Thursday November 21, 2019
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Should all employees have written employment contracts?

by Sheryl Johnson

Yes! Certainty in the terms and conditions of an employee’s employment contract is an excellent way to avoid potential conflict and reduce potential liability and “costs” (i.e., lost opportunity costs; reduced productivity from decreased morale; increased absenteeism, turnover, recruitment and training costs; and litigation costs) now for the future. Consider it everyone’s playbook should conflict arise or the employment relationship breaks down.

One Size Does Not Fit All

by Sheryl Johnson

On Oct. 23, 2019, Ontario’s Ministry of Attorney General announced significant changes to its “alternative” litigation procedures in order to make civil litigation more affordable and thus accessible by reducing costs and delays as well as increasing the efficient use of the parties’ and the court’s resources and time. The changes will be in effect as of Jan. 1, 2020 and should decrease the number of actions brought under the ordinary litigation procedure before our Divisional Court. Depending on the dollar value of a claim, some litigants will have the option to elect between these two alternative court procedures, which are not mutually exclusive.

The Tale of Two Employment Contracts

by Sheryl Johnson

With Thanksgiving behind us, we are turning our minds to the Christmas holidays and closing out the 2019 calendar year. As an employer, do you provide holiday or annual bonuses? If yes – the Ontario Court of Appeal released a further decision to its decision in Manastersky v. Royal Bank of Canada, 2019 ONCA 609 that I discussed in an earlier article. The most recent OCA decision on bonuses is Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679.
Where the Manastersky decision taught us that a well-crafted bonus plan can insulate an employer from liability in respect of bonus plan payout to former employees, the Andros decision underscores what happens when your employment contracts are not well-crafted.

What’s in a Resume?

by Sheryl Johnson

The contents of a job applicant’s resume are – and should always be – the starting point in your company’s recruitment process.
Few applicants know or care that lying on a resume constitutes cause for the termination of their employment when it is discovered if it means they get the job. The “cause” arises from the fact that all employment relationships are built on trust. If employment is offered based on employee misrepresentations, the trust necessary for continued employment is breached and a serious character flaw is revealed that also undermines the necessary bonds of trust.

What’s in a Bonus?

by Sheryl Johnson

In the employment context bonuses can either be discretionary or non-discretionary.
A discretionary bonus is completely unexpected. Unexpected as to timing, dollar value and kind of performance needed to receive one. They have no established formula, are not part of an employee’s contract, there is no expectation to receive one regularly and as such it does not constitute either a meaningful or expected part of an employee’s total compensation package.

The Enemy Within

by Sheryl Johnson

Employees may have access to information that is confidential or personal about policies, decisions or other persons in or connected to their workplaces that are not intended for public consumption.
In light of this access, proactive employers have confidentiality and other nondisclosure covenants in their employment contracts. But what if an employee breaches such a covenant and goes to the media or vents their employment frustrations on social media resulting in defamatory conduct against the employer, its employees or its customers?

What is exceptional?

by Sheryl Johnson

While apparently not litigated in Dussault v. Imperial Oil Ltd., [2019] O.J. 2800, discussed in my last article, the Ontario Court of Appeal (OCA) in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 (CanLII) has re-established that absent “exceptional circumstances” there is generally a 24-month cap on reasonable notice periods.
In doing so the OCA overturned and reduced the trial judge’s award of 30 months of reasonable notice to 24 for a 62-year old senior executive with 37 years of service, a person whom under the recent line of cases the trial judge noted would have been awarded 36 months if he asked for it. The court also reversed the recent line of cases that broke through the general 24-month cap that had been in place for decades – and which some touted as demonstrating that the law had evolved to eliminate this general cap.

What happens to employees when a company sells its business but neither party wants to fully take on all of the liabilities associated with the current employees?
This often happens in relation to the reasonable and statutory notice of employees “bag” without the parties truly knowing “who” should be left holding this bag. With long serving and higher-level employees, this bag can be quite hefty.

When “Bob’s your Uncle” isn’t a good thing!

by Sheryl Johnson

As we are aware, family owned and operated businesses involve two or more family members having the majority of ownership and control over a business. Such business likely are the oldest form of business and sources of workplace conflict given the intertwining of work lives, personal lives and family dynamics.

In my article concerning clearing the air on cannabis use in the workplace I outlined in general terms the limits on employers’ duty to accommodate employees’ medical use of cannabis relative to the workplace as being the duty to accommodate “to the point of undue hardship”. This duty is established by the Human Rights Code under the protected ground of disability.
What does this duty of accommodation entail? How do employers establish where the planes of “accommodation” and “the point of undue hardship” intersect? Further, how does this duty intersect with Ontario employers’ general duty to provide to each of their employees a safe work environment free from all recognized hazards under the Occupational Health and Safety Act?

In Ontario employers who either fail to take allegations of violence and harassment seriously or deal with them in good faith, expose themselves to significant legal liability given their multifaceted obligations to employees under the Occupational Health and Safety Act (“OHSA”), the Ontario Human Rights Code and the common law.
Essentially this means that employers who fail to adequately respond to, investigate, prevent or remedy harassment face increasing damage awards and statutory fines on top of exposure to negative PR and brand damage.

Are Your Employment Policies Employment Standards Act Savvy?

by Sheryl Johnson

As of late, one of the most varied pieces of employment legislation in Ontario is the Employment Standards Act (“ESA”). Such ongoing changes have led to a lot of confusion for employers on what their legal obligations are and what their policies and practices should be. This is particularly the case in relation to “Personal Emergency Leave” (PEL) days and the fact that the 2019 amendments to the ESA have reduced rather than increased employee statutory entitlements.

Clearing the Air on Use of Marijuana in the Workplace

by Sheryl Johnson

Notwithstanding that recreational marijuana has been legal in Canada for seven months now and medical cannabis, alcohol and other intoxicants a lot longer, employers still have many fears and misconceptions about how its employees’ use of marijuana both at work and at home may negatively impact their workplaces. This article addresses many of these concerns so as to clear the air on employees use of marijuana as it relates to the workplace as an ounce of prevention equals a pound of cure.

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