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The first of three papers helps resolve the substantial debate about the impact of Honda v. Keays, a 2008 Supreme Court of Canada decision modifying the principles for compensating employees for improper employer conduct during dismissal (called “moral damages”). I performed content analysis on all relevant Canadian cases in the four years after Honda and an equivalent period before Honda and then used a tobit model to test legal scholars’ and lawyers’ predictions. I find that moral damages are less probable after Honda. Furthermore, the size of awards is smaller in those cases where moral damages are granted, partly because certain levels of employer misconduct now produce lower damages. However, I also find that, since Honda, high levels of mental distress are compensated more richly. The second paper is motivated by the absence of recent studies that investigate delay in grievance arbitration, despite increasing concerns being voiced about the issue. I performed content analysis on a random sample of about 400 Ontario arbitration awards, and then used a proportional hazards model to examine the extent of delay and its determinants. Consistent with common perception, the results suggest that delay has become a worse problem over the past two decades. I find that certain legalistic factors and the expanded jurisdiction of arbitrators over specific types of issues are associated with delay. The results also show that certain dispute resolution procedures are related to decreased delay, and this suggests some practical solutions. Prompted by a recent series of Supreme Court of Canada (SCC) decisions on freedom of association (FOA) in the labour context, the third paper critically examines the Canadian jurisprudence. The state of this law in Canada has been roundly criticized by various prominent labour law academics. This paper relies on Sheldon Leader’s theory of FOA to argue that the SCC should have interpreted s. 2(d) of the Charter as protecting collective bargaining and striking as independent rights, rather than as rights necessary for the realization of the FOA. Having done so would have yielded jurisprudence that was more consistent and coherent.
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In this paper the authors provide a review and critique of existing legal standards and methods, at common law and under employment standards legis- lation, for determining the length of notice to which employees are entitled as a result of without-cause termination. They argue that, at common law, the factors relied on to determine the amount of termination notice contribute to systemic bias and power imbalances between employers and employees, while fostering the illusion of individualized assessment. As well, the regime is inaccessible to low- and middle-income employees due to the costs of litigation. Minimum statutory notice in Ontario, which relies solely on the factor of length of service, is heavily discounted in relation to the common law, and suffers from poor enforcement and widespread non-compliance. In light of the shortcomings of the common law and statutory regimes, the authors conclude that there is a clear need for reform. While other proposals for reform have been advanced, the authors contend that they focus too heavily on length of service, are likely to perpetuate the problems associated with the existing systems, and fail to comprehensively take into account the primary purpose of notice - to provide employees with a "cushion" between termination and re-employment. The auth- ors then set out their proposal for a "Middle Course" approach to determining length of notice, which would be based on a series of objective factors related to the estimated time needed by a dismissed employee to obtain re-employment. It would be implemented by replacing the existing formula under employment standards legislation with one that would enable notice entitlements to be deter- mined in a more predictable, rational and equitable fashion.
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Using 7 years of data representing the Canadian private sector, we estimate the effects of the major components of compensation on a rarely studied form of employee performance: innovation. Although there are some limitations inherent in the data, our results indicate the complex motivation required for consistent innovation success. Surprisingly, we find that fixed pay (salary) and individual performance pay have no effect on innovation, while variable group pay and indirect pay (employee benefits) have a positive effect. In other words, our results suggest that you can pay employees to innovate, provided that you select the right compensation incentives.
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