A common question employment lawyers are asked (by both employees and employers) is whether it is legal to make secret recordings while at work. A variety of circumstances may provide the motive for such action. An employee concerned they are being bullied may want to record proof of harassing comments made to them. Likewise, a supervisor may wish to secretly record the contents of a disciplinary meeting to safeguard themselves against future allegations of what was said.
The Ontario Court of Appeal recently released its decision in Brake v RJ-M2R Restaurant Inc. This is an important decision for employees and employers alike as it may potentially change the way in which Ontario courts assess a wrongfully dismissed employee’s mitigation efforts and their consequent entitlement to additional severance. Mitigation refers to the obligation of dismissed employees to look for alternate comparable employment. Feldman J.A.’s concurring reasons, in particular, suggest that where a dismissed employee accepts an inferior job, any earnings therein may not count as ‘mitigation income’.
Section 54 of the Ontario Employment Standards Act requires that employers in the province must provide either notice or pay in lieu of notice, up to a maximum of 8 weeks, if they dismiss an employee (except in cases of serious employee misconduct).
Vey Willetts lawyer Andrew Vey recently authored an article in the May 2017 edition of HR Update entitled, "Just Accommodate Me: Legal Obligations in the Accommodation Process." The article considers the roles that the employer, the employee and the union (where present) are required to play in ensuring that reasonable accommodation in the workplace is provided.
Beyond providing fair severance, one of the best things an employer can do to help a dismissed employee is to offer assistance in finding a new job. This assistance could include outplacement support, speaking with industry contacts and/or offering to provide references to prospective employers, if required.
The Lawyer’s Daily quoted Vey Willetts' Paul Willetts in a May 26, 2017 article titled “Changing Workplaces Review may spur sweeping labour law changes in Ontario.” The article explores the recommendations set out in the Changing Workplaces Review Final Report and how these changes, if implemented, may affect Ontario employees and employers.
A recent decision from the Ontario Court of Appeal, Roberts v. Zoomermedia Limited, dealt with the unusual situation of a defendant employer arguing that its own contractual termination provision was unenforceable and thus the plaintiff employee was entitled to common law reasonable notice. Employees frequently challenge the enforceability of a termination provision to seek common law notice, however, it is rare that an employer would do the same.