Whitten and Lublin | November 20th, 2015 | No Comments »
A dismissal is wrongful if an employee has been terminated without adequate notice or fair payment in lieu of that notice. It is implied that a dismissed employee is entitled to “reasonable notice” of their eventual last day of work or the compensation they would have been entitled to over that period.
The focus of the wrongful dismissal case is the determination of the “reasonable notice” period. Our Court of Appeal has made clear that “determining the period of reasonable notice is an art not a science”. Courts consider a number of factors including, but not limited to, age, salary, tenure, educational background, recruitment to the job, specialty and whether similar positions are available in the marketplace at the time of termination. Payment in lieu of reasonable notice is what we commonly refer to as severance.
Be advised, reasonable notice is not always due to employees. An employer does not need to provide reasonable notice if they have clearly and legally limited notice. Moreover, employers do not need to provide any severance if they have “just cause” for dismissing an employee. For an employer to have just cause the employee must have committed a terrible act that strikes at the core of the employment relationship. Stated differently, to deprive a terminated employee of any severance they must have engaged in something as egregious as theft, serious dishonesty or harassment.
Rest assured, just cause is a very difficult for an employer to prove and employment contracts of even the largest and most sophisticated employers have been found inadequate in their attempts to limit notice.
Consider consulting the lawyers at Whitten and Lublin for an expert assessment of your wrongful dismissal case and severance entitlement.
Author: Paul Macchione, Whitten & Lublin
Whitten and Lublin | November 16th, 2015 | No Comments »
Employers should be careful when fabricating an allegation of cause for termination in order to avoid paying a dismissed employee with a severance package. A recent decision confirms that these allegations can expose employers to increased cost consequences.
The ordinary rule is that an unsuccessful party to a lawsuit pays around 60% of the successful litigant’s legal costs. However, in Tetra Consulting and Lewis Cassar v. Continental Bank of Canada and Continental Currency Exchange Canada Inc., 2015 ONSC 6546 – a case that we recently argued on behalf of the plaintiff employees – the court ordered Continental Bank of Canada (“CBC”) pay the plaintiffs not only a proper severance package, but nearly all of their legal costs.
The court found that CBC’s unfounded allegation of cause for terminating the plaintiffs made their case more difficult than it should have been, thereby increasing their legal costs. The principles of justice favoured providing the plaintiffs with nearly complete indemnification for having to litigate the unfounded allegation. They were awarded costs in the amount of $42,394.26.
Knowing which strategies to use, and not use, can be difficult in wrongful dismissal cases. Employers, and employees alike, are encouraged to consult with an employment lawyer to minimize their potential liability and avoid a humiliating loss at trial.
Author: Ozlem Yucel, Whitten & Lublin
Whitten and Lublin | 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.
Whitten and Lublin | 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.
danlublin | 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?
danlublin | 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?
Whitten and Lublin | 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?
Whitten and Lublin | 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?
danlublin | 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?
danlublin | 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.
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?