Employment in Canada is not "at will". But is at will
employment really all it's cracked up to be? Does it make the
United States a friendlier place for employers?
We don't think so and we are happy to engage Jeff
Polsky in the discussion.
Jeff started this on the California Employment Law blog with a
post, Like a
Whole Different Country, suggesting that being an
employer without at will employment was too scary to contemplate.
Well, the fact is that employers in Canada are doing just fine,
thank you very much, having traded the lottery of at will
employment for the certainty of contract.
Not having at will employment means Canadian employers cannot
terminate an employee at any time without notice or compensation,
and for any reason that is not discriminatory. Instead, there must
be just cause for termination (which, admittedly, has to be
really bad behaviour) or notice or compensation must be
provided (which, admittedly, can be many months' worth
at common law).
But – all that can be controlled by a
contract that stipulates the amount of notice or compensation that
is required to terminate without cause. As long as the contract is
properly entered into and meets or exceeds the employment standards
legislation (which in BC is between 1 and 8 weeks based on length
of service), the agreed amount will stand. The employer will then
know with certainty what it will cost to terminate.
We like that certainty in place of the huge risks US employers
face. Even with at will employment, there are a large number of
claims a terminated employee can make. Then, the employer may face
an angry jury and there is no telling what the damage award might
And we'll end by asking this question: How often do US
employers actually use the at will doctrine to terminate without
notice or compensation?
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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