Employee fired over an injury sets legal precedent in Ontario

| April 9th, 2014 | No Comments »

A 2013 ruling in Wilson v. Solis Mexican Foods Ltd sets a new precedent, paving the way for employees to pursue human rights claims in court where the financial outcome can be largely unpredictable and inconsistent – yet rewarding.

54-year-old Patricia Wilson had a desk job working at Solis Mexican Foods Inc. where her performance reviews were “satisfactory or better”. When Wilson revealed she was suffering from a bad back a team of senior employees at Solis met to discuss Wilson’s health.  They determined that it was “time to consider that [Wilson] may not be suited to [Solis]”. Wilson had subsequently seen her doctor who, on a couple of occasions, provided Solis with medical notes stating that Wilson needed time off work but could gradually return if the company granted small accommodations.  Solis refused to accept the doctor’s medical recommendations so Wilson did not return to work.

Meanwhile, Solis sold off the division that employed Wilson. The company sent her a letter stating that her role was consequently terminated.

Wilson sued Solis in the Ontario Superior Court for both wrongful dismissal and discrimination.  This was the first time in Ontario’s history where a Superior Court judge decided over a human rights complaint.  Wilson was awarded severance and non-taxable general damages for human rights violations.

Daniel Lublin and Ellen Low’s complete article Workplace game change, was published in the Lawyers Weekly March 7, 2014 issue and can be read here.

Failure to investigate alleged misconduct can be costly

| April 2nd, 2014 | No Comments »

It is not uncommon for employers to fire first and ask questions later, especially in instances of alleged employee misconduct. Stelcrete Industries Ltd., a rebar assembly plant in Welland, Ontario learned that impulsive actions can be costly.

Stelcrete Industries Ltd. chose to stay open on Family Day and told Ludchen, the plant supervisor, to post a written announcement of their substitute day off. An undercover investigator posing as a Stelcrete employee informed management that although she did not witness the occurrence she was told that the supervisor “freaked out,” threw a garbage can and then made a discriminatory remark about the ethnicity of the company’s owners when he was told to post the announcement. Satisfied that Ludchen was guilty of misconduct the company immediately fired him.

At a recent trial to determine whether the supervisor was wrongfully dismissed, Ontario Superior Court Justice Joseph Henderson ruled in favour of the former supervisor because Stelcrete was unable to connect the man’s alleged comments back to him. The undercover investigator’s testimony about what others told her was hearsay, and none of the other employees who testified corroborated the alleged remarks.

What Daniel Lublin, employment and labour lawyer at Whitten Lublin PC advises is that, “When dealing with alleged employee misconduct, the onus is squarely on the employer to prove that the punishment fits the crime.”

Without first investigating the situation, or at least confronting the employee with its accusations, Stelcrete was unable to provide the evidence required to convince the judge that the company acted correctly. As a result, the former supervisor was awarded his legal costs, 12 months’ pay and damages in lieu of his benefits and a bonus he ordinarily received.

In his Globe and Mail article, Don’t fire first and ask questions later Lublin summarizes Ludchen v. Stelcrete Industries Ltd., 2013, and offers employers advice on how to proceed with investigating allegations of misconduct before dismissing an employee.

Court blocks executive’s move from Blackberry to Apple

| March 28th, 2014 | No Comments »

On March 24, 2014 the Ontario Superior Court of Justice prevented a senior executive at Blackberry from moving to its major competitor, Apple.

In BlackBerry Limited v. Marineau-Mes, 2014 ONSC 1790, the debate centered on an employment contract containing a six-month resignation provision.  Among other things, Marineau-Mes had promised to give Blackberry six months’ advance written notice of his intention to resign.  He did not.

On December 23, 2013, Martineau-Mes gave Blackberry notice of his resignation.  On December 24, 2013 he advised that he would be joining Apple in two months’ time in California.

