Header graphic for print
Ontario Employer Advisor Keeping Employers Advised on Developments in Labour and Employment Law

Category Archives: Termination

Subscribe to Termination RSS Feed

Hiring Seasonal Workers for the Holidays? 10 Things Employers Need to Know

Posted in Employment, Employment Agreements, Employment Standards, Hours of Work, Occupational Health and Safety, Overtime, Pay, Recruiting, Retail, Seasonal/Temporary Employees, Termination, training, Wage and Hours

As retailers and other seasonal employers gear up for the holiday rush, many hire additional temporary staff to ensure they are ready for crowds of shoppers and extended holiday hours.

In preparation for this time of year, we made a list (and checked it twice!) of issues that Ontario seasonal employers should keep in mind in relation to these employees:

Recruitment & Hiring

  • Avoid Human Rights Concerns in Interviews. When hiring employees to work during the holiday season, it may be tempting to ask questions which directly or indirectly result in the disclosure of information relating to the prohibited
Continue Reading

Dismissing an Employee in the Federal Sector? You Will Need More Than a Severance Package

Posted in Damages, Federally Regulated Employers, Just Cause, Termination, Wrongful Dismissal

Today, the Supreme Court of Canada allowed the appeal in Wilson v Atomic Energy of Canada Limited, and ruled that federally regulated employers must provide justification for dismissing a non-unionized employee or risk facing the “galaxy of discretionary remedies, including, most notably, reinstatement” provided for under the Canada Labour Code (the “Code”).  Unfortunately for federally regulated employers, this decision overturns the Federal Court of Appeal ruling we wrote about early last year and confirms the notion that federally regulated, non-unionized employees cannot be dismissed without cause or reasons.  In other words, a federal sector employer cannot simply … Continue Reading

Are the Tides Finally Turning? Ontario Court of Appeal Upholds Termination Provision Providing Only for “Notice” Under the ESA

Posted in Contractual Termination Provisions, Employment Agreements, Employment Standards, Termination

In a recent case, Oudin v Centre Francophone de Toronto (“Oudin”), the Ontario Court of Appeal has offered potential relief to employers whose contractual termination provisions provide an employee with only his or her minimum “notice” entitlement under the Employment Standards Act, 2000 (the “ESA”).

The State of the Law Prior to Oudin

As a general principle, if an employer wants to limit an employee’s entitlements upon a without cause termination to the minimums established by the ESA, the contractual provision must ensure that the employee will be provided with at least their ESA minimum entitlements to notice, … Continue Reading

A Brave New World? – Probably Not But Employers Sometimes Have To Deal With 26 Months’ Notice and “Dependant Contractors”

Posted in Contractors, Employee Obligations, Employment, Employment Standards, Pay, Termination

The Ontario Court of Appeal has further shattered the “24 month maximum” myth.  In Keenan v. Canac Kitchens Ltd., the Court of Appeal upheld a Trial Judge’s finding that two long service workers were “dependent contractors” and therefore entitled to 26 months’ reasonable notice on termination.

We do not think that this appeal decision is particularly ground-breaking. While unusual, it is not the first time that a Court has awarded more than 24 months’ notice (we are aware of at least one case where a court awarded 30 months).  Also, dependant contractors have long been a recognized category of … Continue Reading

Employers Must “Trust” Employees to Account for Mitigation Earnings During Notice Period

Posted in Damages, Employee Obligations, Litigation, Termination, Wrongful Dismissal

A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues.  First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment.  Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period?  Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.

Often times by the time the trial rolls around, the notice period has … Continue Reading

Terminated for Tweeting: A Tale of Two Toronto Firefighters

Posted in Employment Standards, Labour Relations, Social Media, Termination

When used properly, social media can be a powerful tool for connecting individuals, marketing businesses and mobilizing the masses behind a cause.   However, many organizations have learned the hard way that inappropriate social media use by employees  can have a detrimental effect on an organization’s reputation.… Continue Reading

Ontario Divisional Court Upholds a Worst-Case Scenario Decision from the Human Rights Tribunal

Posted in Human Rights, Termination

Last year, we reported on the notable Human Rights Tribunal decision of Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered the reinstatement, along with over $400,000 in back pay and damages, to an employee despite the employee having been away from the workplace for almost a decade.

When this decision came out, it soon became the benchmark, worst-case scenario, for employers who were found to have failed to properly accommodate an employee.  Not only was the reinstatement order rare and the monetary award uncharacteristically high, but the Hamilton-Wentworth School Board was left to sort out the impending awkwardness … Continue Reading

New Rule of Thumb: 6 Months’ Pay Per Year of Service?

