employing in canada
DESCRIPTION
TRANSCRIPT
HR OptionsNovember 14, 2013
Presented by
Stuart E. Rudner
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”
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
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
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
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.
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.
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
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”
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
11
Stuart E. Rudner
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