Daniel A. Lublin is a founding partner of Whitten & Lublin, Employment & Labour Lawyers. Do you have a question about workplace law? You can e-mail him here.
A perfect storm of workplace friction is forming in Canada. Mandatory vaccination policies, heightened job mobility and general COVID-19 uncertainty are creating conditions for employees and employers to revamp contracts and take legal action to best protect their interests. Here are the issues I expect to see a lot of in 2022.
Companies suing former employees
With career mobility high in Canada, many workers will be poached or resign to take other jobs. However, don’t expect that employers will make it easy on them, especially where securing replacements will be difficult. In the next several months, workplace disputes surrounding the obligations of departing employees are set to become more prevalent.
This includes claims for wrongful resignation, where workers resign without providing fair notice; claims for violation of contractual non-competition or non-solicitation clauses; and claims that workers have taken or misused confidential information. In many cases, employers know that obtaining damages is unlikely, but they will still threaten to or pursue claims against ex-employees or their new employers for a variety of strategic reasons, including scaring off competitors from courting their staff or buying more time to find a replacement.
For their part, many workers believe they cannot be liable to ex-employers or that postemployment restriction clauses are never enforced. Generally, they are mistaken. Even if non-compete clauses are rarely upheld except for executives, there are a number of other legal duties that resigning workers can easily violate if they do not carefully orchestrate their departure. Workers thinking of leaving one company for another should obtain advice about how their contracts will be interpreted, what obligations they have to their former employers, and what types of protections they can seek to negotiate from their new employers in case they are sued.
Mandatory vaccine policies
Large-scale terminations will continue in both unionized and non-union settings, as mandatory vaccination policies continue to take hold throughout the country. To date, there are several arbitration decisions in the unionized sector finding that an employer’s right to impose mandatory vaccination policies trumps the individual rights of employees. However, there are no decisions from the courts applicable to non-union workers. This will change in the coming months as terminated workers pursue wrongful dismissal litigation.
Unlike some of my colleagues in the workplace legal community, I believe that few employers, outside of a health care setting, can actually justify termination of an unvaccinated worker for just cause and should instead pay severance. I also believe judges in these cases will focus on the individual workplace circumstances, including whether workers are required to work in close proximity with colleagues or clients in determining whether dismissal for just cause is warranted. There will be much fanfare among the unvaccinated when some win their cases, which I predict will occur.
Duty of fair representation claims
For the most part, Canadian unions are supporting mandatory vaccination policies. Unionized employees cannot sue their employers but must instead file grievances through their collective agreements. Many unions are simply refusing to advance grievances from unvaccinated members facing dismissal. The only option left for these workers is to file complaints against their union for failing to fairly represent them. Provincial labour boards will become flooded with these claims, many of which will be dismissed because of the high standards required to demonstrate that a union has not acted in good faith.
Revamped employment contracts
If there is one lesson that employers across Canada have learned since the pandemic began, it is that their employment contracts matter more than ever. Just about all of my corporate clients have updated their contracts in the past year. These new modern contracts have a variety of employer-friendly clauses such as probationary terms, severance limitations, restrictions on activities after departure, repayment of signing bonuses or training costs and temporary layoff clauses. Just as employers are spending more time and energy drafting revamped employment contracts to serve their needs, workers must have them reviewed by legal counsel experienced in such matters. I am finding that employers are so hard-pressed to secure new staff or replacements they will negotiate hiring contracts far more than previously. Job seekers should take advantage of the times – while they last.
Discrimination and harassment claims and workplace investigations
A variety of federal and provincial statutes now mandate that employers have appropriate discrimination and harassment policies and investigate and then address, to a reasonable resolution, any form of workplace discrimination, harassment or violence claims. The result is that most companies take these obligations far more seriously than before and will quickly initiate a formal investigation when a complaint is filed. More often than not, these investigations lead to discipline and dismissal, even if there is only the appearance of wrongdoing.
As the pandemic continues to disrupt the country in a variety of ways, there will be more workplace law mayhem in 2022.
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