DID I JUST LEGALLY RESIGN FROM MY JOB? CAN I TAKE IT BACK? RESIGNATION FROM EMPLOYMENT – EXPLAINED AND FIVE BEST PRACTICES TIPS TO EMPLOYERS

HARD LABOUR – BY WARDSPC LAWYERS

DID I JUST LEGALLY RESIGN FROM MY JOB? CAN I TAKE IT BACK? RESIGNATION FROM EMPLOYMENT – EXPLAINED AND FIVE BEST PRACTICES TIPS TO EMPLOYERS

An employee who resigns, verbally or in writing, may ask to ‘take back’ his or her resignation. This creates an issue for the employer, of course, particularly if the resignation is a welcomed outcome to the relationship. Ontario law says that an employer may be obliged to allow an employee to withdraw or retract a resignation depending on the circumstances.

What is required by an employee to constitute a resignation from employment?

When is an employee entitled to resile, or take back, a resignation?

Firstly, to be a valid and enforceable (by an employer), an employee’s resignation must be clear and unequivocal. The resignation or conduct by the employee must, objectively viewed by a reasonable person in the surrounding circumstances, indicate an intention to resign. Resignations in a fit or state of anger, frustration or emotional upset, or in “a spontaneous outburst in highly charged emotional circumstances can undermine its essential voluntariness” may not qualify as true resignations and, therefore, not be enforceable by the employer.

If there is a clear and unequivocal notice of resignation (a valid and enforceable resignation) by the employee, he or she may be able to resile form the resignation, or take it back, until either: (a) the employer expressly accepts the resignation; or (b) the employer relies on the resignation to its detriment. If it is clearly accepted, showing detrimental reliance would not be necessary.

In Ontario, employers effectively have a duty to do more than accept a purported resignation at face value, particularly if it is given in heated circumstances or by an employee who may be experiencing a disability, such as a mental condition, for example. Verbal resignations can be problematic, of course. Employers should take the step of verifying with the employee, who verbally resigns, that he or she actually and truly wishes to resign, especially if the circumstances involve an emotional or heated situation. Employers should always document resignations in writing with the employee. However, even written resignations can be disputed as being involuntary, or given during undue stress or duress, for example. Generally speaking, if there are emotional circumstances at the time, a ‘cooling off’ period should be given by employers, to verify the true intention of the employee. Employers should also give formal (written) acceptance of any resignation, whether given verbally or in writing.

Five Best Practice Tips for Employers:

Employers faced with a verbal or written notice of resignation should consider:

1.   giving a ‘cooling-off’ period to an employee who resigns, or purports to resign, especially if there may be special circumstances, such as potential mental health-related issues, family issues or other potential sources of undue stress or pressure affecting the employee at the time;

2.   requesting that resignations be given only in writing, if possible; 

3.   respond to resignations (in writing, ideally) with written acceptances, but only after considering if any special factors exist or may be known by the employer that potentially may have unduly influenced the employee’s decision to resign (including potential mental health-related issues);

4.   avoiding any steps after receiving the resignation that may be viewed as non-acceptance of the resignation, like calling a meeting or telephoning the employee afterwards (or engaging in any verbal discussions with the employee); and 

5.   allowing an employee, if requested, to withdraw or retract a resignation, subject to further considering: a) the time that passed between the resignation and request to retract; b) any special circumstances regarding the employee; c) whether ‘detrimental reliance’ steps were already undertaken by the employer; and d) whether the resignation was accepted in writing previously.

Case References:

Johal v. Simmons de Silva LLP, 2016 ONSC 7835 (CanLII)

Gebreselassie v. VCR Active Media Ltd., [2007] OJ No. 4165

Bru v. AGM Enterprises Inc., 2008 BCSC 1680

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THE NEW RULES IN ONTARIO - WORKPLACE HARASSMENT – COMPLIANCE TIPS

HARD LABOUR – BY WARDSPC LAWYERS

THE NEW RULES IN ONTARIO - WORKPLACE HARASSMENT – COMPLIANCE TIPS

Since September 8, 2016, Bill 132 substantially upgraded Ontario’s Occupational Health and Safety Act and employers’ obligations for workplace (sexual) harassment. These sweeping changes impose new, proactive measures on all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • update the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the new law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • Tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.  

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED

HARD LABOUR – BY WARDSPC LAWYERS

THE RULES IN ONTARIO - WORKPLACE VIOLENCE – EMPLOYERS’ DUTY TO PROTECT EMPLOYEES EXPLAINED

Protecting workers from workplace violence is an increasingly important objective of the Ontario Ministry of Labour, the Court and both employers and employees.

Failure to do so can result in criminal prosecution of employers under the workplace violence section of Ontario’s Occupational Health and Safety Act (the “OHSA”). For example, recently an employer in Ontario was criminally fined more than $150,000 after workers were assaulted by a youth in care at the employer’s care facility.  

Generally, employers must “take every precaution reasonable in the circumstance for the protection of a worker” and “provide information, instruction and supervision to protect the health and safety of a worker.” The Violence and Harassment sections of the OHSA set out minimum standards expected of employers to achieve this general duty, including:

  • a mandatory, written workplace violence policy, which should be prominently and conspicuously posted in the common area(s) of the workplace and otherwise brought to all workers’ attention, as may be appropriate in the circumstances; and
  • a complementary program to implement and maintain the mandatory policy, including: “measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.”

