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Substratum of the Employment Contract Alive and Well
Absent a legally enforceable employment contract dealing with entitlement on termination, an employer may only terminate an employee employed on an indefinite term for just cause or on reasonable notice or pay in lieu of such notice. See for example, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986. When terminating an employee it is always [...]
Another Non-Compete Bites the Dust
Courts in Canada simply don’t like to enforce non-competition covenants in employment agreements. They also don’t like to fix drafting problems. That has been the trend over the past 10 years and it continues to be the case with the Court of Appeal’s decision this week in Veolia ES Industrial Services Inc. v. Brulé. In this [...]
Forum Selection Clauses in Contracts
When drafting an employment agreement it is important to include a forum selection clause where the parties agree to the appropriate jurisdiction for hearing any dispute between them. These provisions, while not critical in every case, can prove tremendously valuable where it is not clear which of two jurisdictions is appropriate for hearing the dispute. [...]
Characterization of Settlement Monies – Get it Right
In a decision that will likely fly under the radar, the Federal Court of Appeal in Canada (Attorney General) v. Warren, 2012 FCA 74 (CanLII) considered the “treatment” of monies paid to an employee in settlement of a grievance. This was an application for judicial review of the decision of an Umpire under the Employment Insurance [...]
After Acquired Just Cause – Timing is Important
Employers will sometimes discover things after an employee is terminated that gives them cause for concern. Whether this post-termination misconduct amounts to “just cause” is a complex issue. The issue was recently considered in Gillespie v. 1200333 Alberta Ltd. (which was an appeal of this judgment) where the employee was terminated, without cause, and removed certain [...]
Length of Service – Sometimes Not an Easy Matter
In the absence of a legally enforceable contract dealing with entitlement on termination, it has been said that an employee employed for an indefinite term may only be terminated summarily for just cause or in the absence of just cause, upon reasonable advance notice or pay in lieu of such notice. Determining the period of [...]
How to Determine the Period of Reasonable Notice and What’s Mitigation?
Although, on occasion, we see cases that try to tweak the way in which the period of reasonable notice at common law should be determined, in the end, the tried and true Bardal test continues to win the day and there’s really no reason to change. The most recent example is McGroarty v. Linita Design which is [...]
Working Notice, Constructive Dismissal and Employee Obligations
Employers will, on occasion, give an employee advance working notice of termination. The issue sometimes arises about whether the employee is required to actually work through that period of working notice or can refuse to do so, and the implications associated with the employee refusing. The British Columbia Court of Appeal has recently considered this [...]
Layoffs Longer than 35 Weeks and Constructive Dismissal
The Ontario Court of Appeal recently released a decision that touches on the interaction between theEmployment Standards Act, 2000 and constructive dismissal in the context of an indefinite layoff. The case is Elsegood v. Cambridge Spring Service. Section 56(1) of the ESA provides as follows: 56(1) An employer terminates the employment of an employee for purposes of [...]
Moral Damages in Employment Law
The British Columbia Supreme Court considered the circumstances in which moral damages will be awarded in Haftbaradaran v. St. Hubertus Estate Winery Ltd.. The theory that the plaintiff adopted for claiming recovery of moral damages was that the manner of his dismissal caused him to suffer mental distress. According to the Supreme Court of Canada’s decision [...]