December 5, 2014

Stuart Rudner on avoiding common employment law misconceptions:

Small to midsize employers, many HR professionals, and many lawyers proceed based upon completely inaccurate understandings of how employment law works. While there are many examples of this, there are three that I see regularly in my practice:

  1. the myth that the severance entitlement in Canada is one month per year, regardless of other factors such as age or position;
  2. the belief that every employee is automatically subject to a probationary period; and
  3. the belief that when there is a shortage of work, employers automatically have the right to lay employees off temporarily.

Number 1 is a particular pet peeve of mine.

Stuart Rudner again, but this time on designing and implementing employment contracts to ensure that they are enforceable. This is one point in particular that either gets missed in the rush to hire a new employee or is overlooked entirely by employers who don’t know any better:

However, many organizations only have the individual sign the employment contract after a verbal agreement is entered into. In some cases, the contract is sent to the individual a few days before her start date and she is asked to bring it with her when she shows up for her first day of work. In others, it is presented to the employee on his first day of work or even weeks or months thereafter. At that point, the individual already has a job and is typically not receiving any new benefit by signing the contract. As a result, if challenged, the contract is likely to be found unenforceable.

Stuart Rudner yet again on… just kidding. This time, it’s Donovan Plomp of McCarthy Tetrault on a case called Maxwell v. British Columbia from earlier this fall in the BC Court of Appeal confirming that employees entitled to contractual severance are not obligated to mitigate their damages:

[78] Where a contract provides for the effect of termination, generally the provisions of the contract prevail. Recourse to the common law is not required.  In some circumstances, the contract may require mitigation, but where it does not the innocent party is entitled to what was agreed. The guilty party is not entitled to graft onto the bargain struck by the parties additional terms that dilute or modify the entitlement of the innocent party.

And finally, HRM Online with an article about a documentary casting light on the chauvanism that dominated the workplace in the 1970s:

Starting as a secretary and making her way up to manager, Jacquee Storozynski-Toll says the harassment ranged from bottom pinching and pranks and to point-blank belittlement. She even recalls being bent over her boss’ knee and spanked; “People were coming and going and no one stopped to ask what was going on,’ she reveals. ‘It was like it was a perfectly normal thing to do. You simply can’t imagine it now.’

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