Mitigating by returning to work: it depends on the circumstances

Time Published on June 02, 2017

When must a dismissed employee accept an offer of alternate employment with their employer? In some circumstances, employees will be obligated to accept continued employment with the company that terminated them to mitigate their losses. A recent Court of Appeal decision reminds us, however, that an employer’s offer must meet certain conditions or else the employee may refuse to accept it. 

Tag employment law,  employment litigation,  wrongful dismissal litigation

Generous termination clauses: Think twice before making promises

Time Published on April 28, 2017

Many employers include termination clauses in employment contracts to limit their liability when dismissing employees. When employers draft generous termination provisions providing for more than statutory minimums, they must follow through on that generosity when terminating employees. Failing to do so could leave employers exposed to full liability under the common law.

Tag employment law,  employment litigation,  wrongful dismissal litigation

Using independent contractor not a “get out of jail free” card

Time Published on April 12, 2017

A business’ obligations to its workers will depend on whether the workers are employees or independent contractors. However, a recent decision reminds us that, even where a worker is a true independent contractor, this distinction may not preclude a business being liable to third parties, such as customers, when the worker does something wrong.

Tag employment law

Constructive dismissal? A question of interpretation

Time Published on April 05, 2017

Would it be a constructive dismissal to refuse to pay an employee the third of a million dollars you owe him? Perhaps not.

Tag constructive dismissal,  employment law

The Accidental Termination

Time Published on March 15, 2017

A recent Ontario Court of Appeal decision highlights the importance of maintaining composure – and not venting frustrations upon employees.

Tag employment law

Addiction without compulsion: no defence to serious misconduct using the “hybrid” approach

Time Published on March 03, 2017

The law on addiction has evolved over the years in arbitral jurisprudence.  Earlier decisions treated illness as a mitigating factor on penalty.  In more recent decisions, arbitrators have treated the human rights accommodation analysis as relevant to the assessment of the gravity and culpability of misconduct itself.

Tag employment law,  employment litigation,  human rights,  labour law

Probationary clauses: A double-edged sword for employers

Time Published on February 17, 2017 User Stringer LLP

Many employers use probation periods to assess new employees, and use contractual probationary clauses which purport to limit termination entitlements. Unfortunately, poorly drafted clauses may run afoul of the law and expose employers to significant reasonable notice awards.

Tag employment law,  employment standards,  wrongful dismissal litigation

No evidence? No aggravated damages – Employees must prove basis for damages based on manner of dismissal

Time Published on February 08, 2017

Court affirms there must be sufficient evidence that the employer’s conduct was egregious before an award of aggravatedCourt affirms there must be sufficient evidence that the employer’s conduct was egregious before an award of aggravated damages is appropriate.  damages is appropriate. 

Tag employment law,  employment litigation,  wrongful dismissal litigation

Alberta court rules on the limits of good faith in the performance of employment contracts

Time Published on January 31, 2017

In a recent decision, the Alberta Court of Appeal strongly affirmed employers’ right to terminate employees without cause, and without giving reasons. Further, the Court ruled that there is no good faith duty on the part of employers to refrain from exercising their discretion to dismiss employees simply because dismissing them will deprive them of bonus payments which have not yet vested

Tag employment law,  employment litigation,  wrongful dismissal litigation

When a resignation isn’t really a resignation

Time Published on January 24, 2017

How do you know when an employee has quit her job? It may seem like a simple question, but the answer recently eluded an Ontario employer, who improperly took an employee’s apparent resignation at face value.  

Tag employment law,  wrongful dismissal litigation

“Uncommon” employers – Corporate Structure vs Employment Obligations

Time Published on January 11, 2017

In a recent decision, the Ontario Divisional Court overturned a trial judge’s ruling that one corporation’s obligations to employees “flowed” to an alleged successor. 

Tag employment law,  employment litigation,  employment standards

Mitigation – A duty to act in your own professional interest

Time Published on December 30, 2016

The court ruled decisively that, when it comes to assessing re-training decisions and an employee's duty to mitigate, it is not appropriate to require a former employer to finance an employee's otherwise perfectly valid personal choice. 

Tag employment law,  wrongful dismissal litigation

Employers Need “Reasonable Basis” to Allege Just Cause

Time Published on November 30, 2016

Employers be warned - engaging in high-handed, bullying behaviour when dismissing an employee may be a costly strategy.

Tag employment law,  employment litigation,  wrongful dismissal litigation

Court of Appeal Gives Mark-Fabricating Teacher an "F"

Time Published on June 22, 2016 User Stringer LLP

When is a single, serious instance of misconduct just cause for termination, particularly for a long-service employee?

Tag employment law,  employment litigation,  wrongful dismissal litigation

Putting on the Brakes: The Limits of the Common Employer Doctrine

Time Published on June 10, 2016

Many businesses and organizations now consist of multiple, separate corporations, organized for tax, liability, and other legitimate commercial purposes.  Although in some contexts such structures prevent any liability from flowing between the constituent elements, in wrongful dismissal cases such a structure can often come under attack, as plaintiffs attempt to draw unrelated elements of the same organization into litigation to access assets or because of confusion over the correct party to name.

Tag employment law