Resources
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Justifying Random Drug and Alcohol Testing in the Workplace
October 2017
In a unanimous decision released Sept 28, 2017, the Alberta Court of Appeal (“ABCA”) upheld a judicial review decision which found that the majority of a grievance arbitration panel (“Majority Panel”) had improperly decided that Suncor’s random drug and alcohol testing policy was unenforceable.
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The Clause That Saved The Company $7 million: Is It Bionic or Just Good Drafting?
September 2017
Terminating the employment of a senior executive can be expensive business. In normal circumstances, a dismissed employee is entitled to be paid all the remuneration the employee would have received had he or she worked through the “reasonable notice period”. For some employees, this would mean payments on account of bonuses, stock plans and other performance metrics. However, these expenses can be managed if the employer puts proper employment contracts in place.
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Arbitrator Determines that Employee Did Not Have Reasonable Expectation of Privacy When Using Work Computer to Run Charity
September 2017
In Toronto (City) v. CUPE, Local 79 (Wright Grievance), [2016] O.L.A.A. No. 445 (Misra), an Ontario arbitrator considered whether an employer can rely on documents obtained from an employee’s work computer to uphold the termination of her employment for using employer resources and time to run her own charity.
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Restricting Illegal Picketing – The “Flexible Wrongful Action Approach”
September 2017
Over the last decade there have been numerous cases which rely on the Charter of Rights and Freedoms to protect and arguably expand a union’s right to picket during a labour dispute. Despite this trend, the courts have consistently stated that those protections do not apply to “illegal picketing”, which contains tortious or criminal conduct. The courts have also applied a “flexible wrongful action approach” in granting injunction orders to prevent illegal picketing.
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Timing is Everything: Ensuring your Employment Agreements are Enforceable
September 2017
Most employers know the value of having written employment agreements in place for their non-union or excluded employees, particularly when it comes to setting out obligations relating to termination. However, the timing of when a contract is signed can make all the difference to whether it is legally binding and you can rely on its terms, or whether common law principles apply instead.
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Employers Take Note: Costs of a Just Cause Misstep Could be Significant
July 2017
The Supreme Court of Canada recently denied leave to appeal of the Ontario Court of Appeal’s decision in Fernandes v. Peel Educational & Tutorial Services Ltd. c.o.b. Mississauga Private School, 2016 ONCA 468. This case is a timely reminder for employers in relation to two issues: (1) the standard of misconduct that qualifies as “just cause”; and (2) the potentially significant liability that an employer can incur when a wrongfully dismissed employee becomes disabled during his or her reasonable notice period.
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Complaints by Cisgendered Men Alleging Discrimination on Grounds of Gender Identity or Expression Dismissed by Ontario Human Rights Tribunal
July 2017
The B.C. Human Rights Code was amended in mid-2016 to include “gender identity or expression” as protected grounds. As of the date this article was written, the B.C. Human Rights Tribunal has not interpreted or applied the amendment in any of its decisions.
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The Consequences of an “Innocent” Covering E-mail
July 2017
New technology has undoubtedly impacted the employment relationship. The relationship is changing and, perhaps more importantly, the way in which the relationship is conducted is changing. While many employers would not think twice about the impact of a covering e-mail to an offer letter, the recent decision in Ballim v. Bausch & Lomb Canada Inc., 2016 ONSC 6307 confirms that an e-mail which attaches an agreement or offer can be used to determine the intention of the parties.
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B.C. Supreme Court Decision Reminds Employers that Probationary Period is Not Carte Blanche to Dismiss Employee with No Strings Attached
July 2017
In Ly v. British Columbia, 2017 BCSC No. 43, the plaintiff, Phuc Ly, was hired as a manager for the employer. His employment was terminated after approximately 2.5 months. The employer did not provide any notice or pay in lieu of notice in reliance on a probationary clause in Mr. Ly’s offer of employment which read, in its entirety, that “[e]mployees are required to serve an initial probationary period of six (6) months for new positions”.
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