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Atlantic Employers’ Counsel – Spring 2015

The Editors’ Corner

Michelle Black and Sean Kelly

Hello! We are very pleased to be the new Atlantic Employers’ Counsel (AEC) editors. We look forward to bringing you what we hope you will find to be interesting articles and we welcome your feedback.

To celebrate our inaugural edition, we thought probationary employees was an appropriate theme. And who better to write on that topic than four of Stewart McKelvey’s up-and-coming associates (with thanks as well to articled clerk, soon-to-join-us-as-an-associate in the Labour & Employment group, Dante Manna).

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Avoiding the “long-haul” begins with the agreement

Chad Sullivan

It all starts with the agreement.

Probationary periods are a useful tool for employers assessing the suitability of new hires.

Generally, a valid agreement setting out a probationary period allows the employer to dismiss an employee during the probationary period without meeting the high threshold of just cause.

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Well, what did you expect? Setting expectations for probationary employees

Philip Milley

Hiring employees on a probationary basis allows employers to ensure they hire the right people. While implementing trial periods for new employees has many advantages, employers should be aware of key rules applying to probationary employees to avoid potential costly liability should the relationship not work out.

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Is the duty to accommodate less onerous for probationary employees? Possibly…

Timothy Bell 

A recent case from the Alberta Court of Appeal considered this question in the context of an employee with Asperger’s syndrome working at a call centre but, unfortunately, did not provide a definitive answer. Although the decision suggests that the duty to accommodate can be less onerous for probationary and short service employees, the threshold for establishing undue hardship is onerous and is always judged on a case by case basis.

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How to dismiss so it’s not amiss – termination guidelines for probationary employees

Sydney Blackmore

Dismissing a short-term probationary employee can be a risky proposition, with expensive consequences if not done properly. Where just cause exists, the employee can be terminated with minimal risk that compensation will be awarded. However, in probationary employment, the decision to terminate is not always based on just cause. Instead it may be based on other considerations such as whether certain performance goals were met. This article focuses on how to terminate without just cause.

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Client Update: Universal interest arbitration proposed for New Brunswick

April 5, 2016

On March 29, 2016, the Province of New Brunswick tabled proposed changes to the Industrial Relations Act and the Public Services Labour Relations Act. If passed, these changes would dramatically alter well-established principles of private sector collective bargaining.…

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Good Faith Fisheries: New case on Crown consultation & regulation of Aboriginal fisheries

March 22, 2016

By Jennifer Taylor Why is this case a big deal? It started with two salmon. Now, after several years of litigation, the Nova Scotia Provincial Court in R v Martin, 2016 NSPC 14 has stayed proceedings against…

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Atlantic Employers’ Counsel – Winter 2016

March 10, 2016

THE EDITORS’ CORNER Michelle Black and Sean Kelly One day, the line between mental and physical disabilities may not be so pronounced, but, for now, distinctions are still drawn between Employee A with, for example, diabetes and…

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Hiring the “Right” Employee

February 24, 2016

By Lisa Gallivan Employees can be your biggest asset, if you hire the right people. This can often be one of the biggest decisions that you make as a business owner or employer. The “right” employee…

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Bye, Bye Canadian P.I.?: What Apple’s fight against the FBI means for the protection of Personal Information in Canada

February 23, 2016

By Burtley Francis and Kathleen Leighton Order Up: Apple, P.I. Recently, the public safety versus personal privacy debate has been brought to main headlines. Apple is facing a court order (available here) requiring the company to assist the FBI in the investigation of…

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Client Update: Outlook for the 2016 Proxy Season

February 12, 2016

In preparing for the 2016 proxy season, you should be aware of some regulatory changes and institutional investor guidance that may impact disclosure to and interactions with your shareholders. This update highlights what is new…

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Left Sharks and Copy Cats: The Super Bowl’s Impact on Protecting a Brand

February 5, 2016

By Burtley Francis and Michael MacIsaac You remember Left Shark… The Super Bowl is a lot of things to a lot of people and is arguably the most anticipated event of the year that is not a holiday…

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The Labour Relations of First Nations’ Fisheries: Who gets to decide?

February 2, 2016

By Jennifer Taylor Summary The Canada Industrial Relations Board recently held that it had no jurisdiction as a federal board to certify a bargaining unit comprised of fisheries employees of the Waycobah First Nation. The decision…

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Can an employer prohibit tattoos and piercings?

January 21, 2016

By Peter McLellan, QC In the 1970s the issue for employers was long hair and sideburns. In the 1980’s it was earrings for men. Today the employer’s concerns are with tattoos and facial piercings. What are…

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Settling for it: Two new NS decisions on settlement agreements and releases

January 15, 2016

By Jennifer Taylor Introduction It sounds simple: Two disputing parties, hoping to resolve their disagreement without drawn-out court proceedings, will mutually agree to a settlement on clear terms; release each other from all claims; and move…

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