Practical Tips and Tricks for Navigating the Arbitration Process 

This is the third entry in our blog that focuses on the topic of labour law. In case you missed it, you can find the first entry here and the second entry here. In this blog, our focus is to share Practical Tips for Arbitration Navigation.

I’ve Just received a Notice of Arbitration: Is it time to Panic?

The short answer to whether you should panic is: no. It’s important to understand, especially if you’re just beginning your labour journey, that arbitration shouldn’t be feared. However, it is important to carefully consider and understand the process and potential outcomes of proceeding to arbitration.

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Employers Can Create Win-Win Scenarios by Facilitating Re-employment for Ex-Employees

Common Law Notice 

Upon termination of employment, if an employee’s contractual entitlements are not nailed down in an up-to-date and enforceable employment contract, the employee is likely entitled to common law reasonable notice (or pay in lieu of notice) of termination. Even if an employee’s entitlements are set out in an employment contract, it is common these days for employees, on the advice of employment law counsel, to claim that some of the contract’s termination-related provisions are not Waksdale-proof, and are therefore unenforceable. (We discuss how employers can make their contracts Waksdale-proof in this blog, and best practices for rolling out updated contracts in this blog). Under both scenarios, any path to resolution will start with an assessment of the common law notice period.  

Employers Facilitating an Ex-Employee’s Re-Employment Create a Win-Win Scenario

Courts consider several factors in determining an employee’s common law notice period (i.e. the number of weeks or months of pay to bridge the employee until their next role). The primary factors are known as the Bardal factors: 

  1. the employee’s age; 
  2. their length of service; 
  3. the character of their employment (i.e. the seniority/level of responsibility of their role); and 
  4. the likelihood of finding comparable employment (i.e. an assessment of the job market). 

A simple way to understand the common law notice period is to conduct a thoughtful and informed analysis of how long it will take the employee to re-employ in a comparable role. 

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“Loud Quitting” – How Employers Can Manage this Trend

Loud Quitting” - How Employers Can Manage this Trend

Back in September, we delved into the issue of “quiet quitting” and discussed how employers can manage their quiet quitting employees. Recently, we’ve seen a new, flip-side, trend of employee’s “loud quitting”.

No employer wants a disgruntled employee making a dramatic exit from their workplace and potentially spewing ill words about the workplace. So, here are some legal tactics for employers to mitigate potential damages to their company or reputation related to loud quitting employees. 

What is Loud Quitting?

“Loud quitting” refers to an employee making a very public and disruptive departure from their job, often with the intent to call attention to perceived injustices or mismanagement at their workplace. This can take various forms, such as dramatic farewell emails, social media posts, public speeches, or even videos. While these methods may give an employee a sense of vindication or catharsis, they can potentially cause damage to a company’s reputation and morale among the remaining employees.

 

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The Power of An “If You Get Another Job Clause”

termination clawback clauseIn recent months, we have seen a spike in group terminations. For HR professionals this often means a packed schedule of the worst-of-the-worst meetings. In our recent blog post, we discussed terminations with softer landings (and less chance of disputes and litigation), and bigger-picture best practices for those difficult exits. In this blog, we zero in on an aspect of severance package drafting.

In the process of structuring severance packages for (too many) employees, we’ve noted that some employers have forgotten about a handy clause that can lead to a win-win post-termination scenario for both employers and employees. However, the clause gets a bad rap because it is colloquially known as a “clawback clause” and can be misinterpreted as a sinister employer strategy.

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