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
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
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