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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: Make Your List and Check it Twice: IRAC Sends a Holiday Reminder to Municipalities

December 23, 2015

The Island Regulatory and Appeals Commission (the “Commission”) has issued a holiday reminder to municipalities in Prince Edward Island about the importance of preparation, accuracy, and transparency when making decisions related to land use and…

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Nova Scotia Government Introduces Public Services Sustainability (2015) Act

December 16, 2015

By Brian G. Johnston, QC On the same day that the Nova Scotia government announced its projected deficit had ballooned to $241 million, it also introduced Bill 148, the Public Services Sustainability (2015) Act (“Act”). The stated purposes…

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Striking down the Nova Scotia Cyber-safety Act: The 10 most interesting things about Crouch v Snell

December 16, 2015

By Jennifer Taylor – Research Lawyer Nova Scotia’s Cyber-safety Act1 is no more, after a successful Charterchallenge to the legislation. In Crouch v Snell, 2015 NSSC 340, Justice McDougall of the Supreme Court of Nova Scotia found the entire statute—enacted in…

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Forsythe v Westfall: Forum of Necessity & Access to Justice

December 1, 2015

By Jennifer Taylor Introduction: Did Ontario have jurisdiction? Arguments about access to justice are not enough to oust the general principles of jurisdiction, according to a recent Ontario case. In Forsythe v Westfall, 2015 ONCA 810, the…

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Client Update: Nova Scotia Court of Appeal Substantially Reduces Punitive Damages in LTD Case (Plus a Primer on the New Nova Scotia Limitations Act)

November 23, 2015

PART I: THE NSCA DECISION IN BRINE “Disability insurance is a peace of mind contract”: that’s the opening line of the Nova Scotia Court of Appeal’s long-awaited decision in Industrial Alliance Insurance and Financial Services Inc…

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Client Update: Taxation of Trusts, Estates and Charitable Donation Rules Changing January 1, 2016

November 18, 2015

The taxation of estates, testamentary trusts and certain “life interest trusts” such as alter ego, joint partner and spousal trusts, and the rules for charitable donations made on death through an estate are changing significantly…

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Update on New Tax Rules for Charitable Giving

November 18, 2015

Several important changes in the tax rules that apply to charitable gifts will be coming into effect in the near future. Some of the new rules take effect in 2016, and others will apply beginning…

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Atlantic Employers’ Counsel – Fall 2015

October 23, 2015

THE EDITORS’ CORNER Michelle Black and Sean Kelly Trick, Treat or … Taunt? Workplace Bullying and Harassment Fall has arrived! The leaves are changing colours, families are stockpiling Halloween candy (some of which will actually last long…

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The Fair Elections Act and #elxn42: A summary of Council of Canadians v Canada (Attorney General)

October 15, 2015

By Jennifer Taylor – Research Lawyer With the federal election just days away, voting is on Canadians’ minds. This will be the first election conducted in accordance with the Fair Elections Act, SC 2014, c 12 [“FEA”] which…

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In the Three Certainties We Trust: The status of Builders’ Lien Act trust claims in bankruptcy

October 9, 2015

By Jennifer Taylor Introduction There is now a Nova Scotia decision on the interplay between the provincial Builders’ Lien Act and the federal Bankruptcy and Insolvency Act (“BIA”) in the interesting context of trusts. In Re Kel-Greg Homes Inc, Justice Rosinski…

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