The OHSA does not mandate a cookie cutter-style program suitable for every employer; rather, employers must devise their own policy and program based on their own workplace environment and individualized needs. Admittedly potential risks may be difficult to identify and assess in advance and, therefore, assessing whether a policy and program is adequate initially – nonetheless, employers must statutorily use their best efforts to do so, in consultation with everyone in the workplace ideally. Of course, any incident of workplace violence is likely to presumptively challenge whether the policy and program were adequately designed and implemented at the outset. Foreseeability of potential risk is, therefore, an important factor in effective workplace violence prevention. 

Generally, the OHSA, the Ministry and even the Court promote the minimization of workplace violence by requiring employers, supervisors and workers to proactively and collaboratively consider and identify potential risks, to address them by open and constructive communication and to react properly and with certainty when any risk materializes.

If a criminal prosecution arises, the standard of proof is beyond a reasonable doubt. Employers may assert a due diligence-type of defence, if desired. What remains uncertain is the scope of the measures employers may need to take to establish this defence successfully. For example, removal of a potentially risky person in the workplace may create other legal issues, such as wrongful termination (if a worker), duties owed to patients (in a health care environment) and potential grounds of discrimination under Ontario’s Human Rights Code.  

The best practice is to develop and implement a thoughtful, thorough and collaborative violence policy and complementary program to detect, prevent and minimize incidents of workplace violence. The policy and program should be regularly reviewed, revised, if appropriate, and certainty modified to address any incident of violence in the workplace. These practices will not only minimize incidents, but also assist employers to establish due diligence if a prosecution ensues due to any incident. 

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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ACCESSIBILITY - SMALL BUSINESSES MUST ALSO COMPLY WITH THESE NEW RULES AS OF JAN. 1, 2017 – ACCESSIBILITY FOR ONTARIONS WITH DISABILITIES – COMPLIANCE TIPS

HARD LABOUR – BY WARDSPC LAWYERS

ACCESSIBILITY - SMALL BUSINESSES MUST ALSO COMPLY WITH THESE NEW RULES AS OF JAN. 1, 2017 – ACCESSIBILITY FOR ONTARIONS WITH DISABILITIES – COMPLIANCE TIPS

The Accessibility for Ontarians with Disabilities Act (AODA) applies to both large (more than fifty employees) and small businesses in Ontario as of January 1, 2017. Some federally-regulated employers are exempt, but most of Ontario’s employers must now comply with the AODA’s Employment Standards regulations, being Part III of the Integrated Accessibility Standards, including a broad and extensive set of rules designed to minimize, if not eliminate, workplace barriers potentially encountered by those with disabilities in Ontario.

KEY COMPLIANCE TIPS:

Employers should:

  1. develop and implement a written policy addressing the accessibility, accommodation and other requirements of the Integrated Standards of the AODA, including for the employer’s recruitment, orientation, selection and hiring process;
  2. inform all employees and the public about the availability of accommodation in the employer’s recruitment procedures, such as in all job/position advertising and the employer’s Web site and social media outlets, including by providing contact information for the employer’s representative(s) to discuss accessibility and accommodation for illness or disability during the recruitment process;
  3. inform job candidates about the availability of accommodation for illness and disability during the selection and assessment process;
  4. identify the availability of accommodation in every offer of employment and refer to the employer’s AODA written policy;
  5. notify all employees and job candidates of the employer’s workplace policy(ies), if any, with respect to: encouraging and supporting employees with disabilities, including respecting the need for accommodation and accessibility needs due to disability;
  6. if requested, provide any information that an employee or successful job candidate may reasonably require to perform the position in an accessible format and, if possible, communicate and collaborate with the employee to identify and establish an effective accessible format suitable to that employee’s needs; and
  7. if requested, provide any information that is generally available to employees in an accessible format and, if possible, communicate and collaborate with any employees to identify and establish an effective accessible format suitable to the employee’s needs.

IAPs - HANDLING REQUESTS FOR ACCOMMODATION AND RETURN TO WORK:

The Employment Standards of the AODA also require employers to develop and implement a written policy (or process) for creating individualized accommodation plans (“IAPs”) for employees with disability who request accommodation or are returning to work following an absence due to any disability. This requirement is arguably technical and complex for many employers, particularly small businesses without experienced human resource personnel. Smaller employers, or those without human resource expertise, should consider obtaining assistance from a qualified employment lawyer or consultant, although there is some guidance available online for employers prepared to navigate this myriad of technical obligations.

IAPs must address, among other things:

  1. how accommodation may be requested;
  2. how employees will participate in the development and maintenance of the employee’s IAP;
  3. how the employee may be assessed on an individual basis;
  4. how the employer may request and obtain an assessment or evaluation by a third party, such as an external medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, the nature and scope of the accommodation;
  5. how an employee can obtain assistance from a collective bargaining unit, co-worker or other third party suitable in the circumstances with respect to the employee’s IAP;
  6. how personal information will be kept and protected;
  7. how and when IAPs will be reviewed and updated, as necessary;
  8. the process required for the denial of any IAP;
  9. how IAPs are to be presented to employees with consideration to the employee’s accessibility needs;
  10. how accessible formats and communication supports will be provided to the employee, as may be necessary;
  11. how emergency workplace response information will be provided to the employee; and  
  12. all the specific and well-defined accommodation or accessibility needs of the employee.

