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.
Employers have a duty to accommodate family status in all aspects of employment, to the point of undue hardship, unless there is an exception set out in the Ontario Human Rights Code.
In March of 2013, Ontario Minister of Labour Yasir Naqvi introduced Bill 21 to amend the Employment Standards Act, 2000 to introduce three additional unpaid leaves of absence, including a Family Caregiver Leave.
There is an increasing trend in the workplace, where employees bring their own devices (BYOD), usually smart phones or tablets, to work. In an era of cost savings and unprecedented rates of change in technology, employers are likely to view BYOD as an appealing way to lower costs. Employees want the flexibility of using the latest technology to do their jobs more efficiently while multi-tasking chores like personal banking and staying connected with their lives outside of work.
Rejuvenation may be a good tactic for a government trying to attract young voters and win an election, but it is a guaranteed losing strategy in the workplace. An employer setting out to freshen up the workplace by getting rid of older workers would quickly find itself the subject of a human rights complaint.