Sherrard Kuzz Newsletter - Management Counsel

We hope you enjoy our April 2018 edition of Management Counsel (click here). This newsletter is published four times a year to highlight important issues in Canadian employment and labour law. In this edition, we address two topics:

Dismissed employee does not have “free pass” to forego mitigation opportunities to return to school
Little irritates an employer more than having to pay a terminated employee common law notice while the employee fails to take reasonable steps to find a new job and mitigate his or her losses. A dismissed employee has a duty to mitigate those damages by making reasonable efforts to find comparable, replacement work. The income earned from the replacement work reduces the former employer’s common law termination liability. A question we are often asked is, ‘what if the employee chooses to forego a new job (and mitigation income) to enroll in school or start a new profession? Is the former employer still on the hook for the full amount of the unmitigated loss?’ A recent Ontario Superior Court of Justice decision suggests the answer is, ‘no’. 

Bill 148 ups the ante on the employer/independent contractor debate
Misclassifying an employee as an independent contractor has always been a live issue for Canadian employers. Whether intentional or accidental, misclassification can expose an employer to a claim for unpaid entitlements under employment standards legislation, including unpaid vacation pay, public holiday pay, overtime pay and termination pay. The enactment of Bill 148 in Ontario, and the amendments to the province’s Employment Standards Act, has further raised these stakes.

We hope you enjoy our newsletter. If you have questions or comments, we’re happy to hear from you.