When resigning may actually be wrongful dismissal.

A constructive dismissal occurs when an employer substantially changes the terms of an employee’s contract of employment which the employee does not consent to, either explicitly or implicitly. In this situation, the employee may be able to treat the employment contract as being at an end, which entitles the employee to notice from the employer as if the employee had been terminated. Employer Actions that Constitute Constructive Dismissal For a constructive dismissal to occur, the employer must act in a way that changes the fundamental terms of the employment relationship are changed. Such...

read more

Reasonable notice for the senior short term employee.

  If you are a senior employee who has been fired after only a brief period of employment, there is a good chance you will end up with more severance than you expected – unless of course you are subject to an air-tight termination clause in your contract. Whether, as some have suggested, you may be entitled to 6 months pay is an open question. In his leading text on wrongful dismissal law in Canada, David Harris considers a number of court decisions involving the dismissal of senior level, short term employees and concludes:  Accordingly, it appears, barring any unusual circumstances, that a...

read more

Disability in the workplace.

A worker may suffer illness, accident or other condition that prevents continuance of work duties over a period of time. Such scenarios may happen at the workplace or at an extension of the workplace. In recent years, workplace stress itself has been the trigger for serious illness leading to disability claims. An employee who becomes disabled may be eligible for financial compensation if such are included in the benefits package provided by the employer. These payments are usually fulfilled through benefits under an insurance plan. While many disability claims are handled and resolved in a...

read more

How much notice and severance must be given?

Are the notice and severance provisions in the Employment Standards Act or Canada Labour Code all that an employer is required to give an employee when firing them without cause? Not necessarily. The Employment Standards Act and the Canada Labour Code establish the minimum notice or severance in lieu of notice that an employer is obliged to provide. However, the common law (which is law developed by judges in decisions of courts) has established that employees are entitled to “reasonable notice” of termination, which can be much more than what is required by statute....

read more

Pension benefits not deducted from wrongful dismissal damages.

In a decision released in 2013, IBM Canada Limited v. Waterman (“Waterman”), the Supreme Court of Canada decided that an employee was entitled to keep his pension benefits as well as the full damages awarded to him for wrongful dismissal over the same period of time. Background After 42 years of service, and at the age of 65, Richard Waterman (“Mr. Waterman”) was terminated by IBM Canada Limited (“IBM”). He was only provided with 2 months notice. At the time of termination Mr. Waterman was entitled to a full pension pursuant to IBM’s defined benefit pension plan. Over the course of his...

read more

Additional duties results in constructive dismissal.

When we think about a situation that leads to a finding of constructive dismissal, it is usually a situation where something has been taken away from an employee, such as key responsibilities, their title or earnings. However, in Damaso v. PSI Peripheral Solutions Inc., Ont. SCJ, 2013, Justice T. J. McEwen determined that an employer who gave additional duties to an employee breached the terms of the employment agreement resulting in the constructive dismissal of the employee and the award of 12 months notice. Mr. Damaso was hired for the positions of Field Service Technician and Computer...

read more