A: Firstly, I will explain what reasonable notice is under common law: an indefinite employment

contract requires an employer to give reasonable notice of termination in the absence of clear
contract language to the contrary and in cases of termination without cause. This applies to
common law due to the absence of a written employment contract and the principle of reasonable
notice. Wrongful dismissal lawsuits are based on the implied obligations in the employment
contract, meaning that reasonable notice of the intent to terminate the relationship must be given
without just cause. Therefore, if an employer fails to provide reasonable notice of termination, an
employee can bring a lawsuit for breach of implied terms. However, wrongful dismissal lawsuits
are for claims of compensation for loss of employment rather than seeking reinstatement.
Additionally, indefinite employment is not necessarily lifelong employment unless specified in the
contract terms. Ivan is currently in a situation without a written contract. If there is no explicitly
stated (legally binding) contractual provision specifying the notice period required to terminate the
relationship, the court will imply a term that termination can only occur with reasonable notice (in
the absence of just cause). The reasonable notice period is intended to estimate the time the court
believes the employee needs to find alternative employment, with the purpose of providing the
employee an opportunity for replacement employment.
The factors considered when determining the reasonable notice period primarily align with the
Bardal factors: the age of the employee, length of service, nature of employment, and the
availability of similar employment opportunities.

B: I believe that in Ivan's case, the court may not be able to provide a specific common law
reasonable notice period but could determine a general range. Determining a reasonable notice
period is considered more of an "art than a science," and there is no formula to follow when
establishing the period under common law, unlike the notice periods outlined in the 'ESA, 2000.'
Additionally, since it involves reasonable notice, rational individuals may have differing opinions
on what is reasonable. These factors lead the court to arrive at a range, such as 12-14 months,
rather than a fixed number.

In Ivan's case, the four factors outlined in Bardal would be considered. The first factor is the age
of the employee, as older employees often find it more challenging to secure new employment.
Ivan, being 52 years old, faces difficulties in finding a new job or adapting to a new work
environment and market as a senior employee with 12 years of service. The second factor is the
length of service, with Ivan having worked for the company for 12 years and holding a responsible
position. In such cases, it is challenging to find new employment after long-term commitment to
the same role, and the contribution of the employee to the organization is substantial. The third
factor to consider is the nature of employment, as higher-level employees like managers, such as
Ivan, find it more challenging to secure comparable positions compared to non-management staff.
Lastly, the fourth factor is the availability of employment opportunities, considering Ivan's current
annual salary of $75,000 and employee benefits. However, in the job market, factors influencing
reemployment need to be taken into account.

Assuming that, based on the Bardal factors, I have determined a reasonable notice period range of
12 to 14 months, and in accordance with the Employment Standards Act, the employee is entitled
to 8 weeks of severance pay (1 week for each year of service, up to a maximum of 8 weeks), the
common law stipulates a reasonable notice period of 12 to 14 months, inclusive of the 8 weeks
mandated by the Employment Standards Act of 2000. Therefore, in accordance with the
Employment Standards Act, the total notice period is 12 to 14 months, without the need to add an
additional 8 weeks.

C：I will explain the duty to mitigate losses under common law. Firstly, in the face of termination,
the terminated employee has an obligation to make reasonable efforts to obtain alternative
employment. The employee cannot simply sit idle at home, allowing their losses to accumulate. If
the terminated employee secures other employment during the reasonable notice period and is
successful in a lawsuit, any earnings will be deducted from any damages sought from the former
employer. However, the mitigating income earned by the employee cannot be used to reduce the
statutory termination and severance pay mandated by the Employment Standards Act, 2000.

In addition to the efforts made by the employee to mitigate losses, the employer also has the
responsibility to provide evidence of the employee's failure to fulfill the duty to mitigate, but
proving this can be challenging. If the employee has made reasonable efforts and is likely to find
other work, and the employer can demonstrate this, they should not be responsible for any
damages beyond that date. However, it is difficult for employers to prove whether the terminated
employee made reasonable efforts or had opportunities to seek alternative employment.

A: A: Just cause exists if an employee engages in serious misconduct, habitually neglects duties,
demonstrates incompetence or behavior inconsistent with their duties, or harms the employer's
business. Additionally, if an employee substantially and intentionally violates the employer's
orders, the law recognizes the employer's right to terminate the employment immediately. If the
employee's conduct breaches fundamental conditions of the employment contract, violates the
inherent trust in the employment relationship, or fundamentally and directly contradicts the
employee's obligations to the employer, there is just cause for termination. In common law, an
employer is not required to provide or pay reasonable notice when terminating an employee for
just cause, depending on the circumstances. The employer is responsible for proving just cause
after weighing various possibilities.

