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    
            workforce.                                                                                 
 
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 »

QUESTION

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? 

ANSWER

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. 

Fired from Your Job Based on Discriminatory Ground

| May 25th, 2015 | No Comments »

QUESTION #3

I have been fired from my job because my employer told me I don’t fit into their culture. Is this illegal or a form of discrimination?

ANSWER 

Termination Without Cause

Terminating you because you do not “fit” the company culture can be illegal on account of discrimination, but this requires an inquiry into why you do not fit.

When an employer terminates you and gives “fit” as the reason they are terminating you without cause: you are entitled to working notice, payment in lieu of notice or some combination of the two (“notice”). This act on its own is not illegal, as an employer has the discretion to end your employment.

However, an employer is not entitled to discriminate against an employee under a prohibited ground set out in Ontario’s Human Rights Code (the “Code”), to provide notice and to hide behind “fit” as the reason. 

Ontario’s Human Rights Code and Discriminatory Ground

Code grounds include, race, disability, sex, age, gender, family status, sexual orientation, ethnic origin and other personal characteristics. So, if you suddenly do not “fit” with the company’s culture based on some discriminatory ground, you are entitled to compensation above your notice requirements and/or reinstatement.

For example, the following employees likely have a good case against their employer for discrimination:

  • The group of waitresses in their 50’s that did not “fit” were replaced by women in their 20’s
  • The salesman that had excellent sales but no longer “fit” at the car dealership after his boss found out he was homosexual
  • The long-time accountant that did not “fit” when her firm noticed she was pregnant
  • The factory worker that did not “fit” when he was diagnosed with Parkinson’s disease

Discriminatory Ground and Advice from a Lawyer 

It is important to note that even if the discriminatory ground is only part of the reason you were fired that is enough to prove discrimination.

As you are likely aware, discrimination is often concealed or subtle and can be the consequence of unspoken beliefs and biases. You would be wise to seek the help of lawyer to help you prove that your termination for “fit” was in fact a veiled discriminatory practice of the employer and to make sure you were provided with the appropriate amount of notice.

Addressing Legal Issues Related to Mental Health

| May 21st, 2015 | No Comments »

The Mental Health of Employees at Work

Addressing the legal issues related to the mental health of employees at work is one of the more perplexing issues facing employers in Canada. It is because of the nature of this sensitive topic and a lack of awareness that issues begin stemming from mental health in an office environment. It is important to protect your employees and educate yourself on the steps to take to accommodate your employees. 

An Employer’s Lack of Awareness 

In the Globe and Mail article, Dealing with mental illness in the workplace, employment lawyer, Daniel Lublin, concludes that an employer’s lack of awareness of their employees’ mental well-being may not free them from liability in the event that violence occurs in the workplace. In the article, Mr. Lublin details and explains the following key points:

  • Employers have a duty to accommodate their employees so that the employee may fulfill their job responsibilities;
  • Employers have a duty to inquire where the mental state of their employee is in question;
  • Employees may even in some instances have a duty to disclose their mental illness to their employer;
  • Employers have a duty to prevent harm to others in the workplace by taking every reasonable measure to protect their employees from committing or being victims of violence;
  • Employers should establish procedures for informing their employees of health benefits and wellness programs that are available to them;
  • Employers should remain vigilant and record any unusual behaviours. They are responsible for ensuring employees receive all reasonable accommodations; and
  • Employers should regularly review and update their action plan for managing a potential or real fallout from workplace incidents.

Q&A: Unjust Performance Review?

| May 19th, 2015 | No Comments »

QUESTION 

This concerns an unjust annual performance appraisal that will affect my salary. My manager is expecting me to sign or to contest, the bogus appraisal this week. Should I do that? What options do I have?

ANSWER

You are not required to sign an unjust performance review that you find to be “bogus”.  If you disagree with the fact and content of the review, you should contest it immediately.  Otherwise, it will go undisputed in your file and your employer could use it against you to allege cause for your dismissal.  Terminating your employment for cause would dis-entitle you from severance.

In your rebuttal, you should include the following:

  • Your version of the story;
  • Any mitigating circumstances;
  • Whether there are any inconsistencies between the negative appraisal and your previous reviews or achievements;
  • Whether your performance standards were unreasonable;
  • Whether you lacked the support needed to meet your performance standards;
  • Whether your deficiencies were communicated to you before the appraisal;
  • Whether there were any inequities in the evaluation process;
  • Whether there were any inconsistencies between the appraisal process and company policies; and
  • Your need for time to improve.

You should also make sure to:

  • Challenge the forthcoming reduction in salary;
  • Document your disagreement in writing; and
  • Request that your rebuttal be placed in your file.

Applying these guidelines will allow you to build your own documentary campaign against cause for your dismissal.  If you think your employer is building a case against you, consult with an employment lawyer today.

Q&A: Independent Contractor Rights

| May 14th, 2015 | No Comments »

QUESTION #1

2 days after I submitted a written request for my 1st Quarter 2015 performance based compensation I was fired for no reason at all.  They told me “you are an independent contractor, so we don’t have to pay you”.  What are my rights in this situation?

ANSWER

You may have rights to severance in this situation, however, this will depend on whether you are truly an “independent contractor” from a legal perspective. Employees who are fired for no reason and without adequate notice are entitled to severance. By contrast,  independent contractors are not entitled to any severance (except what may be set out in a written contract). Merely because the company labelled you an “independent contractor” does not mean that the courts are bound by that label.  Even if you signed a written agreement that refers to you as an independent contractor, this is not determinative of your legal status.  The courts will examine not just what is simply written on paper or how the parties define each other, but how the parties actually carry out the working relationship.  In reality, very few contractors are truly independent contractors at law. Even if a company calls an individual an independent contract, an employment relationship has been nevertheless  found to exist in situations where the company exercises a high degree of direction or control over the individual’s work; the tools or equipment required to perform the work are provided by the company; most or all of the individual’s time is devoted to working for the company; and the individual is integrated into the company’s organizational structure. It is not necessary for all elements to be satisfied and this is not a complete list of examples, however, these are some of the main factors the courts will typically consider in clarifying the nature of your contractual relationship and your entitlements.

Separate from the above, you are entitled to be paid for outstanding earnings or performance-based compensation that was promised for work already performed, regardless of whether you are an employee or independent contractor. You should contact an employment law expert for advice about your legal status and your rights to a severance package.

I worked long term and disagree with these changes- what next?

| April 27th, 2015 | No Comments »

I have worked as a courier for 26 years.  This week, my company hired a third party courier company who will handle all courier deliveries.  I have been offered an office job in the lab, which has slightly less pay overall.  I don’t agree to these changes.  Do I have any recourse?  

If your job and responsibilities are going to be substantially different along with a pay cut, this is usually considered as the type of change that you may not have to accept.  You should tell the employer that you disagree with the changes and insist that your job and pay remain as before.  If, after 26 years on the job, they are not prepared to act reasonably with this request,  you could treat yourself as though you have been terminated, by leaving your job and suing for lost wages while you look for another job.

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