In the world of employment law, terminations tend to steal the spotlight. But what about when the employee is the one ending the employment relationship?
Here is an overview of the law of resignation, and what employers need to know when they receive an employee’s “two weeks’ notice”. Continue Reading Employee Resignations: The Basics
We’ve written about terminations in several of our blog posts throughout the years. Some of our employer readers (and clients) may recall scrambling to update their employment contracts following the 2020 release of Waksdale v. Swegon North America Inc. (2020 ONCA 391). Still, many employers who are seeking to terminate their indefinite-term employees on a without cause basis believe that as long as they provide their employees with 2 weeks of notice, or the period of notice set out in the Employment Standards Act, 2000, they are off the hook. More often than not, this notice period is legally insufficient. So, what is the applicable notice period?
Continue Reading Firing Employees with 2 Weeks of Notice May be Insufficient
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
In the case of Nahum v. Honeycomb Hospitality Inc., the employer, Honeycomb Hospitality, terminated their Director of People and Culture, Sarah Nahum when she was five months pregnant.
Entitlement to Notice of Termination
The notice period is intended to bridge a terminated employee to their new position. Courts consider the employee’s age, length of service and the character of their employment when determining what notice period is appropriate.
Ms. Nahum had been with Honeycomb for just four and a half months. She was 28 years old and made $80,000 per year. She was terminated without cause, did not have a valid contract governing her termination entitlements, and therefore was entitled to notice in accordance with the common law.
Honeycomb argued that an appropriate notice period for Ms. Nahum was two months.
Continue Reading How Does Being Pregnant Impact an Employee’s Notice Period?
At long last, the impact of Ontario’s Infectious Disease Emergency Leave (IDEL) on employee constructive dismissal claims has been litigated. Employment lawyers have been speculating for a long while about how courts will treat the various employment pivots employers were required to make during the pandemic. We now have our first answer.
Last week, the Ontario Superior Court of Justice released its decision in Coutinho v. Ocular Health Centre Ltd. and ruled that the IDEL does not take away an employee’s ability to sue for constructive dismissal.
What’s Constructive Dismissal?
A constructive dismissal occurs when an employer unilaterally and substantially changes an express or implied term of the employee’s contract. The term also needs to have been essential. Changes regarding pay, duties, hours of work etc., can all potentially be constructive dismissals.
Continue Reading An Important Ruling for Employers on Constructive Dismissal and the IDEL
The Covid-19 pandemic has changed our economy. In many industries, it has made it more difficult to find work and also more difficult for businesses to afford termination packages when letting employees go. The relevance of these facts to how courts will determine what terminated employees are entitled to has, so far, been unclear.
Reasonable Notice
When an employment relationship is not governed by a written contract – with valid termination provisions – a terminated employee’s entitlements on termination without cause will be determined by the common law and what is called reasonable notice.
Continue Reading The Impact of the Pandemic on Termination Packages
The highest Canadian court has just confirmed that an invalid “just cause” termination section in an employment contract will also knock out the entire termination section, including the “without cause” section.
In our earlier blog discussing employment termination packages –Termination Entitlements: Benefits, Bonuses, and Commissions – we promised to keep you updated on 2020’s employment law decision of the year, Waksdale v. Swegon North America Inc. So here we go.
Leave to Appeal Denied
To recap, Waksdale was a decision from the Ontario Court of Appeal that immediately put termination provisions in jeopardy. In the case, the Court of Appeal found that the employer, Swegon North America, could not rely on their properly drafted “without cause” termination provision, in a without cause termination of their employee, Benjamin Waksdale. The reason is that the “with cause” provision in the same termination section of his contract was missing certain criteria and did not comply with Ontario’s Employment Standards Act, 2000. We wrote about the decision last summer here.
Continue Reading Waksdale: Now the Final Word on Termination Provisions – Leave to Appeal Waksdale Decision to the Supreme Court of Canada is Denied
As COVID-19 continues to create barriers for businesses across the province, many employers face tough decisions regarding their staff. With so much uncertainty regarding when and if things will return to normal, scaling down or shutting down is becoming a reality in many industries.
At SpringLaw, we help employers navigate these difficult decisions every day, but are also aware that not every business needs traditional legal services. This is why we created our Pivot DIY employer toolkit. Pivot DIY contains guides to help employers decide how to adjust their workforce and template legal documents with instructions on how to customize them.
Layoffs/Deemed IDEL
Where employers are hopeful that more work will be available in the future, layoffs may be appropriate. A layoff is a temporary stoppage of work. An employer normally needs the contractual right to lay an employee off. Normally, layoffs can only last for specified lengths of time.
Continue Reading Pivoting Your Business During Yet Another Lockdown
Employers often wonder what the consequences might be if they don’t do everything their lawyer tells them to or, if they don’t get a lawyer at all and just “wing it” when hiring, firing, or dealing with workplace issues like harassment complaints or requests for accommodation.
Of course, it depends. Not every employee is going to be litigious, but a fair number are. It’s generally pretty easy for employees to get legal consultations and a lawyer to take their “wrongful dismissals” on contingency. The barrier to entry can be quite low.
So, what can an employer expect? In today’s post, we will go through the various types of employer-worst-case-scenario employment law damages.
Continue Reading Employment Law Damages: The Risk of Not Firing Properly
Unfortunately, lots of terminations are coming across our desks these days. While most employers understand that they need to provide notice of termination, many employees have a variety of different types of compensation which may or may not continue during the notice period. As with many things in law, it depends!
Let’s go over some of the common aspects of executive termination packages.
A Primer on Notice
It all starts with notice! Unless an employee is being terminated for cause, they are entitled to notice of termination. “For cause” or “with cause” terminations are rare, so in most cases and absent egregious employee behaviour, employers will owe employees notice.
Continue Reading Termination Entitlements: Benefits, Bonuses and Commissions
