In many industries right now, businesses are fighting not just for clients, customers, and market share but to attract and retain good talent.
If you’ve managed to recruit an employee from a competitor – congrats!
As employment lawyers, we all have times when we wish our employer-side clients had come to us for advice before making certain decisions. There’s a lot that can be done to protect an employer who seeks assistance early in the process – especially if it involves a termination. Costs can be reduced, risks can be mitigated, and whole potential areas for future disputes can be eliminated entirely with careful consideration and planning.
The result of failing to get proper employment law advice can be catastrophic. Not only can it be exceedingly expensive, but the reputational damage for an organization can be profound. And if you’re an employer who has made some mistakes in the process – do not double down on those errors by adopting unreasonable and ill-supported litigation strategies. The patience of Canadian courts has worn thin and there appears to be an increased willingness to award moral and punitive damages, as well as substantial cost awards, when finding that employers have behaved badly. 2023 has produced some truly prodigious decisions on this front. Here are my top three 2023 cases in which employers f***ed around and found out.
The English magician Tony Corinda once said: “Good timing is invisible. Bad timing sticks out a mile”. As employment lawyers, we talk a lot about the “why”, “what” and definitely the “how much” of terminating an employee, but the “when” is a sometimes overlooked aspect. Some termination timing issues are a question of best practice or common courtesy, while others can attract significant legal liability and can be costly for employers. An employee who is being terminated may not recognize an employer’s considerate timing, but they will certainly recognize inconsiderate timing, and this will make everything go a lot less smoothly.
When should you not terminate an employee?
Discrimination
It is contrary to the Ontario Human Rights Code (the “Code”) to terminate or otherwise discriminate against an employee because of a protected ground. The protected grounds under the Code are citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, and record of offences.
On October 26, 2023, the Working for Workers Act, 2023 (the “Act”), the Ontario government’s third iteration of this legislation aimed at protecting workers, received Royal Assent and came into force. The Act introduces amendments to several employment-related statutes, impacting employers across the province. Below are some of the most relevant amendments.
Mass Terminations Under the ESA:
One of the most notable changes introduced by the Act is the expansion of the definition of an employer’s “establishment” under the Employment Standards Act, 2000 (“ESA”). This expansion now includes the private residences of employees who work from home. As a result, employers must take these employees into account when assessing mass terminations. Mass terminations occur when 50 or more employees are terminated within the employer’s “establishment” in a four-week period.
Receiving a notice to bargain can be overwhelming for an employer, especially if it is to negotiate a first collective agreement. It is important to understand key steps in the process in order to be prepared to achieve the best outcome for your business.
Do not feel rushed
There is no need to immediately schedule bargaining sessions once you receive notice to bargain. The obligation is to commence bargaining within a reasonable time frame such that the employer is not interfering with the union’s right to collective bargaining. Understandably, it could take up to a few months to align the schedules of the bargaining teams on both sides and to ensure adequate time for preparation.
At a time when our civil justice system is plagued by extreme delay, I am grateful to practice law in an area that is well known for its focus on creative and practical problem-solving and settling, as opposed to litigating disputes. There are certainly some labour and employment disputes which simply must be litigated, but the majority of disputes will ultimately be settled.
There are many reasons why settlement is often an attractive option (the delay and cost of litigation, the peace of mind a settlement can bring, and avoiding the disruption and harm that litigation can cause to a business or its reputation …just to name a few) but in this blog we will provide some tips for considering, understanding and implementing legal settlements.
Something went wrong with the twitter.
Employers often wonder how to handle requests for leaves of absence from employees. This requires understanding the various options available depending on the terms of…
In many industries right now, businesses are fighting not just for clients, customers, and market share but to attract and retain good talent. If you’ve…
Sign up to our newsletter. Stay up to date with the fast pace of employment law developments and keep your workplace compliant.
Get in Touch!
Contact SpringLaw today for your workplace disputes, compliance and relationship repair issues.
416-238-8180 I info@springlaw.ca
111 Queen Street East, Suite 450, South Building
Toronto, Ontario, M5C 1S2