Bad Employer Conduct – 2023’s Top 3 Most Scathing Canadian Employment Law Decisions

As employment lawyers, we all have times when we wish our employer-side clients had come to us for advice before making certain decisions.  There’s a lot that can be done to protect an employer who seeks assistance early in the process – especially if it involves a termination.  Costs can be reduced, risks can be mitigated, and whole potential areas for future disputes can be eliminated entirely with careful consideration and planning.

Bad Employer Conduct

The result of failing to get proper employment law advice can be catastrophic.  Not only can it be exceedingly expensive, but the reputational damage for an organization can be profound.  And if you’re an employer who has made some mistakes in the process – do not double down on those errors by adopting unreasonable and ill-supported litigation strategies.  The patience of Canadian courts has worn thin and there appears to be an increased willingness to award moral and punitive damages, as well as substantial cost awards, when finding that employers have behaved badly.  2023 has produced some truly prodigious decisions on this front.  Here are my top three 2023 cases in which employers f***ed around and found out.

Read More

Accommodating Employees at Christmas

Are employers required to accommodate an employee at Christmas?  

Accommodating Employees at Christmas

If an employee requests December 25 off for “family time” or religious events, are those protected grounds under Canadian human rights law?  This arises in industries that stay open 365 days a year, such as hospitals, public transit, variety stores, movie theatres and some restaurants.  For those employees working in these industries, can an employee request accommodation to have December 25 off on the grounds of family status or religion? 

Read More

It’s All in the Timing: The Best and Worst Times to Terminate Employees

The English magician Tony Corinda once said: “Good timing is invisible. Bad timing sticks out a mile”. As employment lawyers, we talk a lot about the “why”, “what” and definitely the “how much” of terminating an employee, but the “when” is a sometimes overlooked aspect. Some termination timing issues are a question of best practice or common courtesy, while others can attract significant legal liability and can be costly for employers. An employee who is being terminated may not recognize an employer’s considerate timing, but they will certainly recognize inconsiderate timing, and this will make everything go a lot less smoothly. 

It’s All in the Timing: The Best and Worst Times to Terminate Employees

When should you not terminate an employee? 

Discrimination 

It is contrary to the Ontario Human Rights Code (the “Code”) to terminate or otherwise discriminate against an employee because of a protected ground. The protected grounds under the Code are citizenship, race, place of origin, ethnic origin, colour, ancestry, disability, age, creed, sex/pregnancy, family status, marital status, sexual orientation, gender identity, gender expression, and record of offences. 

Read More

Learning Lessons from OpenAI’s Pitfalls: Preparing for the Potential Ripple Effect of Terminations

Earlier today we learned that Sam Altman, CEO of OpenAI the company behind ChatGPT, was returning to his post as CEO, bringing a captivating story to a close (well at least for now).

In case you missed it, the company dismissed Altman on Friday. The company provided few details on its decision to terminate Altman beyond citing a lack of candour on his part when communicating with its Board.

Learning from OpenAI’s Pitfalls

Over the weekend we learned that following a failed attempt at reinstatement, the former CEO had agreed to join the company’s financial backer, Microsoft. Altman was joined at Microsoft by other executives and management who quickly exited the company following his termination. While Microsoft welcomed the employees, it also publicly left the door open for Altman to return to his former company. 

Read More

AI in the Hiring Process – Legislative Changes and Risks for Employers to Consider

Proposed new job posting requirements regarding AI disclosure

The Ontario government recently introduced Bill 149 – Working for Workers Four Act, 2023 which includes planned amendments to the rules regarding job postings in the Employment Standards Act. The planned amendments include a requirement that employers disclose the use of artificial intelligence (“AI”) in the hiring process. The specific language proposed for this amendment in Bill 149 is as follows:

AI in the Hiring Process - Legislative Changes and Risks for Employers to Consider

Every employer who advertises a publicly advertised job posting and who uses artificial intelligence to screen, assess or select applicants for the position shall include in the posting a statement disclosing the use of the artificial intelligence. Regardless of whether or not the bill is passed, the suggested amendment is noteworthy simply for the fact that it’s early (at least in the employment law sphere) Canadian legislation regarding AI.  It represents an acknowledgement of the potential risks for employees and employers that will need to continue to be assessed, and it has been prepared in line with the province’s stated priorities from its Trustworthy Artificial Intelligence (AI) Framework (the “Framework”).

Read More

British Columbia Becomes The Second Province with Pay Transparency Legislation

On November 1, 2023 British Columbia’s new Pay Transparency Act (“Act”) took effect, which requires employers throughout British Columbia to post expected salary ranges for job postings. Notably, as explained by the British Columbia government in a guidance document, this requirement will also apply to postings for remote positions if the position is open to candidates in British Columbia, among other locations. 

Pay Transparency

British Columbia is now the second province in Canada with such legislation in effect following Prince Edward Island in 2022. Ontario may also follow suit with the Minister of Labour, Immigration, Training and Skills Development recently announcing the intent to introduce legislation next week regarding pay transparency. As details emerge and if the legislation progresses toward becoming law in Ontario, we will keep you informed.

Read More
Back To Top