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Reasonable notice required of both employers and employees – Superior Court of Ontario

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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…

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Are You Being Harassed at Work and Not Sure What to Do?

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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…

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Court rules on Performance Improvement Plans

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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…

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Confidentiality and non-solicitation clauses not essential elements of employment contracts for purposes of tacit renewal, Court says

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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…

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Employers may be required to accommodate your sudden child-caring responsibilities

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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…

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Supreme Court of Canada refuses leave to appeal case on the duty to accommodate mother’s breastfeeding schedule

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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…

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Employees successfully recover overtime pay after expiry of the limitation period

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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,…

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Supreme Court of Canada rules on employee suspensions

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The recent Supreme Court of Canada (SCC) case Potter v. New Brunswick sets an important precedent for the protection of employee rights across Canada. After Potter, an employer’s ability to suspend its employees has been limited to a set of clearly-defined circumstances, and the abuse of the suspension power will culminate in liability for constructive dismissal of the employee. David Potter, the Executive Director for the New Brunswick Legal Aid Services Commission, was suspended for an indefinite time while on sick leave. No details were provided to Mr. Potter regarding the reasons for the suspension, or its possible length. After over two months of…

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After work conduct resulting in criminal charges not grounds for just cause dismissal, Ontario Superior Court of Justice rules

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After work conduct resulting in criminal charges not grounds for just cause dismissal, Ontario Superior Court of Justice rules Employers have the right to dismiss their employees for just cause, but off-duty conduct involving criminal charges by itself will not constitute such just cause, the court in Merritt v Tigercat Industries recently held. In order to adequately protect employees’ rights and privacy, employers are required to undertake an investigation into the supposed conduct and are only allowed to dismiss employees on this basis in a limited set of circumstances. In Merritt the employee, who was a general laborer at a…

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Court speaks on the compliance of termination clauses with the Employment Standards Act

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Employees are entitled to reasonable notice at common law, unless their employment contract states otherwise. Notice provisions must, however, comply with the minimum requirements, as set out by the Employment Standards Act (ESA), regarding the minimum notice period and full benefit continuation, and they will otherwise be held as void and unenforceable. In Oudin v Le Centre Francophone de Toronto the court recently weighed in on the question of the standard of compliance with the ESA minimums. In this case, the employee was hired as a magazine production manager and subsequently dismissed without cause when the sales of the magazine…

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