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By: Stacey R. Ball Employment Lawyer

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In a recent decision of Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, the Ontario Superior Court ruled that the Infectious Disease Emergency Leave Regulation (“IDEL Regulation”) made under the Employment Standards Act, 2000 (“ESA”) does not preclude an employee from claiming constructive dismissal at common law. Facts The Plaintiff Jessica Coutinho (“Ms. Coutinho”) worked at the Defendant’s (“Ocular”) eye clinic in Cambridge as an office manager. The principals of Ocular got into disputes…
Employers include termination clauses in the employment contracts to limit employees’ termination entitlements once they are dismissed from work. However, if a termination clause provides for less than statutory minimum under the Employment Standards Act (“ESA”), it is unenforceable. Employees are thus entitled to reasonable notice or pay in lieu of notice at common law, which is typically greater. As a result, employers often incorporate saving provisions in termination clauses to shield them from unenforceability.…
In the decision of North v. Metaswitch Networks Corporation, 2017 ONCA 790, the Ontario Court of Appeal (“ONCA”) reaffirmed the previous court decision that a termination clause is void if it attempts to contract out of any provisions of the Employment Standards Act (“ESA”). It also ruled that a severability clause cannot save an otherwise invalid termination clause in an employment contract.   Facts Doug North’s (“North”) employment with Metaswitch Neworks Corporation (“Metaswitch”) was governed…
With the Covid-19 pandemic dragging on, employers have to resort to restructuring and downsizing their business operations to stay afloat in this harsh economic weather. Thus, a large number of employees are terminated and have to look for new employment. In this way, it becomes a critical issue whether the Covid-19 pandemic have an impact on the common law reasonable notice period when the terminated employees commence a proceeding against their former employers for wrongful…
In the recent decision of Czerniawski v. Corma Inc., 2021 ONSC 1514, the Ontario Superior Court of Justice ruled that a long-term employee’s one-time misconduct without any prior progressive discipline did not justify dismissal without notice. The Court reaffirmed that a contextual approach should be used to assess whether an employee’s misconduct justifies termination without notice. It noted that the principle of proportionality should be applied where an effective balance should be achieved between the…
In a recent decision of Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, the Ontario Superior Court ruled that pregnancy at the time of dismissal is an important factor in calculating the length of reasonable notice period and awarded five (5) months’ notice to the Plaintiff who had a short service of only four and one half (4.5) months. FACTS Ms. Nahum was twenty-eight (28) years old and about five (5) months pregnant at the…
In the decision of Battiston v. Microsoft Canada Inc., 2020 ONSC 4286, the Ontario Superior Court of Justice ruled that the termination provisions in the Stock Award Agreement were unenforceable because the employer failed to draw these provisions to the employee’s attention. Consequently, the Court awarded the employee damages in lieu of stock awards that would vest during the reasonable notice period. FACTS Mr. Battiston worked with the Defendant for nearly twenty-three (23) years before…
In 2020, the Ontario Court of Appeal held in Waksdale v Swegon North America Inc., 2020 ONCA 391 that if anywhere in the termination provision of an employment contract fails to abide by the minimum standards set out the Employment Standards Act, 2000 (ESA), the entire termination provision will be invalid. In January 2021, the Supreme Court denied leave to appeal this decision.   FACTS   The plaintiff employee, Mr. Waksdale, sued his former employer…
With the rampant growth of the Covid-19 cases, there are more and more employees who have unfortunately contracted the virus and thus had to take medical leaves from their work. For some people, the Covid-19 symptoms can last for weeks or even months. This condition can affect any one regardless of age or health conditions. Research shows that an estimate of 10% of Covid-19 patients become long-haulers. Due to the prolong symptoms and long-term fatigue,…
As vaccination roll-out has been implemented across the country to combat the spread of Covid-19 and reduce the community transmission, it has become a hotly debated topic whether vaccination in the workplace should be mandatory. In this blog, we will address some common questions employees may raise in connection to the vaccination policies at the workplace. Q: Can my employer require me to be vaccinated against Covid-19 as a condition of employment? The answer is…