Over the last two years, courts have repeatedly addressed a new form of workplace violation; a new tort was based upon an actionable ‘intrusion upon seclusion’. With these decisions they have begun transforming the face of privacy law in the workplace.
On October 22, 2013 the government introduced a number of changes to the labour and employment laws governing public servants. These changes are targeted at public servants and the unions who represent them. The changes make it harder to collectively bargain with the government, harder to enforce collective agreements, and harder to complaint about unfair and unjust layoffs or appointments in the public service.
On June 30, 2008, amendments to the Ontario Human Rights Code (‘the Code’) came into force that allow human rights damages under the Code to be dealt with either as civil claims before the courts or as applications before the Human Rights Tribunal of Ontario (HRTO). This change offered strategic flexibility and increased settlement options to victims of discrimination. However, despite the passage of 5 years since the amendments took effect, there have been no court decisions awarding damages under the Code.
It is increasingly common to find post-employment restrictions in employment contracts. These restrictions often include attempts by the employer to limit an employee’s ability to compete against its business or lure away their customers and employees. These restrictive promises are also found in agreements of purchase and sale, where the selling party agrees to a period of employment following the sale of business. As clarified in the Supreme Court of Canada’s recent decision in Payette v. Guay Inc. covenants made between a vendor and purchaser will be more readily enforced.
While a temporary lay-off can amount to a constructive e dismissal, declining an opportunity to return to work shortly after being laid off will result in a failure to mitigate unless the relationship between the parties was acrimonious and infused with animosity.
The Federal Court recently upheld a Canada Labour Code (CLC) Adjudicator’s decision to award aggravated damages of $85,000 in aggravated damages and $100,000 in punitive damages in Tl’Azt’En First Nation v. Joseph, 2013 FC 767.
In Canada, we have an aging workforce, and have been experiencing a period of economic downturn at the same time that mandatory retirement has come to an end. In addition, we have seen an increase in foreign ownership employers, who may not fully understand Canadian laws and workplace cultures. These factors have led to noticeable trends in how employers are dealing with terminations, especially those related to long service employees. The overall impact is that older workers are being unceremoniously shown the door after many years of faithful service.
In a recent decision, General Motors of Canada Limited v. Johnson, the Ontario Court of Appeal outlined the test required to show that a workplace is poisoned for the purposes of constructive dismissal.
The relatively commonly held belief that the unjust dismissal provisions of the Canada Labour Code were intended to provide quasi union like protections for non-unionized employees has been turned on its head by the Federal Court, to the pleasure of employers and to the chagrin of employees.
Employers have to accommodate people under Canadian human rights laws. The only exception is where doing so would be an undue hardship. This isn’t news, or at least it shouldn’t be, but employees are still being told their particular circumstances are too much trouble for an employer to deal with.