Constructive dismissal occurs when an employer fails to meet the fundamental responsibilities of the work relationship to such an extent that an employee is entitled to regard the employer's conduct as a breach that goes to the root of the contract and claim constructive dismissal . We will look at some recent cases to get a sense of what the " winning formula " is. Topics Will be Covered in This Post: The Legal Test for Constructive Dismissal - A Quick Recap Successful Constructive Dismissal Cases Demotion/Change in Responsibilities Suspension without pay Employer’s Unilateral Change of Oral Promise Poisoned work environment Temporary layoff without a contractual right Change to remuneration Conclusion 1. The Legal Test for Constructive Dismissal - A Quick Recap As established in Potter v New Brunswick Legal Aid Services Commission , 2015 SCC 10, the Supreme Court of Canada stated that there are two branches for constructive dismissal claims , sati...

Some have under-estimated the Ontario Health and Safety Act (OHSA) and regarded it as "all bark and no bite". But they are HUGELY mistaken. Ever since Tandy Electronics Ltd.(Radio Shack) v.USWA , 1980 CanLII 1738 (ON SC), it is accepted that the Ontario Labour Relations Board (OLRB)’s remedial arsenal includes the awarding of damages to employees for violation of a statutory prohibition, subject only to the caveat that such be compensatory and not punitive . Topics Will be Covered in This Post: What is Termination in Reprisal And How to Complain About it? What Damages Are Available if An Employee has been Terminated in Reprisal? Reversed Burden of Proof Damages available for A Termination in Retaliation Reinstatement Loss of Employment Loss of Wages Mental Distress Cases to Demonstrate the Principles Above Brenda Bastien v 817775 Ontario Limited (Pro-Hairlines) Thompson v 580062 Ontario Inc (Slainte Irish Gastropub) Conclusion 1. What is Terminat...

There is a persistent myth that after two years of incapacity or absence due to disability or illness, an employer is entitled to end the employment relationship on the basis of claiming frustration of contract . But does the myth hold any water? We will find out in this post. The Origins of the Myth What might be the source of the so-called “2-Year Rule”? WSIA One place to look is the Workplace Safety and Insurance Act (WSIA). Section 41 creates a statutory requirement on an employer to re-employ an injured worker who can perform the essential duties of their job until the earliest of two years from the date of injury – as one measure in the section. This would suggest that after two years , as one measure, the employer no longer has an obligation to re-employ an injured worker. This may be one source for the so-called 2 Year Rule . 2. LTD Policies Another possible source is the typical distinction between “ own occupation ” and “ any occupation ” commonly found...

The interests of employers and employees are always at odds when it comes to disability. Employers want to terminate employees who have been affected by illness or disability for frustration of contract . Employee wishes to keep his or her job by demonstrating a reasonable prospect of returning to work . In this post, we will examine the interplay between disability and Long Term Disability (LTD) claims, wrongful dismissal claims, Human Rights Code violations related to Disability Discrimination , and the Duty to Accommodate . Topics Will be Covered in This Post: Considerations in Filing a Long Term Disability Claim Wrongful Dismissal Cases Involving Employees with Sickness or Disability Defining Frustration of Contract Frustration of Contract Legal Analytical Framework Burden of Proof in a Disability Case Some Wrongful Dismissal Cases Involving Workers with Disability Human Rights and the Duty to Accommodate Employees with a Disability Legal Analytical Framework of...

Section 31 of the Workplace Safety and Insurance Act (WSIA) provides a party to an action (usually the employer defendant) with the right to apply to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) to determine whether the right of action has been statute barred by the WSIA . It creates tremendous amount of confusion as to what is statute barred and what's not. We will give you a high-level summary as to what's caught by the Section 31 and what's not. Table of Content: 1. Where Can I Sue for Job Related Stress and what's the Time Limit? 2. The Interplay Between WSIA and Work Related Mental Stress 3. Is Human Rights Claim Related to Job Related Stress Barred by WSIA? 4. Is A Wrongful Dismissal Claim involving Workplace Harassment Barred by WSIA? 5. Is A Constructive Dismissal Claim involving Work Related Stress Barred by WSIA? a. The Morningstar Decision b. The “ Inextricably Link ” Test c. Guiding Principle In a Dismissal Case 6. Conclusion ...