Contradictory COVID-19 rulings dominated employment law in 2021

New precedents in employment law kept Stephen J. Moreau busy in 2021, especially labour issues related to the COVID-19 pandemic.

In January, he wrote about an Ontario funeral home that was told by the courts to pay a former employee $1.2-million after the business violated a fixed-term contract with him. “This case perfectly illustrates the danger of fixed-term contracts,” said Moreau, a partner at Cavalluzzo LLP. “Employers need to seek legal advice before offering them to new hires, and they might even be wise to review existing contracts to ensure the terms governing termination are clear.” A $1.2-million lesson about the dangers of fixed-term contracts

Later that month, he listed a half-dozen employment law decisions that he thought would be cited in litigation in 2021. Six 2020 employment law cases that will resonate this year

In February, Moreau wrote that people terminated from their jobs during the COVID-19 pandemic should be given extended notice periods. “Going forward, the message appears clear that a March 2020-onward termination means more notice owed because of the coronavirus,” he told LegalMattersCanada.ca. Longer notice periods should be the norm for pandemic terminations

Pregnancy a factor in notice period length

An employee’s pregnancy at the time of her termination is an important factor when it comes to deciding on the length of a notice period upon termination, Moreau stated in March, citing a judge who said, “there is no principled reason why, when determining the damages of a wrongfully dismissed employee, their pregnancy at the date of dismissal should not factor into the reasonable notice period when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.” Reasonable to believe that pregnancy a barrier to finding work

In April, he commented that economic conditions must be considered when deciding on damages after a wrongful dismissal, especially during a pandemic, citing a case from the Queen’s Bench of Alberta that reached the same conclusion. “Jobs are scarce, so notice periods should be extended,” Moreau explained. “Further, basing the damages on regular pay levels instead of the ones imposed weeks before termination is also a sensible decision.” The pandemic is now reflected in severances, notice periods

Contradictory rulings about pandemic-inspired layoffs

Two Superior Court of Justice decisions showed that when an employer temporarily lays off a worker during a pandemic, the layoff should be considered a termination, he wrote in May. Pandemic-inspired layoffs are terminations, judges affirm

In July, Moreau returned to the same topic after a  Superior Court ruling found that layoffs during a pandemic should not be considered a termination. “Eventually, the issue should be resolved, but not after more litigation by employees and employers,” he stated. Misguided ruling on IDEL muddies the judicial waters

An Ontario Superior Court of Justice decision to certify a class-action lawsuit against Uber Technologies Inc. is an important step toward clarifying the rights of all gig workers in Canada, Moreau wrote in September. Canadians are uncomfortable with the way Uber does business

Later that same month, he commented about a case he was involved in, where he represented a former executive at a mining company who was terminated. After intense discussion, Moreau said the two sides reached an agreement on a settlement, aside from a few details. When the company later insisted that those lingering details voided the agreement, the case ended up in court, with the judge siding with Moreau’s client. “This case serves as a reminder that a lot of law happens behind the scenes,” he wrote. Good lawyers work hard to settle cases before a trial

In November, Moreau wrote about an Ontario Court of Appeal (OCA) decision to overturn a lower court ruling that adequate notice must be given about “harsh and oppressive” termination clauses in employment contracts. Moreau concluded his column by noting, “The OCA may not be the last word here.” Court ruling a lost chance to set the law on ‘harsh’ termination clauses