employing in canada

11
HR Options November 14, 2013 Presented by Stuart E. Rudner Employing in Canada

Upload: rudnermacdonaldllp

Post on 16-Dec-2014

35 views

Category:

Law


0 download

DESCRIPTION

 

TRANSCRIPT

Page 1: Employing in Canada

HR OptionsNovember 14, 2013

Presented by

Stuart E. Rudner

Employing in Canada

Page 2: Employing in Canada

2

Dismissals 2 types: With cause or

without cause

If with cause, no further obligation to employee

Otherwise, need to assess employee’s entitlements to

notice/pay in lieu/severance

No “near cause”

Page 3: Employing in Canada

3

Without Just Cause

Notice of Dismissal or Pay in Lieu

Two sources of entitlement– Employment Standards Act /

Canada Labour Code– Common Law

Can contract out of common law

Page 4: Employing in Canada

4

Common Law: The Length of Notice

Requirement: “reasonable” notice of dismissal

The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment

Page 5: Employing in Canada

5

What is “reasonable”?

No “rule of thumb” or direct 1:1 relationship between years of service and months of reasonable notice

Beware the short-term employee Inducement

Page 6: Employing in Canada

6

The Changing Times

End of mandatory retirement, people working longer --> Wrongful dismissal claims by workers in 70s and 80s!

Recent decision:I do not think there is a place in this social reality for an automatic presumption that

persons should or would naturally retire on reaching senior age.

Page 7: Employing in Canada

7

The Changing Times

Di Tomaso v. Crown Metal Packaging Canada LP:

there is recent jurisprudence suggesting that, if anything,

(position/character of employment) is today a factor of declining relative

importance.

Page 8: Employing in Canada

8

Without Cause: Options

Working notice– must allow opportunity to

look for new employment Salary & benefit continuance Lump-sum Combination Dangers of failing to continue

benefits

Page 9: Employing in Canada

9

For Just Cause

Capital Punishment of Employment Law Employer must prove:

1. that the alleged misconduct took place, and

2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit the crime”

Page 10: Employing in Canada

10

The Contextual Approach

Employer must consider all circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position– Degree of trust required

Same set of facts can yield different results

Page 11: Employing in Canada

11

Stuart E. Rudner

[email protected]

www.rudnermacdonald.com

Twitter: @CanadianHRLawLinkedIn: Connect with me and join the

Canadian HR Law GroupBlog: Canadian HR Law

http://www.hrreporter.com/blog/canadian-hr-law

Google+: Stuart Rudner

Thank you