I am often asked how I come up with a fresh topic every week for
15 years, now. It's easy: In editing the Dismissal &
Employment Law Digest, I review every case from coast to coast and
there is no shortage of them to choose from.
But this week, instead of one, here are some salient points I
garnered from a smattering of cases:
Quebec Labour Standards vs Asphalte Desjardins
Inc. The Supreme Court of Canada's July 25
decision will turn employers' present practises on their heads.
The message: If an employee resigns and provides two or three weeks
notice, don't fire them.
In this case the employee resigned with three weeks notice. And
as is frequently the case, the employer asked him to leave
immediately. Usually, though, the employer pays the employee for
the three weeks and that is the end of it. However, the Court saw
it differently. It held that the employer must pay the employee the
full employment standards entitlement, not just three weeks. In
Ontario, for example, that can be as much as eight months pay.
The lesson here is, when employees resign, don't dismiss
them early, rather provide them the option of leaving earlier with
Saindon vs MNR Hiring third party
companies to provide you with contracted employees does not mean
those workers are not your employees.
In this Tax Court decision of May 23, the owner of the trucking
business hired a separate transport company to provide drivers, but
still provided the truck. Even though the driver was dispatched by
the transport company, the Court held that the transport
company's exercise of its control over the driver was based on
authority delegated by the owner which was therefore held to be the
driver's "real" employer.
Singh vs Sopper The Workman's
Compensation Board does not prevent all types of lawsuits by
injured workers. In this case the B.C. Court of Appeal on
June 18 found that the WCB entitlement of an injured truck driver,
who earned his income from his driving, precluded any personal
injury lawsuit resulting from the accident but did not prevent him
from suing for business-related losses resulting from the
Diamantopoulos vs KPMG In this wrongful
dismissal suit, the Ontario Superior Court found on June 2 that
employer paid short-term disability should be deducted from
wrongful dismissal damages but long-term disability payments,
contributed to by the employee, should not be.
Symcor vs Russell According to this recent
Canada Labour Code adjudication, having a policy requiring an
employee to be employed when bonuses are paid, did not prevent an
employee who resigned before that date, from recovering his bonus.
The employee was deemed to have effectively earned the bonus and
the adjudicator said the employer should not be able to benefit
from the employee's work without fully paying for it.
Petrar vs Thompson Rivers University This
case confirms that inquiries about whether poor performance is
caused by a disability are perfectly acceptable. According to this
decision of the B.C. Human Rights Tribunal, an employer actually
has an obligation to determine whether performance issues could be
related to a mental or physical disability and to request
medical information. They need that information to fulfill their
duty to accommodate disabilities.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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