If your employer terminates you without just cause (see: “Can my employer fire me for no reason?” ), they are required to provide you with notice of the termination. That notice can be given in two possible forms: “working notice” or “pay in lieu of notice”.

 “Working notice” is when you are given advance notice that your employment is going to end, but you continue to work and receive your regular compensation for the length of the notice period. Once the notice period is up, your employment ends, and the employer has no further obligations. The theory is that the employer has given you sufficient advance notice that your employment will be ending, to permit you to look for other work.  During the notice period, you will be required not only to look for other employment, but also to perform your usual tasks at the usual standard.  Failure to do so could result in termination for just cause .  The employer should provide reasonable time off to attend job.

“Pay in lieu of notice” is the more typical form of notice received when an employee is terminated without cause. In this case, you stops work on the day of termination, but receive payment equal to what you would have received if you had continued working through the notice period.

Length of Notice

Whether notice is given to you as working notice or pay in lieu of notice, the important question becomes: what amount of notice is reasonable notice?

Much like an employee’s general terms and conditions of employment (see: “Know Your Rights—Determining the Terms and Conditions of your Employment” ), there are three main places to look when calculating your notice period: legislation, your employment contract, and the law as developed through legal decisions.

In Ontario, the Employment Standards Act sets out a notice period based on an employee’s length of employment. This is the minimum amount that most employees in Ontario are entitled to. The basic entitlements under the Act are:

Your contract may also contain terms which specify the notice period that will apply if you are terminated without cause. If your contract contains a notice period term, this calculation will apply in most – but not all – circumstances, unless it is inconsistent with the minimums outlined in the Employment Standards Act.

Where there is no provision in your contract, however, you are not restricted to the minimum notice periods set out in the Employment Standards Act. Instead, you are entitled to “reasonable notice,” which is calculated based on the law as it has been developed through legal decisions.

Determining a reasonable notice period requires a review of your individual circumstances with the aim of estimating how long you will take to find a new, comparable job. The main factors that are considered are age, length of service, character of employment (for instance, an employee’s level of responsibility), and the availability of similar employment. In special circumstances, other factors can be considered, such as whether you were induced to leave a previous position by the employer.

A very general rule is that you are entitled to one month per year of service with the employer, up to a maximum of 24 months. This general rule is modified by the criteria listed above, as well as your duty to mitigate and other factors (see Mitigation ). Individual cases are very fact-dependent, and require legal advice.

Conclusion

You are entitled to notice of termination, usually in the form of a working notice period or pay in lieu of that working notice period. Notice periods may be set out in your contract or by reference to the Employment Standards Act. Where no notice period is set by contract, you are entitled to reasonable notice. Because reasonable notice is calculated through an individualized, case-by-case assessment, you should consult an employment lawyer for assistance estimating what a reasonable notice period would be in your circumstances.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On December 9, David Yazbeck will be appearing in Federal Court on a judicial review of a decision of the Public Sector Integrity Commissioner. In the decision under review, the Commissioner dismissed a complaint by Charbel El-Helou that the Courts Administration Service took reprisals against him after he made protected disclosures of wrongdoing, pursuant to the Public Servants Disclosure Protection Act (“PSDPA”).

Our firm is arguing on behalf of Mr. El-Helou that the decision of the Commissioner should be set aside because Mr. El-Helou was treated unfairly in the process. The judicial review also raises important questions involving the proper legal framework for determining if reprisals were taken against a whistleblower after making a protected disclosure under the PSDPA.

Unless your employment contract states otherwise, your employer does not need a reason to terminate  your employment as long as it provides you with sufficient notice  of your termination or payment in lieu of notice.  Your employer can, however, terminate your employment without any notice if it has “ “just cause” to do so.  This will include situations in which you have breached your terms of employment either through misconduct, disobedience, or incompetence.

Contextual Approach to Just Cause for Termination

What constitutes just cause depends on a number of factors. In Canada, the courts use a contextual approach to determine whether an employee was terminated for just cause.  They consider the nature and extent of the misconduct, the context and surrounding circumstances and whether the termination or dismissal is warranted (in other words, whether the punishment fits the crime).

Grounds for Termination

1. Neglect of Duty

Whether or not you have a written employment contract, you have an obligation to perform your employment duties. Failure to perform your duties can lead to dismissal. Constantly arriving late for work or simply not showing up for work on a regular basis may be also considered just cause for dismissal if you do not have a reasonable explanation for this behavior.

