Canadian Lawyer InHouse

9 canadianlawyermag.com/inhouse April 2015 A roundup of legal department news and trends 1978, the vast majority of federal adjudicators held that dismissals could only be affected on a just-cause basis. "So the result has been that employers have been restricted in their ability to man- age their human resources in a manner they viewed appropriate," says Snyder. "Thus they were unable or reluctant to dismiss employ- ees unless they built a solid case that could demonstrate the existence of just cause." That involved significant time and effort and financial expense on their part as well as being disruptive to the working environ- ment. "The Federal Court of Appeal has now confirmed that these employees may be dis- missed on a without-cause basis and equally important they also confirm the common law principles of employment associated with employee terminations is applicable in determining severance packages or working notice received are just," he says. Snyder referred to the "almost Supreme Court style level of analysis" provided by Stratas. In his decision, Stratas referenced many cases and in particular wrote that, ". . . I largely agree with adjudicator Wakeling in Knopp v. Western Bulk Transport Ltd., [1994] C.L.A.D. No. 172] supra at paragraph 77: "In conclusion, Divisions X, XI and XIV of Part III of the Canada Labour Code do not jettison the common law principles which govern the termination of an employment relationship. Had Parliament intended to im- plement a drastically different legal order in which common law principles played no role, it would have said so in plain language. In en- acting Division XIV of Part III of the Code, Parliament created another forum besides the courts to hear complaints of unjust dis- missal and granted Code adjudicators reme- dial powers common law judges are without." The decision also referenced Klein v. Royal Canadian Mint, where an adjudicator found the employer did have the ability to terminate without cause. In that case, a unionized em- ployee had applied for and got a managerial position and signed a contract that his em- ployment could be terminated without cause upon payment of notice. He then challenged his termination and the adjudicator disagreed but relied in part on the fact his express terms of employment said he could be terminated without cause upon payment of notice. "It's still important for employers to look to the specific individual terms of employment because there may be something in a contract or policy that impacts the employer's ability to terminate without cause," says Vuicic. The issues to be litigated now are: "When is a dismissal unjust?" says Hendrik Nieuw- land of Shields O'Donnell MacKillop LLP. "That is the question that is going to be asked for every without cause termination now." That means in the short term it may potentially increase litigation, Nieuwland says. NOT TOO BIG. NOT TOO SMALL. ;IEVIEJYPPWIVZMGIFYWMRIWWPE[½VQXLEXGSQFMRIW &E]7XVIIXI\TIVMIRGI[MXLPIEHIVWLMTXIEQ[SVOERHZEPYI 8LEROWXSSYVGPMIRXWSYVVIJIVVEPWSYVGIWERHSYVTISTPI [ILEZIKVS[RMRXSE½VQXLEXETTVIGMEXIW]SYVYRMUYIGLEPPIRKIW LEWEVMKLXWM^IHETTVSEGLXSWIVZMGIERHGERFYMPHEXIEQXLEX´W© JUST RIGHT -JXLMWWSYRHWPMOIXLIVMKLX½XJSV]SY ]SY´ZIHMWGSZIVIH6MKLXWM^IH8LMROMRK ® . &YWMRIWW0E['SQQIVGMEP0MXMKEXMSR'SQQIVGMEP6IEP)WXEXI 'SRWXVYGXMSR -RWSPZIRG] 'SVTSVEXI 6IWXVYGXYVMRK )QTPS]QIRX 0EFSYV ;MPPW )WXEXIW 8VYWXW ntitled-3 1 2015-03-02 8:53 AM

• Cover