Q&A: Employment contracts and fundamental changes

| April 20th, 2015 | No Comments »

I have an employment contract stating my work location to be downtown. I have been told however that I will now be working for a satellite office which is 20KM away.  This may not seem like a huge distance but with the traffic in Toronto during the morning and evening commute times, I would be in my car for 45 minutes longer in each direction.  This seems unfair.  Do I have any right to reject the change?

You can reject changes to your job that fundamentally alter your working conditions.  This is known as a constructive dismissal.  A new work location is sometimes considered a fundamental change but it will depend on the circumstances.  If your contract guaranteed you a downtown Toronto location and that was important to you, the employer’s decision to change that term should be considered a fundamental alteration.

In a situation like this, you should make it known to your employer that you reject the change.  If the employer will not resume your employment at the downtown location, and insists that you work from the satellite office, you may be able to consider yourself as constructively dismissed, leave the workplace and sue for lost wages while you look for other work.

Does a Paid Suspension Constitute Constructive Dismissal?

| April 16th, 2015 | No Comments »

Constructive dismissal claims are established by proving that a fundamental change in employment has occurred (i.e., working conditions, duties and compensation).  Most notably, a recent court ruling established a paid (non-disciplinary) suspension can constitute constrictive dismissal.

In Potter v. New Brunswick Legal Aid Services Commission, Mr. Potter went on sick leave before the employer completed negotiations to end his contract. During sick leave, the employer recommended that his employment be terminated for cause. Subsequently, Mr. Potter was advised not to return to work and was suspended indefinitely without pay. As a result, he began litigation.

It is normal practice that an employee has an obligation to meet a two (2) part test to prove constructive dismissal:

  1. To prove that there was a breach of contract; and
  2. To prove that the employer shows that they no longer intend to honor the employment contract.

However, the Supreme Court of Canada (SCC) outlined that administrative suspensions are different in that the burden of proof shifts to the employer who must prove that it had authority to suspend the employee. The SCC found that:

a)   The employer did not have authority to suspend Mr. Potter. In fact, they breached the contract since it was an implied obligation that they provide him with work and they failed to act in good faith;

b)    It was reasonable for Mr. Potter to perceive his indefinite and unexplained suspension as an adverse and fundamental change to his contract.

This case comes as a warning to employers who wish to impose an administrative suspension- take extra caution, it can amount to a constructive dismissal claim. In order for employers to protect themselves they should follow these basic guidelines:

  • Ensure that you have the implied authority to give a suspension and that there is a justified and reasonable business reason for giving the suspension;
  • Explain why the suspension is being given; and
  • Reserve your power to withhold work and suspend employees indefinitely for administrative purposes by carefully including this language in employee handbooks, offer letter/employment contract.

Employee Work Skeletons Can Harm Future Employment

| April 16th, 2015 | No Comments »

Employees-beware of your work skeletons! Social media can be a good source for many things, even handy for employers to uncover employee work skeletons. Potential job candidates and employees need to be cautious about what they post and make public. More and more, employers are relying on this information and employees should be aware on how and when employers can rely on this information.

Toronto Employment lawyer, Daniel Lublin is an expert in the employment law field. His cautions consist of the following:

For employees

  • Upon termination- employees are still subject to allegations of misconduct; and
  • If your skeletons are severe and you cannot risk exposure- do not challenge your employer’s decision. Some employment skeletons can be more harmful than beneficial to both your case and your career.

For employers

  • When employee skeletons come to light following termination, it can be reason for a ‘just cause’ termination. Employers should consult with a law expert to find out their rights.
  • When employee misconduct comes to light and factors of this action affect the severance agreement, employers may be entitled to cease further payments. However, this is determined through tests that only an experienced legal professional can detect.

