The 2022 employment law round up

Negotiated contracts by sophisticated parties still may be unenforceable – Farah Rahman was CannonDesign’s (a subsidiary of the Cannon Corporation) most senior Canadian employee. She earned $185,000 in salary plus bonus and benefits. She was terminated at the onset of the COVID pandemic in April 2020 at the age of 61. Rahman used a lawyer to negotiate her contract in 2016. On termination, she was paid her contract entitlements of four weeks. She sued for wrongful dismissal damages claiming her contract violated the Employment Standards Act. Rahman won on appeal. Writing on behalf of the panel, Justice Gillese found “considerations of Ms. Rahman’s sophistication and access to independent legal advice” were not to be read into the contract. This means contracts negotiated even a few years ago (or less) may be unenforceable today and should be reviewed.

Quiet quitting shook the remote work world – According to a TikTok user, quiet quitting means, “You’re quitting the idea of going above and beyond” in your job; ignoring after work emails and performing your role within the confines of your job description only. Remote workers are often viewed with an air of caution. They must do more to establish their loyalty, work ethic and discipline. When you quiet quit, your reputation will precede you and limit your options. If you tank your relationships at your current job you could leave yourself at the bottom of a very steep hill. Proceed with caution as quiet quitting is a trend that could be very damaging for employees to pursue.

Major terminations in the tech sector can carry various heads of damage – Amazon, Shopify, Twitter and other major tech companies announced significant employee terminations this year. Of particular note is the softer terminology companies and the media are using to describe these terminations. The terms “downsizing,” “shrinking” and “laying off” all mean the same thing. Employees are being permanently terminated and in some cases could be entitled to substantial wrongful dismissal damages, particularly if they are employed in Canada. As employers announce terminations in the media, many are using press releases to share details of the termination packages being given to employees, and in some cases going so far as to call them “generous.” Employees should take stock of their own careers and futures, especially considering the bleak outlook to reemploy in some industries. Damages you may be entitled to are salary continuation, benefits, pension, bonus (both earned and what you could earn had you remained employed), vesting of stock and profit share.

Terminated employees have the right to hold out for similar paying jobs – In the Ontario case of Lake v. La Presse, Merida Lake worked for La Presse (2018) Inc. — a french newspaper — for over five years as a General Manager. She earned a base salary of $185,000, a car allowance, a bonus, pension and other benefits. When she was terminated in March of 2019, she was 52 years old. Lake sued for wrongful dismissal damages. When her case was heard the court awarded her eight months of reasonable notice. La Presse, however, argued Lake’s notice period should be reduced as a result of her lackluster efforts to mitigate her damages. Lake had only applied for a total of 11 jobs during the eight-month notice period. Lake’s eight-month notice period was reduced by two months finding that, Ms. Lake should have applied for less senior roles that paid less as she remained unemployed following her termination. On appeal, however, the decision was overturned and Lake was awarded the full eight months of damages. the Court of Appeal found that she had taken reasonable steps to mitigate her damages, including detailing her search efforts on job sites daily, her networking efforts, using career transition services and private coaching. This case is extremely helpful to recently terminated employees from sectors where there have been mass terminations, including the tech industry. If there are not comparable roles available for you to apply to, the Court of Appeal has confirmed that you are not required to accept a lower paying job to mitigate your damages.

I hope these takeaways are helpful to you as we wind down 2022. Thanks for reading. Wishing you and yours all the best this holiday season.