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By Sean McGurran and Marisa Victor
The recent decision in Drake v. Blach in the Ontario Superior Court provides a good example of how not to go about firing an employee. It provides a good lesson on how employment law in Canada will come to the rescue of a wronged employee.
“Cause” for termination is a difficult standard to meet in Canada. So what are your alternatives if you don’t have cause? Warning, suspension, demotion, transfer? In Haddock v. Thrifty Foods (2003) Limited and Quadcam Holdings Ltd., the British Columbia Supreme Court has recently said a demotion may not be a proper response. Further, a warning must be “current” to disentitle an employee to damages.
Employee’s declining performance
The employee was a grocery store department manager. He had worked his way up to that position over the course of 16 years. For the first 14 years of his employment, he was a good employee. But he started abusing alcohol, resulting in poor performance in the last two years.
By Gulu Punia
What’s an employer in Canada to do if an employee loses a required qualification? For example, if drivers lose their licenses? If professional employees lose their accreditation? Is there a requirement to provide notice or pay in lieu of notice of termination?
A recent appeal court decision in Ontario suggests that in such cases the contract of employment comes to an end because it has been “frustrated.” There is no requirement to provide any notice of termination or pay in lieu of notice in such circumstances.
By Lyne Duhaime
On June 21, 2011, in Canadian Jewish Congress v. Polger, the Court of Appeal of Quebec overturned a decision of the Superior Court that had ordered an employer to pay millions of dollars in pension benefits based only on an alleged practice and without proper written documentation to that effect. The pension benefits in this case were deemed to be ex gratia payments only, not required to be paid to all departing employees by virtue of policy or practice.
Facts
Leona Polger and Abraham Smajovits had worked for the Canadian Jewish Congress for 36 and 22 years respectively when they were dismissed following a reorganization. Not surprisingly, they sued for termination pay. They included in their action a claim for supplemental pension benefits that they said weren’t provided in their defined contribution pension plan.
Canadian employers that fear large jury awards in wrongful dismissal cases can breathe a little easier in the wake of a recent Alberta Court of Appeal decision. In Elgert v. Home Hardware Stores Ltd., the court of appeal said a $500,000 jury award for aggravated and punitive damages in a wrongful dismissal case was too high, reducing it to $75,000.
Background
In the spring of 2002 the Home Hardware Distribution Centre in Wetaskawin, Alberta, fired Daniel Elgert without notice. He had worked for Home Hardware 17 years and was a supervisor at the distribution center when two female coworkers made sexual harassment complaints against him. Following the complaints, Home Hardware immediately suspended Elgert and engaged in what the court of appeal described as a perfunctory investigation that presumed his guilt.
Ontario’s highest court recently ruled that an employer’s right to buy back a senior executive’s shares was triggered on his termination date — not the end of the reasonable notice period. Paul R. Love had argued for the later date. His shares had substantially increased in value during the notice period. Love lost.
Facts
As of the termination date, Love had worked for Acuity Investments for only two and a half years. He had accepted the position primarily because he was offered an ownership stake.
A Canadian court recently upheld most of a more than $500,000 arbitration award involving a unionized employee of the Greater Toronto Airport Authority (GTAA). But it ordered the arbitrator to reconsider the mental distress and punitive damages awards. In doing so, the court clarified the broad remedial authority of arbitrators to award a range of damages. Arbitrators are clearly not limited to reinstatement and lost wages.
A year ago we alerted our readers to this precedent-setting arbitration award (Employee Awarded $500,000 for Bad Faith Termination and Shocking Arbitration Decision in Ontario). A wrongfully dismissed vehicle fleet coordinator was awarded eight years of wages for both past and future employment income losses, damages for mental distress, pain and suffering, and another $50,000 of punitive damages.
By Alix Herber and Jessica Schnurr
Think an employee in Canada has to quit before suing the employer for constructive dismissal? Think again, says the Ontario Superior Court.
By Anthony Houde and Emilie Paquin-Holmested
You are quietly sipping your coffee one Saturday morning and flipping through the newspaper. You suddenly stumble upon an article about one of your Canadian employees. He or she has been accused of committing a criminal offense outside the workplace but has not yet been convicted.
by Ralph Nero and Ida Martin
Do parents of young children have the right to refuse a geographic transfer? In the case of three employees at the Canadian National Railway (CNR), the Canadian Human Rights Tribunal (CHRT) has recently answered “yes.”
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