I am often asked how I come up with a fresh topic every week for 15 years, now. It’s easy: In editing the Dismissal & Employment Law Digest, I review every case from coast to coast and there is no shortage of them to choose from.
But this week, instead of one, here are some salient points I garnered from a smattering of cases:
Quebec Labour Standards vs Asphalte Desjardins Inc. The Supreme Court of Canada’s July 25 decision will turn employers’ present practises on their heads. The message: If an employee resigns and provides two or three weeks notice, don’t fire them.
In this case the employee resigned with three weeks notice. And as is frequently the case, the employer asked him to leave immediately. Usually, though, the employer pays the employee for the three weeks and that is the end of it. However, the Court saw it differently. It held that the employer must pay the employee the full employment standards entitlement, not just three weeks. In Ontario, for example, that can be as much as eight months pay.
The lesson here is, when employees resign, don’t dismiss them early, rather provide them the option of leaving earlier with pay.
Saindon vs MNR Hiring third party companies to provide you with contracted employees does not mean those workers are not your employees.
In this Tax Court decision of May 23, the owner of the trucking business hired a separate transport company to provide drivers, but still provided the truck. Even though the driver was dispatched by the transport company, the Court held that the transport company’s exercise of its control over the driver was based on authority delegated by the owner which was therefore held to be the driver’s “real” employer.
Singh vs Sopper The Workman’s Compensation Board does not prevent all types of lawsuits by injured workers. In this case the B.C. Court of Appeal on June 18 found that the WCB entitlement of an injured truck driver, who earned his income from his driving, precluded any personal injury lawsuit resulting from the accident but did not prevent him from suing for business-related losses resulting from the accident.
Diamantopoulos vs KPMG In this wrongful dismissal suit, the Ontario Superior Court found on June 2 that employer paid short-term disability should be deducted from wrongful dismissal damages but long-term disability payments, contributed to by the employee, should not be.
Symcor vs Russell According to this recent Canada Labour Code adjudication, having a policy requiring an employee to be employed when bonuses are paid, did not prevent an employee who resigned before that date, from recovering his bonus. The employee was deemed to have effectively earned the bonus and the adjudicator said the employer should not be able to benefit from the employee’s work without fully paying for it.
Petrar vs Thompson Rivers University This case confirms that inquiries about whether poor performance is caused by a disability are perfectly acceptable. According to this decision of the B.C. Human Rights Tribunal, an employer actually has an obligation to determine whether performance issues could be related to a mental or physical disability and to request medical information. They need that information to fulfill their duty to accommodate disabilities.