Canadian Lawyer's Employment Law Masterclass takes place Feb. 15
In Canada’s currently challenging economic climate, many employees and employers are calling employment lawyer Rich Appiah to discuss constructive dismissals.
The founder and principal of Appiah Law Employment + Labour Counsel says managers find themselves needing to restructure their organizations and redistribute duties and positions without firing anyone. The process triggers concern about rights and obligations and what types of adjustments constitute constructive dismissal. He says that employees subject to these changes also want to know their rights.
Appiah is among the speakers at Canadian Lawyer's upcoming Employment Law Masterclass.
“Employment Law in 2024: Accommodation, Family Status, and More” will take place online on Thursday, February 15. The Masterclass will bring together labour and employment lawyers and in-house counsel to dive into 2024’s most consequential employment law issues.
Appiah and Koskie Minsky LLP partner Nancy Shapiro will moderate a panel featuring Aird & Berlis LLP’s Lorenzo Lisi and David Whitten of Whitten & Lublin PC. The panel, “Best practices for mitigating the risk of constructive dismissal and without cause termination cases,” will examine recent constructive dismissal caselaw and how the workplace environment and changes to duties and responsibilities can lead to employees claiming constructive dismissal.
“The big question is: When does a change become a constructive dismissal?”
Appiah says inquiries concerning constructive dismissals often involve return-to-office arrangements. During the pandemic, employers sent everyone home to work remotely, and now are asking them to return for at least two days per week and sometimes full-time. He is fielding questions from both employers and employees about whether changing the employment relationship from remote to primarily in-office work constitutes a constructive dismissal.
The Globe and Mail reported on Dec. 28 that with interest rates as high as they have been since 2001, inflation, and the consequent squeeze on consumer and business spending; the Canadian economy was stagnant heading into the new year.
The economy also has Appiah’s clients talking about wrongful dismissals.
“There is an economic slowdown in progress that has been going on for at least the second half of this year and is expected to continue into next year,” says Appiah. “What employers are increasingly trying to do, given that climate, is mitigate the liability they have to employees when they dismiss them.”
Mitigating liability often involves terminating employees and offering severance packages that fall short of their entitlements under contract or common law. Appiah says this is producing more wrongful dismissal claims.
“We'll be seeing those more frequently as employers try to reduce their workforce with minimal payouts to employees,” he says.
Appiah adds that the caselaw around wrongful dismissal has increasingly favoured employees in the last three to four years.
“Courts have been making it very clear to employers that if an employee has not adequately or clearly opted out of their common law right to reasonable notice of termination, then the employee will be entitled to that notice or compensation in lieu of that notice.”
“They're more strictly applying that principle than they have in the past,” he says.
