Frequently Asked Questions
By providing 8 weeks’ notice, the employer has abided by the minimum requirement for notice of termination under the Employment Standards Act, 2000. If the employment relationship was not governed by a written contract of employment that limited the employee’s entitlement to the ESA minimum standards, the employee is entitled to reasonable notice of termination in accordance with common law principles. The failure to provide reasonable notice can result in a lawsuit for wrongful dismissal. Under the common law, reasonable notice of termination must be given to any employee dismissed without cause. The traditional factors for assessing the amount of reasonable notice for employees are age, length of service, character of employment and the availability of similar employment in the market. However, the criteria are not fixed and reasonable notice will vary from case-to-case. Wise employers will always consult with an employment lawyer to obtain advice on the appropriate reasonable notice period.
With very few exceptions, Canadian courts will not enforce agreements not to compete against an employer. Such agreements are often deemed contrary to public policy as courts are reluctant to preclude employees from earning a living. However, agreements that restrict employees from soliciting the clients and employees of a former employer have been upheld by courts, provided the restriction is reasonable considering, among other things, the duration and geographic scope of the restriction. Indefinite non-solicitation provisions are unlikely to be enforceable. On the other hand, employers can expect employees to preserve the confidentiality of its information and documents and not rely on these documents to compete with the employer. The obligation of confidentiality lasts indefinitely.
An Application for Certification means that an employee has applied to have a union represent a proposed group of employees, sometimes the entire non-management workforce. The employee is required to make the application with at least 40% support from the employees covered by the application.
Except in unusual circumstances, a vote will be held within five (5) days of the Application. If 50+1% of the employees proposed for unionization vote YES, the proposed union will become the exclusive bargaining representative for the employees. Going forward, the employer is obliged to deal directly with the union regarding any and all terms and conditions of employment. The process is streamlined in the construction and temporary help industries. In those contexts, “card-based” certification applies and employees can unionize a workplace simply by showing 55+1% membership in a union. No vote is required.
Employers are entitled to participate in the certification process by filing a Response to the Application for Certification. Employers have only 2 days to respond with little if any ability to extend that timeframe. Employers who respond in time may be able to prevent or delay certification by providing the Labour Board and employees (where there is a vote) with pertinent information.
The Ontario Labour Relations Board’s website contains very helpful information about the certification process, here.
In response to an Application for Certification, employers should engage legal counsel experienced in the certification process, immediately. Employers should also take care not to engage in any retaliatory or defensive actions towards employees. Employers have a limited ability prior to a vote to try and persuade employees not to unionize, but the communications should happen strictly under the guidance of legal counsel.