While 2017 brought about sweeping changes to the Employment Standards Act, 2000, 2018...brought about sweeping changes to the Employment Standards Act, 2000. While 2017 brought about employer panic and confusion over the legalization of cannabis, 2018... continued to do much the same. For yet another year, we were treated to several judicial assessments of the enforceability of termination clauses, and we continued to see the quantums of human rights and other damages increase. In a sense, everything old is new again.
If the employee is entitled to reasonable notice under the common law, then the employee has a duty to mitigate their damages, which means that they have a duty to take reasonable steps to find comparable employment.
In the recent case of Van Wyngaarden v Thumper Massager Inc., the Ontario Divisional Court confirmed that unless a dismissal is in bad faith, an employer is entitled to dismiss an employee during the probationary period without cause and without notice.
The most common requirements for an employee to be eligible for severance pay is that the employer must have a payroll of at least $2.5 million, and the employee must have been employed for at least 5 years.
Although office holiday parties can be an amazing way to thank employees for their hard work all year, they can also be a minefield of potential liability for employers. This liability can crop up in any number of ways, including through harassing or offensive comments, inappropriate sexual or romantic advances, inadvertent discrimination, and excessive alcohol consumption. This year, in addition to these issues, employers also need to be prepared to deal with a brand new potential pitfall: the use of recreational cannabis.
Now that the use of recreational marijuana has been legalized, an employer’s existing drug and alcohol policies are unlikely to carry adequate wording to cover risks of applying unenforceable disciplinary procedures.
We are dealing with investigations more and more often in the context of employment or HR law, and the reality is, as we often tell our employer clients, you cannot impose discipline, especially dismissal, until you investigate.
The question that I ask today, and I will answer today, is whether, despite having that full and final release, a claim can be brought. And the simple answer is yes, there are circumstances where courts will allow someone to bring a claim even after they signed a full and final release.
It is not unusual to hear about workers that work through their lunch break in order to leave early and have a condensed work day, or to store up the extra time and be able to leave early on Friday, thereby creating a condensed work week. While this might sound good in theory, the problem is that it is a breach of employment standards legislation. And that exposes the employer to liability.
There are certain circumstances in which the duty to mitigate does not arise. The first is where there is a termination clause in an employee’s employment agreement which does not expressly require an employee to mitigate their damages during the applicable period of notice. The second is with respect to an employee’s minimum statutory entitlements under employment standards legislation, including an employee’s entitlement to notice/Termination Pay and Severance Pay, which an employee is entitled to receive regardless of their mitigation efforts.