What a laid-off employee is entitled to

No employee has a right to his or her job

Employers will be required to have anti-violence strategy

Employers should become compliant now to avoid unexpected liability later

Archive for November, 2009



Employers will need anti-violence strategy

Posted on November 28th, 2009

Toronto lawyer Pei-Shing B. Wang recently included on his blog my comments about a bill before the Ontario legislauire that will require employers to have an anti-harassment and anti-violence strategy. See the entry at

http://www.pswlw.ca

Bill 168 would amend the Occupational Health and Safety Act to allow employees the right to refuse work of they have a fear of violence (but they could not refuse work for fear of harassment).

As I explained to Mr. Wang, my opnion is that the compliance burden will not be onerous. However, it is important that employers recieve professional advice on what is required of them. At minimum, employers wil be required to post policies and have reporting procedures in place.

However, employers should already have workplace anti-harassment policies  to minimize their liability in the unfortunate event that an employee files a complaint at the Human Rights Tribunal of Ontario.

Becoming informed — and compliant — now will avoid unexpected liability later.



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The duty to mitigate and reduce your losses

Posted on November 19th, 2009

There’s an interesting case in the latest Ontario Reports, the publication for lawyers that includes some of the recent court decisions.

Walls v. Lewis is a wrongful dismissal case. The plaintiff kept looking for work but stopped when he turned 65. The court decided that he had sufficiently “mitigated” his losses.

The concept of “mitigation” is difficult to explain to clients who are suing for wrongful dismissal. Even though the court might eventually find that the client was indeed wrongfully dismissed, he or she is still required to look for another job.

And if he or she is successful, that new source of income will have the effect of reducing any damages that the former employer might otherwise be required to play.

Therefore, if the wrongfully dismissed employee finds a new job two weeks later, the former employer will end up being liable for next to nothing in damages.

“They’re getting away with it!” my client will often exclaim. I have to explain that the purpose of ordinary damages is not to punish the employer but to compensate for financial loss. No loss, no damage.

Of course, not everyone will be lucky enough to find a new job so quickly. The important thing is to look, and to keep a detailed and well-ordered file of employers contacted, resumes sent, interviews completed and so on. If you end up in court, that will be very important material.



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Dalton Days

Posted on November 10th, 2009

The ballooning Ontario deficit has sparked predictions of “Dalton Days” to come.

That phrase hearkens back to the decision about 15 years ago by the NDP government of Bob Rae to give provincial public servants unpaid Fridays off to save money.”Rae Days,” they were called.

Though the move avoided mass layoffs, it was extremely controversial, not only among inconvenienced members of the public who found they they could not renew their driver’s licence on TGIF, but especially among unions, who raised hell about the “social contract, that as well as decreeing Rae Days reopened collective agreement to freeze salaries in the provincial public service.

However, the current Liberal government will not have the same legal room to manoeuvre because of a 2007 decision of the Supreme Court of Canada that found certain decsions of the British Columbia government to rewrite collective agreements violated the Charter of Rights and Freedoms. The right to collectively bargain and the fruits thereof are part of the “association rights” in the Charter, the Supremes decided.

As a result, attempts by the BC government to rewrite collective agreements in the health services sector in order to contract out and restrict “bumping rights” were found the court to be a constitutional no-no.

But Ontario unions looking to rely on that Supreme Court decision may find to their chagrin that it might help them win one battle but lose the war. Because while governments may not be allowed to rewrite collective agreements, they can still lay off workers, subject to contractual requirements to pay severance and provide notice or payment in lieu thereof.

Union’s choice may come down to giving up a day or week of unpaid time or say bye-bye to jobs altogether. A difficult choice to be sure, but one that may be on the horizon.



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