The Integrated Standards also require employers to establish a written return-to-work policy for employees absent from work due to an illness or disability and who require accommodation to facilitate the return-to-work. Often this policy will incorporate, if possible, the employee’s compensation, too – which is likely conjunctive with the return-to-work requirements imposed by the AODA. A return-to-work policy should specifically explain the return-to-work plan and process for the employee, including: (a) identifying the steps to be taken by the employer to facilitate the return to work of any employee absent because of disability; and (b) identify and refer to the use of the employee’s written IAP, if any.

ACCESSIBILITY REPORT:

All employers should determine if they are required by December 31, 2017 to file an Accessibility Report with the Ontario government.

Accessibility and workplace accommodation is often fluid and subject to continuous change. To accommodate those with disabilities, employers must continue to consider and address properly every employee’s disability, if any, accessibility needs and any applicable IAP needs, particularly in the hiring process, performance management, career development and enhancement and redeployment – failure to do so may violate the AODA.

The Integrated Standards are not the only obligations imposed on employers by the AODA. Additional obligations will continue to be imposed in future, such as for customer service, employee training and online accessibility.

The objective of these initiates is to foster an inclusive workplace, free from barriers that may negatively impact those with disabilities in Ontario. However, the specific requirements of the AODA can be complex, confusing and difficult to manage. Accordingly, employers should obtain assistance, such as from a qualified employment lawyer, specialized consultant or, at the very least, the Ontario government directly.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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BEING FORCED TO QUIT YOUR JOB AND YOUR ABILITY TO STILL CLAIM SEVERANCE PAY. CONSTRUCTIVE DISMISSAL - WHEN QUITTING IS NOT REALLY QUITTING. NEED-TO-KNOW TIPS FOR BOTH YOU AND YOUR EMPLOYER

HARD LABOUR – BY WARDSPC LAWYERS

BEING FORCED TO QUIT YOUR JOB AND YOUR ABILITY TO STILL CLAIM SEVERANCE PAY. CONSTRUCTIVE DISMISSAL - WHEN QUITTING IS NOT REALLY QUITTING. NEED-TO-KNOW TIPS FOR BOTH YOU AND YOUR EMPLOYER

Employment in Ontario is constantly changing. Businesses are changing, for various reasons. Workforce need may vary during the year for many businesses. Employers are regularly trying to improve efficiency, reduce costs and improve the bottom line. This may involve lay offs, downsizing, reducing overhead (including payroll) and reorganizations.

These economic realities for many employers may lead them to try to modify their employment relationships.

While employers are generally entitled to change the nature of an employee’s position, if the change is fundamental to the relationship, certain protections arise for the employee; namely, the remedy of constructive dismissal. Fundamental changes unilaterally imposed by employers, such as to pay, availability of work or benefits, for example, unless the employee consents, may constitute a constructive dismissal of the employee. If so, the employee may be entitled to reject the change, refuse to continue to work and claim damages for being terminated, constructively.

DEFINITION – CONSTRUCTIVE DISMISSAL:

The definition of constructive dismissal is: when an employer makes a unilateral and fundamental change to a term or condition of an employment contract, without providing reasonable notice of that change to the employee. This action amounts to a repudiation of the contract of employment by the employer, regardless if that was intended, and deemed refusal to continue the employment relationship. Therefore, the employee may consider the contract wrongfully terminated and quit or resign which, in turn, gives rise to an obligation by the employer to provide damages in lieu of reasonable notice, similar to an outright, wrongful termination.

THE FOUR CATEGORIES OF CONSTRUCTIVE DISMISSAL:

Generally, if a fundamental change is made by the employer, the Court will categorize the change into one of four, different scenarios to assess if it constructive dismissal.

Firstly, if the new term is imposed by the employer immediately (without notice), but with the employee’s consent, there is no constructive dismissal and the relationship continues, subject to the new term.

Secondly, if that occurs, and the change is fundamental to the employee’s job terms, who does not consent, there will be a constructive dismissal.

Thirdly, if the new term (or fundamental change) only becomes effective after reasonable notice of that change is given by the employer, there will be no constructive dismissal, even if the employee does not consent to the change. The amount of notice required to be given by the employer depends on several factors, such as age, length of employment, nature of the position, the terms of the written employment agreement, if any, and other factors generally considered by the Court in wrongful termination cases to assess pay in lieu of notice.

Lastly, if the employee does not accept the new term and, as a result, the employer does not impose it, there cannot be a constructive dismissal. 

If a constructive dismissal occurs, the employee has a duty to mitigate his or her damages, which may include an obligation to return to the same job from which the employee has been constructively dismissed (with the change), depending on the facts of the specific case and whether the employee can demonstrate that he or she could not reasonably be expected to mitigate damages by returning.

“POISONED” WORK ENVIRONMENT

In an employee faces discrimination or other negative workplace experiences that may create a “poisoned” work environment, it may also create a constructive dismissal situation, even if no specific change was made by the employer. Generally, discrimination, harassment, and loss of dignity or self-respect do not need to be accepted by employees – they have a remedy; namely, a possible claim of constructive dismissal.

