Hiring a new worker can be exciting. Presumably, by the time you make the job offer, something about the candidate has impressed you and suggested this person is the one for the job. Similarly, most hires are eager for the opportunity to work with you – that’s why they applied for and accepted the job!
Last month, The Advocates' Quarterly published an article by Paul Willetts entitled "Tagg Industries v. Rieder: Is Storing Pornography on a Work-Issued Laptop Cause for Dismissal". The article looks at some of the lessons for employers coming from this case when asserting cause for dismissal. In particular, employers should ensure that: the misconduct relied upon for cause dismissal reflects an irreparable breach of trust; they can prove their assertion of cause (i.e. lead concrete evidence); the reasons for cause are communicated to the employee in a clear and contemporaneous fashion.
Generally speaking, employers have the right to dismiss employees that fail to report to work sober, and perform their duties in a safe manner, particularly where these requirements have been clearly communicated through written policy.
Much legal ink has been spilled over the past year about the impact of cannabis legalization on the workplace (see our overview here). At the end of the day, however, the basic rules of the game have not changed. Employees still cannot expect to attend at work while intoxicated. Employers can still insist on sobriety in the workplace. And safety-concerns regarding how to structure operations remain a foremost consideration in any workplace (and in fact are mandated by operation of the Occupational Health and Safety Act).
The legal doctrine of frustration of contract is well known to employment lawyers but its application is not all that intuitive to the average employer or employee. In the recent case of Hoekstra v. Rehability Occupational Therapy Inc., 2019 ONSC 562, the Ontario Superior Court of Justice was asked to revisit this doctrine and opine as to whether an employee, as compared to an employer, can ever assert frustration to end an employment relationship.
We are not long into 2019 and yet one thing already seems clear – the law concerning employment contract termination clauses will continue to be the focus of a great deal of litigation in Ontario. In just the past few months alone, new decisions from the Superior Court have helped to advance the law and provide further guidance to employers on proper drafting of termination clauses.