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LAW 529 (123)
Chapter 15

Chapter #15-Dismissal Without Cause.docx

6 Pages

Law and Business
Course Code
LAW 529
Pnina Alon- Shenker

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Chapter 15 Dismissal without Cause Unless and ER is able to prove that an EE fundamentally breached the terms of employment contract any dismissal must proceed on a withoutjustcause basisER does not need just cause to dismiss a nonunionized EE There is no right of reinstatement for wrongful dismissal under the common lawIs an employment contract lacks a provision that governs notice of termination or if such a provision is unenforceable and ER has an implied duty to provide reasonable notice of termination or pay in lieu of reasonable notice under the common lawOnly exception to and ERs obligation to give reasonable notice of termination in the absence of just cause under the common law is frustration of contractFRUSTURATION OF CONTRACTIn unusual circumstances and employment contract comes to an end wout notice because the contract has become impossible to perform for reasons such as floods fires or explosions that prevent work from being performedA contract cannot become frustrated as a result of foreseeable problems such as strike or breakdown of machinery Frustration of employment may also occur if an EE does to jail or loses professional credentials More complex situation is where ER alleges frustration of contract bc of an EEs prolonged illness and EE who is absent from work bc of disability is protected under the OHRC and ER must accommodate that EE unless this creates undue hardshipGeneral rule of thumb and ER should wait 2 years before considering severance of an employment relationship on the basis of frustration caused by an EEs absenceWRONGFUL DISMISSALDismissal without cause in when employment contract is oral or does not contain an enforceable termination provisionIn these circumstances ERs must comply with the commonlaw requirements to provide reasonable notice or pay in lieu of reasonable noticeif they DO NOT then they have wrongfully dismissed the EEHow Much Notice is Reasonable st In determining the necessary notice period the 1 consideration is the minimum statutory requirements in the Ontario ESAThe ER must ensure that its separation package at least meets the statutory minimum requirements OTHERWISE the EE will sue for wrongful dismissalFactors that affect the length of the reasonable notice period o The EEs age o The EEs position o The EEs length of Service o The EEs level of compensation and o The availability of similar employment given the EEs experience training and qualificationsWhats better for an ER Working Notice or Pay in Lieu of NoticeAn ER is entitled to choose whether to pay an EE while they work during the reasonable notice period working notice or to pay them a sum that is equal to the amount they would of earned during the reasonable notice period including both wages and benefits and to ask the EE to leave immediatelyProviding working notice by giving EEs notice and requiring them to work through the notice period may seem more cost effective than providing pay in lieu of noticeThere are situations in which it is inappropriate for and ER to require and EE to work throughout the notice period it is likely that the EEs efforts will deteriorate further and their attitude will affect the morale of the remaining staffProviding pay in lieu of notice is even stronger where the EE works with sensitive business informationStructuring a Separation PackageInstead of working notice ER must consider how to best structure the package one option is to offer an EE a lump sum that reflects both minimum employment standards and commonlaw requirementsDisadvantage to this for the ER is that it must pay the EE a large sum of money at onceand if the EE finds a new job quickly then the ER receives to benefitMay EEs prefer to receivelump sum payments and may be willing to settle for smaller total amount that if the ER paid the parting settlement over time
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