RUDNER LAW

Much like 2020 when the onset of COVID-19 forced the employment world to quickly pivot, the past 12 months brought new changes and challenges as the cloud of pandemic endures. But Ontario employment lawyer Nadia Zaman says there is reason to be optimistic as we usher in a new year.

What are your legal responsibilities in online abuse? Stuart talks UKG through the legal pressure points of online harassment.

As Canadians slowly emerge from the COVID-19 cocoon we’ve been living in over the past 18 months, one thing has become clear — for most of those who have been working from home through the pandemic, the prospect of going back to the workplace full time is something to which they are not looking forward.

For the OBA Labour & Employment Section Newsletter, Stuart talks about how to get to a deal during mediation based on his experience and observations mediating disputes.

Parties should objectively assess the evidence and also the potential costs and benefits of pursuing a wrongful dismissal case.

Failure to investigate workplace misconduct can not only derail morale, but it can also lead to hefty liability for Canadian employers.

The Ontario government introduced legislation that would ban the practice of imposing non-compete clauses on employees

The Ontario government is introducing new legislation that would require large employers to put in "right to disconnect" policies and bar non-compete clauses.

In many ways, the precarity that most people saw with their jobs during COVID-19 is something that gig workers struggle with near constantly.

Question: What are an employer’s legal obligations when an employee complains of harassment that an investigation cannot prove or disprove? Stuart has the answer for Canadian Employment Law Today.

“Unless someone is not vaccinated because of a genuinely held religious belief or a health condition, then you can make this a requirement for getting the job,” Toronto-based employment lawyer Stuart Rudner said. “Otherwise it’s no different than requiring a driver’s licence.”

Unless workers are under covered by a collective agreement, they can be dismissed for any reason at all, said employment lawyer and mediator Stuart Rudner, author of You’re Fired! Just Cause for Dismissal in Canada. This kind of dismissal is called “without cause,” and the worker is entitled to severance pay.

Waksdale swung the pendulum in favour of employees and employers had to scramble to update employment agreements to ensure they're enforceable.

The public will be forgiven for concluding that virtually every major employer is requiring that all employees be vaccinated or they will lose their job. Yet if you read the details of most of these policies, they are not mandatory at all.

Stuart Rudner, managing partner at Rudner Law, said the legal community still doesn’t have enough precedent to determine how successful these constructive dismissal/IDEL cases will be.

Failing to conduct an investigation into allegations of harassment can not only result in litigation but could harm a company’s image and its ability to retain valuable employees, says Toronto-area employment lawyer and mediator Stuart Rudner.

Previous WSIAT decision overturned: recent case finds constructive dismissal claim not statute-barred, Nadia writes for First Reference.

Stuart talks about vaccination mandates for people with public facing jobs and what legal challenges are already being brought forward.

The CEO of Hospitality Saskatchewan says music venues won't be the only businesses in Saskatoon to require mandatory vaccines.

Litigation risk analysis is an essential part of any dispute and a thorough examination of the facts is crucial when determining the strength of a case.

For years, the prevailing wisdom has been that employers should investigate suspicions of misconduct before firing an employee. We certainly advise our clients to. But what happens if you don’t? Can an employer be liable simply for failing to investigate? Is the answer different if a court finds that there was just cause for dismissal?

The Toronto Marlies hired a goalie coach only to reverse the decision days later after finding containing transphobic, anti-Black, pro-Trump, and anti-vaxxer content on his Twitter feed.

There are big differences between what we think of as traditional advertising – like radio and TV ads – and other types of marketing.

A Toronto employment lawyer has one piece of advice to HR amid the ongoing confusion over the Infectious Disease Emergency Leave (IDEL): Don't make assumptions.

What is the legal test to distinguish between independent contractor and employee? What factors should be considered when deciding how to categorize a worker?

If your employer has given you a deadline to accept the severance agreement, employment lawyer Stuart Rudner said not to panic.

The recent decision in Insurance Corporation of British Columbia v. Moveup (Canadian Office and Professional Employees’ Union Local 378), 2021 CanLII 28564 (BC LA) provides some reassurance for those who feel that summary dismissal would be appropriate.

Proposed right to disconnect legislation also requires a “shift in mindset and workplace cultures” to be effective, says Ontario employment lawyer Nadia Zaman.

If an employee on medical leave undergoes an independent medical examination and is cleared for work, can the employer seek a second opinion?

If a terminated employee signs a release in exchange for an additional severance payment and then begins legal action against the employer anyway, can the employer try to get that payment back?

This issue has arisen in several recent mediations that I have conducted. As regular readers will know, Employment Insurance benefits are usually deducted from money paid out in lieu of notice of dismissal. At mediation, the plaintiff will be asked if they received EI benefits; if they did, then a mechanism for obtaining a statement of account/debt from Service Canada, and a holdback of funds to cover any repayment obligation, is typical.

