Employment Links

Relevant links about employment law

Enforceability of Employment Contracts – Ontario Court of Appeal – Failure to Meet Statutory Requirements is Fatal

The termination clause permitted Deeley to avoid continuing employee benefits and was unenforceable. The fact that Deeley in fact paid benefits immaterial to interpretation. As well, the termination clause required Deeley to give Wood “two weeks’ notice of termination or pay in lieu thereof for each year or partial year of employment”. These payments and notice were “inclusive of [Wood’s] entitlements to notice, pay in lieu of notice and severance pay”. Drafted in this way, the clause does not satisfy Deeley’s statutory obligation to pay severance pay. Deeley could fulfil its obligations under the clause in ways that would deprive Wood of her statutory severance pay. The termination clause is thus unenforceable, and Wood is entitled to common law reasonable notice.

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Deductions under the Canada Labour Code

The Employer made deductions from Mr. Czernewan’s final pay cheque in clear contravention of 254.1 (1), which prohibits deductions with certain limited exceptions. The Employer relied on an email communication, which, as I have found above, provided no basis for the deduction. In my view, it was abundantly clear on the face of the email that it could not reasonably be read to provide any basis for the deduction. I am also of the view that the Employer’s reliance on a court order obtained subsequent to the deduction could not reasonably provide a basis for the deduction. In the circumstances, I have determined that $500.00 is a reasonable amount.

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Think Before You Act – Alleging Cause Without Basis = Punitive Damages

The Court: I find the facts of this case particularly troubling. Not only did the defendant assert cause when there was no reasonable basis for such an assertion, the defendant delayed in providing the plaintiff his record of employment, and significantly delayed in paying amounts owing under the Employment Standards Act, 2000, until June 15, 2015. This had a significant financial impact on the plaintiff and the employer had knowledge of the plaintiff’s financial circumstances. Moreover, the allegations of cause, made with no reasonable basis, were made for tactical and financial gain considerations.”

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The first step is the consideration of of the employee’s common law damages, comprised of the compensation and benefits to which he would have been entitled but for the wrongful termination of his employment.

The second step is to consider whether the bonus plan specifically limited or restricted the employee’s common law rights. “The question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the [employee’s] common law rights.” In the case at hand, a term that requires active employment when the bonus is paid, without more, is not sufficient to deprive an employee terminated without reasonable notice of a claim for the bonus the employee would have received during the notice period.

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“That’s My F….. Bagel” – Useful Lessons for All: Employment Contracts and Proportionality

First, the employer’s response to the “bagel fight” was out of proportion. The “wrist grabbing,” while not trivial was not serious enough and did not constitute “work place violence.” Second, based on the wording of the suspension letter provided to the plaintiff following the bagel incident, the suspension represented its discipline for the incident and that to subsequently dismiss her from employment constituted double jeopardy. The Divisional Court agreed with that as well. Relying on arbitral jurisprudence, the Court stated ” An employee can only be disciplined only once for the same offence.”

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Damages Reduced Where Employee Chose Part-Time Employment

The defendant’s obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant. I note the defendant has only paid the plaintiff up to June 1, 2016.

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When You Get Fired – You Got To Look For Work

With respect to mitigation, the Court found: “They have not acted reasonably. Instead of continually and assiduously applying themselves to find employment, [the plaintiffs] .… their efforts to look for work began only recently, …. and even so, those efforts have been so minimal that they cannot be said to meet their duty.”

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UNJUST DISMISSAL UNDER THE CANADA LABOUR CODE – Wilson v. Atomic Commission of Canada – Federal Court of Appeal

In Boisvert, the majority of this Court went about understanding the meaning of “unjust dismissal” by considering common law cases (see, e.g., at pages 458-459). In concurring reasons, Marceau J.A. attempted to define “unjust dismissal” by considering its opposite, just dismissal. He defined a just dismissal as a “dismissal based on an objective, real and substantial cause…entailing action taken exclusively to ensure the effective operation of the business.” Viewed in its proper context, this Court was not saying that the “real and substantial cause” had to relate to the affected employee. Rather the cause had to entail “action taken exclusively to ensure the effective operation of the business” and had to be something other than “caprice, convenience or purely personal disputes.”

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Division XIV – Unjust Dismissal of Part III of the Canada Labour Code provides a procedure for making complaints against a dismissal that an employee considers to be unjust. The following questions, answers and case studies will be of interest to employers and employees under federal jurisdiction. Pamphlet 1 – Summary of this series describes the types of businesses covered by the Code. It is available from any Labour Program offi ce and on the Labour Program website. EXCERPTS FROM “Information on LABOUR STANDARDS”

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Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494 – General Duty of Good Faith in Performance of Contractual Relations

[93] A summary of the principles is in order: (1) There is a general organizing principle of good faith that underlies many facets of contract law. (2) In general, the particular implications of the broad principle for particular cases are determined by resorting to the body of doctrine that has developed which gives effect to aspects of that principle in particular types of situations and relationships. (3) It is appropriate to recognize a new common law duty that applies to all contracts as a manifestation of the general organizing principle of good faith: a duty of honest performance, which requires the parties to be honest with each other in relation to the performance of their contractual obligations.

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