Walking the line between termination and resignation

October 01, 2017 - by: Hannah Roskey 0 COMMENTS

by Hannah Roskey

For Canadian employers, navigating the distinction between resignation and termination can be tricky. If an employee resigns, there is no entitlement to severance. If an employee is terminated without cause, the employer is on the hook for termination pay (and possibly severance pay in Ontario and the federal jurisdiction). The recent Alberta ruling in Carroll v. Purcee, 2017 ABQB 211, highlights that mistakes in distinguishing between termination and resignation can be costly.

Background

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Advertising before recruiting: Strict Canadian requirements when hiring foreign workers

September 24, 2017 - by: Arlin Sahinyan 0 COMMENTS

by Arlin Sahinyan

In Canada, hiring foreign workers comes with certain administrative hurdles for employers. Most employers need to obtain a Labour Market Impact Assessment (LMIA) from government authorities, which aims to show that there is a need for foreign workers (as opposed to hiring Canadians for the job). Before recruiting any candidate, employers must keep in mind certain government requirements when engaging in their hiring process.

Employers must first make solid efforts to seek Canadian and permanent resident applicants. These recruitment efforts must be deployed before offering a job to a temporary foreign worker and applying for an LMIA. Employment and Social Development Canada (Service Canada), which is responsible for processing LMIA applications, has increased its scrutiny of job advertisements. Any deviation from the following requirements may result in a refusal of the LMIA application.

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The importance of respecting confidentiality clauses in termination agreements

September 17, 2017 - by: Alexandra Meunier 0 COMMENTS

by Alexandra Meunier

In Canadian labor relations, parties commonly enter into termination agreements in order to settle grievances and avoid any future litigation. Such agreements may contain confidentiality clauses. However, what happens when a party does not strictly respect the content of a confidentiality clause?

This is the question that was submitted to the arbitrator André Bergeron in Centre de santé et de services sociaux du Sud de Lanaudière (Centre d’hébergement des Deux-Rives) et Syndicat interprofessionnel de la santé de Lanaudière Sud (SILS-FIQ) (France Paré), 2017 QCTA 496 [only available in French].

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Double dipping: Can employees get severance plus pension or disability benefits upon termination?

September 11, 2017 - by: Julie Robinson 0 COMMENTS

by Julie Robinson

Employees in Canada are usually entitled to receive reasonable notice of termination or pay in lieu of notice unless fired for cause. But if the employees receive pension or sick leave payments during the notice period, are they entitled to both their regular salary in lieu of notice and such pension or sick leave payments? Should the latter amounts be deducted from the salary otherwise owed by the employer in respect of the notice period?

Double recovery?

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Say it ain’t so: Simply stating document is ‘privileged’ doesn’t mean it is

by Hannah Roskey and Katie Clayton

Maintaining the privilege of a document is a fundamental aspect of any litigation. The Canadian legal system is premised on the search for truth, which, by default, requires parties to disclose relevant documents to one another in the course of litigation. This is the case in traditional civil actions and generally so for other similar adjudicative processes.

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When working notice just doesn’t work

August 20, 2017 - by: Jacqueline Gant 0 COMMENTS

by Jacqueline Gant

For employers shutting down operations, providing working notice is often the best way to reduce severance amounts owed. Except when it’s not. In McLeod v. 1274458 Ontario Inc., an Ontario court confirmed that working notice is appropriate only for employees capable of working during the notice period.

Facts

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Genetic information is off limits!

August 13, 2017 - by: Michael Adams 0 COMMENTS

by Michael Adams

Medical examinations of future and present employees are commonly required by Canadian employers to verify a person’s capacity to do the work. However, Since May 2017, however, federally regulated employers can no longer require that future and present employees undergo genetic testing or disclose the results to determine, for example, whether they will be able to do their work in the future.

Indeed, last May, an Act to prohibit and prevent genetic discrimination (S.C. 2017) otherwise known as the Genetic Non-Discrimination Act came into force. The objective of the Act is to protect persons who suffer from genetic disorders or are genetically predisposed to certain diseases from discrimination, including in their employment. The Act implements three significant legislative modifications. It introduces: read more…

Do waves of collective dismissals constitute a single collective dismissal?

August 06, 2017 - by: Paul Cote-Lepine 0 COMMENTS

by Paul Côté-Lépine

In a number of Canadian jurisdictions, when conducting a collective dismissal or mass termination, an employer will have significant obligations that include giving increased notice of the collective dismissal or providing payment in lieu of and equivalent to that notice.

In a number of Canadian provinces, legislators have enacted a precise definition of collective dismissal. In general, a collective dismissal occurs when a certain number of employees are dismissed within a period of time specified by the legislation.

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Clarification not required when accepting disabled employee’s resignation

July 30, 2017 - by: David Wong 0 COMMENTS

by David G. Wong

In its recent decision in Razo v. Essilor Canada, 2017 BCHRT 133, the British Columbia Human Rights Tribunal dismissed the argument that an employer could not accept the resignation of a long-term disabled employee without making further inquiries.

In this case, the complainant, Helen Razo, filed a complaint alleging discrimination on the ground of disability. The employer denied that it had refused to allow Razo to return to work and claimed that she had resigned.

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You said what? Hiring interview comments prove costly for employer

July 23, 2017 - by: Nicole Singh 0 COMMENTS

by Nicole Singh

Canadian employers who provide inaccurate or misleading information during the hiring process can be held liable for their broken promises. The recent decision of the British Columbia Court of Appeal in Feldstein v. 364 Northern Development Corporation is a stark reminder that a negligent misrepresentation during the hiring process can be costly.

Facts

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