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Recent Court Of Appeal Decision Highlights The Risks Of Re-Hiring Formerly Terminated Employees

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Employers are increasingly aware of their obligations to investigate workplace sexual harassment and provide a workplace free of workplace sexual harassment. The recent decision of the Ontario Court of Appeal in Colistro v Tbaytel confirms that employers must be cautious even in hiring decisions. In this case, the Court of Appeal upheld the lower court's decision finding that it was constructive dismissal to re-hire a former employee who had a history of victimizing a current employee by sexual harassment. Constructive Dismissal is where the courts determine that the employment relationship was terminated despite no deliberate step – such as a termination meeting – to end the employment relationship. Read More...

BC Supreme Court Provides Yet Another Reminder To Employers About The Importance Of Drafting Restrictive Covenants Which Are Clear And Not Over Broad

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A recent decision of the British Columbia Supreme Court issued October 10, 2018 has provided employers with yet another very clear reminder that care must be taken to ensure that employee restrictive covenants are clear and not over broad in scope.

In Telus Communications Inc. v. Golberg [2018] BCSC 1825 Telus sought an interlocutory injunction to restrain a senior employee from taking up new employment with Rogers Media Inc. following his resignation.

In seeking an interlocutory injunction, Telus relied on a restrictive covenant in the employment agreement with Daniel Golberg. Telus also relied on an alleged breach by Mr. Golberg of his fiduciary duty to Telus.

The reasons of the court establish that after Mr. Golberg decided he would leave Telus if he were able to secure a position with Rogers Media, he continued to participate in high level business strategy meetings, including where initiatives to compete with Rogers Media were discussed. Also, without disclosing that he intended to resign and commence work with Rogers Media, Mr. Golberg endeavoured to negotiate a severance package, giving the explanation to Telus that he wished to focus on family before thinking about the next stage of his career and that he needed "a severance package to tide him over until he found another position".
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22 Old Weather Proverbs That Are Actually True

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The following is a reprint of an article by Brett and Kate McKay that appears in the Art of Manliness web site.

When you really think about it, the weather impacts our decisions every single day. What we wear, when we leave for our morning commute, the chores we do, the hobbies we partake in, the family activities we plan. And on and on the list goes of how our lives are influenced by the winds and skies.

Today, we have meteorologists and entire government agencies dedicated to predicting the weather with high-tech computers and algorithms, but a hundred and two-hundred years ago (and more!), folks had to rely mostly on observation and rudimentary tools to predict the weather of the coming days.

To help with this task of predicting the weather, farmers, sailors, and amateur meteorologists of all kinds came up with handy, often rhyming proverbs that could guide their observations. They realized that animal behavior, wind direction, air pressure (which could be measured with a barometer), etc., were pretty accurate indicators of how the weather would behave.

Perhaps surprisingly, most of this handed-down “folk wisdom” is really quite accurate, and has a lot of science behind it; weather proverbs of old can be applied today just as well as they were centuries ago. Rather than relying on your local meteorologist or your smartphone app to tell you what to wear for the day, why not work on your powers of observation and come to understand more about the weather and the natural world around you?

Note: I highly recommend first reading our article on air pressure and barometers; many of these proverbs are related to atmospheric pressure and how it relates to incoming and outgoing weather systems.

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Employment Claims And Aggravated Damages: "Everybody Hurts…Sometimes" – REM

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Although not always successful, increasingly, plaintiffs in employment cases are making claims for damages over and above notice damages. This article provides a very brief overview of a selection of successful and unsuccessful claims, and demonstrates that there are increasingly unpredictable (sometimes very large) liabilities to employers who do not successfully and fairly conclude employment relationships.

When an employee is terminated and the termination is "not for cause" (meaning no fault of the employee), an employee can expect to receive (in addition to the notice stipulated in the Employment Standards Act of B.C.) working notice or pay in lieu of working notice or a combination of each in an amount stipulated in by their employment contract, or if there is no employment contract, then commensurate with the alchemy (otherwise known as) "common law".

"Common law" notice is calculated on a sliding scale after assessing certain factors including the age of the employee, the length of service, their seniority with the employer, and their employability. Once a notice period is established, it is multiplied by the monthly compensation (base salary plus certain benefits) the employee received pursuant to their contract while employed.

However, in certain circumstances, there are additional amounts which can be claimed by employees over and above "common law" or contractual notice. These additional amounts, or "heads of damage", include "moral" or "aggravated" damages "for mental distress", "consequential" damages, "punitive" damages, and special costs.

This article will not explore all of the heads of damage which can be claimed in employment cases, but provides a brief overview of how the courts have approached one particular head of damage called "aggravated damages" for "mental distress" by reviewing a selection cases.
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Deconstructing constructive dismissal: An analysis of Rampre v Okanagan Halfway House Society, 2018 BCSC 992

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A recent B.C. Supreme Court decision provides a helpful refresher on the legal principles underpinning constructive dismissal. Read More...
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