Ted's Blog


Employer Flexibility Does Not Modify the Employment Contract

It is a fact of life. Employees sometimes need flexibility to start or leave work at different times than originally agreed with their employer. Sometimes this is because of child care issues. A recent appellate decision, Peternel v. Custom Granite & Marble Ltd., confirms that employer flexibility in granting occasional requests does not always modify the underlying employment contract. Read More...

Stalkerware apps struck down for the first time ever by the FTC

Hollywood has us believing that spyware technology is only used by secret-agent hackers who plant tracking devices in the wheels of cars or in the soles of shoes. But in reality, “stalkerware” isn’t as high-tech or inaccessible as we’re led to believe. It’s a tool that can be harnessed as a dangerous weapon, stripping people of their privacy — especially women in abusive relationships.

Stalkerware technology, also known as “spouseware,” takes the form of applications or add-ons to a device that allows someone to remotely monitor another person’s activity. This technology has become increasingly accessible, but yesterday, the Federal Trade Commission (FTC) made its first case against the developers behind three stalking apps — originally created to monitor children and employees – that may also be used for illegitimate purposes.

Managing Change In The Workplace – Constructive Dismissal And The Duty To Mitigate

Last week's Nova Scotia Court of Appeal's decision in Halifax Herald Limited v. Clarke, 2019 NSCA 31, is good news for employers. The Court overturned the trial judge's determinations that an employee had been constructively dismissed after he was transferred to a new sales position and had not failed to mitigate his damages by declining to stay at work in the new position.

The Court held that the trial judge had committed three reversible errors by: (1) excluding relevant evidence of actual sales results; (2) misapplying the legal test for constructive dismissal; and (3) misapplying the legal test for mitigation. As a result, the Court not only overturned the trial decision but dismissed the action outright. The former employee must now pay the Herald approximately $130,000, which includes trial and appeal costs.

This decision is good news for employers faced with restructuring their business to manage industry change and other developments. It brings improved clarity to the law of constructive dismissal and the duty to mitigate. The analysis must be objective and consider the evidence from the employer without unduly focusing on the employee's subjective views. Moreover, a reduction in income – whether actual or anticipated – does not automatically remove the duty to mitigate by continuing in the position.

No Pay In Lieu Of Notice For Disabled Employees?

Recently an interesting summary judgment decision on a wrongful dismissal case was released in Alberta. In Belanger v. Western Ventilation Products Ltd. (Belanger), 2019 ABQB 571, the court held that while the reasonable notice period provided to the employee was insufficient, it had no practical effect as the employee was not entitled to any further payments from the employer after the employee became disabled and unable to work partway into their working notice period. Read More...

The Importance of Dressing Well for a Job Interview

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The following is a reprint of an article that appears in the Art of Manliness web site.

There are a lot of reasons for the job interview to weigh heavily on people’s minds. It’s a very all-or-nothing situation; you’re in or you’re out. Of course more factors than your clothing come into play — but the clothes matter too, and even habitually sloppy dressers tend to be aware that interviews call for special care.

So let’s start by debunking a piece of well-meaning but incomplete advice: While some will say that you should wear a suit to every interview no matter what, the truth is that there is no default “interview suit.” And not every job interview even requires a suit; in the wrong setting it can actually hurt your chances.

Yes, a good business suit is frequently the best choice for an interview. In tomorrow’s article we’ll talk all about when to wear one and how to perfectly pull it off. But we’re also going to cover your other options, and most importantly we’ll talk about how to choose the right outfit for the kind of job you’re going for.

Before we dive into those specifics and the how of dressing well (and appropriately) for a job interview, however, today we’ll simply unpack exactly why it’s so important in the first place.

Take A Break: Court Of Appeal Rules That Employee's Rescinded Resignation Still Interrupted Length Of Employment

The Ontario Court of Appeal has overturned a trial decision and found that when an employee resigned from employment, only to rescind the resignation, the employer was permitted to enforce the employment contract entered into as a condition of “continuing” employment. Read More...

Uncertain Changes And A Strained Relationship Do Not Amount To Constructive Dismissal

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Reza Baraty alleged he was constructively dismissed from his position with Wellons Canada Corp. ("Wellons"). He considered: (1) his position to have been eroded to the point where he was no longer a manager; and (2) the work environment to have become intolerable because of bullying and harassment by a co-worker.

In Baraty v. Wellons Canada Corp., 2019 BCSC 33, the B.C. Supreme Court dismissed his claims.