You’re about to terminate an employee’s employment without cause. He’s been with you for 30 years, earns $100,000, has a middle management position, and is 69 years old. He could retire with a full pension. Surely you don’t have to provide him with a severance package? Absolutely, say Canadian courts. read more…
Under human rights legislation across the country, Canadian employers have a general duty to accommodate employees who are unable to perform their work for a period of time because of illness or disability to the point of undue hardship.
This may require an employer to grant an employee a leave of absence from the workplace. But what if the employee doesn’t provide medical documentation to justify such an absence; surely you could deny the leave? Not necessarily, according to an Ontario arbitrator in TRW Canada Ltd. and TPEA (Lockhart). read more…
Employers in Canada can’t discriminate against employees based on mental disabilities. But the broad interpretation that courts and arbitration boards frequently apply to human rights laws often makes it difficult to know where the boundaries of “mental disability” lie.
In a recent arbitration decision in Ontario, Windsor (City) and WPFFA (Elliot), the arbitrator found that an employee’s mood problems and stress issues weren’t classifiable as mental disorders. He didn’t qualify as having a mental health disability requiring accommodation. read more…
In wrongful dismissal cases in Canada, punitive damages awards are available only in exceptional situations. That’s what the Supreme Court of Canada said in 2008 in Honda Canada v. Keays. The employer’s conduct in the course of termination must be proven to be harsh, vindictive, reprehensible, and malicious. Despite this high threshold, a number of recent trial decisions show how Canadian courts are becoming more open to providing employees with punitive damages awards. read more…
Severance obligations can be costly for Canadian employers since most employees are entitled to notice of termination or substantial pay in lieu of notice. A tricky issue is the impact of post-termination income on the obligations of the terminating employer.
Canadian employees are often under the mistaken impression that they have an unconditional entitlement to a large lump-sum severance payment even if they were to quickly start a new job and even if they receive other income during the notice period.
By Lyne Duhaime
When an employee in Canada fails to fulfill his functions as expected, the ultimate consequence is a termination of employment “for cause,” which implies that no notice or other severance is paid to him by the employer. The Superior Court of Quebec recently went further.
In Valeurs mobilières Desjardins inc. v. Beaulne, an investment advisor was also ordered to pay his former employer, Valeurs mobilières Desjardins inc. (VMD), $141,233.96 with costs. Why? To compensate VMD for amounts it had to pay a client who suffered damages because of the advisor’s failure to follow the client’s instructions.
Historically, the character of employment or level of position has been an important factor in determining appropriate severance payments in Canada. Unskilled or lower-level employees have typically been entitled to less severance than more highly skilled and higher-level employees.
Canadian courts continue to struggle with clauses in employment contracts that contain post-employment noncompetition and nonsolicitation clauses, known as “restrictive covenants.” This is an important issue in Canada, where there is no concept of “at will” employment, and all employees are deemed to have some form of employment contact. But not all terms are equally enforceable.
The recent split decision of the Alberta Court of Appeal in Globex Foreign Exchange Corporation v. Kelcher, 2011 ABCA 240, provides an interesting reminder of the uncertainty in the law in this area. It also provides good lessons to those who want employees to agree to such restrictions.
By Ian Campbell
There seems to have been an increase in cases where employees in Canada directly or publicly have challenged their supervisors or senior management. Maybe this is because of an increasing belief in their actual or perceived rights.
Of course employees have the right and should be encouraged to raise legitimate workplace concerns in appropriate circumstances. But recent decisions have confirmed that it’s not acceptable for employees to do so in a manner that is either disrespectful or unfairly undermines management’s integrity or reputation.
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.
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.