Anonymous Law Student

As per labour relations legislation, some employees are excluded from collective bargaining. In the past this exclusion has survived Charter scrutiny as it has been held that the freedom of association and freedom of speech do not guarantee a right to collectively bargain. However, newer case law seems to suggest that there is a Charter protected right to collectively bargain. In Health Services, it was held that the Charter includes a procedural right to collectively bargain, but does not guarantee particular objectives. Further, the Charter does not protect all aspects of associational activity, only those which constitute a substantial interference with associational activity. Notably, Bill 5 in SK designates certain employees as “essential services”, and restricts their rights to collectively bargain.

When it comes to wrongful dismissal, the main job of the court is to determine what is reasonable notice (i.e. you get paid money to compensate you). This is an implied term of the employment contract as per common law. There are two main approaches to determine reasonable notice. The oft-cited Bardal approach where the court considers such factors as the character of employment, length of service of the servant, age of the servant and availability of similar employment (most important) having regard to the experience, training, and qualifications of the servant. The Bardal approach is augmented with by the Lazarowicz approach, approved by the SK QB in Bartlam. Here, the court imagines that the employer and the employee had sat down at had a chat at the time the employee was hired. How much of a notice period would they have agreed upon? This approach is useful because it takes it flexibly takes into account factors such as the economic situation, norms of the industry and so on.

The measure of damages for wrongful dismissal is governed by the length of the notice period in the contract of employment, because what makes the dismissal unlawful at common law is the employer’s failure to give due notice or wages in lieu of. Therefore, the employer can recover only for wages and benefits that he or she would have been legally entitled to during the contractual notice period.

If the employer acted in a particularly repulsive way in the manner of dismissal, there is no additional recourse for the employee unless the employee can show that the employer’s conduct constituted an independently actionable tort such as mental distress (Honda v. Keays).

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