Esther Brake may be the hardest working person in Ottawa.  She was sixty-two years old and Managed a Kanata McDonald’s while simultaneously holding down a part-time position as cashier at Sobey’s.  Ms. Brake was constructively dismissed when her Employer demanded she accept a demotion to First Assistant or leave.  After refusing the demoted position because it would be embarrassing and humiliating her  employment was terminated.

Bad or poorly worded termination clauses will only be rectified under exceptional circumstances.  Rectification is a discretionary remedy applied where there is clear and unambiguous evidence demonstrating the parties to an agreement made a mutual mistake when drafting the contract. 

An employer cannot contract out of subsection 240(2) “the unjust dismissal” clause of the Canada Labour Code.  On the contrary, the Canada Labour Code states that the legislation sets minimum requirements which cannot be diminished by custom, contract, or arrangement (see subsection 168(1) of the Canada Labour Code).

The obligation to accommodate an employees’ legitimate absence from work because of illness is legislated in the Ontario Human Rights Code. While Employer’s have an obligation to accommodate illness a worker has a similar obligation to participate in their return to work plan.

Limiting an employees’ entitlement to notice on termination of employment requires a carefully worded contract. Some general rules exist. If an employer wants to limit an employees’ entitlement to reasonable notice under the common law – the contract must clearly specify what the notice period is. The contract must comply with the Employment Standards Act. If the termination clause does not meet or exceed the minimum requirements of the employment standards legislation it is unenforceable.

Law Society of Upper Canada

County of Carleton Law Association

Contributor to the Employment Chapter

Intrusion on seclusion protects the individual right to privacy protected without the requirement to establish “damages” from disclosure of the information. In order to establish an invasion of privacy one must prove, The conduct was intentional or reckless; Private affairs were unlawfully invaded; and A reasonable person would regard the invasion as highly offensive which could cause distress or humiliation.

Employees are entitled to an opinion about their colleagues and the employer they work for. However, where thoughts resurrect into statements they may be reason for termination of employment.