Reference Check: A Negative but Honest Reference by a Former Employer may not Amount to Defamation

A reference check is typically the last step in the application process that can make or break an employee’s chances of landing a job. For Adam Papp, his former employer’s honest reference cost him a job with the Government of Yukon.

Case Study

Mr. Papp worked for Stokes Economic Consulting, a private company. After a 2 year tenure with the company, it had to let him go for cost-cutting reasons. Mr. Papp was not terminated for just cause, but his interpersonal difficulties with others in the company impacted the decision to let him go. Nonetheless, Ernest Stokes, the company’s president, agreed to be a reference for him as he sought future employment.

In 2014, Mr. Papp was applying for a new position with the Government of Yukon. When Mr. Stokes was consulted for a reference, he shared his positive opinion of Mr. Papp’s technical skills. However, the Government of … Continue reading

Employment Contracts – Valid or Invalid?

All employees have “legal contracts” with their employer, whether they are realize it or not.  Many employees do not have written employment contracts with their employers, while others do. For those employees bound by written employment contracts, there can be several legal obligations and rights that govern the employment relationship contained in an employment contract. One of these obligations is the amount of notice, or pay in lieu of notice (i.e. severance pay) that your employer must provide if your employment is terminated without cause. However, if a termination clause is legally invalid, then an employee’s entitlement to notice or severance pay is determined by common law factors – age, length of service, re-employability, amongst other factors.

Case Study

There are many potential legal arguments as why a termination clause will be invalid.  The law in this area is constantly evolving. In a recent Ontario Court of Appeal caseContinue reading

When is a Resignation not a Resignation?

From time to time, emotions can get high in the workplace. Sometimes, this can result in an employee quitting in the middle of a fit or heated exchange.  But what happens when the employee attempt to resile from his or her resignation? A few recent cases have clarified the law on what constitutes a resignation at law.

Case Study – Johal v Simmons da Silva LLP

In Johal v Simmons da Silva LLP, 2016 ONSC 7835, a 62-year-old Plaintiff was employed as a senior family law clerk with the Defendant for 27 years, and she was the primary law clerk to Clark, a lawyer at the firm for the last seven years of her employment.

In June, 2015, Clark informed Johal that another law clerk would be responsible for Johal’s work.  The following day, Johal removed her personal belongings from the office and returned her security pass to Clark.  … Continue reading

Employee vs. Independent Contractor – Assessing the Modern Employment Relationship

One of the most common issues that arises in workplace disputes is whether an individual is an employee or independent contractor in law. It can be convenient for various reasons (tax, etc.) for employers and individuals to agree on a working arrangement that labels the individual as an independent contractor, but when the working relationship breaks down and the contractor is terminated, the individual could claim he or she is an employee at law, and thus entitled to severance pay. The British Columbia Supreme Court recently applied the “modern approach” to determining whether an employment relationship existed at law in Ventures Corp. v The Cambie Malone’s Corporation, 2016 BCSC 1521.

Case Study

Tim Fernback applied for the position of CFO which had been advertised as an employment opportunity by The Cambie Malone’s Corporation (“CMC”). After being selected for the position, Mr. Fernback proposed a working arrangement whereby he would … Continue reading

Bonus Payments upon Termination – Is it in or out of a Severance Package?

Bonuses and other forms of incentive compensation often form a significant part of employees’ compensation.  Upon termination, an issue that often arises in determining an employee’s legal entitlements is whether a bonus payment is included or not in a severance package. Under common law, an employee is entitled to all compensation that he or she would have earned during the reasonable notice period. If the employee would have earned a bonus payment during the reasonable notice period, then he or she is entitled to the bonus as part of his or her severance package.

However, many employers have written bonus plans or policies that contain certain terms regarding an employee’s entitlement to a bonus, including upon termination.  In particular, in an attempt to limit liability upon termination, many of these bonus plans or policies contain language stating that an employee must be “actively employed” upon the date of payout … Continue reading