Read Daniel Lublin’s Globe and Mail column and full article Your old job skeletons can come back to haunt you

Q&A: Resignation rights

| April 13th, 2015 | No Comments »

I have provided my current employer with a resignation letter that included a proposed resignation date in one month’s time.  I was, however, told to immediately leave the workplace.  I have not been paid for the one month’s notice that I was prepared to provide.  I am wondering whether or not I am entitled to payment for this time frame, considering I do not presently have another job.  

While an employer can ask your to leave work before your proposed resignation date, it must nevertheless provide you with the salary and benefits that you would have earned had you actively worked for the entire one month notice period.  By relieving you of your duties and not paying you for the one month notice period, the employer effectively terminated your employment during your resignation notice period.  Subject to any contractual clause defining the amount of notice you had to provide, the employer would typically be liable to pay you for the remaining period of notice that you provided.

Q&A: Workplace Harassment

| April 6th, 2015 | No Comments »

I have been harassed by three of my co-workers in my workplace for one year. The harassment has come to an extreme where I could not take it anymore. As a result, I was unable to sleep at night and have been seeing a doctor. I finally quit my job last week because the screaming and targeting my work was unbearable. I gave the company two weeks’ notice, after which the harassment continued.  Management did nothing although they were made aware of my complaints.  

Employers have a legal obligation to provide a workplace free from harassment.

Harassment under the law is defined as conduct or comments that are known or should be known as unwelcome.  Threats and intimidation, offensive comments and belittling behavior are examples of bullying and harassment.

Not all comments are considered harassment.  You mention the targeting of your work.  Managing your performance and difference of opinion do not amount to harassment.  This is why it’s a good idea to meet with a lawyer to get a formal opinion on whether this behavior crosses the line.

Nevertheless, the obligation to provide a workplace free from harassment requires the employer to take your complaints seriously, do an investigation and take positive action.  It does not matter if the alleged harassment came from management or it was the doing of coworkers, contractors or even customers.

Your facts indicate that not only did the employer fail to address the unwelcome behavior, they ignored it, the behavior persisted and it impacted your health to the extent that you were forced to resign.  This may be considered a constructive dismissal as you were forced to leave gainful employment because of a poisoned working environment and if so, you will be awarded damages while you look for another job and possibly additional damages as a result of the employer’s failure to take your complaints seriously.

Changes to the Human Rights Code and its impact

| March 18th, 2015 | No Comments »

In light of the 2008 changes to the Human Rights Code (Code), it is possible for an employee to file a wrongful dismissal lawsuit and receive Human Rights damages without first appealing to the Ontario Human Rights Tribunal. In Lee Partridge v. Botany Dental Corporation, the employee sued her former employer for wrongful dismissal and also requested compensation for family status discrimination under the Human Rights Code.

Ms. Partridge was an employee of Botany Dental Corporation for over 7 years. Her initial job title as a Dental Hygienist meant that her work hours were from 9:00 a.m. – 5:00 p.m. Once promoted to office manager she received the benefit of having flexible work hours. Soon after, Ms. Partridge went on maternity leave. Before her return, she was told that her position as office manager was not available to her and neither were the flexible work hours. The employer placed Ms. Partridge back into her initial title with extended hours and reduced pay. Ms. Partridge’s concern was her inability to set up child care arrangements where her work hours did not make it feasible. The Court agreed that she had been discriminated against on the basis of family status and was awarded human rights damages of $20,000.

Since the changes to the Code came into effect, Lee Partridge v. Botany Dental Corporation is of a select few of cases where the Courts have awarded damages of this kind.  The Courts have made an example of the employer’s obligation to accommodate legitimate child care needs not child care preferences. On the other hand, employees must prove that they have met their obligation of seeking reasonable child care arrangements but have found no feasible solution available.

Employment contracts and their validity

| March 6th, 2015 | No Comments »

There is the possibility that an employment contract may or may not hold up in Court.  This is why it is recommended that a legal professional review documents of this nature.