2. Dishonesty

Trustworthiness is a key factor in any employment relationship. Acts of dishonesty may therefore constitute just cause for dismissal depending on the context and the circumstances of the case. For example, lying to your employer about an important qualification for the position can constitute just cause for dismissal.  Lying to the employer in order to cover up misconduct can also lead to dismissal unless there are mitigating circumstances such as an immediate retraction of the lie.  Whatever the circumstances, honesty is always the best policy.

3. Theft and Fraud

Theft and fraud constitute serious misconduct which, even if isolated, may amount to just cause for termination. Examples of such behavior include improper use of company funds, wrongful use of the employer’s property, abuse of sick leave and conducting personal business on company time. Because these are serious allegations, an employer must be able to prove that you intended to steal or commit fraud. As stated above, the context and surrounding circumstances must be considered in order to determine if there is just cause for dismissal.  For example, an employer may not have just cause to terminate an employee who makes an error in judgment if there was no dishonest motive.  Given the seriousness of allegations of theft or fraud, the employer must also give an employee an opportunity to provide a reasonable explanation for his conduct.

4. Misconduct

An employee may be terminated for cause for engaging in serious misconduct. Such misconduct is usually incompatible with the employee’s duties and prejudicial to the employer’s business.  Examples may include sexual harassment or assault of a co-worker and off-duty criminal conduct which is prejudicial to the employer’s reputation.  Once again, whether the misconduct constitutes just cause for dismissal will largely depend on the nature of the misconduct, the context and surrounding circumstances and whether the termination is reasonable.

5. Incompetence

An employer may not terminate you simply because he is dissatisfied with your performance. In order for an employer to allege just cause in terminating you for incompetence, the employer will have to show that you were warned that you were failing to meet objective standards of performance and that, despite these warnings and the opportunity to improve, you continued to underperform.

Conclusion

Many factors need to be taken into consideration in order to determine whether the employer had just cause to terminate your employment. If you have been terminated without notice for “just cause”, you should seek advice from an employment lawyer.

We are here to help. Consult one of our experienced Employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you have been terminated from your employment.

 [This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

The scheme recently enacted under the Canada Labour Code to address workplace violence was recently subject to its first interpretation by the courts: in PSAC v Attorney General of Canada, 2014 FC 1066, the Federal Court considered Part XX of the Canada Occupational Health and Safety Regulations, which imposes a host of obligations on employers to prevent and respond to workplace violence. The Court’s decision affirmed the broad definition of workplace violence under the Regulations, and the mandatory obligations on employers to appoint an impartial person to investigate employee complaints.

Part XX of the Canada Occupational Health and Safety Regulations

Part XX of the Regulations, titled “Violence Prevention in the Work Place”, was enacted in 2008. It forms part of the health and safety scheme under the Code, and therefore its purpose is to prevent accidents and injury to health.

Part XX defines workplace violence as “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.” The Regulations impose several obligations on employers to address workplace violence, including:

• To develop a workplace violence prevention policy;
• To identify the factors that contribute to workplace violence;
• To assess the potential for violence in the employer’s workplace, and to develop and implement controls to eliminate or minimize violence;
• To train employees on the factors that contribute to workplace violence.

Section 20.9 of the Regulations requires the employer to appoint a “competent person” to investigate any allegation of workplace violence that comes to the employer’s attention. A “competent person” is defined as someone who is impartial and seen to be impartial, has expertise related to workplace violence, and has knowledge of the legislation. It was the interpretation of this provision that formed the subject matter of the recent Federal Court decision.

Federal Court judgment interpreting Part XX of the Regulations

On January 27, 2014, an Appeals Officer of the Occupational Health and Safety Tribunal Canada issued the Tribunal’s first decision interpreting Part XX of the Regulations. The Appeals Officer found that the complaint at issue in the case—a complaint of psychological harassment by a supervisor—did not constitute an allegation of workplace violence, and therefore the employer was under no duty to appoint an investigator. The Federal Court overturned that decision in its judgment, dated November 13, 2014. The Court’s judgment clarifies the interpretation of section 20.9 in several key respects, and supports a broad reading of the Regulations and the obligations on employers to respond to complaints of workplace violence.

1. Harassment may constitute workplace violence

The Court clearly held that the definition of workplace violence is broad enough to include harassing conduct that causes mental or psychological harm, thus flatly rejecting the Appeals Officer’s finding that workplace violence excludes harassment. The Court held that “to find otherwise would unduly restrict the definition of work place violence and not give a purposive construction to that definition.”

2. The Employer may not unilaterally act as investigator of a complaint of workplace violence

The Court found that employers are permitted to engage in fact-finding in order to facilitate possible resolution of employee complaints, but an employer representative cannot act as the investigator, unless the employee agrees that the representative is an impartial person. The Court therefore held that the member of management who purported to conduct an investigation in this case was not competent to do so.

