How Long Can an Employee Dispute Compensation Changes?

Constructive Dismissal Claims DeadlinesIn the recent Court of Appeal decision in Kosteckyj v. Paramount Resources Ltd. 2022 ABCA 230 (CanLII), the court considered the possibility that specific timelines could be imposed on employees for voicing dissatisfaction with unwelcome changes to the terms of their employment if they want to subsequently argue that they’ve been constructively dismissed.

What Typically Triggers a Constructive Dismissal Claim?

Constructive dismissal arguments often follow unilateral changes made to an employment agreement by the employer.  When an employee alleges a constructive dismissal after a change, they’re essentially saying that the change cuts so deeply to the core of the employment relationship that they’ve been forced to leave: “I’m quitting, but you made me! … and by the way, you have to now compensate me as if you’d fired me.”

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Workplace Law Trends for 2022

Welcome to 2020 Two! It’s hard to believe we’ve been living through a pandemic for nearly 2 years. Workplaces are beyond worn out, stress leaves and harassment complaints continue to increase, parents are juggling remote learning and limited activities for kids once again, and many workplaces struggle to find people to fill the roles. 

Yes, it’s all a bit of a mess, but out of crisis emerge new ways to approach issues and novel solutions to traditional problems. Here are our predictions for workplace law trends and changes in 2022.

#1 – Push for Hybrid and Remote Working

Studies over the last year are showing a deep disconnect between senior bosses and employees about preferred workplaces. Increasingly, employees want – and now expect – at least some remote work option, whereas senior levels of management are more likely to continue to see in-person work better for productivity, mentoring and focus.

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Honesty – the Golden Rule for Contracts

honest contractual dealings

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A recent Supreme Court of Canada decision serves as a helpful reminder to workers and businesses about the importance of honesty in their contractual dealings. C.M. Callow Inc. v. Zollinger involved condo maintenance contracts. The plaintiff, C.M. Callow performed summer and winter maintenance for the defendant Zollinger, who managed maintenance contracts for several condos (referred to as Baycrest). 

The Deception

Baycrest and Callow entered into a two-year winter maintenance contract in 2012. In the Spring of 2013, Baycrest decided they wanted to end the winter contract. The contract allowed for early termination, for any reason, by way of 10 days notice. They did not provide that notice until September of 2013, allowing Callow to act on his impression that the winter contract would be renewed all through the summer of 2013.

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The Impact of the Pandemic on Termination Packages

impact of covid-19 on terminations

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The Covid-19 pandemic has changed our economy. In many industries, it has made it more difficult to find work and also more difficult for businesses to afford termination packages when letting employees go. The relevance of these facts to how courts will determine what terminated employees are entitled to has, so far, been unclear. 

Reasonable Notice

When an employment relationship is not governed by a written contract – with valid termination provisions – a terminated employee’s entitlements on termination without cause will be determined by the common law and what is called reasonable notice. 

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Waksdale: Now the Final Word on Termination Provisions – Leave to Appeal Waksdale Decision to the Supreme Court of Canada is Denied

Leave to Appeal Waksdale Decision

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The highest Canadian court has just confirmed that an invalid “just cause” termination section in an employment contract will also knock out the entire termination section, including the “without cause” section. 

In our earlier blog discussing employment termination packages –Termination Entitlements: Benefits, Bonuses, and Commissions – we promised to keep you updated on 2020’s employment law decision of the year, Waksdale v. Swegon North America Inc. So here we go. 

Leave to Appeal Denied

To recap, Waksdale was a decision from the Ontario Court of Appeal that immediately put termination provisions in jeopardy. In the case, the Court of Appeal found that the employer, Swegon North America, could not rely on their properly drafted “without cause” termination provision, in a without cause termination of their employee, Benjamin Waksdale.

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Workplace Law: It Pays To Be Proactive

workplace law advice for employers

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In these challenging times, in the midst of the pandemic, as workplaces re-open, pivot and change, we see the importance and immense value of having strategic employment and workplace law advice. Just a small allocation of thought space and time to being proactive could have changed the outcome of so many situations. We see it now in our firm in many ways. 

Having run a small business for over a decade, I can appreciate that employers are often triaging the urgent demand of finding solutions to client’s needs. Rarely did I have the time or opportunity to “smell the roses” let alone try to proactively anticipate the workplace law needs of my growing organization. However, I now see the critical importance of taking a proactive approach.

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