The Declining Importance of The Character Of Employment


Recently there has been less emphasis placed by the Courts on the character of an employee’s employment when assessing a reasonable period of notice and severance following a termination without cause. This has been affirmed in the 2015 Ontario Court of Appeal decisions of Arnone v Best Theratronics Ltd and Zoldowski v Strongco Corporation. In the former decision, Justice Brown, referencing the 2011 Ontario Court of Appeal decision of DiTomaso v Crown Metal Packaging Canada LP, stated the following:

“… the jurisprudence on the Bardal factors not only stresses that no one factor should be given disproportionate weight, but more recently indicates that the character of employment is a factor of declining importance in the Bardal analysis.

The Declining Importance of The Charcter of Employment When Assessing Notice & Severance

In the case of DiTomaso v Crown Metal Packaging Canada LP, Justice Lederer awarded a 58-year old warehouse labourer with 23 years of service a notice period of 22 months. While the character of the Plaintiff’s employment in that case was primarily of physical labour, his hourly wage was considerably higher than the average wage of individuals with the same position. Justice Lederer further stated that just because the Plaintiff did not have a managerial position within the company did not mean that he would have an easier time finding alternate equitable employment.

Termination of Employment Package Negotiation - Employment Law Laywers - KCY at LAW

Decisions like these will likely have a big impact on employees of lower skill who are terminated from their position without cause. While employers may attempt to provide these employees with a smaller notice and severance package on the basis that the employee should be able to acquire a similar position much quicker than a managerial position, decisions like DiTomaso, Arnone, and Zoldowski point to the contrary.

Termination Of Employment Package Negotiation

Regardless of the recent caselaw, negotiating a fair and reasonable termination package is an important but often complicated matter. We at KCY at LAW have the employment law experience and expertise necessary to effectively assist both employers and employees to ensure your legal rights are properly looked after.

Contact KCY at LAW right now at 905-639-0999 or online and book a consultation!

Dealing With An Employee With Dependency Issues in Work

Are you an employer who has an employee with a drinking or drug problem? Thinking of terminating them? Wondering how to handle the situation? Do not make a hasty decision without first consulting an employment lawyer otherwise you may find yourself in a situation similar to the employer in the recent 2015 case of FacilicorpNB and CUPE Local 1252 (R. (J.)), Re, 2015 CarswellNB 381 (N.B. P.S.L.R.B.).

Dealing With Employee Dependency Issues in The Workplace

In that case, the adjudicator reinstated an alcoholic employee who was dismissed after he was found to be under the influence of alcohol while at work. The employee had previously been warned and disciplined by the employer due to alcohol consumption, albeit in a compassionate and lackadaisical manner.
The adjudicator held that the employee, being an alcoholic, suffered from a disability pursuant to the applicable human rights legislation.

How To Deal with Employee Drink Issues - Employment Law

Ultimately, it was the employer’s lenient and compassionate response to the employee’s alcoholic condition that was to their detriment. The adjudicator further held that the lenient approach by the employer created a general impression in the mind of the employee that his behavior was not serious to the extent that it would result in a termination. Furthermore, there was no aggressive behavior by the employee and that the employer had not yet suffered “undue hardship” in accommodating the employee’s disability.

Ultimately, the adjudicator set aside the dismissal and imposed a thirty (30) day suspension followed by a leave of absence without pay during which the employee could attend a rehabilitation program. Provided the employee completed the program within the prescribed period, he could remain employed.

Always Get The Right Employment Law Advice

This case serves as a lesson for all employers who are too hasty in their decision-making when it comes to employees who you may suspect have drinking or drug-related problems. The most logical decision may not always be in the best interests of the company from a legal perspective. Contact KCY at LAW right away to get the advice and expertise you need in difficult employment law situations.

Proposed Ontario Legislation Expanding Employer Duty to Prevent Sexual Harassment

On October 27, 2015, Ontario’s Liberal government, as part of its “It’s Never Okay” plan, proposed a means to further prevent sexual harassment and violence. Among the changes proposed by the plan are that to the area of employment law. While the proposed plan would not significantly change the duties and responsibilities of employers in relation to sexual violence and harassment, it would further cement what is already expected of employers in this regard. Generic anti-harassment policies would no longer be enough, rather employers would be required to spend the time and money to create appropriate measures specifically targeting these issues in the workplace.

Proposed Ontario Legislation Expanding Employer Duty to Prevent Sexual Harassment

Should this plan become legislation, the definition of workplace harassment will be broadened to include workplace sexual harassment which includes characteristics of sex, sexual orientation, and other grounds protected under human rights legislation, which the current definition of workplace harassment does not include. This inclusion will clearly distinguish sexual harassment from other forms of harassment that occur in the workplace and require that specific policies be put in place to specifically address these concerns.

Changes to Employer Responsibilites About Sexual Harassment - Employment Law Canada

The plan would also enhance the duties and responsibilities of employers to prevent and investigate claims of workplace harassment. In addition to requiring employers to develop written policies with an annual review, including a procedure for employees to report incidents and providing training to employees, the plan would require employers to detail the process for an employee to undergo when the harasser is a supervisor, give explicit assurance that the complaint will be confidential unless disclosure is absolutely necessary, and provide details of how the complainant will be informed of the results of the investigation.

Workplace Harassment & Employment Law Lawyers

Whether this plan actually makes its way into legislation remains to be seen. Regardless, now is a good time for employers to become more proactive as it relates to their workplace harassment and violence programs. Contact KCY at LAW today on (905) 639-0999 or online so that we can provide you with the advice and expertise necessary to ensure you are ahead of the curve!