Dec. 20, 2022 "December is high season for layoffs, even though employers would be wise to wait": Today I found this article by Howard Levitt and Maria Belykh in the Financial Post:
For most employees, the holidays are a time to exchange Secret Santa presents, book vacations to tropical destinations and celebrate the past year’s successes at festive corporate functions. A happy time. Most of us look forward to it all year, and it serves as a yardstick in our lives.
For employers, on the other hand, it can be a much more stressful period. For them, the holidays serve as a reminder of the business that still must be wrapped up.
In December,
companies are occupied with
reconciling year-end accounting,
running through financial statements,
tax planning,
verifying vendors and suppliers,
checking inventory and budgeting for the next year.
While conducting these audits and financial inventories, some employers come to the difficult realization that they need to reduce headcount.
We strongly advise against layoffs during the holiday season.
(Ironically, although we have no Canadians statistics, the U.S. bureau of labour statistics advises that December is the month with the second-most terminations.
While January is first, that could simply be from laying off seasonal employees.)
Not only are layoffs at this time of year insensitive, even callous, but firing someone during the holiday season creates a host of practical concerns.
Not the least of those is that breaking the news during the “most wonderful time of the year” increases the likelihood that an employee will seek the advice of counsel and therefore eventually end up with a higher severance payment.
Secondly, from a legal point of view, the timing of a holiday termination may attract additional liability. December is a challenging time to search for work. Companies are too busy wrapping up their year-end affairs to dedicate time and resources to hiring.
With a greater-than-usual amount of their workforce on vacation, most companies slow down or even close for up to several weeks.
Interviewees then face an uphill battle getting their foot in the door of an organization before the new year.
With more difficulty securing interviews when they are needed most and depleted finances precluding spending money when it is most desired,
employees feel more than the usual humiliation and self-doubt.
Having to explain one’s predicament to Aunt Becky during Christmas dinner only exacerbates the upset.
For those reasons alone, in our experience, workers terminated during the holiday season are more likely to seek counsel. January is historically one of the busiest months in our practice for this reason.
Courts do not view holiday terminations favourably. Some have gone out of their way to award employees more as a result of these year-end dismissals.
The Ontario Superior Court of Justice awarded a woman named Wendy Horner additional damages in large part for the timing of her termination from Superior Coatings. According to the court’s ruling, Horner raised a harassment complaint about a co-worker to management. In response, on Dec. 22, the owner of the company told Horner that she should take the next day off, and the company would “figure this out in the new year.”
Shortly thereafter, and three days before the New Year, Horner received a termination letter stuffed in the back door of her home, the ruling said.
In addition to wrongful dismissal damages, she was awarded $20,000 for the “cold and brusque” way in which the employer ended the relationship.
In another decision involving the termination of Joe Durante by Zesta Engineering Ltd., the Ontario Superior Court of Justice found that the employer breached its duty of good faith by engaging in reprehensible misconduct, including dismissing the employee over the phone on his first day of vacation, only five days before Christmas.
We are not suggesting that there are no circumstances under which an employee should be fired during the holiday season.
We see far too many situations where an employer had hoped to bring unity and solidarity to their team by hosting a Christmas party, which ended in an employee drinking far too much and crossing a line that could not be uncrossed.
Where employees breach company policies or engage in sexual harassment at a holiday party, usually after a few sips or more of alcohol, employers may have grounds to terminate for cause and should do so. That holds true for any misconduct for which the vacation period provides no respite.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Maria Belykh is with Levitt Sheikh.
December high season for layoffs, but employers would be wise to wait | Financial Post
Dec. 23, 2022 "These were the biggest employment law trends of 2022": Today I found this article by Howard Levitt in the Financial Post:
What have been the major developments in the field of employment law in 2022? Here’s a rundown of what I see as the six biggest:
1. Union organizing
According to data from the U.S. National Labour Relations Board, unions south of the border won more elections this year than at any time in the last 20 years. The number of victories increased 80 per cent over the prior year and twice as many workers were represented.
More Americans approve of unions — 71 per cent according to Gallup — than at any time since 1965, when union membership rates were more than double what they are now. Although we do not have comparable data for Canada, my experience suggests a similar trend.
The reason is simple. With inflation near 10 per cent, the average wage increase in Canada at 3.4 per cent leaves employees dramatically behind where they were even a year ago. Couple that with working from home or hybrid work, there is less connection to their employer (even though that makes it harder for unions to reach the employee group). Smart employers, who have not had to worry about unions for the last number of years as union membership dropped continuously, are engaging firms like mine in sessions with their management groups as to how to remain union-free.
2. The case of Pohl vs. Hudson’s Bay
This Ontario Superior Court case reminded employers of the need to vigilantly adhere to their employment obligations at the time of dismissal.
Hudson’s Bay was ordered to pay $55,000 in moral and punitive damages because
it walked its employee out the door when firing him,
was late in providing and inaccurately completed his ROE,
delayed paying his employment standards termination and severance pay and,
at the time of dismissal, offered him a junior sales associate position that had terms eliminating his future rights to severance.
Many employers walk employees out the door when dismissing them, so this case is cautionary. Although Hudson’s Bay might have been careless rather than deliberate regarding the ROE and severance, that will not serve as an excuse.
As for the job it offered him, the court obviously viewed it as being too clever by half given the reality — which courts recognize — that employees at the time of dismissal are vulnerable.
The courts will invariably provide employees the protection which they believe the employer should have provided.
3. The case of Kosteckyj vs. Paramount Corp.
This interesting decision by the Alberta Court of Appeal found that employees who have their salary and benefits reduced have only 10 days to take the position that it is a constructive dismissal, failing which they will be deemed to have accepted the reductions. This is a question which has long plagued employers, employees and employment lawyers.
4. The case of Gracias vs. Walt Dentistry
This case serves as a lesson, particularly to employees and their lawyers, to not make exaggerated allegations of human rights or other abuses or they will be punished in costs at the end. It also sends a message to not sue in Superior Court for cases that legitimately should be in small claims. As well, it reminds employers not to make unfounded allegations of cause only to withdraw them later.
5. Older workers shown the door
Another trend we saw in 2022 was that of employers disproportionately dismissing older workers. Employers relied on the hot job market, the best in 50 years, to dismiss employees who they had wanted to let go for a long time but had been concerned about severance costs.
This year, because such workers could find work quite readily, with almost two job vacancies for every unemployed worker, employers’ severance costs were dramatically reduced since the employees would either find work or the employer could prove in court that they could have found work.
6. The return to the office
Last but not least, the return to the workplace has been the biggest employment law theme of 2022 (and will be the subject of an upcoming column). Employers generally want employees back in the workplace for team-building and productivity. Employees, to a large extent, are resistant.
We have reached the point where employees have a good argument that they have been permitted to remain home far longer than the pandemic required so that a recall to the office is a constructive dismissal. Employers have either had to accept that fact or, if they permit employees to remain working remotely, have them sign contracts permitting them to recall them at a future point with a defined advance notice.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
These were the biggest employment law trends of 2022 | Financial Post
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