Working remotely brings challenges that if not managed correctly could lead to employee burnout and have financial and legal consequences for employers, says Toronto-area employment lawyer Brittany Taylor.

We know that only a tiny percentage of claims filed make it all the way to trial; I have always understood that it is less than two per cent. So why is it that so many cases settle before trial?

“We have now this complete state of uncertainty,” says Stuart Rudner, an employment lawyer and managing partner of Rudner Law. “Because we have two courts, within a period of about a month, that have interpreted the exact same issue in completely different ways.”

We often see appeal courts reducing damage awards on appeal, in order to bring them more in line with established case law. Ojanen is certainly an exception – in this case, the behaviour of the employer in question was so egregious that the Court of Appeal was compelled to more than triple the award granted at trial.

As with many things in employment law, the question of when the employment relationship will terminate in circumstances where an employee is on an extended leave does not have a simple answer.

There is nothing inherently wrong with discrimination and, in fact, if you are not discriminating in your hiring process, you’re doing it wrong.

Resolving a claim at mediation is good, but winning at mediation is even better. After all, anyone can settle. As an advocate, you should work to get the best result for your client, whether it is at trial or at mediation.

Stuart comments on the legalities of using technology to keep tabs on workers for the Society for Human Resources Management (SHRM)

One of the biggest topics of debate these days is whether employees should be entitled to paid time off when they are sick.

Toronto-area employment lawyer and mediator Stuart Rudner says success in his field requires the ability “to go with the flow and adapt,” tailoring the mediation approach to suit each situation.

As mediators, our job is simple: help the parties to reach a resolution to the dispute that brought them to you. But as we all know, that is sometimes easier said than done. The purpose of this article is twofold: to discuss some opportunities that video mediation provides, and to discuss some creative ways to help the parties break an impasse.

Stuart talks to Brian Bourke of 570NEWS about the recent confirmation by an Ontario Superior Court judge that temporary layoffs are constructive dismissal, leaving employers liable.

An articling student whom a Vancouver criminal law firm fired for alleged trespassing, breach of contract and questionable blog postings has seen her award for damages more than tripled after the Court of Appeal for British Columbia ruled the lower court judge erred in not awarding damages for her lost opportunity to become a lawyer.

The global pandemic has acted as a catalyst for organizational change, revolutionizing the way we think about workplace practices — particularly regarding employment law. As a result, the definition of employee misconduct, and the types of conduct that can warrant disciplinary action or dismissal, has expanded and evolved. Speaking to Stuart Rudner, founder of Rudner Law and speaker at the upcoming UKG webinar, Employee Misconduct in Canada, he revealed how clients are coming to him with a whole host of new questions.

A recent ruling by an Ontario judge confirmed what some employment lawyers have been saying for more than a year — that many businesses may have actually constructively dismissed their employees when enacting temporary layoffs, putting themselves on the hook for severance pay. Last March, when employers were doing temporary layoffs during a time of uncertainty, Toronto employment lawyer Stuart Rudner told the Star that many of those layoffs might actually be constructive dismissals, meaning the employer had essentially terminated the employee and would owe them severance.

If employees were temporarily laid off during the pandemic, can the employer bring them back at reduced pay until revenues reach pre-pandemic levels?

Can an employer require remote employees to have a certain level of internet service and security?

A recent ruling from an Ontario court could see the “floodgates open” to a slew of new cases against employers that temporarily laid off workers in the early days of the pandemic, says an employment lawyer. “This is a really huge decision and it should be a huge concern for employers,” says Stuart Rudner, founder of Rudner Law in Toronto, in talking to Canadian HR Reporter.

With restaurants closed to dining, many servers who used to make a large portion of their pay in the form of tips are still working — but they are no longer serving alcohol on premises and are getting a fraction of the tips they used to. But some say they are still being paid the liquor server minimum wage, which is almost $2 an hour less. Rudner Law partner Brittany Taylor noted the act specifically says the employee has to serve liquor in the premises that have a liquor licence. It’s unclear whether that’s still the case when dining is closed, she said. “As a result, handing liquor off to a delivery person, rather than to the customer directly within the establishment, may not qualify,” she said.

“I think this case is huge,” says Stuart Rudner, employment lawyer and managing partner at Rudner Law. “We've been waiting for this decision for a year now.”

Employers looking to take the government up on an offer to host workplace COVID-19 vaccination clinics need to weigh the benefits and the risks first, says Ontario employment lawyer Nadia Zaman.

Thanks Robin Schooling for featuring Fire Away: Social Media: A Useful HR Tool or a Liability?

A school custodian’s participation in rallies that appeared to violate the current COVID-19 public health order could lead to discipline, or even termination, according to an employment lawyer.

Although we have not yet seen a judicial decision on whether a temporary layoff will be a constructive dismissal during a pandemic, we do have one which confirms that reducing an employee’s pay between 16 per cent and 20 per cent is a constructive dismissal.

