Should you accept a demotion due to your illness?

| October 2nd, 2015 | No Comments »


I was injured at work and subsequently diagnosed with an autoimmune disease, which my doctor says is likely related to the injury but not really provable.   My performance at work has suffered due to this disease, also because of absences due to hospital visits and the like.  I had never been written up before until my injury and now it seems like they are trying to get rid of me. They are essentially forcing me to step down from my management position or I feel like I will be fired.  As it stands now, I have actually agreed to step down, so it may be too late for me to do anything about it, but I feel that I was railroaded into this decision. 


You are not required to accept a unilateral demotion, especially if the reason your performance has suffered is related to an illness.  Your employer is required to accommodate your autoimmune disease, and related absences, to the point of undue hardship.  Tell the employer you’ve changed your mind – you are no longer prepared to move into the new job; you want to be accommodated in your existing management position. If they refuse, call a lawyer or the human rights legal support centre.

Based on your individual needs, the experts can guide you step-by-step and provide thorough legal advice.

Can an Employer Terminate an Employee Who is Ill?

| September 30th, 2015 | No Comments »


I was fired through email, while undergoing cancer treatment!  I believe I was let go because I had to undergo surgery which would have left me unable to work for at least 4-5 months, plus ongoing treatments.  I was never written up or given any kind of warning for bad work, which would have led to me being fired.  I worked at this establishment for over one year.  What are my options?


It could be that there were legitimate reasons for making a decision to terminate that were completely unrelated to your cancer treatment, however, the timing certainly raises suspicion and is a cause for concern.   Under human rights legislation, you have a right to reasonable accommodation, including the right to take the time off that you need for cancer treatment without fearing that you will lose your job because of it.   If you believe your employer fired you because you are ill and are/or will be unable to work, you have recourse.  In Ontario, you may bring an application to the Human Rights Tribunal of Ontario to seek compensation for the breach of your human rights.  Through the Human Rights Tribunal, you may have a range of remedies available to you, including compensation for lost wages, damages  for the discrimination that you experienced, and potentially reinstatement back to your job.  In Ontario, you can also seek financial remedy through the courts by way of a civil suit.  You should speak to an employment expert about your rights and which option may be most appropriate in your circumstances.

My Boss Made Significant Changes to My Employment

| August 27th, 2015 | No Comments »

Drastic Changes to My Employment

The concept of an employer making a change to a workers employment is not odd. It’s possibly more common than we think. The issue employees take is the extent and significance of these changes, and this concern has legal merit. Take for instance employee A, who has independently worked in their department, earning commissions based on sales. Suddenly, the employer explains that a colleague (employee B) will be working with employee A, and based on his/her performance, employee A’s commission will be dependent on employee B’s sales as well. Readers of the Globe and Mail are interested in finding out, can an employer legally make such a significant change to their employment?

Claims for Constructive Dismissal

Daniel Lublin, Toronto employment lawyer provides his professional opinion by explaining that the answer lies in determining how significant the changes are to an employee’s work duties and their compensation. An employer must seek the employees consent to the changes or provide reasonable notice of the changes. When changes to an employees work duties and compensation are significant, an employee may claim constructive dismissal and sue for lost wages.

Claims for constructive dismissal are unique on a case-by-case basis. As such, retaining a lawyer to provide you with case specific advice is crucial. Consult with our team at Whitten and Lublin to book your appointment and read Daniel Lublin’s Globe and Mail column and full article Does my boss have the right to change my compensation and work load?

Q&A: Being forced into retirement–is this allowed?

| August 17th, 2015 | No Comments »


It is not uncommon for an employer to want a ‘young’ hire for their business and even less common for the employer to come up with ways to dismiss their senior employee in an attempt to ‘make space’.  To some employers, forced retirement is one viable way of making space for a new hire.  To other employers, insinuating and making comments about forced retirement can land them in a law suit.  With this topic in mind, faithful readers of the Globe and Mail have asked whether or not it is legal to make comments insinuating that an employee should retire?


Toronto Employment lawyer, Daniel Lublin stresses the fact that a forced retirement is an illegal termination.  In cases where an employee is being hinted to retire, an employee may be entitled to a severance package and damages for age discrimination. In fact, senior employees who are considering receipt of a severance package can ask their employer. However, be forewarned that this can have consequences.  To know how to best handle retirement situations, you should consult with a lawyer at Whitten and Lublin Employment lawyers.

Read Daniel Lublin’s Globe and Mail column and full article Can I be forced into retirement?

Q&A: Can an employer significantly reduce an employee’s pay?

| August 10th, 2015 | No Comments »


Employers are finding that under recent economic changes, the salary paid to employees may need to reflect this change by significantly reducing an employees pay to account for their budget. Employee’s on the other hand, are dissatisfied. Initially, an employer may consider changing the pay rate based on cost of living. But what happens when the cost of living significantly rises, and then drastically reduces? Readers of the Globe and Mail are asking, can an employer significantly reduce an employee’s pay? 


Circumstances Where an Employee’s Pay Decrease Will Be Considered Lawful

Daniel Lublin, Toronto Employment lawyer says that employers cannot drastically reduce an employee’s pay. All the same, an employee cannot pursue their employer for a minimal pay reduction. There are few circumstances where a pay decrease will be considered lawful and these need to be understood thoroughly.

Find out the answer by reading Daniel Lublin’s Globe and Mail column and full article I have to work through my severance. Is this legal?

Q&A: Is my non-compete agreement binding 15 years later?

| August 4th, 2015 | No Comments »


A contract is a document drafted by the employer and signed by their respective employee. It is up to the employee to review this document and, if in agreement with the content, the employee signs it away, binding them to those terms. One particular clause that comes up often during discussion is the non-compete agreement.

