Section 240 of the Canada Labour Code (“Code”) provides protection to non-unionized, non-management, federal employees against termination of employment. Under the legislation employees cannot be terminated “unjustly”. Similar to unionized workers, under the Code a federally regulated employee has job protection and can only be terminated because of lack of work, discontinuance of a function, or cause.

Despite their frequent use restrictive covenants are difficult to enforce. The Canadian economy benefits from open competition free from encumbrances. Recently, the Court of Appeal demonstrated its distaste for these types of clauses by refusing to enforce overly broad restrictive covenants indicating they were unreasonable (see Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72).

A form of bullying gaining recognition in Canada is known as “mobbing”. Mobbing is the insidious conduct of a group of employees towards another employee or a superior. The desired result of this harmful treatment is to put pressure on the employee or superior, often with the intention of inducing them to leave employment. Victims of mobbing have valid grounds for claiming constructive dismissal cases.

Economic uncertainty does not give an employer the right to reduce an employees' compensation and change their work. Assessing whether an employee is constructively dismissed is fact specific. Courts’ will examine each situation and determine whether the new position is substantially different, whether the employee can perform the new work, and whether the job is demeaning.

The obligation to accommodate family status was initially viewed narrowly. An employer couldn’t discriminate because a worker was a parent. A woman with eight (8) children was equally entitled to be promoted as a man with a stay-at-home wife. Over the years the term family status has matured not only to include the freedom from discrimination because of being a parent but also to include accommodation of parental care obligations.

The Employment Standards Act sets out an employees’ minimum entitlement to notice and severance pay on termination of employment. Courts have long held that the Employment Standards Act, 2000 are minimum entitlements only. According to the Courts, an employer is obliged to pay damages to the dismissed employee during the time it will take to replace the lost employment.

Choosing an employment lawyer to trust with your concerns is a very important decision. Ask questions! Make sure your lawyer has the knowledge an expertise to properly understand your situation. Lawyers' who have good trial records are better able to negotiate packages as they send a message to the employer that they are ready to fight for the best resolution.

NEW FAMILY LEAVES Proposed changes to the Employment Standards Act recognize the importance of family and caregiver responsibilities. In March 2013 the Ontario Government introduced Bill 21 that would, if passed, provide unpaid job-related protection for employees who are needed at home.

Yes! I am entitled to commissions on termination of employment. If I lose my job, what happens to the commissions on the jobs I’m working on…do they have to pay me some of that? It only makes sense that employees who receive commissions be entitled to damages for the loss of opportunity to earn this variable compensation when their employment is terminated.

Civility within the Workplace? “He can call me a liar, whore, slut, bitch, but when he called me a thief, that’s crossing the line.” Employers behaving badly by demeaning and belittling their employees has become a systemic problem.

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THE “RIGHT” TO PART-TIME EMPLOYMENT For many workers with children and aging parents involves a complicated juggling act between the responsibilities of the workplace and the needs of their families. Often the requirements of family life are addressed through a shortened or reduced work week. The issue of the management right to direct and set hours of work within employment was recently addressed in Dechene v. Khurrum Ashraf Dentistry (2012) ONSC 4594.

In terms of the workplace harassment requirements, an employer has to include, within their policy, measures and procedures for workers to report incidents of workplace harassment. The employer also has to set out the means by which the employer will investigate and deal with incidents and complaints of workplace harassment.

An employer can make employment dependent upon a non-competition agreement. If the candidate refuses to sign the agreement, the employer can say, “I’m sorry, your employment is depending upon our agreement to a non-competition clause.”

In the case of someone being accused of harassment, which may have resulted in a termination of employment, an employee usually seeks advice only after the investigation has taken place internally or an external third party has been brought in to investigate. By then, the accused realizes that the investigation didn’t go well and they find out about it when their employment is terminated. At that point they seek advice, but by then it is a problem because they are being reactive rather than proactive. ..

Changes to the Occupational Health and Safety Act take place on June 15th 2010. All employers who have five employees or more have to enact a policy preventing workplace harassment. Under the Occupational Health and Safety Legislation, there are strict guidelines set out for the creation of this policy.

It’s important to document everything. Was the harassment being done over the e-mail system? If so, it’s important to keep track of those documents as well as any other kind of documentary evidence. There have been situations where an employee alleges sexual harassment as the reason for being terminated, and the employer representative says absolutely not, that there was no such relationship. But the situation changes when the person making the allegation produces an e-mail which is clearly supportive of his or her position. Documentary evidence is really important because it’s hard copy and it affects credibility.

Melynda Layton explains fiduciary duties. If you, or someone you care about, is dealing with employment law issues in the Ottawa, Ontario Region, contact Law Office of Melynda Layton for a consultation.

Melynda Layton explains non compete clauses in employment contracts and the limitations they can impose.. If you, or someone you care about, is dealing with employment law issues in the Ottawa, Ontario Region, contact Law Office of Melynda Layton for a consultation.

Although each workplace may have its rules against harassment in general, the legal code only protects against sexual harassment. The term “sexual harassment” includes a course of conduct that makes a person uncomfortable as a result of his/her gender. It also includes sexual solicitation or advances that are unwelcome, particularly but not exclusively where they are made by a person’s boss or superior. Sexual harassment includes unnecessary physical contact such as touching, patting, pinching, leering, kissing and hugging. It also includes verbal harassment.