Human Resources Issues for Senior Management
Issue link: https://digital.hrreporter.com/i/343811
30 Executive Series Digest hrreporter.com incrementally extending this 24-month ceiling. e boundaries of what may con- stitute "exceptional circumstances" are not clearly defined. However, we do know a judge may adopt a cumulative effect approach in reaching such a determination. For example, in Hussain v. Suzuki Canada Ltd. the combination of the plaintiff 's age (65), service (35 years) and skill set made finding alternate employment in a poor economic climate unlikely, resulting in an award of a 26-month notice period. Mitigation with a twist Any reasonable notice entitlement is subject to an employee's obligation to mitigate the damages. If the employee obtains alternate employment during the reasonable notice period, or the employer is able to demon- strate the employee did not take reasonable mitigation efforts, a court will reduce the notice period accordingly. However, in a recent decision, the Court of Appeal for Ontario held that in circum- stances in which mitigation might include the terminated employee accepting another position with the terminating employer — at least throughout the period of notice — the employer must ensure the employee is re-offered the new position aer the employee commences, or indicates an in- tention to commence, a claim for wrongful dismissal. (See Farwell v. Citair, Inc. (General Coach Canada).) Failure to clearly reiterate the offer of employment as a means of miti- gation may mean the departing employee has not failed to meet his mitigation obliga- tion by not returning to work. Additional damages By sounding the death knell for the Wallace bump in 2008, the Supreme Court made it more difficult for workers seeking to receive damages in addition to common law reason- able notice. e result has been increasing numbers of claims seeking extraordinary damages for "mental distress and bad faith," as well as punitive or aggravated damages. e good news is that since Keays, in order to successfully claim additional dam- ages, an employee must prove actual harm/ suffering arising from something more than the impact of losing his job. Managing the risk of liability Employment agreements: In Canada, ter- minating an employee without cause comes at a cost. But it can be effectively managed EmploymEnt law through the use of an enforceable written employment contract. In most Canadian jurisdictions, a contract can limit an employee's reasonable notice entitlement taking the determination out of the hands of judges and adjudicators. Employers that do not have written agreements in place should not despair — it's never too late. An enforceable employ- ment agreement can be introduced into an existing employment relationship under the right circumstances. Stock option plans: Employers that offer incentive or stock option plans should turn their attention to the language in those plans. e governing legal presumption is the employee is entitled to what she would have earned had her employment continued throughout period of notice. e only way to rebut this presumption is by clear lan- guage in the stock option plan limiting an employee's entitlements in the event of ter- mination (or resignation). Shana French and Ryan Treleaven are lawyers with Sherrard Kuzz, an employment and labour law firm that represents manage- ment. ey can be reached at (416) 603-0700 or visit www.sherrardkuzz.com for more information. Skills training can change your future. Start today at EssentialSkillsDay.ca With skills training, you can acquire the tools needed to succeed, like numeracy. When employees know how to analyze data and calculate the bigger picture, you can move forward together. Benefits of Skills Training #5: Think in numbers. Grow in numbers. #LearnForward fli The Advancing Workplace Learning joint project is funded in part by the Government of Canada's Adult Learning, Literacy and Essential Skills Program (ALLESP).