Fixed-Term Employment: Manage the Risks and Respect Your Employees

Some employment relationships are short term or temporary by necessity, such as when an employee is hired to complete a discrete project or fill a maternity leave position. In these situations, the parties will often sign a contract that sets out how long the employment will last and when exactly it will end. We call such agreements fixed-term contracts.

One benefit to employers of a fixed-term contract is that when the employment ends on the date specified (subject to the cautions set out below), the employee is not entitled to reasonable notice or severance. However, there are also potential risks to using fixed-term employment contracts in your business.

Continue reading “Fixed-Term Employment: Manage the Risks and Respect Your Employees”

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The Challenge of Terminating for Cause: Stock v. Oak Bay Marina Ltd.

What’s the difference between a termination with cause and without? Most people seem to have a good idea, and recognize that a termination with cause is rooted in employee misconduct. If it has been discovered that an employee has been stealing, lying or committing other forms of misconduct, the employer may be able to argue that the employee has fundamentally breached the employment agreement and that the employer is therefore entitled to put an end to the arrangement without any compensation or severance pay.

Or so the thinking goes… What many workers and employers may not recognize is that terminating someone for “just cause” can be remarkably challenging, as one company recently discovered in the recent BC Supreme Court decision Stock v. Oak Bay Marina Ltd., 2017 BCSC 359.

Terminated Continue reading “The Challenge of Terminating for Cause: Stock v. Oak Bay Marina Ltd.”

Probationary Periods – Are they Legal in Canada?

Probationary periods in employment… for  something seeming so simple,  they still cause a lot of confusion, and employees and employers alike are frequently mistaken about the legality of probationary periods and how they apply to the non-unionized worker. Employees who are terminated during probationary periods often accept their lot without ever receiving legal advice, while employers often terminate ‘probationary’ employees without providing any compensation, only to be surprised by a demand letter or civil action claiming wrongful dismissal.

So where do these challenges come from? And how can they be remedied?

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Non-Union Federal Employees Score Historic Win in Supreme Court Case

In what will no doubt be one of the most impactful employment law cases of the year, the Supreme Court of Canada in Wilson v. Atomic Energy of Canada, 2016 SCC 29 has found that federally regulated employers cannot, absent economic reasons, terminate a non-unionized employee without just cause. The decision appears to have settled a debate that has been ongoing for nearly 40 years as to whether the “unjust dismissal” provisions of the Canada Labour Code preclude an employer from terminating an employee, even if common law severance is provided. Continue reading “Non-Union Federal Employees Score Historic Win in Supreme Court Case”

Making a Manager

I have defended many companies before the Employment Standards Branch (“ESB”), and without fail, one of the most frustrating (and potentially costly) complaints for business owners is when a manager makes a claim for overtime wages.

One of the primary reasons for this frustration is because there is often a disconnect between an employer’s idea of a manager and the definition of manager under the Employment Standards Act. As many employers have learned the hard way, just because someone is referred to as “kitchen manager” or “operations manager” does not necessarily mean that they will satisfy the ESB’s analysis.

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There’s more to it than just a title…

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Moving On Following Termination: The Duty to Mitigate

Losing a job can be one of the most traumatic events that a person may experience in the course of one’s life, sometimes even being on par with a family breakdown or the loss of a loved one. That’s because we all know that work is more than just a “contract”, and it’s certainly more than a paycheck. Our co-workers are not just colleagues, they are friends, collaborators and mentors.  Many people will spend more time awake at the office than they will with their family. In many ways, work defines who we are, as our Supreme Court once eloquently stated nearly 30 years ago:

Work is now considered one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

Continue reading “Moving On Following Termination: The Duty to Mitigate”

Using Summary Trials in a Wrongful Dismissal Action

The high costs of litigation and the long delays to have a matter heard in court have raised serious concerns with respect to access to justice in Canada. This challenge can be felt particularly acutely with somebody who has recently been wrongfully dismissed from their employment. While the common law may tell us that a terminated employee may be entitled to receive several more months compensation for their termination than what their employer is offering, often the high cost of litigation require the worker to accept less than they deserve.

But what if someone can have their day in court without the time and expense of trial and discoveries? In many wrongful dismissal cases, a summary judgment application may provide just that. Continue reading “Using Summary Trials in a Wrongful Dismissal Action”

The Risk of Fixed Term Employment Contracts

Most employment relationships are indefinite, meaning that the parties will continue working together until one of them exits the relationship (such as resignation, termination or retirement).

An alternative to indefinite term employment is the fixed term contract. These contracts are often used when a company is looking to hire someone for a relatively short period of time, such as to cover a maternity leave, complete a specific project with a fixed end-date or for seasonal employment such as camp counsellors. In scenarios such as this, the employer may introduce a written agreement at the start of employment stating a specific date for the contract’s completion. Continue reading “The Risk of Fixed Term Employment Contracts”

How a McDonald’s Employee received over $100,000 for Wrongful Dismissal

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The factors for assessing wrongful dismissal damages in Canada are well established, and will generally include the person’s age, tenure, the character of employment (or the degree of expertise or specialization) and other economic factors that may impact a person’s ability to find comparable work, such as education, the health of the local economy and the demand for her services.

To the chagrin of many, there is no universal formula for assessing wrongful dismissal damages. However, people in low-skill or semi-skilled jobs often do not receive extended notice periods due to the perceived availability of comparable work – a food service worker can arguably work as a cashier, a convenience store clerk or even a construction labourer. Continue reading “How a McDonald’s Employee received over $100,000 for Wrongful Dismissal”

Misrepresentation in Employee Recruitment : Feldstein v. 364 Northern Development Corporation

Employee recruitment, and particularly recruitment for highly competitive positions, often requires a certain amount of salesmanship on the part of recruiters, and companies looking to land a sought-after employee may tote company culture, compensation and other benefits of employment as part of their recruitment strategy.

Of course, all of this is fair game. However, as one recent BC Supreme Court decision illustrates, recruiters also need to be careful that everything they are presenting to potential candidates is honest and accurate. As one Vancouver tech company recently found out in Feldstein v. 364 Northern Development Corporation, 2016 BCSC 108, being over-zealous and under-cautious in promises to candidates can lead to a negligent misrepresentation lawsuit and thousands of dollars in damages. Continue reading “Misrepresentation in Employee Recruitment : Feldstein v. 364 Northern Development Corporation”