Comparable Positions Over Time

Duty to Mitigate in Claims of Wrongful Dismissal

The duty to mitigate is one of the few employee obligations in a wrongful dismissal dispute, and it can reduce a defendant employer’s liability significantly. 

What is the Duty to Mitigate?

The duty to mitigate requires an employee to take reasonable steps to secure comparable employment after they have been wrongfully dismissed. When an employer wrongfully dismisses an employee, unless there is enforceable contract language to the contrary, the employee is entitled to damages for pay in lieu of common law reasonable notice. Continue Reading Mitigation Part 1: What is the Duty to Mitigate in Claims of Wrongful Dismissal?

Selling and Closing

In this post, we’ll explore a few key employment law considerations for business owners considering the sale or closure of their business. This will be followed by Part II, in which we will examine some of the employment-related legal issues that should be reviewed when purchasing a business. 

This post focuses on businesses with non-unionized workforces.  Unionized workplaces have their own distinct issues that must be addressed when buying or selling a business and a lawyer should be consulted regarding those as well.
Continue Reading Selling, Closing, or Buying a Business? Consider Your Employment Law Liabilities! (Part 1)

How to Avoid Constructive DismissalsNow, more than ever, businesses are modifying and evolving in order to keep up with changes in social and industry trends, work environments, office locations, and the economy.  Generally, your business evolving is a good thing and means you’re doing well but major changes to the organization of your business can also lead to constructive dismissals. As an employer, you need to be aware of how to make changes at work, without forcing employees out. 

What is Constructive Dismissal? 

It’s no secret that hiring and firing are pretty common and well-known practices while running a business. What is less talked about are constructive dismissals. A constructive dismissal happens when a unilateral change made to an employee’s contract or overall employment relationship is so significant that it basically breaks the contract.  A change leading to a constructive dismissal claim must be fundamental and done without the employee’s agreement, leaving the employee feeling like their only option is to resign and sue for breaking that contract. 
Continue Reading How to Avoid Constructive Dismissals

recording employee termination meetingsAn employer recently asked whether it would be helpful for them to record a sensitive employee termination meeting and, more broadly, whether this is a recommended practice for routine terminations. In this particular case, the logistics of having a second person attend as a witness were tricky, and the employer was also looking to be more efficient by having only one person conduct the meeting.

In remote work environments, it’s easy to secretly record meetings.  In most cases, however, there is more to lose than gain by recording a meeting without the other person’s consent. Obtaining consent is of course always an option, but that usually changes the tone and content of any meeting, making the recording a less useful exercise.  
Continue Reading Employers: There’s no need to record employee termination meetings

Employers may want to reassess how they terminate their employees and the timeframe and manner through which they provide their employees with their termination-related entitlements. Pohl v Hudson’s Bay Company, 2022 ONSC 5230, a recent Ontario decision, demonstrates, amongst other things, what a court may award an employee whose dismissal was conducted by an employer in an unfair manner.  

What Happened?

A 28-year full-time Hudson’s Bay Company Sales Manager in his 50s was terminated on a without-cause basis and immediately walked out the door. He earned an annual salary of $61,254 plus pension contributions and other benefits.
Continue Reading The Importance of Being Honest and Sensitive: The $50k+ Moral and Punitive Damage Award

Human rights legislation across Canada protects employees from discrimination on the basis of disability and requires employers to accommodate employees with disabilities to the point of undue hardship. Long-term leaves of absence often leave employers wondering how to fulfil their duty to accommodate and at what point are they able to terminate an employee after an extended absence.

How Does an Employer Accommodate an Employee Who Can’t Work Due to Disability? 

When an employee requests a leave from work due to illness or injury with supporting documentation, employers generally start by providing the requested leave. Permitting the leave constitutes an accommodation. Generally, the initial leave is for a period of a few weeks or months depending on the medical professional’s recommendation. Following this initial accommodation, human rights adjudicators require an employer to actively engage with the employee to explore other potential accommodations. To do so, an employer should maintain reasonable contact with the employee to monitor their intention and ability to return to work and seek up-to-date information about the nature of the employee’s medical condition, restrictions and limitations, prognosis for recovery, and ability to perform alternative work. This process is ongoing and may last for several years. Employees must have the opportunity to contribute meaningfully to the accommodation process. 
Continue Reading Accommodating Long-Term Absences: Considerations for Employers

Common Contracting Mistakes Made by EmployersEnsuring that you have succinct, legally compliant, and up-to-date contracts in place is one of the most important things an employer can do to start off on the right foot with a new employee.  It also helps to avoid legal headaches down the road, should the employment relationship not work out.

Bosses and managers are busy and budgets can be tight, leading businesses to sometimes cut corners when it comes to contract templates. Below are 5 of the most common contracting mistakes employers make that can come back to bite them later.
Continue Reading 5 Common Contracting Mistakes Made by Employers