A non-compete is a form of restrictive covenant drafted by the employer which restricts the employee from working for another industry. Let’s say an employee signed a non-compete 15 years ago and was not given a copy. Readers from the Globe and Mail would like to know, can the employee be bound by this agreement today? Or does he/she need to sign every so often to make it valid?


The Non-Compete Agreement

Well-known Globe and Mail columnist for the Report of Business and Toronto Employment lawyer, Daniel Lublin answers this question with his expertise. He says that non-compete agreements do not need to be renewed, unless stated otherwise in the contract. It is also worth mentioning that the agreement is not deemed invalid simply because the employee did not receive a copy of the agreement. An employer can rely on this document regardless.

To find out more on this topic, read Daniel Lublin’s column and full article I have to work through my severance. Is this legal?

Q&A: Which employment/labour law applies to my matter?

| July 28th, 2015 | No Comments »


It is not uncommon for an employee to be unsure of which law applies to their employment matter. Specifically, where the place of residence is not the same as the location of their employer. Picture an employee who works and lives in British Columbia, but whose employer company is located in Quebec. To complicate matters, significant changes have occurred to their respective position while on leave. Under what law can the employee rely on?


Federally Regulated Employees

Daniel Lublin, Toronto employment lawyer provides a helpful answer on this topic in his most recent Globe and Mail article. He states that this is dependent on where you live and work and whether or not you are federally regulated. Generally speaking, federally regulated employees are bound by federal legislation.

Read more about this topic on Daniel Lublin’s Globe and Mail column and full article I have to work through my severance. Is this legal?


Q&A: Working through your severance entitlement?

| July 20th, 2015 | No Comments »


An employee’s entitlement to severance is to say the least, at the discretion of the employer. But this is not a point blank answer, as there are many factors that play into effect. Where an employee is terminated and not offered severance, but asked to work until the end of employment, is an employer legally permitted to do this?


Entitlement to Severance

Toronto employment lawyer, Daniel Lublin most recently wrote his response in his latest Globe and Mail article. He states that this is in fact, legal. Employers have the right to choose between offering the employee payment in light of notice or providing working notice.  This concept is known as reasonable working notice of termination. In this circumstance, the employer is entitled, by law, to ask the employee to remain at work and carry out their job until the last date of employment.

Wrongful Dismissal

If your employer has specified an end date, and the working conditions and your pay remain the same, then it is legal to ask you to work until the last day of your employment. Although, if you believe that you were wrongfully dismissed, you should contact an employment lawyer immediately to help you with your case.

Read Daniel Lublin’s Globe and Mail column and full article I have to work through my severance. Is this legal?

The Highlights of Off-Duty Conduct

| June 24th, 2015 | No Comments »

Termination Due to Off-Duty Conduct

The vulgar, off-duty conduct of Hydro One employee, Shawn Simoes, has brought concern for many employees. After all, it’s not often that an employee is terminated by their employer for their actions outside of work. Even less likely, that they are identified and such behaviour is made public. Unfortunately, that was the case for Mr. Simoes. Many who viewed the video with the City News reporter have raised a number of questions. Primarily, does his conduct warrant a termination for cause? And to what extent can an employer discipline the employee for their off-duty conduct?

Factors Considered by the Courts

In Ontario, a termination for cause holds a high threshold to prove. Factors considered by the courts include whether or not the conduct:
1.         Harms the company’s reputation or product;
2.         Renders the employee incapable of performing his or her duties satisfactorily;
3.         Makes other employees reluctant to work with him or her;
4.         Is a serious breach of the Canadian Criminal Code; or
5.         Makes it difficult for the company to properly manage its services or direct its
Bearing these factors in mind, employees should be watchful of what they say, orally and in writing. Be mindful that everyone is watching, and with social media outlets, everything you write and/or post is made available to just about everyone.

Remain Consistent with Your Office Policy

Employers beware of what you classify as just cause. The merits of a case are judged on a case-by-case basis. Remember to remain consistent with your office policy on disciplining employees for off-duty conduct, as maintaining this strategy will drastically improve your chances of your case being a success. That being said, it is best to leave your employment matters to the experts.

Q&A: Do you have the right to a harassment-free work environment?

| June 1st, 2015 | No Comments »


I have decided that my experience with my boss is in fact harassment and bullying. My performance is over managed, and performance reviews are used as a form of discipline, not coaching. I’m unjustly criticized and made to feel unwelcome. It’s humiliating. I have a doctor’s note detailing the high levels of anxiety and panic I developed. What options do I have? 


Legislation and a Harassment-Free Work Environment

Under Ontario’s occupational health and safety legislation, you have a right to a harassment-free work environment. The actions to which you are subjected must amount to something more than just a personality conflict, and rise up to something along the lines of malicious treatment. You may want to review your company’s anti-harassment policy (if one exists) and file a written harassment complaint. Your employer is obligated to investigate the allegations, and make a good faith determination as to the best course of action to address them.

Participating in an Investigation

You have a right to participate in the investigation and learn the outcome. You also have a right to be free from reprisals (i.e. punishments) for exercising your right to file the complaint. If this happens or the complaint is mishandled, you may have the right to treat your employment as terminated and seek a severance from the company.

Stepping Away From the Situation 

Given your health situation, it would make sense for you to be away from the workplace while this is happening. You can send your doctor’s note to your manager or HR, and inquire about your company’s short-term disability benefits – and if necessary, long-term disability benefits – for income replacement while you’re off work. If the company does not offer these benefits, you may be eligible for Employment Insurance medical benefits for up to 15 weeks. That will give you some time to regroup and consider further options going forward. You have the right to a harassment-free work environment and can step away from a situation that is affecting your health and well-being.