We are super excited to announce that our blog has been inducted into the Clawbies Hall of Fame! Our regular readers will know what a Clawbie is because, well, we’ve won before. The Clawbies are the Canadian Law Blog Awards. Since 2006 they have been showcasing quality Canadian legal blogging. Our blog won previous awards in 2019, 2018, 2013, 2011. Induction into the Hall of Fame is a big deal for our little blog – kind of like a lifetime achievement award…tissue, please! 

As we shut the door on 2019 and begin 2020, we at SpringLaw thought this was a good time to look back on some of the biggest 2019 employment law cases in Ontario! Here is our list of the top 5 cases of 2019 and their key take-aways for employers and employees alike.

1. Colistro v. Tbaytel, 2019 ONCA 197

The facts in this case are fairly similar to other harassment cases we see nowadays, but what makes this case truly unique is the devastating cost consequences for the plaintiff employee. 

Bathroom breaks come up frequently in news stories about workers’ rights. The City of Hamilton just narrowly avoided a transit strike where bathroom breaks were a major issue. A City of Ottawa transit worker, calling himself a “whistle-blower” also recently spoke about lack of “recovery time” for drivers – aka not enough time to go to the bathroom between bus runs. Ottawa City Transit workers currently have three minutes per hour for “recovery” although drivers say that the routes are so tightly timed that they rarely are able to take those three minutes. In addition to transit jobs, lack of time for bathroom breaks is also something we see come up for workers on continuous production lines or warehouse workers. So what’s the law on time to go to the bathroom?

Getting fired is hard. Firing someone is just as hard, even if you are unhappy with that employee’s performance. Ending an employment relationship happens for many reasons, from poor performance to fit to business restructuring. Employees leave for similar reasons – they don’t think the company is living up to its promises, they’re experiencing feelings of isolation or a new job has come up.

Ending an employment relationship does not need not be a polarizing, bipartisan, us-versus-them scenario. While some extreme situations may arise (such fraud or competing against the employer), the majority of the time both parties kinda know they should go their separate ways. Both are a bit unhappy, both are either remembering the long-ago honeymoon or having regrets about ever entering into this relationship – and both are unsure how to get out.

For many tech startups, the termination may involve a long-term friendship, a near-founder type role, or an early commitment to this relationship lasting forever.

Our experience with most employers, especially with startups, owner-operators, and small businesses, is that terminations are just as painful and emotional for the person having to trigger the termination.

5 Tips to Terminate without Tears

Here are 5 tips to terminate without tears:

1. Be empathetic: Put yourself in the employee’s shoes and avoid humiliating theatre. This will help lower the employee’s temperature to accept the termination package sooner.
2. Be rational: Acknowledge the range of emotions everyone is feeling, but rise above it and think about how you each will feel 3 months from now. Don’t do anything you’ll regret when the dust settles.
3. Have contractual certainty: Terminations are waaaaaaaay easier if there is a reasonable, readable, enforceable termination provision the parties can rely on. Do it for your own peace of mind, as well as the math of eliminating the battle over how much notice to give. Have a termination letter and release ready to go at the termination meeting that reflects the contractual entitlements.
4. Context matters: When enforcing the contract termination provisions that you hopefully have in place, contextualize those terms to the circumstances surrounding the termination. Do the original termination terms still make sense? Do you have an additional business risk to cover off? Do you have reason to not trust the employee with your digital data? You can’t go below the contract terms, but you may want to give more notice than the basic amounts in the contract to force a post-employment restriction.
5. Math matters even more: As much as you may be plugging your nose to pay out a termination notice, remember that the excessive costs and polarizing results of litigation will smell worse. Usually being a bit more generous than you want to be upfront will result in better business math longterm.

If you are looking for a modern legal strategy for your terminations, get in touch.

There was a time when working away from a brick and mortar office was considered a luxury only afforded to those at the very top of the organizational structure – out of reach for anyone else. Today, all sorts of positions are advertised with a remote working option, in part due to the ever-growing desire amongst today’s workers to have options in their workplace. In an effort to reel in the best and the brightest, many employers in this new economy include remote work into their growing list of workplace perks.

While remote work can be integrated into more workplaces than previously imagined, employers need to be proactive and prepare in advance of any large-scale movement towards offering a remote working option. Here are some tips to help you successfully build a remote working model in your workplace.