SIGNS OF POTENTIAL CONSTRUCTIVE DISMISSAL:

Common indicators that you have been constructively dismissed include:

  • reduction or elimination of compensation such as salary, bonuses, commissions, benefits, or pension entitlements;
  • being temporarily laid off;
  • a shift or scheduling change that cause significant hardship, such as to childcare and other family obligations or religious beliefs, or otherwise have a substantial impact on either personal or work life, or both, to the extent they are unfair or unreasonable;    
  • being transferred to another territory or business location;  
  • being demoted, or having responsibilities reduced, or being placed in a substantially different position; and/or
  • being required to work in a ‘poisoned’ workplace environment.

TIPS TO BOTH EMPLOYERS AND EMPLOYEES:

Any unilateral change by an employer to the terms of employment do not automatically constitute constructive dismissal - an employer has the right and ability to decide the terms of employment it wishes to offer its employees, but it cannot change existing terms of employment, if they are fundamental in nature, without giving an employee appropriate notice of the changes. If that appropriate notice is given, the employee must either accept or reject the changes and, if the latter, quit or resign, as opposed to insisting on the terms of employment he or she wishes to have;

The notice to the employee should be express, clear and unequivocal (and ideally in writing) – if there is any uncertainty in the notice, or whether the employee’s job would end if he or she did not accept the change (at the end of the notice period), the uncertainty is likely to be resolved in favour of the employee. Therefore, if the employer is not clear with the employee, or otherwise acquiesces to the employee’s rejection of the change, the notice of the change may be “voided” and not protect the employer from constructive dismissal liability. The notice must be clear, reaffirmed and followed-up on the employer to avoid liability. The employer should expressly make it clear to the employee that if, at the end of the notice period, the employee does not accept the change, the employee will be terminated as of that time. Ideally the employer will conduct this in writing, including following-up with the employee during and at the end of the notice period by affirming that a termination will happen if the employee rejects the change. The employer should also carefully avoid simply informing the employee he or she will be terminated at the end of the notice period – this may cause the employee “stress and trauma” (or an ability to assert this impact) and void the notice. Accordingly, the notice must effectively balance the objective of giving it against avoiding any undue “stress and trauma” to the employee; and

The position must remain the same during the notice period the status quo must be maintained, including compensation. If any change, even a different change, occurs during the notice period, it may potentially void the notice for the intended change.

Case References:

Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 (CanLII)

Nufrio v. Allstate Insurance Company of Canada, 2016 ONSC 2791 (CanLII)

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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EMPLOYERS TERMINATING IN GOOD FAITH? PUNITIVE OR AGGRAVATED DAMAGES MAY NOT BE ORDERED EVEN THOUGH THE EMPLOYER MAINTAINS “CAUSE” FOR TERMINATION UNTIL THE VERY END, BUT FAILS TO PROVE IT

HARD LABOUR – BY WARDSPC LAWYERS

EMPLOYERS TERMINATING IN GOOD FAITH? PUNITIVE OR AGGRAVATED DAMAGES MAY NOT BE ORDERED EVEN THOUGH THE EMPLOYER MAINTAINS “CAUSE” FOR TERMINATION UNTIL THE VERY END, BUT FAILS TO PROVE IT

Employees who sue for wrongful termination often claim additional punitive or aggravated damages based on, for example, the employer’s alleged bad faith manner of termination, breach of its duty to perform the contract honestly or tactically alleging cause to gain an advantage, when it did not truly hold the belief that cause existed.

In Ontario, the Courts are increasingly awarding punitive or aggravated damages when it would be appropriate to do so in the specific case, which usually involves bad faith, poor conduct or strategic, one-sided plays by the employer, like asserting cause to gain a tactical advantage in an early settlement with the terminated employee.

Cause for termination is a very high threshold for employers to prove in Ontario. If they terminate for cause, are sued and fail to prove cause at trial, it is more likely they are exposed to paying additional punitive or aggravated damages, in addition to the damages for the pay in lieu of notice arising from the actual dismissal.

However, if an employer can establish that it alleged cause, which it subsequently failed to prove at trial, without bad faith, but rather in good faith, a new British Columbia case establishes that punitive or aggravated damages would not be awarded.

The key issue, then, is the conduct of the employer. If bad faith, poor conduct or tactical plays were not engaged in, this new case suggests the employer should not pay these special, additional damages, even though it improperly alleged cause at the time of termination, which it continued to assert during the lawsuit, but ultimately failed to prove in Court at the trial, the end of the lawsuit process.   

In this case, the manager employee hired a third party to do work for the employer, but before he arranged the appropriate permits. He was terminated. After his termination, the employer discovered other errors by the employee and, therefore, asserted these as cause for the initial termination, too.

The Court held the employee had made a serious error in judgment and engaged in unacceptable conduct, but did not intend to deceive or mislead the employer. Therefore, cause for his termination did not exist. Rather, progressive discipline and a punishment less than abrupt termination for cause would have been appropriate. The employer, as a result, alleged cause, asserted that throughout the lengthy case and ultimately failed to prove it. The employee was awarded damages at common law for pay in lieu of notice. 

