Friday, September 17

Howard Levitt

Careers, Executive, Howard Levitt, workplace law

Howard Levitt: When it comes to the sale of a business, it is buyer, seller and employee beware

Article content continuedThe party that carries the heaviest burden is usually the purchaser. There are strong statutory protections in place to protect employees in the sale of a business, and which require the purchaser to recognize prior service for all purposes including vacation entitlements, termination pay, severance pay and parental leave. Unless the purchaser requires an employment contract with a clear, explicit and enforceable term limiting dismissal obligations (most termination provisions in Canadian employment contracts are unenforceable), and provides adequate consideration in exchange for the contract, courts are likely to find an employee's prior service will be recognized for the purpose of calculating reasonable notice of termination at common law.However, under emplo...
Careers, Executive, Howard Levitt, workplace law

Howard Levitt: Bullying a chronic disease in Canada’s health-care sector — but the courts are finally reining it in

Article content continuedIn a 2018 Nova Scotia Court of Appeal decision, the court reviewed a $1.4-million jury award to a cardiologist who had her privileges revoked. Dr. Gabrielle Horne, then a junior female researcher, was awarded major research grants and senior male colleagues wanted their names included on her papers. Her refusal to comply led to allegations of'uncollaborative' behaviour culminating in the hospital revoking her clinical privileges. The Court of Appeal upheld the lower court's finding of administrative bad faith on the part of the hospital, recognizing the loss to her research career and damage to her reputation, but lowered the award amount to $800,000, still a considerable amount, because of improper jury direction.In a 2010 Ontario Court of Appeal decision, the ...
Careers, Executive, Howard Levitt, workplace law

Howard Levitt: How do I recall some employees, but not others? Your top work questions answered

Article content continuedQ: If a laid-off employee finds other work, must the employer still recall them?A: The answer is yes as layoffs, by definition, are subject to recall. However, if the employee does not accept the recall, they are deemed terminated for cause for abandonment. If the employee is recalled but has another job, they can either return to work or resign. They are better off if they are not recalled but the period for permissible layoff under the Employment Standard Act expires, because that triggers their dismissal. Of course, if they have another job their entitlement is limited to the ESA minimum rather than the vastly greater amount that a court would award. If they are not recalled, and the ESA period for layoff expires and they do not have other work, they are enti...
Careers, Executive, Howard Levitt, workplace law

These seven employment trends show how COVID-19 is reshaping the world of work

Article content continuedMany employees will select the latter. There is no prohibition against an employer offering this. As long as the employee has the option of working at the office at full pay, offering this option is not a constructive dismissal. From the employer's standpoint, since they can replace the employee working from home with another employee or contractor anywhere in the world, and many employees have learned to enjoy working from home, offering such an option makes financial sense.As long as an employee has the option of working at the office at full pay, offering remote work for reduced pay is not a constructive dismissal. Photo by Daniel Acker/Bloomberg filesThis is all in the legal context of the employer having the absolute right to require all employees to return...
Careers, Executive, Howard Levitt, workplace law

Howard Levitt: When buying a business, new owners must get clear on obligations to employees

Article content continuedAn employee's service and experience with a predecessor should still be accounted for, even where the employee has signed a releaseThe Ontario Court of Appeal held that the trial judge's decision to “stitch together” Manthadi's years of service in calculating her common law reasonable notice was wrong. But it clarified that an employee's service and experience with a predecessor should still be accounted for, even where the employee has signed a release, by weighing the benefit that experience brings to the new employer. The value of any compensation the employee received in exchange for a release is also considered in determining what is a fair notice period.The Manthadi case was remitted to the lower court to determine the notice period, so it remains to be se...
Careers, Executive, Howard Levitt, Legal Post

Back to work for some, but here’s what to do if you don’t get that call

Article content continuedQ: My severance has come as one lump sum. Do I have the right to know the exact breakdown of a severance package, such as how many weeks at base pay, how much in benefits and how much in vacation and bonus?A: No. What is relevant is whether the total amount equates to your legal entitlement. How the company broke it down in its own calculations is not.Q: In early May, my manager, who also owns the business, told me my job was going down to four days a week and my hours then changed. Eight weeks ago, my pay was reduced by 16 per cent. What can I do?A: When your hours were reduced to four days, you had the option of claiming constructive dismissal or, at least, putting a time limit on the cutback in your response. If you just accepted it, that has become your new ...
Careers, Executive, Howard Levitt, Legal Post, workplace law

Howard Levitt: Want your kids to attend school online? Here’s what the law says about you returning to the office

Article content continuedNaturally, parents are concerned about the health and safety of their children and many would prefer their kids to continue online learning while they work from home, just as they were permitted in the early stages of the economic shutdown. However, employees are increasingly facing recall as the country moves through its various reopening stages, and more businesses are allowed to require them to return.The obligation to attend work when recalled even extends to school pickups and drop-offs. If busing is available to take students to school, and most school boards across Canada will be offering that, parents do not have the right to change their work schedules to facilitate the personal pickup and drop-off of their children at school.Finally, what about teacher...
Careers, Executive, Howard Levitt, Legal Post, workplace law

Howard Levitt: Note to companies and their staff — COVID-19 has not changed employment law

Article content continuedMany employees have had seasonal employment interrupted by COVID-19. In some cases, they are not being offered those jobs and, in others, they are being offered reduced terms. Other employees have had full time employment offers rescinded because of COVID-19. Generally, all such employees have valid legal cases.For employees who were fired before they started, we have had cases in our courts where employees, whose job offers were rescinded, have been awarded as much as six months pay, without even working a day. For those who are on contracts which were terminated prematurely, they can sue for the balance.Employees who have a reasonable expectation of being recalled to seasonal employment, based on years of working in that job, are entitled to sue for the reason...