Blackberry argued Martineau-Mes was contractually obliged to provide six months’ notice.  Martineau-Mes argued that, if anything, Blackberry was limited to damages for replacing him if he failed to give adequate notice, and that he was not required to give notice because:

  1. The contract violated the Employment Standards Act, 2000 (the “ESA”) because it did not provide him with adequate vacation pay;
  2. The contract itself was unenforceable due to a lack of consideration;
  3. The six-month resignation period was tantamount to a non-compete provision and therefore void against public policy; and
  4. Pursuant to the contract, he had “Good Reason” which would allow him to resign without providing six month’s advance notice.

Despite able arguments, the court was not convinced that the termination provision offended the ESA or that Martineau-Mes had not received consideration in exchange for the contract when he took on the role of Executive Vice President.

Further, the court did not agree that the six-month resignation provision was akin to a non-competition clause because, among other things, Martineau-Mes knew that Blackberry needed him to transition his role and that he must remain available to perform his duties during the period of resignation.  Even if the provision were to be found to be a non-compete, the court deemed it reasonable in the circumstances.

Finally, the court was not convinced that Martineau-Mes had “Good Reason” pursuant to the contract to resign without notice.  Even if there was Good Reason, Martineau-Mes could only effect this clause if he gave Blackberry 15 days’ notice and a chance to rectify the breach.  He did not and therefore could not rely on the provision.

Ultimately, the court determined that Blackberry was entitled to a declaration that the contract was binding and that Martineau-Mes was obliged to provide six months prior notice of his resignation.  Effectively, this blocks Martineau-Mes from joining Apple until June 23, 2014.

This is an unusual case as not only is it rare for an employer to pursue an action against a departing employee for failure to provide reasonable notice of resignation, but even rarer still for an employer to seek enforcement of the resignation provision.  If any, an employer will occasionally sue for damages caused by the employee’s failure to provide reasonable notice.  Presumably, Blackberry decided to pursue the action to prevent one of its executives from moving to a competitor for as long as legally possible, but the case does provide an interesting precedent for an employer enforcing a resignation provision.

Dealing with unpleasant issues in the workplace

| February 27th, 2014 | No Comments »

In almost every workplace you will find employees with different backgrounds, habits and styles that can be distracting or annoying, especially when it comes to poor personal hygiene, including body odour, bad breath, etc.  Knowing how to address those issues without crossing any legal lines can be challenging.

In his recent Globe and Mail article, What can we do if a colleague emits a strong odour?, Daniel Lublin answers some commonly asked questions from readers, such as dealing with an employee’s poor hygiene and individual severance entitlements.

Daniel Lublin’s quote on this topic is summed up below: “Some of the causes of the odour could be protected under human rights laws (age, race, religion, disability), which means discipline or dismissal is prohibited unless you can show she cannot perform the job you hired her for because of the smell. If the smell is because of poor hygiene, then you have more options and can treat this as any other form of non-compliance with the company’s expectations.”

For this reason, it is always wise to consult with an employment lawyer who will explain what your rights are and give you a legal opinion and strategy regarding workplace issues. To learn more, Mr. Lublin’s article can be found here.

 

Your severance entitlements

| January 28th, 2014 | No Comments »

How much more severance am I entitled to? How long will it take? How much will it cost? Is it worth it? These are the most common questions employees ask when they’ve just been terminated. The answers are often very different depending on the person and the circumstances.

Daniel Lublin provided his opinion and answered many employment questions during his live chat on the Globe and Mail’s website. As he explained, there is no standard amount that one is entitled to. Age, tenure, position and precedents have to be considered. Executives and top professionals usually receive more severance than administrative employees. At the same time, long-term employees receive more than short-term employees. Older employees receive more severance than younger employees. Judges often use precedents, which are past court cases, to assess what severance should be where employees have similar characteristics.

As Mr. Lublin explained, it really depends on how much more you can get versus what it could cost. As an example, an individual earns $100,000 plus benefits and works for 6 years. He is let go for restructuring and offered 3 months’ pay, which is $25,000. The individual is older and held a rather senior job, so Mr. Lublin would opine that he could likely receive at least double what he was offered in court. Also, keep in mind that when you win a lawsuit in Canada, a good portion of legal fees are likely to be recovered from the employer.

