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Atlantic Employers’ Counsel – Winter 2013

REASONABLE PEOPLE DOING QUESTIONABLE THINGS: CONFLICTS OF INTEREST AND JUST CAUSE

Can a unionized employee moonlight in his off hours to earn some extra money by doing the same work he does for his daytime employer at cut rates? Can a high level executive take kickbacks for directing contract work to a friend? In both unionized and non-unionized environments, an employee who engages in a conflict of interest can lead to a just cause termination.

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CATCH ME IF YOU CAN: DEALING WITH FRAUDULENT MISREPRESENTATION OF QUALIFICATIONS OR CREDENTIALS IN THE WORKPLACE

It happens often. A potential candidate arrives at a job interview with a stellar curriculum vitae. She shares with you that she’s got a stable and secure job but might be interested in contributing to the success of your organization. Without hesitation or question, you decide that this is the person you’re looking for and an employment relationship is formed. Who didn’t hear about Yahoo’s situation with recent hire Scott Thompson when it was disclosed six months after the hiring that Thompson may not have had the qualifications set forth on this curriculum vitae.

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DUMB AND DUMBER: GET SMART ABOUT SERIOUS INCOMPETENCE

Every employer has a movie or two in the making based on the outrageous tales of its most incompetent employees.

Maybe the employee harmed a patient, lost a million dollars, angered a valued client, missed a critical deadline, or did something so dumb it put the company’s reputation at risk. Once an employee has demonstrated such incompetence, the employer usually loses confidence in the employee’s ability to do the job and is keen to terminate employment.

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WHOEVER SAID ABSENCE MAKES THE HEART GROW FONDER? THINGS TO CONSIDER ABOUT INNOCENT ABSENTEEISM BEFORE TERMINATION

One of the most frustrating, costly and challenging issues facing employers is chronic absence of employees. Culpable absenteeism, or absenteeism within the employee’s control, may very well constitute cause for dismissal, but this article focuses on termination of employees for innocent absenteeism, particularly caused by illness, disability, or other protected grounds under human rights legislation.

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LIAR, LIAR: DEALING WITH DISHONEST EMPLOYEES

Clarence Darrow is an unlikely inspiration for an employer-focused article about dishonest employees. However, Darrow captures a key truth about the employment relationship: the difference between honest and dishonest behaviour in the workplace isn’t easily discernible and can seriously impact your business.

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IT’S ALL IN THE ATTITUDE: INSOLENCE & INSUBORDINATION

One of the most challenging issues in the workplace is dealing with bad attitude and employees refusing to perform the work for which they were hired. Disruptive behaviour can take on many forms: outright refusal to carry out work, manifest non-performance, inappropriate comments, persistent complaints and non-verbal communication expressions of dissatisfaction (i.e., eye rolling, sighing, etc.). Employers dealing with employees who have a negative and disruptive attitude often consider dismissal for insubordination and insolence. What exactly are those two concepts?

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JUST CAUSE, DUTY OF FIDELITY AND BREACH OF TRUST

Every employee, at every level, owes a duty of fidelity to their employer. Although the extent of this duty depends on the particular circumstances of the employment relationship, all employees have a duty to act in a manner consistent with the employer’s interests (i.e. duty of loyalty). Where the conduct of an employee is dishonest and inconsistent with the employer’s interests, the trust in the employment relationship can be compromised and can amount to just cause for dismissal.

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TERMS OF “ENDEARMENT”: SEXUAL HARASSMENT AS JUST CAUSE FOR DISMISSAL – SEXUAL HARASSMENT IN THE COURTS

Sexual harassment is prohibited under all human rights legislation in Canada and employers have a duty to protect employees against sexual harassment in the workplace. This may, in certain circumstances, require dismissing an offending employee. Failing to protect an employee against sexual harassment by a co-worker may also lead to a constructive dismissal claim against the employer. For the purpose of this article, we look specifically at the issue of when an employee can be terminated for just cause when there is proven sexual harassment.

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Client Update: Changes to Related Party Election (Section 156 – Excise Tax Act)

December 16, 2014

Section 156 of the Excise Tax Act (the “ETA“) provides an election that relieves certain related parties from having to collect Harmonized Sales Tax (“HST“) on the goods and services sold between them. The election deems qualifying…

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Doing Business in Atlantic Canada (Fall 2014) (Canadian Lawyer Magazine Supplement)

November 20, 2014

IN THIS ISSUE: More Than Wind – Emergence of Tidal Energy in Atlantic Canada by Sadira Jan Aquaculture and Salmon Farming in Atlantic Canada by Greg Harding The Expanding Atlantic Canada Offshore Industry: Growing Offshore without Going Offside by Stephen Penney and Rebecca…

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Client Update: Truth or Consequences – The New Duty of Honest Performance in Commercial Contracts

November 17, 2014

The Supreme Court of Canada’s unanimous decision in the breach of contract case Bhasin v Hrynew, 2014 SCC 71 was released on November 13, 2014. The case is important in the law of contracts because…

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Client Update: Recent Changes to the Temporary Foreign Worker Program

August 28, 2014

On June 20, 2014, the Government of Canada announced a series of reforms to overhaul the Temporary Foreign Worker Program (“TFWP”). These reforms, many of which are effective immediately, function to: Re-organize the TFWP  The…

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Atlantic Employers’ Counsel – Summer 2014

August 1, 2014

The Editor’s Corner Clarence Bennett Summer is halfway over, but we know you will want to take this edition along with you while you enjoy more summer weather and time out of the office. Employers…

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Client Update – Tsilhqot’in Nation – An East Coast Perspective

July 9, 2014

On June 26, 2014, the Supreme Court of Canada released one of the most significant aboriginal law decisions since Marshall – Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (also known as the William decision).  This decision could have…

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Client Update: Nova Scotia Supreme Court awards $500,000 in Punitive Damages in LTD case

July 9, 2014

In Industrial Alliance Insurance and Financial Services Inc. v. Brine, 2014 NSSC 219, National Life (and later its successor Industrial Alliance) alleged Brine had received undisclosed CPP and Superannuation disability benefits resulting in a substantial overpayment of…

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Client Update: One final reminder – Are You Ready for Anti-Spam?

June 20, 2014

Any individual, business or organization that uses email, text messages or social networks to promote their products and services should take note of Canada’s Anti-Spam Legislation and its accompanying regulations. Effective July 1, 2014, the…

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Doing Business in Atlantic Canada (Summer 2014)(Canadian Lawyer magazine supplement)

June 17, 2014

IN THIS ISSUE: Consistent Use: The Collection of Union Members’ Personal Information by their Union by Alison Strachan and Jonah Clements. Single Incident of Offensive and Threatening Facebook Post is Just Cause by Harold Smith, QC. The New Anti-Spam Law –…

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Surprise Amendments to the Newfoundland and Labrador Labour Relations Act

June 3, 2014

 Yesterday, Monday June 2, 2014, the Government of Newfoundland and Labrador introduced brand new (and unexpected) amendments to the Labour Relations Act. The full text of the proposed amendment can be accessed here. Bill 22, if it…

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