The Court refused to order punitive or aggravated damages, though, because: (a) the termination was conducted in a respectful manner; (b) the issue of cause effectively arose after termination; and (c) the employer had conducted a fair and reasonable investigation to support its allegation of cause.

In other words, punitive or aggravated damages will not automatically be awarded against an employer that maintains a cause position until the very end, but fails to prove it. Rather, this case establishes that those damages may not be given when there is fair dealing with the employee in the manner of termination and the employer behaves in a fair, reasonable way when investigating employee misconduct and in the manner of termination.  

Case Reference: Smith v. Pacific Coast Terminals Co. Ltd., 2016 BCSC 1876

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

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BAD FAITH BY EMPLOYERS WHEN TERMINATING AN EMPLOYEE – TYPES OF MISBEHAVIOUR BY EMPLOYERS CAUSING HIGHER (PUNITIVE) DAMAGES FOR WRONGFUL TERMINATION – KNOW YOUR RIGHTS

HARD LABOUR – BY WARDSPC LAWYERS

BAD FAITH BY EMPLOYERS WHEN TERMINATING AN EMPLOYEE – TYPES OF MISBEHAVIOUR BY EMPLOYERS CAUSING HIGHER (PUNITIVE) DAMAGES FOR WRONGFUL TERMINATION – KNOW YOUR RIGHTS  

Employers in Ontario have a well-established duty at law to, among other things: (a) perform their employment contracts with their employees fairly and honestly; and (b) act in a reasonable and fair manner when terminating an employee, not in bad faith.

If an employer breaches either duty when terminating an employee, not only is it exposed to damages for pay in lieu of notice, depending on the case, but also special damages, known as punitive or aggravated damages.

In a fairly recent case, Justice Bruce Glass ordered an employer to pay an additional $100,000 in punitive damages due to the employer’s bad faith and “terrible” misconduct when it terminated an employee. The employer had, among other things: only alleged cause to try to gain a tactical advantage over the employee to secure a favourable, early settlement, without paying its legal obligations; effectively fabricated, after termination, more, unsubstantiated allegations of cause, which it maintained until the trial in the case at the very end; and treated the employee in a very demeaning and insensitive manner through the termination process and afterwards. 

Justice Glass used words like: “mean and cheap” and “outrageous” when describing the employer and its conduct at the trial.

There is no limit on what type of misconduct or misguided maneuvering by an employer may raise the ire of the Court, but a few common examples, based on the cases in Ontario, are:

POST-TERMINATION CHANGE OF POSITION:

Employers are not permitted to allege new allegations against an employee after they were terminated, such as terminating for “restructuring reasons”, but subsequently alleging performance reasons to try to justify cause for the initial termination.

FALSE ALLEGATIONS OF POOR CONDUCT:

Advancing false, unsubstantiated or unfounded allegations of misconduct or poor performance to try to justify cause, or save money on a termination, is improper. If cause for termination is asserted, employers must complete a fair and reasonable investigation before the termination and should provide specific reasons for the termination at the time, particularly if serious allegations of misconduct are made against the employee, such as theft, fraud or dishonesty. Fabricating a basis for cause and then failing to prove it will be very costly for every employer.  Employers should not terminate for cause without having a solid, substantial and well-founded basis for doing so, which should be documented and communicated to the employee. 

WITHHOLDING MONEY:

Withholding money from an employee (business expense reimbursements, vacation pay, overtime pay, bonuses, etc.), refusing to provide a letter of reference (or letter of employment, at least) or failing to provide a Record of Employment, for example, may also trigger these special damages. These tactics cannot be utilized to coerce an employee, particularly if he is or she may be facing financial hardship due to being fired, to accept less than the employee is entitled to at law. Negotiation between employers and employees is effectively presumed not to be a level-playing field. Employers are assumed to have a better bargaining position and, if they misuse it, is likely to raise the spectre of punitive or aggravated damages.

____________________________

Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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CHRISTMAS BONUSES AND HOLIDAY GIFTS BY EMPLOYERS – ENROLLMENT IN THE ‘JELLY-OF-THE-MONTH’ CLUB THIS YEAR? READ THIS BEFORE KIDNAPPING YOUR BOSS ON CHRISTMAS EVE

HARD LABOUR – BY WARDSPC LAWYERS

CHRISTMAS BONUSES AND HOLIDAY GIFTS BY EMPLOYERS – ENROLLMENT IN THE ‘JELLY-OF-THE-MONTH’ CLUB THIS YEAR? READ THIS BEFORE KIDNAPPING YOUR BOSS ON CHRISTMAS EVE

Holiday bonuses (and gifts) are commonly appreciated, morale-boosting and an opportunity for employers to express gratitude to employees collectively at the end of the work year.

However, if expectations are not met, they can also cause strife, conflict and, in some cases, litigation. 

Bonuses are not legislatively governed in Ontario; rather, they are considered a contractual matter between employers and employees. There is no legal requirement for an employer to pay a holiday bonus, unless contractually required to do so. However, if a bonus paid to an employee on a year-over-year basis evolves into part of that employee’s overall compensation, the employer may by law be required to pay it the employee in future, including during a reasonable notice period following a termination without cause.  Employers may also adopt a workplace policy regarding bonuses, which typically govern availability, amount and other criteria. 