However, most times, the package can be improved without going to court. Often, the employer and employee (through a representative or lawyer) can negotiate a deal that saves both sides the time and costs associated with having to go to court.

Before accepting any severance offer from an employer, it is always a good idea to contact an employment expert who can explain whether that offer outlines, at the very least, the minimum entitlements under the law and how they can be maximized.

What steps to take if fired?

| January 23rd, 2014 | No Comments »

termination checklistDaniel Lublin hosted a live chat on the Globe and Mail’s Career section, where he answered legal questions regarding severance, termination notice, contract clauses and much more.  We will be posting some of the questions and answers he gave, the first concerning what to do if you have been fired.

Every day we hear about mass layoffs from major companies and for that reason most readers wanted to know more about their severance entitlements. Daniel Lublin recommends a few steps be followed if terminated:

  1. Always get a notice of layoff in writing -”termination package”. It is a contract that contains various terms and details about the separation, assuming the layoff is not temporary.
  2. Do not sign any document on the spot. You should be given a reasonable period of time to have it reviewed by someone who is knowledgeable on workplace/employment law.
  3. You should obtain advice about whether and how much money the company owes you unconditionally. This is referred to as your “statutory severance”. However, it is not all you should receive. You are also generally entitled to a separate and larger amount of severance, which is based on your age, tenure and position.
  4. You have to match up what the company is offering you versus what is fair in the circumstances. Get good advice. Often times, especially with mass layoffs, companies try to get a big discount from people. But that is not always fair and they may be entitled to much more than what was offered.

Your employment law questions answered

| January 21st, 2014 | No Comments »

Do you have any questions regarding severance, termination packages, or any other legal questions regarding employment law? Today, at noon Daniel Lublin will be online in the Globe and Mail answering your workplace law questions. Make sure to join!

http://www.theglobeandmail.com/report-on-business/careers/career-advice/experts/have-you-been-laid-off/article16412532/?cmpid=rss1

Toronto court to decide if Twitter harassment warrants jail time

| January 10th, 2014 | No Comments »

A man was in court in Toronto yesterday who stands accused of criminal harassment via Twitter.  A woman alleges that the man sent her sexual messages via Twitter and continued to do so after she asked him to stop.  She says his Tweets caused her to fear for her safety.

The Criminal Code of Canada defines criminal harassment as conduct which causes another person fear for their safety.  The fear must be reasonable in all the circumstances.

In light of this, the defence in this case may try to argue that the woman had no reasonable basis to fear for her safety in the circumstances and that she essentially over-reacted. While the woman’s position is a novel one, it is increasingly important – just because the harassment takes place online it shouldn’t provide an aggressor with impunity with respect to comments that cause fear in others. If found guilty, the man in question could face jail time.

While the standard for criminal harassment is different that the definition of harassment pursuant to the Ontario Human Rights Code, this is an important case with ramifications in employment and human rights law as it will set a precedent for how the courts will deal with harassment via Twitter.

When employers are asking for sick notes

| January 8th, 2014 | 1 Comment »

Each year during flu season, many businesses experience shortages when their employees miss work to stay home to take care of themselves or their children. Unfortunately, for many different reasons, employees also decide to go to work despite being sick. One of those reasons is where employers ask their employees to provide sick notes. The Ontario Medical Association is asking employers to reconsider the requirement of sick notes from their employees in hopes that it will encourage them to stay at home, reducing the spread of germs.

When it comes to the law, is it legal for employers to ask for sick notes and does an employee have to provide one?  Daniel Lublin provided his opinion on the topic during his appearance on Global News.  His interview can be viewed here.

More tips for lawsuit-free corporate holiday party

| December 12th, 2013 | No Comments »

Kate MacNamara, CBC’s Business Columnist, shared Daniel Lublin’s tips for lawsuit-free corporate holiday parties during radio interviews across the country. One of them can be listened to here.

Kate MacNamara-CBC Radio