This is very big news in the world of labour and employment law blogs. Michael Fox has maintained his blog (Jottings by and Employer's Lawyer) for 6 years! For those who stop by here and do not have a blog of their own, I have to tell you that to be at this for that long is a tremendous accomplishment and a testament to Mike's dedication as a pioneer in legal blogging.
While Mike lists this blog as being worthy of special mention, the fact is, as I have often said, that Mike's blog was the inspiration for this one and, I well remember how helpful he was as I was getting this blog on the rails over 5 years ago now.
While the legal blogosphere has expanded exponentially since those early days, truth be told, blogs come and they go as people realize, for a variety of reasons, that this isn't for them. Mike's blog is the one constant and I look forward to reading his insights for many more years. Congratulations Mike.
I don't honestly know what the answer is to this serious problem, or whether there even is one, but, like most people, I'm disgusted and concerned by cyber-bullying (and bullying in any form) whether in or outside of schools. I've written about this previously.
The Canadian Teachers' Federation is calling on the federal government to criminalize cyberbullying according to a recent OHS Canada and Globe and Mail articles.
The Globe reports that the Federation's draft policy also proposes amendments to collective agreements, workers' compensation legislation and a call on minister's of eductaion to make “explicit protection for teachers and students against such behaviour".
A benefit that enriches family life or a burden that sabotages women’s careers? Nicola Brewer’s claim that the extension of maternity leave and parental rights has hampered women’s employment chances has drawn praise and criticism in equal measure.
In addition, according to the article, new legislation that allows mothers to transfer the last 6 months of their maternity leave to their partner "would be “completely useless” unless fathers were given more support and better incentives to take time off work."
The Times Online has had a series of articles on this topic over the past short while:
5 reasons why exclusive maternity leave is bad for women
From what I understand of the UK legislation, the law is quite different in Canada where maternity and parental leave are available under employment standards legislation along with employment insurance benefits. Nonetheless, the articles provide some interesting information.
While, CFOs and CTOs are forging new working relationships and creating business cases for processes, programmes and technologies that track financial outcomes, HR as a whole is, by and large, not proactive enough to become a proper, strategic partner, it argued.
As an outsider (sort of), it seems so self-evident that HR should have a significant role at the boardroom table. Yet, study after study and article after article suggests that, for a variety of reasons, they do not. Some of the reasons (a good number of them in fact) relate to how they are perceived by business leaders.
It's not enough to say, as the article appears to, that "we are a valuable asset and should have a central role in the strategic direction of the business". To quote Neil Peart "show, don't tell" appears to be the lesson here as CFOs and CTOs have learned.
The Globe and Mail has an article about the CAW election that will result by reason of Buzz Hargrove's decision to retire as CAW president. Apparently, this is the "first contested presidential election since the union was established by splitting off from the United Auto Workers in 1985." There are some interesting comments in the article including from a National Representative from BC who wrote to Mr. Hargrove and is reported as stating that:
“If you proceed with your intention to have the NEB endorse a candidate now, then I believe this will cause great divisions in the union,” Denise Kellahan, a CAW national representative from British Columbia, wrote to Mr. Hargrove eight days ago. “I also believe using a show of hands in the staff meeting has become a major problem. Staff are tired of being told they are disloyal if they want to vote democratically on key issues. This has got to stop.”
It will be interesting times ahead and we will have to pay close attention to the results of the election.
Update: According to a press release, the CAW President Buzz Hargrove will announce tomorrow who will receive the CAW's official endorsement for both the national president and secretary-treasurer positions.
"The people who were confident they were working for a fair employer went in a positive direction," he said. "The people who did not have confidence in the employer's fairness tended to go toward burnout."
It's an interesting topic and one that needs to be considered by anyone undertaking corporate changes, such as restructuring or downsizing, or when dealing with individual employment situations.
Actual and perceived fairness may not stem off a lawsuit or bring about a constant and sustained "positive attitude" among employees, but it will certainly go along way in doing so. The opposite, that is treating people in an objectively unfair way by, for example, "hoarding information" and not communicating, will do nothing to further the corporate objectives.
As readers of this blog may know, I am an Adjunct Professor at Woodsworth College, University of Toronto, where I have taught the employment law course for the last 10 years. I'm in the process of updating the course book for September.
I need your help in pulling together some of the more important employment law cases decided over the past 12 months in Ontario or coming out of Ontario. Not labour cases or human rights or other cases of that nature. Just pure employment law cases.
So, as an example, Keayswhich came out of Ontario is on the list as is Wronko from the Court of Appeal.
I would be tremendously grateful if you could either leave a comment or send me an email with your suggestions of some important Ontario employment cases that have come out of any level of court in the past 12 months or so.
This post deals with those aspects of the Keays case that deal with so-called Wallacedamages. Thought I have dealt with Wallace damages numerous times on this blog and elsewhere, following the Keays case those comments should be taken with a grain of salt.
The Court took the occasion to, in effect, revisit Wallace-damages and, in so doing, dealt a significant blow to plaintiffs who advance these claims. The Court felt that this re-assessment was necessary in light of its recent decision in Fidler v. Sun Life Assurance Co. of Canada.
Wallace established that the employer had an obligation not to act in bad faith towards the employee at the point of discharge. Where it was found that the employer acted in bad faith, courts in common law provinces would extend the period of notice by some amount (this is sometimes known as the “Wallace bump”).
In analyzing Wallace damages, the Court went back to the 1854 case of Hadley v. Baxendale where it was held that damages are recoverable for a contractual breach if the damages are “such as may fairly and reasonably be considered either arising naturally... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties.”
The first question, then, when dealing with an employment case is: what did the parties contemplate at the time of the formation of the contract?
The Court held that:
At the time the contract was formed, there would not ordinarily be contemplation of psychological damage resulting from the dismissal since the dismissal is a clear legal possibility. The normal distress and hurt feelings resulting from dismissal are not compensable. The Court then affirmed that in the employment law context, damages resulting from the manner of dismissal will be available if they result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”. In other words it would have been in the contemplation of the parties at the time the contract was formed for damages to result when the circumstances described in Wallace are present. It would be both foreseeable and compensable.
But how would this be compensated? Since the release of Wallace in 1997 common law judges have compensated employees for bad faith conduct of the employer through an extension of the period of reasonable notice. The Court determined that this approach was incorrect. Mr. Justice Bastarache held:
….. if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages. Examples of conduct in dismissal resulting in compensable damages are attacking the employee’s reputation by declarations made at the time of dismissal, misrepresentation regarding the reason for the decision, or dismissal meant to deprive the employee of a pension benefit or other right, permanent status for instance.
In other words, the Court will have to come up with an actual number reflecting the damages that the employee suffered, if any, by reason of the “bad faith” conduct of the employer.
This methodology should limit the circumstances in which damages formerly known as Wallace-damages will be awarded.
This is welcome as Wallace claims have, since 1997, Wallace claims have been advanced in a whole range of circumstances where they had little, if any chance of success. Though so-called specious Wallace claims had been criticized in the past in a number of cases (for example, see this discussion and Yanez) the Supeme Court's treatment of Wallace should serve to limit these claims to the most exceptional circumstances and then only where damages can be assessed under Hadley principles.
Again, as was observed by Mr. Justice Iaccobuci in Wallace these are not "automatic claims .. in every case of dismissal." As with punitive damages, these are exceptional claims.
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