Arbitrator, Saskatchewan Court Give Jerk Employee a Perk, Not Work

August 31, 2009 - by: Brian Smeenk 0 COMMENTS

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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Employers Win Pension Plan Rights at Supreme Court of Canada

August 24, 2009 - by: Bill Duvall 0 COMMENTS

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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Employee’s Blogging Justified Firing — But Dismissal Overturned Anyway

August 17, 2009 - by: Dominique Launay 0 COMMENTS

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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Suing Departing Workers for Wages, Training Expenses

August 11, 2009 - by: Sara Parchello 0 COMMENTS

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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Tactical Considerations for Reference Letters in Canada

August 04, 2009 - by: Derek Knoechel 0 COMMENTS

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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Group Terminations in Canada: What Employers Need to Know

July 27, 2009 - by: Northern Exposure 0 COMMENTS

by Katie Clayton and Farrah Sunderani

In today’s economy it’s become commonplace for employers to terminate large numbers of employees at one time. Depending on the number of employees being terminated, an employer may fall under federal or provincial group termination provisions designed to protect employees and the local economy from an influx of terminated individuals re-entering the workforce. As such, it’s important employers be aware of the obligations they are under in order to protect themselves against, at times, hefty consequences.

Federal legislation
Employers operating in federally regulated industries are subject to the Canada Labour Code, which contains specific requirements in the event of a group termination in Division IX, Part III and the associated regulations. These define a group termination as a termination of 50 or more employees in the same establishment within a four- week period. In such a case, the employer must provide the Minister of Labour with 16 weeks’ notice in writing of the pending terminations under Section 212. The notice of group terminations is separate and apart from the notice entitlement for each individual employee. The group termination notice itself must contain the following information: read more…

Working in Canada without a Work Permit: Common Exemptions

July 21, 2009 - by: Northern Exposure 2 COMMENTS

by Ingrid Anton and Gilda Villaran

In order to work in Canada, the general rule requires a foreign worker to obtain a work permit. There are certain exceptions to this rule. We present below the most common ones. Although some of the activities described below are normally considered “work” for immigration purposes, Canada’s immigration regulations allow foreigners carrying out these activities to enter the country as business visitors.

After-sales services
A U.S. citizen may enter Canada to perform/supervise installation, repair, or servicing of commercial/industrial equipment, machinery, or software. These goods must have been manufactured outside of Canada and sold or leased to a Canadian company by the U.S. citizen’s U.S. employer. This work permit exemption also applies if the employee will provide training to Canadian workers in connection with these services (see below, trainers). “Installation” means only setting up or testing. It doesn’t include hands-on installation such as would be performed by an electrician or pipe-fitter, for example.

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Canadian Employers May Be Obligated to Provide References

July 13, 2009 - by: Northern Exposure 0 COMMENTS

by Stephen Acker and Christopher Ferguson

Letters of reference are understandably important to employees. For many employees, they are considered essential rather than a hopeful add-on to an application. A glowing letter of reference from a trusted source can sometimes tip the balance and lead to a hire. A bad or withheld letter, or one that raises questions, can have the opposite effect and even dog a job-seeker for years. A worthwhile recommendation, then, can be among the most valuable parting gifts an employer can give an employee.

Except, of course, that a letter of reference is often no gift. In many circumstances, it is an employee’s common law right.

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Categories: Workplace Policies

Ontario Court Rules Class Action Not Allowed for Overtime Claim

July 07, 2009 - by: Northern Exposure 0 COMMENTS

By Alix Herber and Ian Campbell

One of the hottest issues in Canadian employment law in the past two years has been overtime class-action claims. As we outlined in our October 7, 2008, entry, 2007 saw three overtime class-action lawsuits

  • a $651 million class-action lawsuit filed against the Canadian Imperial Bank of Commerce (CIBC), followed quickly by a $20 million class action against KPMG,
  • and then a $350 million class action against a second major Canadian Bank, Scotiabank. Further class actions were filed in 2008 – against CN Railway in March 2008 for $250 million,
  • and another against CIBC (this time by the investment bankers and analysts) in October 2008 for $360 million.

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Limits Placed on Videotaping Picket Line Activities

June 30, 2009 - by: Derek Knoechel 0 COMMENTS

In October and November 2006, members of the United Food and Commercial Workers Local 401 were on strike and picketing at Palace Casino, located at one of Canada’s largest malls — West Edmonton Mall. Striking union members pointed a video camera at the entrance of the casino, recording the image of everyone who crossed the picket line to enter the facility.

They also took still photographs of some individuals who were crossing the picket line.  Signs placed in the area suggested that the images of persons crossing the picket line would be placed on a “CasinoScabs” website and that by crossing the picket line individuals were providing their consent for this purpose. The union also placed some of the pictures on posters and in union newsletters.

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