It is not uncommon for employment contracts to have set notice periods for when an employer terminates an employee, but increasingly there are also requirements for an employee to give the employer notice when the employee resigns. In a recent decision, courts have demonstrated that those clauses are enforceable, so employees should be careful to ensure they are aware of what is required of them when resigning.
Following up on last week’s post about a recent Ontario Court of Appeal decision, in which the Court made effective use of summary judgment on a wrongful dismissal claim, this post takes a more in depth look at the use of summary judgment motions as a useful litigation tool in employment law cases and other matters following the recent Supreme Court of Canada decision in Hryniak v. Mauldin.
In virtually every settlement of any complaint, lawsuit or proceeding, the employer always requests a confidentiality provision. The clause generally requires that employee keep the fact of and terms of the settlement confidential. The clause will usually only allow the employees to advise their spouse, immediate family and/or their financial advisors of the settlement on the condition that those individuals keep the terms confidential. While there is a normal desire on the part of employees to advise their family members and friends of any settlement (particularly after a lengthy legal battle), it’s critical that employees understand their obligations as they pertain to confidentiality before speaking to anyone, and ensure those obligations are respected.
A recent Court of Appeal for Ontario decision, Bernier v. Nygard International Partnership, which was released in late 2013, was an unsuccessful appeal of a summary judgment on wrongful dismissal claim. This outcome was a positive result for the employee and a good use of a summary judgment under Rule 20 in the employment context. The case is also a reminder that – in the absence of clear contractual language to the contrary – a dismissed employee is entitled to bonuses that would have been earned during his or her reasonable notice period.
A trial judge must weigh and balance a list of relevant factors in determining a reasonable notice period for a terminated employee. Even though this period will be based on the facts of each particular case, the courts have made it clear there is no absolute upper limit or cap on what constitutes reasonable notice. Where exceptional circumstances exist, or where an employee scores high on the Bardal factors, a court will be inclined to support a base notice period in excess of 24 months.
Nelligan O’Brien Payne’s Labour and Employment Groups are pleased to welcome a new associate lawyer, Karine Dion, to our team.
In most workplaces, the news of a pregnant employee is often greeted with excitement, support and the occasional baby shower. There are instances, however, when the employer responds in an adverse or unlawful manner. In those cases, human rights tribunals have the authority to enforce a pregnant employee’s right to equal treatment, and are often prepared to send a strong message to employers that this type of discrimination is entirely unacceptable.
In its recent decision, Gahagan v. James Campbell Inc., the Human Rights Tribunal of Ontario (‘HRTO’) seems to have lowered the hurdles faced by employers in Ontario when attempting to establish frustration of contract following an employee’s extended period of absence due to a disability.
People are usually excited and nervous when they start a new job. Sometimes, amidst all that excitement, people forget to fully and adequately hash out the details of their employment. Or, even worse, a new employee signs something without truly understanding the consequences of what they are signing.
In a recent decision, IBM Canada Limited v. Waterman, the Supreme Court of Canada confirmed a longstanding rule that pension benefits are not deducted in calculating damages otherwise payable by an employer for wrongful dismissal.