Another One Bites the Dust: Understanding the Law of Termination Clauses in Ontario
Vey Willetts Blog
by Andrew Vey
2w ago
2024 got off to a bang in the world of employment law. In a recent trial level decision, an Ontario judge has found yet another termination clause illegal and unenforceable. In so doing, the court accepted an entirely novel argument for why termination provisions may be read as impermissibly contracting out of the mandatory requirements of the Employment Standards Act, 2000 (the “ESA”). The case at issue is Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029 (“Dufault”). It concerned a Youth Engagement Coordinator who was dismissed on a without cause basis after roughly 1 yea ..read more
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Wrongful resignation: rarely worth the effort
Vey Willetts Blog
by Andrew Vey
1M ago
Much of employment law centres on wrongful dismissal litigation. Wrongful dismissal arises when an employer has terminated the employment relationship and failed to provide sufficient advance notice or pay-in-lieu to the affected employee. Less well known is the corollary of wrongful dismissal: wrongful resignation. Just as employers are obligated to give notice prior to terminating the employment relationship, so too are workers. The amount of notice that employees must provide in advance of their resignation varies. As a starting point, look to any written employment agreement. If this docu ..read more
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The importance of honesty in the hiring process
Vey Willetts Blog
by Paul Willetts
2M ago
Hiring processes can be competitive – particularly in a slow market where eligible candidates may outnumber available opportunities. While applicants may look to present their experience or qualifications in the most favourable light (whether on a CV or in the course of an interview), there is a significant difference between positive spin and blatant dishonesty. A 2022 decision from the Quebec Court of Appeal serves as a useful reminder of the importance of honesty and good faith during a hiring process. In the case in question, an individual successfully applied to work for Quebec’s provinc ..read more
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When are virtual termination meetings appropriate?
Vey Willetts Blog
by Andrew Vey
3M ago
Among the changes brought about by the COVID-19 pandemic was an increased normalization of virtual meetings. I can count on one hand the number of Zoom or Teams meetings I attended before March 2020. In 2023, by contrast, virtual meetings are an almost everyday occurrence. It is thus unsurprising to see more and more employers opt to hold employee dismissal meetings virtually, rather than in-person. My standard advice, pre-pandemic, was that termination meetings should be held in-person whenever possible. The reasoning was simple: dismissal meetings are important events, wherein employees sho ..read more
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Breach of confidentiality proves to be a costly mistake
Vey Willetts Blog
by Andrew Vey
4M ago
When parties to a workplace dispute agree on a settlement, one typical term required by employers relates to confidentiality. Such clauses mandate that the employee refrain from telling third parties details of the deal that has been reached (with normal exceptions made for immediate family and professional advisers). Confidentiality goes hand in hand with another common settlement term - an explicit denial of wrongdoing or liability. The combined effect of such clauses in settlement agreements are: 1) they help prevent unrelated persons from using the details of any particular settlement to ..read more
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Moonlighting during working hours warrants cause for dismissal
Vey Willetts Blog
by Paul Willetts
4M ago
It is not uncommon for an individual to work a second job – or to take on a “side hustle” – to supplement their income. Most employers will tolerate such activities where they are non-competitive in nature, carried on outside of working hours, and do not interfere with the individual’s performance of their duties. Ontario employees are expected to act in the best interests of their employer and to work when being paid to do so. As such, the propriety of any outside work will be assessed against these requirements. In a recent decision from British Columbia, Dove v. Destiny Media Technologies ..read more
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Time to Expand the Search? The Duty to Mitigate in a Remote Work World
Vey Willetts Blog
by Paul Willetts
6M ago
Individuals in Ontario have a duty to mitigate their loss of employment when seeking damages for wrongful (or constructive) dismissal. In practical terms this means that while employees may be able to seek damages from their former employer (to put them in the position they would have been had they received adequate notice of termination), they must make reasonable efforts to replace their lost income by looking for, and accepting, other comparable work.   Where an individual fails to take reasonable steps to mitigate loss of employment, it is likely to result in a reduction to the damag ..read more
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Change is Coming to Termination Requirements under the Canada Labour Code
Vey Willetts Blog
by Paul Willetts
6M ago
As of February 1, 2024, Part III of the Canada Labour Code (“CLC”) will require federally-regulated employers (including those in the private sector and Crown corporations) to meet the following obligations when terminating employment: 1.      Notice of Termination Section 230(1) of the CLC currently requires an employer to provide either two weeks’ advance notice of dismissal or a payment in lieu equal to two weeks’ wages when dismissing an employee (who has at least 3 months of consecutive service and is not being fired for cause). This provision will be replaced wi ..read more
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Independent contractors have a duty to mitigate loss of fixed-term work
Vey Willetts Blog
by Andrew Vey
6M ago
We have continually cautioned readers about the use of fixed-term employment contracts. The reason is simple: should fixed-term contracts be ended early, there is a high probability that dismissed employees may be entitled to payment for the balance of the remaining term. In recent years, this has led to several staggering damages awards (with one as high as $1.2 million). Part of the danger for employers is that Ontario courts have repeatedly affirmed the idea that dismissed workers are not subject to any duty to mitigate their losses if let go prior to the end of a fixed-term contract. Thus ..read more
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Holidays in the Sun: Understanding Employee Vacation Rights
Vey Willetts Blog
by Paul Willetts
7M ago
As August rolls by, many of us are heading to cottages, beaches, and other exotic places to enjoy some well-earned R&R in the sun. For most (not within the blessed leisure classes) this means requesting time away from work and using our paid vacation time. In Ontario, all provincially regulated employees have a right pursuant to the Employment Standards Act, 2000 (“ESA”) to take vacation each year, and to earn vacation pay. In this way, the province looks to ensure workers are able to take a break while limiting the financial impact of not earning a wage while being away. Vacation Rights ..read more
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