Many premiers have dismissed calls to enact provincial paid sick leave laws, arguing the federal government’s Recovery Sickness Benefit takes care of that. But Stuart Rudner of Rudner Law says they are not the same.

Can an employer require a worker to complete a criminal records check (CRC) as a condition of employment?

What is the impact of a global pandemic on notice of dismissal or severance requirements? Does it result in increased notice, decreased payments, or neither?

The economic fallout from the pandemic has left many uncertain about notice periods following terminations but two recent judgments provide some clarity, says Toronto-area employment lawyer Brittany Taylor.

As mass vaccination campaigns scale up, so to have debates about how to make sure everyone has the opportunity to get vaccinated. While paid leave could remove a major barrier to getting a vaccine, the potential burden on already struggling businesses can’t be ignored, experts say.

The latest posts from influential leaders surrounding HR, recruiting, technology, leadership, diversity and inclusion, etc. Our Year in Review was featured in this edition.

What are the essential elements to include in a permanent work-from-home agreement with an employee?

If an employee files a complaint about a supervisor but both have acted inappropriately, can the employer discipline or dismiss the employee for their misconduct?

When will an employee be found to have abandoned their employment? In the recent decision of Hettrick v Triple F Paving, the Ontario Superior Court of Justice dealt with this oft-asked question.

For those looking for clarity, employment lawyer Stuart Rudner says there's no clear-cut answer.

“Convince me.” When I am your mediator, that is your job. The easier you make it for me to understand your case, the easier it will be for me to put your case forward in the other room. As I often say, at mediation, you want to “help your mediator to help you.” I have frequently commented on the need for counsel to put forward their best case at mediation, but the reality is that in many cases, counsel miss the opportunity to be a zealous advocate. Instead, they go through the motions when it comes to advocacy at mediation, doing little more than copying their pleading into a mediation brief and then showing up at mediation without a firm grasp of the case and evidence.

Ensuring the punishment fits the crime must be the overriding factor in any termination but many employers act too hastily and that can be costly, says Toronto-area employment lawyer and mediator Stuart Rudner.

As we get closer to a full year of “pandemic life”, there is increased discussion of the impact of a global pandemic on notice periods.

Nadia Zaman, a lawyer at Rudner Law who practices in Ontario, says there’s recourse for an employee who feels a colleague is bringing a coronavirus health risk to the physical workplace through dangerous off-duty conduct.

Imagine this scenario: There is a worldwide pandemic, the global economy is devastated, and all non-essential businesses are ordered to shut down. You are able to continue a small portion of your practice, but revenues drop by 75% and you can’t afford your clerk and junior. You consult the employment standards legislation, confirm the rules regarding how layoffs are to be implemented, and then let them know that you have to lay them off temporarily until things pick up. The next thing that happens is that you receive an aggressive letter from an employment lawyer threatening to bring a claim for constructive dismissal on their behalf because you did not have the right to impose temporary layoffs. They will be seeking damages for wrongful dismissal, as well as punitive damages. Are they right?

"In the context of a situation where an employer is dealing with employee complaints relating to, another employee engaging in risky behaviour, they can really rely on the policies," says Nadia Zaman, a lawyer at Rudner Law who practises in Ontario. Also published in the Toronto Star and by yahoo!finance.

Employment lawyer Stuart Rudner, author of You're Fired! Just Cause for Dismissal in Canada, says in assessing whether there is just cause for dismissal, the misconduct in question is not the only thing to be considered.

Richard Southern looks at the legal rights workers have under the province's stay-at-home order with Stuart Rudner, Founder and Employment Lawyer at Rudner Law.

The latest posts from influential leaders surrounding HR, recruiting, technology, leadership, diversity and inclusion, etc. From Rudner Law: As has been the case since last March, it is critical that employers and employees understand their rights and obligations despite frequently changing laws, guidelines and circumstances.

After the coronavirus “wakeup call” to the business world, employers and workers would be advised to heed the lessons learned as 2021 unfolds, says Toronto-area employment lawyer and mediator Stuart Rudner.

There is an assumption that in the employment relationship, there is an imbalance of bargaining power and the employee needs additional protection. That is often the case, but not always. So how do we decide when courts should intervene, and when individuals should be held to the bargain that they agreed to be bound by?

There are renewed calls for paid sick leave for low-wage and essential workers who fear losing their jobs or income if they miss shifts because they're sick or need to be tested for COVID-19. Stuart comments in this segment.

It may surprise many, but in most dismissals, whether the employee performed very well or very poorly is entirely irrelevant.

Mel is joined by Employment Lawyer, Stuart Rudner, to chat about how the city is now requiring employers to inform them immediately if they have 2 or more confirmed cases amongst employees, and how Public Health is promising to better inform people of which particular workplaces are experiencing those outbreaks.

Do your contracts give you the right to temporarily lay people off? If not, you risk a constructive dismissal claim if you impose temporary layoffs, even during a pandemic.