Uncategorized

In the most recent decision of the Supreme Court of Canada, the Court established that the common law rule that a non-unionized employee can be dismissed without cause is not applicable to federally-regulated employers. In other words, federally regulated employers are always required to provide just cause or reasons for the dismissal of non-unionized employees, or may face the broad remedies provided under the Canada Labour Code, including reinstatement. In this significant case, an employee of Atomic Energy of Canada Limited was dismissed without cause or reasons after almost 5 years with the employer. The employee filed a suit alleging…

As an employee, you have a right to a workplace free from harassment and unwanted sexual advances. Unfortunately, as this case illustrates, women still face a disproportionally high risk of sexual harassment and assault, especially in the restaurant, bar and entertainment industries. The case below illustrates the seriousness of such conduct, especially when abuse by somebody in a position of authority is involved. In this case the applicant, De Anna Granes, worked at the respondent’s restaurant as a server prior to the incident. [1] One night, one of the co-owners became inebriated after consuming a number of drinks at the bar and…

In a recent striking case, the Ontario Court of Appeal more than doubled the award granted to a deaf worker who was forced to resign from her job due to her employer’s “campaign of abuse”. In this shocking case Vicky Strudwick worked for a polling firm for a salary close to the federal minimum wage for over a decade. The Court found that, shortly after becoming deaf due to a viral infection, the plaintiff’s supervisors decided to make her quit by making her job environment intolerable and started a campaign designed to make her feel humiliated and unwanted due to…

Recently the Ontario Court of Appeal dismissed an appeal by the employer in Hamilton-Wentworth District School Board v. Fair therefore reaffirming the significant 2013 decision to reinstate an employee after an 11-year absence with full back pay and damages. The case should serve as a warning to employers regarding the scope of accommodation required from them in cases of employee disability. Employers have a duty to accommodate sick or injured workers to the point of undue hardship. In this case, an employee of the School Board took time off work and was subsequently diagnosed with posttraumatic stress disorder and depression, which resulted…

In the recent decision of Gagnon & Associates Inc. the Court reminds us that both employers and employees have the obligation to provide reasonable notice of intention to terminate the employment relationship. In this case, two long-term, key, but unhappy, employees tendered their resignations to their employer with immediate effect after being offered a job at a competing company. The employees together were responsible for over 60% of the employer’s sales and so their immediate departure had a greatly negative impact on the performance of the company, which was not able to find replacements for some time. The employer filed suit…

Harassment in the workplace can take on various characteristics. It could in the form of a derogatory comment made in your presence, but not directly to you. It might be an off-colour joke, or a change in workplace policies, you feel are directed specifically towards you and violates one or more of your legally protected characteristics, including, but not limited to race, disability, sexual orientation, age, or sex. The first thing you need to remember is you have rights and freedoms, whether you are a Canadian citizen or are employed through a work-visa programme. Unfortunately, the balance of power between…

Employers use performance improvement plans in order to help improve the work of underperforming or struggling employees. Generally, they are intended to allow the employer to determine the reason for the employee’s underperformance, address failures, and make sure that the employee has been provided with the proper tools, training and resources necessary to succeed in his or her position. Poor performance during the plan period may, moreover, constitute cause for termination. However, in order to do so, the plan must be fair, and managed and implemented carefully, the Ontario Superior Court ruled in the recent case of Brake v. PJ-M2R Restaurant…

If your fixed-term employment contract contains a renewal clause and you continue working past the contract’s expiration, the contract’s essential conditions will likely be held to be renewed for an indeterminate term. In a first-time recent decision, the Superior Court of Quebec however, declared that confidentiality and non-solicitation clauses are not essential conditions, and so do not automatically become renewed when an employee continues to work beyond the contract’s expiration date. In Traffic Tech Inc. v. Kennell, the employee was first hired pursuant to a three-year fixed-term employment contract with a renewal clause requiring the employer to provide the employee…

In the recent case of Miraka v. A.C.D. Wholesale Meats Ltd. the Human Rights Tribunal of Ontario (HRTO) established that employers may have a duty to accommodate their employee’s last-minute childcare needs and obligations, even if given no advance notice, despite the negative impact on the employer’s operations. Further, employees may not be required to seek alternate solutions for their childcare needs in order for this duty to be triggered. As such, this decision demonstrates the HRTO’s recognition of the importance of child-caring obligations and providing for a family-friendly workplace. In this case, an employee was terminated because he missed 3 consecutive…

Childcare-related familial obligations might trigger the duty to accommodate an employee under current Ontario Human Rights Legislation. However, absent a medical condition that requires breastfeeding, the duty to accommodate an employee’s breastfeeding schedule will not normally be required, a recent court case says. In Flatt v. Treasury Board (Department of Industry), an employee of Industry Canada alleged discrimination based on sex and family status after her employer refused to allow her to work full-time from home, in order to breastfeed her child. [2] The employer had a work-from-home policy that allowed the employees to work from home part of the time, but was not…

The recent case of Fernandes v. Goveas signals a protective attitude of the court towards employees entitled to overtime but who did not bring their case to court within the statutory two-year limitation period. Together with other case law, this suggests that employees may be able to recover some entitlements, even if they did not manage to start their suit before the two-year deadline, as is normally required. Ms. Fernandes immigrated to Canada from India to serve as a live-in housekeeper for her sister and her husband and worked for them for nine years. Although the family admitted to underpaying Ms. Fernandes,…