3. The obligation to appoint an impartial investigator is mandatory

The Court made a clear finding that, unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence, the employer is under a mandatory duty to appoint an impartial person to investigate the complaint. The Court therefore overturned the Appeals Officer’s decision, which permitted the employer to conduct its own inquiry into the bona fides of the complaint before deciding whether to appoint an investigator.

Important gains for federally regulated workers

The Court’s conclusions in this case corrected obvious errors in the Appeals Officer’s decision: the finding that harassment may constitute violence within the meaning of the Code brings this area of the law in line with the Tribunal’s past cases interpreting similar provisions. Interestingly, it is also consistent with the definition of workplace violence articulated by the government agency established to promote workplace health and safety—the Canadian Centre for Occupational Health and Safety defines workplace violence broadly, and as including harassment and verbal abuse.

This judgment was nonetheless an important gain for workers, because it grants access to the mechanisms under Part XX to seek redress for harassment in the workplace. Harassment is a difficult issue, and it is often inadequately addressed by employers’ internal harassment policies. It is therefore encouraging to know that the process under Part XX—particularly, the mandatory appointment of an impartial investigator—is now available for federally regulated workers that experience harassment. The regime under Part XX differs significantly from traditional mechanisms to address harassment: the emphasis is on taking measures to prevent a recurrence. Time will tell whether this approach, rather than one focused on discipline or monetary compensation, is more effective at resolving situations of workplace harassment.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Andrew Raven will speak at the Lancaster House  Ottawa Labour Law Conference, on May 15, 2003, on employers’ responsibilities to accommodate employees’ family responsibilities.

There is a growing understanding that employers, unions and employees must work together to assist workers in maintaining a functional balance between work life and family life. A failure to accommodate an employee’s family care obligations may be found to be discrimination on the part of the employer. It is important for workplaces to have clear policies and processes in place to assess family care issues as they arise and to implement accommodative measures where appropriate.

On November 8, 2014, James Cameron from Raven, Cameron, Ballantyne & Yazbeck LLP will be speaking before members of the Association of Professional Executive of the Public Service of Canada APEX.   James’ presentation on “Rights, Responsibilities, and Realities – Employment Law Matters for Government Executives” will highlight some surprising realities for APEX members.

Government executives may be surprised to learn that as they progress up the hierarchy, their access to basic employment law rights may actually narrow. What employment law rights and responsibilities government executives still possess or may access will be the focal point of this talk. The members will hear about basic legal principles governing demotions, terminations, changes to duties, severance packages, and other topics. Successful negotiation strategies, based on real-life experience with many Government Executives, will be discussed.

On June 7th, David Yazbeck and James Cameron will speak on Post Traumatic Stress Disorder at a conference organized by REACH Canada.  REACH has offered lawyer referrals and public education for individuals living with disabilities since 1981.  Ravenlaw is a long-term, proud supporter of REACH.

For more information, and to register for the conference, please visit the REACH website:  http://www.reach.ca/?action=site.show&lid=26&comaction=view&eid=NAXRU-6L6T4-QY6T6

Raven, Cameron, Ballantyne and Yazbeck LLP is pleased to announce the launch of the Alison Dewar Scholarship in Women’s Equality, Labour and Human Rights Law.

This scholarship was created by the firm in partnership with the National Association of Women and the Law (NAWL), in memory of our dear friend and colleague who died on October 17, 2013. The scholarship will be available annually to a female student at the University of Ottawa’s Faculty of Law who demonstrates a commitment to pursuing a career in women’s equality and union-side labour, workers’ rights or human rights law. Alison devoted herself to this work and our firm is excited to support future lawyers who share her passion for these issues.

For more information on the scholarship please visit the University of Ottawa’s scholarship and bursary webpage <https://bourses.uottawa.ca/p/a/13364/> or contact the Financial Aid Administrator at the University of Ottawa’s Common Law Section. The deadline to apply is November 30, 2014.

Raven, Cameron, Ballantyne & Yazbeck is pleased to announce that David Yazbeck has been appointed to a working group established by the CSA Group to develop and publish a whistleblower guideline for Canada. The CSA Group (formerly the Canadian Standards Association) is a world leader in establishing standards in a variety of areas. Recently, CSA Group, together with the Bureau de normalisation du Quebec, established a national standard of Canada in relation to psychological health and safety in the workplace.

David Yazbeck is one of the leading practitioners in the area of whistleblower law. He is one of many experts or interested persons who have been appointed to the CSA Group working group to establish a whistleblower guideline.