Posted in Termination, Wrongful Dismissal

So much for the rule of thumb that an employee should receive one month of notice for every year of service. The Toronto Star has reported on a recent wrongful dismissal decision that Ontario employers should consider, especially when hiring senior managers or executives. Except for the 12 month notice period that was awarded, the facts of the case seem unremarkable. The company terminated, without cause, the employment of a 52 year old executive, who had 19 months of service.

The interesting part of the decision is that the executive, who had still not found work after 14 months, was … Continue Reading

Ontario Court of Appeal puts the “Reasonable” back into “Reasonable Notice”

Posted in Employment Standards, Termination

Determining the actual notice period an employee is entitled to upon termination is often a frustrating exercise for employers. This is especially true of the more recent case-law which has tended to place more emphasis on certain factors (age and tenure) at the expense of other factors (nature of position and compensation). There have been widely divergent awards in recent years. This undermines the ability of employers to plan, with some certainty, for large scale restructurings and the required notice/severance to provide staff.

The recent Ontario Court of Appeal decision of Kotecha v. Affinia Canada Ltd, 2014 ONCA 411 (… Continue Reading

“Men’s Day” Customer Appreciation Event Discriminatory

Posted in Discrimination, Human Rights, Termination

In McConaghie v. Systemgroup Consulting Inc., 2014 HRTO 295, the Ontario Human Rights Tribunal (HRTO) found that an employer discriminated against a female employee on the basis of sex by sponsoring a customer appreciation event that was for men only. The HRTO also found that the employer retaliated against the employee after she complained about the event to her supervisor.

The case is an important reminder to employers to be cautious with respect to the type of events that they sponsor and the importance of record keeping when performance managing employees.… Continue Reading

New Human Rights Decision Provides Guidance on Frustration of Contract

When is an employment agreement frustrated?

Posted in Benefits, Compensation, Pensions, Human Rights, Occupational Health and Safety, Termination

We are often asked by our clients how long one of their employees has to be off work before it can justifiably take the position that an employment relationship has been “frustrated”.  Employers often wonder this because when an employment relationship is frustrated, the employee is not entitled to common law notice or pay in lieu of such notice [1]. So, how long does it take? 1 year? 18 months? 2 years? 5 years?

A recent Human Rights Tribunal decision, Gahagan v. James Campbell Inc., 2014 HRTO 14, appears to provide some guidance on this issue.… Continue Reading

Employer’s Random Alcohol Testing Policy Constitutes Unreasonable Invasion of Employees’ Rights to Privacy

Posted in Employment Standards, Labour Relations, Occupational Health and Safety, Termination

An employee’s right to ensure workplace safety versus an employee’s right to privacy – these competing rights have been present in the workplace for many years. On one hand, employers must be able to adopt policies to protect their workforce and abide by statutory health and safety obligations. On the other hand, employees expect that they will not be subject to intrusive policies that unreasonably infringe on their privacy expectations.

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Limited, the Supreme Court of Canada (SCC) recently weighed in on how to balance … Continue Reading

Employee Notice Period Greater than Length of Service!

Posted in Damages, Employment Standards, Just Cause, Litigation, Termination, Wrongful Dismissal

Like many management side labour lawyers, I often advise employers and their human resources professionals on the appropriate amount of notice or termination/severance pay an employee should receive upon dismissal without cause. I often remark that there is no “rule of thumb” or formulaic approach. Instead, in determining an employee’s notice period at common-law, the Courts have listed a number of factors to consider, including an employee’s age, length of service, position, compensation and the availability of comparable employment. While the application of these factors provides some guidance (e.g. junior/younger employees are generally entitled to less notice than more tenured/older … Continue Reading

Ontario Human Rights Tribunal Awards Reinstatement and Substantial Back Pay for Failure to Accommodate

Posted in Benefits, Compensation, Pensions, Human Rights, Termination, Wage and Hours, Wrongful Dismissal

A recent decision of the Ontario Human Rights Tribunal (HRTO) in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 illustrates the potentially serious consequences for employers who fail to accommodate employees.

In its initial and long-delayed decision on liability, the HRTO found the Hamilton Wentworth District School Board liable for discriminating against former employee Sharon Fair by failing to accommodate her post-traumatic stress disorder (PTSD) and terminating her employment.… Continue Reading