Generally, if employers pay a holiday bonus, or an amount beyond employees’ regular pay, it is either:  

  1. a fixed, recurring holiday bonus annually, usually of a fixed amount, not typically based on work performance or the financial success of the employer’s business;
  2. a pre-determined bonus amount, usually based on either, or both, the employee’s and the business’ performance, often based on set criteria pursuant to a workplace policy; or   
  3. a purely discretionary bonus, decided by the employer each year.

If an employer pays a holiday bonus historically, but changes its mind this year, like Mr. Shirley, an employee’s employment contract should be considered. If the holiday bonus is an important term, the employee may legally be entitled to the bonus. If there is no employment contract, the holiday bonus may have formed a part of the employee’s annual compensation, giving the employee a potential claim to the holiday bonus.

Before employers change their holiday bonus policy or traditional practice, they should review their employment contracts and workplace policies and, if they do not require payment of the holiday bonus, notify employees in advance of the decision to pay no, or a significantly less, holiday bonus. How much notice should be given will likely vary between employees, depending on their duration of employment, nature of their position and even age. 

If an employee is terminated without cause, the employee may be able to successfully claim payment of a holiday bonus as part of the wrongful termination damages. It will depend on the terms of the employee’s employment contract and, if none, whether the bonus would be considered a recurring part of the employee’s annual compensation. If the holiday bonus has been purely discretionary by the employer, it is likely the employee’s claim would not be successful. 

Generally, in Ontario employment law, if an employer gives an employee a holiday gift (not a payment of money), it is considered by the Court to be discretionary, gratuitous and not binding on the employer in future.

However, a workplace governed by a collective bargaining agreement may be different. In a recent case in Quebec, an arbitrator dismissed a grievance of the employer’s unilateral decision to stop giving employees a $50 gift card at Christmas. It was considered a discretionary decision in this case, based on the specific language of the collective bargaining agreement. However, a different outcome may have been reached for different collective bargaining terms. 

For example, other arbitral decisions in Quebec have held that Christmas gifts by employers were determined to be conditions of employment and, therefore, protected by the ‘vested-rights’ clauses in those collective bargaining agreements. Employers that unilaterally stopped these holiday gifts faced a costly and unfavourable grievance process.

Therefore, if you get a “Jelly-of-the-Month Club” card this year, like Clark W. Griswold, when you were expecting much more based on years past, you may have a claim against your employer, but it will depend on your employment contract, if any, past practices by the employer, and whether your historically-received holiday bonus was recurring, not governed by any workplace policy and not nominal in value.

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Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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THERE’S NO APP FOR THAT - CALCULATING SEVERANCE PAY FOR WRONGFUL TERMINATION. BE WARY OF ONLINE TABLES AND TOOLS – THEY MAY LEAD YOU TO ACCEPT LESS THAN YOUR ENTITLEMENT.

HARD LABOUR – BY WARDSPC LAWYERS

THERE’S NO APP FOR THAT - CALCULATING SEVERANCE PAY FOR WRONGFUL TERMINATION. BE WARY OF ONLINE TABLES AND TOOLS – THEY MAY LEAD YOU TO ACCEPT LESS THAN YOUR ENTITLEMENT.

In Ontario, a wrongfully dismissed employee with no employment contract specifying severance entitlement is entitled to damages at common law. These damages are commonly calculated based on a reasonable notice period and pay in lieu of not being provided that reasonable notice of termination. Dismissed employees also have a duty to make reasonable efforts to seek and obtain similar employment to offset these damages (i.e., a duty to mitigate).

The seminal case in Ontario, Bardal v. The Globe & Mail Ltd., establishes the basic test to determine an appropriate notice period for an employee who has been terminated without cause.  The Bardal test effectively requires the Court to undertake a very contextual analysis of the case, with special attention to certain factors, including the character of employment, length of service, age and availability of similar positions. These factors are generally examined on a case-by-case basis and they are weighted in each, specific case by the Court to calculate a reasonable notice period. Employers may also be forced to pay more damages if the manner of dismissal was unfair or in bad faith.

Many employers, employees and even some lawyers are confused by, or do not fully understand, the factors that are to be applied to determine a reasonable notice period and, therefore, how to calculate a dismissed employee’s potential severance pay. 

Some lawyers may refer to the ‘one month per year of service’ approach – this is incorrect and not the law in Ontario. In fact, there is no cookie-cutter, mathematical formula to calculate severance pay; rather, these several factors must be examined contextually in each case and weighted based on their importance in the specific case.

DURATION OF EMPLOYMENT:

Length of service is only one factor to consider. While generally, the longer the length of service, the longer the reasonable notice period will be, this is not true in every case. Employees terminated after a relatively short period of employment may be entitled to a comparably longer notice period and, therefore, disproportionately more severance pay, depending on the other factors in the case. 

Duration of employment, on its own, should not determine severance pay entitlement – it is a factor only, albeit a potentially important one in the case.

AGE:

Generally speaking, older employees are entitled to more reasonable notice and, as a result, more severance pay. This is so to reflect the increased challenges older employees are likely to face in re-entering the workforce verses their younger counterparts.

However, again, age is not determinative of reasonable notice and younger employees should not assume they have no entitlement to severance pay – that is very likely not the case.

