What should an arbitrator do when a fired employee is too bad to be reinstated, but dismissal was for one reason or another unjustified? Surprisingly, for Canadian arbitrators the answer seems increasingly to be: “Give ‘em a big payout.” They are increasingly awarding these unsalvageable employees bigger awards than good employees would get in a non-union context. And more than unionized employees would get when losing their job because of redundancy.

A Canadian court recently upheld just such an award – or should we say reward – to an employee who was too disliked and distrusted by all concerned to be put back to work. And the award was more than double what a nonunion employee would receive upon termination without cause.

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by Bill Duvall

At the best of times, employer-sponsored pension plans bring with them thorny administrative and legal problems.

These issues multiply in an economic environment in which many such pension plans face funding problems while employers seek to reduce their costs. Many employers have attempted pension plan amendments to reduce funding pressures. One such example is the creation of a defined contribution (DC) component out of an existing defined benefit (DB) plan. Similarly, employers have sought to reduce their pension plan administrative expenses wherever possible. Such employer actions are almost universally met by suspicion from plan members and are followed on occasion by litigation.

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Social networking sites and blogs are growing phenomena that present challenges to employers. Internet blogging allows people to publicly express their opinions like never before. Sometimes the viewpoints expressed affect the employment relationship.

Canadian case law on this topic is just starting. There are only a few decisions where injurious blogging concerning workplace-related matters warranted discipline. Unlike many U.S. employers, Canadian employers cannot terminate employees at will. They must establish a “just cause” for dismissal. Unionized employers must follow the disciplinary procedure set out in the union agreement.

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Recouping expenses, like training-related expenses, from departing employees can be tricky. As many employers are aware, contractual provisions that penalize a departing employee will generally not be enforced by the courts. In addition, if a contractual clause looks like it’s actually trying to restrain an employee from competing with similar businesses, courts are similarly unlikely to enforce them for being in restraint of trade.

Having said that, there are some situations where courts will allow an employer to recoup amounts from departing employees. In fact, in a recent case out of Ontario, Renaud v. Graham, the court affirmed a lower court’s decision that required an employee to reimburse his employer for training-related expenses (i.e., courses, materials, etc.) and for wages he received while he was training to be a real estate agent.

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By Derek Knoechel

As the authors of the July 13, 2009, Northern Exposure article “Canadian Employers May Be Obligated to Provide References” indicate, a positive reference letter can be worth its weight in gold to an employee who has been fired.

But employers often don’t want to provide reference letters, and a reference letter can become a sticking point in negotiations between the employer and fired employee. In light of the potential exposure to bad-faith damages, employers must be careful not to cross the fine line from legitimate “hard bargaining” to “bad-faith conduct.”

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