Daniel Lublin, Toronto employment lawyer discusses the importance of employment contracts as they relate to their validity and legal standing in Court, non-solicit/non-compete clauses, and the legal protection of contractors and disclosing of their income. Mr. Lublin has this to say:

  • When an employee signs a non-compete/ non-solicit clause, the Court will rely on the contractual language and will determine its validity. However, there are special circumstances where an employee has a key role and is considered as a “fiduciary”.
  •  As it relates to contractors, an employer must make it absolutely clear that an employee’s compensation is kept strictly confidential.
  • A signed contract is an important document that a Judge will rely on. When an employer attempts to retract the offer, even though it is signed, consult with a legal expert.

To thoroughly understand these topics, read Daniel Lublin’s Globe and Mail column and full article Can my employer stop me from working for a competitor?

 

Addictions in the workplace- can I fire my alcoholic employee?

| February 18th, 2015 | No Comments »

The workplace environment brings a number of people together under one roof which may include employees with addictions. There are no clear cut ways of identifying someone as an alcoholic. However, there may be signs during the course of employment that allows the employer or colleague to see that something is off. Perhaps, behavior changes, absence from work or mistakes etc. Though, how does one classify an individual as an addict or a mere social drinker? Can an employer fire an alcoholic? These questions cannot be taken lightly and require legal expertise.

Employers should take the appropriate steps to safeguard their workplace. They must also abide by the legislation that protects the affected employee. One simple error can be costly. In the past, an employer was legally allowed to fire an alcohol addicted employee. However, today, the Ontario Human Rights Code protects employees who suffer from alcoholism and classifies alcoholism as a disability. The following rules outline some basic procedures to follow:

1.         Employee’s with alcohol addictions are protected under the human rights law;

2.         Individual assessment is needed, the Zero tolerance policy is rarely accepted; and

3.         Document the harms done by the employee and use written warnings.

It is important to consider that these will vary accordingly as all situations are different. To protect your best interests and follow the law accordingly, consult with one of our lawyers who can provide expert advice.

Should I tell prospective employers about my disability?

| February 9th, 2015 | No Comments »

Disability is a factor that can affect your job search efforts.  For instance, there are disabilities classified as “invisible” disabilities that are not physically noticeable, such as Asperger syndrome. People who have this do not display any symptoms. However, it is considered a high functioning form of autism which can affect a person’s ability to read body language among other factors. This can potentially affect their social abilities and further, their employment.

Readers for the Globe and Mail have taken an interest on this topic and are curious to know; do prospective employers need to know that the applicant employee has a disability? What does the legislation say? Toronto Employment lawyer, Daniel Lublin advises that during the interview process, an applicant employee does not have an obligation to disclose this information if it does not affect one’s work performance. However, there are other factors to consider.

To understand more on this topic, read Daniel Lublin’s Globe and Mail column and full article I have Asperger syndrome. Should I tell interviewers?

Legal implications from 2014 workplace employment cases

| January 28th, 2015 | No Comments »

Big employment cases from 2014 drew a good amount of attention to workplace law. Specifically, it demonstrated the legal implications to employees and employers.  To date, we continue to see the consequences of these fallouts. Whether through poor judgment, ignorance of the law or quite simply wrongful conduct, Canadians and Americans have been at the forefront of workplace legal disputes. Some cases that have drawn media attention include the Jian Ghomeshi scandal regarding allegations of sexual harassment, Donald Sterling and his discriminatory comments, the two Liberal MP’s accused of harassment. The list goes on.

Toronto Employment Lawyer, Daniel Lublin discusses in his most recent Globe and Mail article five (5) key points to look out for regarding employment issues that arose in 2014, and will continue to have an impact in 2015. These include:

  1. The freedom of speech fallout;
  2. Behavior unbecoming;
  3. Probing Allegations;
  4. Boomers Beware; and
  5. Honesty is the best Policy.

To understand these key points in great detail, read Daniel Lublin’s Globe and Mail column and full article Fallout still spreading from big workplace cases