NATURE AND TYPE OF POSITION HELD:

Historically senior, managerial, supervisory or employees with specialized skills, training or responsibilities are likely entitled to more reasonable notice. However, a trend is emerging in Ontario to focus less on the position held on termination in favour of paying more attention to the availability of comparable opportunity to the employee and any challenges the employee may face in securing that alternative employment.

In any event, it is still the case in Ontario that an employee with more responsibility is generally entitled to more severance pay – it remains an important factor to consider. 

OTHER FACTORS:

In addition to the Bardal factors for calculating severance pay, other factors may also arise to amplify reasonable notice entitlement depending on the specific case, such as:

  • if the employee was effectively lured away from an existing position, recruited or induced to accept employment with the terminating employer;
  • if the employee is faced with non-competition, non-solicitation or other limitations or restrictions on his or her ability to find suitable, alternative employment (which typically arise in an employment contract);
  • if the employee suffers from a physical, emotional or mental health-related disability or condition, or has special family status obligations, for example, creating special challenges for the employee to mitigate his or her termination and resulting severance pay; and/or
  • if the employer alleges cause for the termination, refuses to provide a reference, or otherwise alleges justification for terminating the employee, making it more difficult for the employee to find alternative employment.

THERE’S NO APP FOR THAT:

Severance pay tools, apps and calculators are increasingly appearing online in Ontario, mostly developed and posted by employment lawyers.

However, there is no specific formula available to calculate severance pay entitlement – every case will be different, based on the specific circumstances of that case. Generally, lawyers and the Court will consider awards in other, possibly similar cases, but no two cases are ever the very same.

Terminated employees should, therefore, be wary of relying on online tools to calculate entitlement to reasonable notice damages and severance pay. Truly, the best and most reliable way to determine your potential entitlements if you are wrongfully terminated is to speak to a qualified, experienced employment law lawyer.

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Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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HARASSMENT AND VIOLENCE IN THE WORKPLACE: WHEN THERE IS NO WITNESS – CORROBORATION OF YOUR POSITION IS NOT REQUIRED – FEAR OF ‘HE SAID/SHE SAID’ SHOULD NOT DISCOURAGE YOU FROM REPORTING

HARD LABOUR – BY WARDSPC LAWYERS

HARASSMENT AND VIOLENCE IN THE WORKPLACE: WHEN THERE IS NO WITNESS – CORROBORATION OF YOUR POSITION IS NOT REQUIRED – FEAR OF ‘HE SAID/SHE SAID’ SHOULD NOT DISCOURAGE YOU FROM REPORTING   

Employees who experience sexual or other harassment or violence in the workplace should not be discouraged from reporting to their employer simply because no one else witnessed the harassment or violence. He said/she said concerns are no reason to avoid making a complaint to ensure the harasser is properly investigated and, if appropriate, punished.

Under the new anti-workplace harassment and violence laws in Ontario, effective January 1, 2017, incidents of harassment in the workplace must be investigated by employers. The outcome of the investigation must also be reported to both the victim and the harasser. Confidentiality must be maintained at all times.  

However, these changes to Ontario’s Occupational Health and Safety Act, designed to minimize, if not eliminate, workplace sexual and other harassment, do not require that a complaint’s evidence of the harassment be corroborated before a finding of harassment can be made.

Similarly, the Courts and Human Rights Tribunal in Ontario do not require corroboration before a finding of harassment can be made. The law recognizes that often this type of conduct, particularly sexual harassment or violence, occurs in a private setting, often where no witnesses are present.

For example, the Supreme Court recognizes that:  

Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed, may not be available, especially where alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.”

Ontario’s Human Right Tribunal also recognizes that:

There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.

This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.”

Accordingly, while corroborative evidence will, in most cases, be helpful in the factual investigation, it is not necessary. The Court or other decision-maker should properly consider the veracity, credibility and reliability of the evidence of the victim, alleged harasser and others who may have knowledge of the circumstances.

Merely because a victim cannot corroborate what he or she experienced at the hands of a harasser is certainly no reason to avoid reporting the sexual harassment or violence to ensure the investigator, Court or other decision-making body properly examines the circumstances and makes the necessary findings.

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Thank you for reading this - Jason Ward of WARDS PC LAWYERS.

If you would like to read more, please go to wardlegal.ca/blogs.  

This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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ENTITLEMENT TO SEVERANCE PAY IF YOU ARE TERMINATED – WHEN, HOW AND WHY. “WORKING NOTICE” EXPLAINED AND THE IMPORTANCE OF YOUR EMPLOYMENT CONTRACT, IF ANY.

HARD LABOUR

[BY WARDS PC LAWYERS]

ENTITLEMENT TO SEVERANCE PAY IF YOU ARE TERMINATED – WHEN, HOW AND WHY. “WORKING NOTICE” EXPLAINED AND THE IMPORTANCE OF YOUR EMPLOYMENT CONTRACT, IF ANY.   

If you are terminated by your employer and:

firstly, there is no “just cause” for your termination; and

secondly, you do not have a written employment agreement or, if you do, there is no clause restricting you to only the statutory notice of termination required by the Employment Standards Act, 2000 of Ontario (the “ESA”) (or, if there is a such a clause, it is not enforceable against you – refer to the checklist in our earlier blog about this),

then, in addition to your statutory entitlements on termination under the ESA, you are likely entitled to “common law” reasonable notice of termination.