However, in any just cause scenario, the employer needs to undergo a contextual and two-step
analysis (McKinley and TWO step analysis). Firstly, after considering various possibilities,
whether there is evidence that the employee's behavior constitutes just cause. Secondly, if it
qualifies as just cause, then what is the appropriate penalty for the nature and severity of the
employee's misconduct? Is the behavior deserving of disciplinary action, and if so, what is the
appropriate discipline? Employers must strike a valid balance between the seriousness of the
employee's misconduct and the sanctions imposed; the punishment must be proportionate to the
offense. When applying this contextual approach, the court needs to determine whether the nature
and severity of the plaintiff's conduct are in harmony with maintaining the employment
relationship or if the conduct fundamentally undermined the core of the employment relationship,
thus justifying termination. The law also requires consideration of whether the employee's
misconduct renders the employment relationship no longer viable.

B:I believe the company should be able to terminate its employment relationship with Gabriella
for just cause, and the company can defend itself with just cause after Gabriella initiates legal
proceedings. Firstly, just cause for termination is often associated with employee misconduct or
actions that harm the company's interests, which can be deemed grounds for dismissal.
Misconduct can be categorized into two types: serious misconduct and minor misconduct that is
inconsistent with the employment relationship. While the latter may not immediately lead to
termination, over time and when viewed as a whole, it can justify termination. Gabriella's behavior
falls into the category of the second type of misconduct.

However, there is a resolution for the second type of misconduct, which is the role of performance
management. Firstly, "over the past few months, Ahmed has noticed that Gabriella has failed to
satisfactorily fulfill her job duties. For instance, Gabriella missed crucial deadlines, and her
marketing strategy for launching new products performed poorly, requiring Ahmed to become
more involved." This statement reflects Gabriella's inappropriate behavior. Initially, the company
employed the McKinley contextual approach to assess what kind of disciplinary action was
necessary for the employee's misconduct. They started with progressive discipline, a step-by-step
process. Initially, the company had a conversation with Gabriella, reminding her of her
responsibilities. Despite the meeting held by Ahmed on October 4, 2023, Gabriella's performance
did not improve. In this situation, not only did her efficiency fail to improve, but it also led to
actions that harmed the company's interests.
In such a case, disciplinary action is no longer an effective means to address the employee's
misconduct, as the employee has not shown significant improvement despite multiple reminders
and has caused harm to the company's interests. This situation constitutes serious misconduct,
providing the company with just cause for termination. Overall, there has been harm to the
employment relationship.

Q8:

A: Constructive dismissal essentially refers to the employer's actions indicating that the employee
is dismissed without explicitly stating so. If the employer's conduct implies that they no longer
wish to be bound by the employment contract, it constitutes an implied termination. The second
element, the employer's intent, is not crucial, and the standard for constructive dismissal is
objective.

Definition: If an employer unilaterally decides to make significant changes to the fundamental

terms of an employee's employment contract, and the employee disagrees with the changes and
resigns, the employee is not resigning but is considered to be constructively dismissed. This
occurs because, by unilaterally seeking substantial modifications to the fundamental terms of the
employment contract, the employer ceases to fulfill its obligations, thereby terminating the
contract.

To conclude that an employee has been constructively dismissed, the court must determine
whether the changes unilaterally imposed by the employer substantially alter the fundamental
terms of the employee's employment contract.

There are five primary elements for this determination. The first is unilateral action by the
employer, the second is making substantial changes to the contract, the third is not providing
reasonable notice of the changes, the fourth is the employee not acquiescing to the changes, and
the fifth is leaving the employment relationship. The court will use two tests to determine whether
Freya has been constructively dismissed. The first test assesses whether the employer's unilateral
changes to the contract constitute a breach of the employment contract, while the second branch
examines whether the employer's conduct indicates an intention not to be bound by the employee's
contract. For this branch, the court must consider whether, in all circumstances, the employer's
actions lead a reasonable person to conclude so.

B：
B: I believe Freya does not need to maintain the aforementioned position. Firstly, an employee can
resign and successfully sue for constructive dismissal.

In the following situations, an employee is not required to continue in the altered role: firstly, if
the new position is a demotion or is insulting; secondly, if the employment relationship has broken
down; thirdly, if the employee accepting the position is unreasonable and becomes intolerable in
the workplace. Based on these circumstances, Freya is not obliged to endure the new position
because, firstly, the position is a demotion, and having someone previously subordinate now
become her supervisor is demeaning. Furthermore, the company has constructively dismissed to
the fullest extent by unilaterally changing substantial terms in the contract without reasonable
notice. Additionally, the new contract coming into effect within 7 days is unreasonable, and Freya
has the right to sue the company for damages.