Employers considering employee requests to relocate must evaluate employment standards and potential tax and immigration implications.
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How to Avoid Constructive Dismissals
Now, 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.
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How Long Can an Employee Dispute Compensation Changes?
In the recent Court of Appeal decision in Kosteckyj v. Paramount Resources Ltd. 2022 ABCA 230 (CanLII), the court considered the possibility that specific timelines could be imposed on employees for voicing dissatisfaction with unwelcome changes to the terms of their employment if they want to subsequently argue that they’ve been constructively dismissed.
What Typically Triggers a Constructive Dismissal Claim?
Constructive dismissal arguments often follow unilateral changes made to an employment agreement by the employer. When an employee alleges a constructive dismissal after a change, they’re essentially saying that the change cuts so deeply to the core of the employment relationship that they’ve been forced to leave: “I’m quitting, but you made me! … and by the way, you have to now compensate me as if you’d fired me.”
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The End of Remote Work?
Is remote work ending? Many of our employer clients are making plans for a return to in-person work. Likely many employees have mixed feelings about a return to the office. Sure, not wearing real pants has been nice, but many miss the in-person social aspects of work, and would maybe welcome a little bit of separation from their families, annoying cat, or their neighbour’s lawnmower. Today we will discuss some return-to-work issues.
Can I Require My Employees to Return to Work?
Employers can definitely tell their employees that they are required to return to the office. How strong a stance employers want to take on this will depend and some flexibility will likely be warranted.
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Another Ruling on the IDEL and the Employee’s Right to Pursue Common Law Constructive Dismissal
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
Good News for Employers: A New Decision On Constructive Dismissal and the IDEL
Last month we blogged about the Ontario Superior Court’s decision in Coutinho v. Ocular Health Centre Ltd. (Coutinho) when the court ruled that an employee placed on Ontario’s Infectious Disease Emergency Leave (IDEL), established by O.Reg 228/20 (the Regulation), could still bring an action for constructive dismissal at common law. The plot has thickened with the release this month of a contradictory decision in Taylor v. Hanley Hospitality Inc. (Taylor).
In the Taylor decision, the court considered the same issue – is the employee precluded by the Regulation from bringing a claim for constructive dismissal under the common law, when their hours are reduced or eliminated as a result of the pandemic? While the court in Coutinho concluded no, the court in Taylor has concluded yes.
Where does that leave us? Because these two decisions are from the same level of court, neither has more weight than the other for later judges who might be deciding cases on similar facts. When decisions of the same level conflict, we need a higher court to weigh in – in this case, that would be the Ontario Court of Appeal.
Continue Reading Good News for Employers: A New Decision On Constructive Dismissal and the IDEL
IDEL COVID-19 Period Extended to September 25, 2021
The COVID-19 Period in Ontario’s Infectious Disease Emergency Leave has been extended until September 25, 2021. Prior to this change, the COVID-19 Period was set to end on July 3, 2021.
What does the end of the COVID-19 Period mean?
The end of the COVID-19 Period is relevant to employers who reduced the hours of their employees due to COVID-19 reasons. In many cases, these employees were “laid off,” meaning they work no hours at all.
Typically, a layoff can only last for a specific number of weeks. The introduction of the “deemed IDEL” and the extension of the COVID-19 Period have made it possible for these employees to remain off work/laid off for much longer, without a termination being triggered.
If you were an employer keeping the July 3, 2021 end date in mind, you can forget that and add September 25, 2021 to your calendar.
Continue Reading IDEL COVID-19 Period Extended to September 25, 2021
An Important Ruling for Employers on Constructive Dismissal and the IDEL
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
Constructive Dismissals in a Struggling Economy
Recently, a reader asked me whether cutting back the hours of a department of hourly paid employees by about 5 hours a week for a few months would create any problems. She correctly identified constructive dismissal as the issue to consider.
What is Constructive Dismissal?
“Constructive dismissal” is when an employer unilaterally makes such substantial