An employee’s termination entitlements at “common law” generally are significantly more than those required by the ESA. 

COMMON LAW” REASONABLE NOTICE - EXPLAINED:

Employment in Ontario is purely contractual between the employer and the employee. Employers can terminate employees at any time – they do not need a reason. However, if they do terminate, the obligation of giving “reasonable notice” is imposed by the law of Ontario, both by the ESA and ‘judge-made’ law, subject to any written employment entered by the employer and the employee that varies or changes the general law of Ontario applicable to employment terminations.

Unless the employer and employee agree otherwise in their written employment agreement, the law in Ontario imposes an obligation on employers to give reasonable notice before terminating an employee generally. Either an employer must give this reasonable notice before terminating or, if they do not, they will have to pay to the employee an equivalent amount for that reasonable notice that was not given. Employees must give reasonable notice before resigning, too, but that notice is generally much shorter.  

Generally, “common law” reasonable notice by employers is: (a) determined by the Court, often in wrongful termination lawsuits commenced by employees; and (b) determined based on multiple factors in each case, such as the employee’s age, position, responsibility, years of service, compensation received and ability to find alternative employment.   

Effectively, an obligation to give reasonable notice is designed to lessen the impact of a termination, particularly for the employee. The employer has the opportunity to take the necessary steps to replace the employee and the employee can seek and obtain comparable, alternate employment.

If an employer terminates without providing reasonable notice, but had an obligation to do so, the employer has breached the parties’ employment relationship and will likely have to pay damages equivalent to the amount of reasonable notice that should have been provided to the employee.

These damages are commonly called “pay in lieu of notice” and are calculated based on all, or the global, compensation and benefits the employee would otherwise have earned had he or she actually continued to be employed during the reasonable notice period. Generally, this calculation will include salary, pension contributions, bonuses, commissions, equity grants, if any (such as stock options, etc.), corporate vehicle use and other taxable and non-taxable benefits, if they formed part of the employee’s regular and recurring compensation during employment.

These damages also incorporate and include the statutory notice required by the ESA. However, an employer must actually pay to the employee any statutory severance pay required by the ESA, by lump sum, based on a specific formula set out by the ESA, unless the employee agrees otherwise. In other words, the employer cannot satisfy its statutory severance pay obligation by giving notice of termination to the employee – rather, it must actually be paid.

There is no ‘golden rule’ to accurately predict the amount of reasonable notice for each case of termination. It is difficult to predict, often. Some lawyers use the ‘month-per-year’ rule of thumb, but that is not the law. Every case is different, generally, and must be analyzed based on the specific circumstances of the case. Generally, however, it is reasonably safe to assume that the longer the years of service, older the employee and more responsibility the employee had, the longer will be the reasonable notice period in the case. 

Reasonable notice rarely exceeds two (2) years, but there are a few cases in which the Court exceeded this commonly accepted maximum for reasonable notice in Ontario. Generally, an employee’s entitlement to reasonable notice will be dependent on that employee’s specific factors, all of which must be considered together in that particular case. 

WHAT IS ‘WORKING NOTICE?  

If an employer decides to give reasonable notice of termination before terminating (i.e., during the relationship), it is commonly referred to as ‘working notice’. Employers often use ‘working notice’ to avoid paying an amount to the employee for reasonable notice after termination – it can significantly reduce the liability of the employer. This way, they derive more value, too, because the employee will continue to work for the employer during the reasonable notice period (as opposed to being terminated abruptly, in which case the employer will likely have to pay the equivalent amount for the reasonable notice that was not given to the employee).  

During the working notice period, the employee continues to work ordinarily and the employer continues to pay the usual compensation and benefits – effectively, a status quo arrangement. The employer may progressively discipline the employee during the working notice period and, if proper “just cause” arises, may terminate the employee without compensation. Generally, the employee will be entitled to some time away from work, reasonably, for the purpose of searching for and obtaining alternative employment, such as attending job interviews, etc.

If the ‘working notice’ period is equal to or more than what the Court would determine to be reasonable notice of termination, the employer will not have to pay the employee terminated-related compensation when the working notice period ends. If the working notice is too short, the employer may still have to pay common law reasonable notice at the end of the working notice period. Every case has to be analyzed based on the specific circumstances.

CONCLUSION – HAVE A WRITTEN EMPLOYMENT AGREEMENT:

Most employers wish to avoid having to deal with “common law” reasonable notice – it is both unpredictable and very expense, especially if the employee sues the employer for wrongful termination alleging insufficient notice was given or paid to the employee.

In order to avoid the “common law” being applied to the employment relationship, there must be a written employment agreement properly entered by the parties before the relationship starts. If so, the employer can avoid the uncertain and potentially expensive outcome the common law may impose.

Therefore, from an employer’s perspective, at least, there should always be a written employment agreement entered, which clearly and simply outlines the employee’s entitlements in the event of a termination without cause, particularly if they may be less that what the “common law” may award to the employee. In addition to minimizing costs, enforceable termination provisions also offer more certainty to both parties if the relationship ends.

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Jason Ward – WARDS PC LAWYERS

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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