Good News for Employers: A New Decision On Constructive Dismissal and the IDEL

IDEL and constructive dismissals

Last month we blogged about the  Ontario Superior Court’s decision in Coutinho v. Ocular Health Centre Ltd. (Coutinho) when the court ruled that an employee placed on Ontario’s Infectious Disease Emergency Leave (IDEL), established by O.Reg 228/20 (the Regulation), could still bring an action for constructive dismissal at common law. The plot has thickened with the release this month of a contradictory decision in Taylor v. Hanley Hospitality Inc. (Taylor).

In the Taylor decision, the court considered the same issue – is the employee precluded by the Regulation from bringing a claim for constructive dismissal under the common law, when their hours are reduced or eliminated as a result of the pandemic? While the court in Coutinho concluded no, the court in Taylor has concluded yes. 

Where does that leave us? Because these two decisions are from the same level of court, neither has more weight than the other for later judges who might be deciding cases on similar facts. When decisions of the same level conflict, we need a higher court to weigh in – in this case, that would be the Ontario Court of Appeal. 

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How Does Being Pregnant Impact an Employee’s Notice Period?

pregnant employee notice periodIn the case of Nahum v. Honeycomb Hospitality Inc., the employer, Honeycomb Hospitality, terminated their Director of People and Culture, Sarah Nahum when she was five months pregnant. 

Entitlement to Notice of Termination

The notice period is intended to bridge a terminated employee to their new position. Courts consider the employee’s age, length of service and the character of their employment when determining what notice period is appropriate. 

Ms. Nahum had been with Honeycomb for just four and a half months. She was 28 years old and made $80,000 per year. She was terminated without cause, did not have a valid contract governing her termination entitlements, and therefore was entitled to notice in accordance with the common law. 

Honeycomb argued that an appropriate notice period for Ms. Nahum was two months.  

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The New Paid Infectious Disease Emergency Leave (IDEL)

We’ve discussed the unpaid Infectious Disease Emergency Leave (IDEL) in a number of our previous blog posts. On April 29, 2021, the Ontario government made updates to this leave and amended the Employment Standards Act, 2000 (ESA), introducing the Ontario COVID-19 Worker Income Protection Benefit. In addition to the unpaid IDEL, employers are now also required to provide eligible employees with the new paid IDEL – more specifically, up to $200 a day for up to three days – for reasons related to COVID-19. The three days need not be taken consecutively. 

What are the eligible reasons for taking the paid IDEL? 

Paid IDEL is available for certain reasons related to COVID-19, including:

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An Important Ruling for Employers on Constructive Dismissal and the IDEL

At long last, the impact of Ontario’s Infectious Disease Emergency Leave (IDEL) on employee constructive dismissal claims has been litigated. Employment lawyers have been speculating for a long while about how courts will treat the various employment pivots employers were required to make during the pandemic. We now have our first answer. 

Last week, the Ontario Superior Court of Justice released its decision in Coutinho v. Ocular Health Centre Ltd. and ruled that the IDEL does not take away an employee’s ability to sue for constructive dismissal. 

What’s Constructive Dismissal?

A constructive dismissal occurs when an employer unilaterally and substantially changes an express or implied term of the employee’s contract. The term also needs to have been essential. Changes regarding pay, duties, hours of work etc., can all potentially be constructive dismissals. 

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Part 2 – Caution to Employers Using Social Media to Vet Potential New Hires

This is Part 2 of our two-part series on social media in hiring. Click here for Part 1!

There is the personal and there is the professional, and never the twain shall meet. At least that was once the prevailing attitude towards work life and private life. In a progressively interconnected world, the personal and the professional are becoming increasingly intertwined. But are there problems, particularly legal problems, that arise from the fusion of these two aspects of one’s life? What sorts of employment-related legal issues, for instance, might employers (and employees, by extension) encounter in the hiring process if they choose to review candidate social media profiles? We’ve covered some issues in Part 1 of our “social media in hiring” series. Below are some further thoughts worth considering.

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Caution to Employers Using Social Media to Vet Potential New Hires

This is Part 1 of our two-part series in social media in hiring. Stay tuned for Part 2 next week! 

Today, there are more users on social media than ever before. Scores of people everywhere in the world are posting personal information online. This information is being consumed by billions of people on a daily basis, some for more personal reasons, others less so. Countless employers have, for instance, rapidly shifted to incorporating the extra step of reviewing potential candidates’ social media activity into the hiring processes. Considering the relative novelty of social media technology, employers should brace themselves for increasing litigation around this in relation to employment issues in the years to come. 

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