Duty to Provide an Employer with Reasonable Notice of Termination
by Jill Lewis on October 21, 2016
Just as an employer has a duty to provide proper notice of termination to an employee they terminate without cause, an employee also owes a reciprocal duty to provide notice of their resignation. Damages for not providing such notice are not often sought because, practically speaking, what the employer can hope to recover is often outweighed by the legal costs necessary to obtain it. However, when such damages are sought, this often comes as quite a shock to the employee who believed there would be no repercussions for quitting without notice.
Mitigation - It Doesn't Happen In A Vacuum
by Christopher C. Rootham on October 14, 2016
Mitigating your losses after being dismissed, such as making concerted efforts to find new employment, is important if you feel that the dismissal was unjust. However, a recent case has demonstrated that contextual factors do come into play when a court is evaluating the extent to which an employee has attempted to mitigate.
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Changing Workplaces Review: Update The Definition of "Employee"?
by Janice B. Payne on September 30, 2016
Nelligan O’Brien Payne gratefully acknowledges Victoria Craine, Student-at-Law, as co-author of this blog post.
On July 27, 2016, the Ministry of Labour released the much-anticipated Changing Workplaces Review: Special Advisor’s Interim Report. This report is part of the Ministry of Labour’s broader mandate to modernize employment and labour laws, in an effort to strengthen protection for vulnerable workers and enhance business competition in a globalized and changing economy. While the report makes no specific recommendations or proposals, it sets out various options for reform.
One noteworthy area of reform deals with whether the current definition of “employee” under Ontario’s Employment Standards Act, 2000 (the “ESA”) is sufficiently inclusive. The report addresses two concerns in respect of this issue.
Fiduciary Employees Held to a Higher Standard
by Jill Lewis on September 21, 2016
The definition of a “fiduciary employee” is not black and white. However, breaching a fiduciary obligation can be costly and, sometimes, even be career suicide.
It is important to know when you may be in the grey “fiduciary” area.
Who is a fiduciary employee?
An employment contract does not necessarily spell out who is and is not a fiduciary, and even if your contract says you are, this doesn’t mean it’s true. Therefore, an employee may have a fiduciary duty to their employer, notwithstanding a formal employment contract.
Officers and very senior employees will most likely always have a fiduciary duty towards their employer. For more junior employees, the court will look beyond job titles and focus on their position within the company. The analysis is extremely fact-specific (as with most things in law).
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Restrictive Covenants: What Are My Rights Post-Employment?
by Stephanie Lewis on September 15, 2016
When employees leave their employment, they may take with them a tremendous amount of information about the business of their former employer. With some exceptions, those employees could go on to compete with their former employer, as long as they don’t use that employer’s confidential information. For this reason, employers often include clauses in employment contracts to address this exact scenario, commonly referred to as restrictive covenants.
Simply because such covenants are included in employment agreements does not mean they will automatically be enforced by Canadian courts. Generally speaking, courts will not enforce restrictive covenants that unnecessarily restrict an employee's freedom to earn a livelihood after the end of the employment relationship. In the 2016 case of Donaldson Travel Inc. v. Murphy, the Ontario Court of Appeal considered a non-competition clause to be void, once again reminding employers that there are limits to the limits that can be imposed on former employees.