See Daniel A. Lublin’s Globe& Mail column in the Report on Business regarding “what to do when your position eliminated” which addresses the issue of constructive dismissal in workplace law.
Daniel Lublin of Whitten & Lublin will be live taking readers questions on the Globe & Mail Careers section at 12:00 p.m. EST on Wednesday, November 30th. You can join the discussion by logging on here.
Employers understand their obligations to employees on maternity leave. But it doesn’t mean that they are happy about them.
Daniel Lublin of Whitten & Lublin was quoted in Canadian Business magazine regarding this issue. The article can be read here
Employees today feel empowered to complain. When upset about their bosses or their jobs, they no longer visit their doctors seeking a note for a leave of absence. Instead, they just call their lawyers.
In the recent case of Grewal v. Khalsa Credit Union, B.C. Supreme Court Justice Richard Goepel determined that an employee gave her employer cause for dismissal through her lawyer’s aggressive demand letter. Daniel Lublin’s take on the case was featured in the September 6th, 2011 version of the Law Times. The article can be read here.
The ever growing involvement of social media in our society has had a profound impact on our lives. To some, the greatest impact occurs when their employment is terminated due to comments or images posted on websites such as Twitter or Facebook. As such, many employees share concerns about their online profile and the potential affects on their employment.
What should an employee do to ensure they do not find themselves as the recipient of a termination letter? In today’s Toronto Star, Mr. Lublin suggests checking workplace policy manuals is a good start.
Managing Partner of Whitten & Lublin, Daniel A. Lublin, was a featured guest today on the Jerry Agar Show on CFRB 1010. Mr. Lublin and Agar were discussing the recent privacy ruling handed down by the Ontario Court of Appeal.
Click here for a link to the podcast.
Employers often fear, with good reason, that assets, information and influence entrusted unto employees will one day be used against them. In order to protect against this risk, employment contracts often contain post-employment restrictions that limit an employee’s ability to solicit or work for competition.
Daniel Lublin writes in the Metro about a case that exemplifies a fatal flaw many employers exhibit in attempt to protect their interests – ambiguity.
After Paul Brownlee left Phoenix Restorations Ltd., to work for a competing company, he solicited two former clients, despite having signed several employment contracts that prohibited both actions for a period of two years. In order to put a stop to Brownlee, Phoenix applied for an interim court order.
The judge decided against upholding the restrictions for reasons that are not unfamiliar – the terms of the clause in question were overly broad. The post-employment restrictions in place overstepped what could have been reasonably expected of Brownlee by limiting him from soliciting or working for competition that was unknown to him while at Phoenix.
Although it can be difficult when protecting personal interests, employers should refrain from overly ambitious goals and consider whether lesser restrictions can accomplish the same thing. Had Phoenix been more specific in the scope of constraints, they might have been successful.
Daniel Lublin offers some good advice to employees considering departing: check twice to see if your contract limits post employment activity; although Phoenix lost this one, “Such clauses are commonplace in today’s employment contracts – and are increasingly being enforced.”
Halifax e-paper, The Chronicle Herald reports that Blackberry developer Research in Motion (RIM) is being sued by a former employee who was fired for cause over the theft of overtime hours that he worked from home.
Darren Lapierre claims it was all an administrative error. He was called into a meeting with team leader Joey Duguay who “informed the plaintiff that between August 2010 and November 2010, the plaintiff was paid for 40 hours of overtime that he did not actually work.”
Lapierre requested proof via email, but was told that “he had the confirmation emails”. He was later accused of theft by manager Craig Sampson, who asserted that Lapierre signed up for shifts that he didn’t work. Even though Lapierre offered to pay back the overtime hours, he was terminated for cause three days later, meaning that he wouldn’t receive severance or the bonus owed to him. Lapierre is now suing for damages to his reputation, intentional infliction of mental suffering and all out-of-pocket expenses.
Daniel Lublin recently wrote in the Metro about a similar case in which an employee suspected of theft was fired because of questionable expense reports. This case can be seen as analogous insofar that the actions of Leitner and Lapierre would be better described as reckless rather than fraudulent.
Human resources staff should be aware of potential errors in judgement when conducting terminations. Courts have stringent criteria when evaluating just cause and will likely side with the employee if lesser actions could have been taken.
On Saturday, January 8, the Careers section of the Globe and Mail published an article on employment contracts and the law of hiring, featuring Daniel Lublin of Whitten & Lublin LLP. The article contends that most ordinary employees are better served by negotiating employment contacts or rejecting them altogether. The full article can be read here.
According to an article in the National Post, Brett Favre and the New York Jets are being sued by two former massage therapists in a workplace lawsuit claiming they lost their jobs after complaining about sexually suggestive text messages from Favre.
The women allege that Favre proposed off work meetings with them in sexually suggestive ways. When they declined his advances, they were effectively blackballed from working for the team and its players, they claim.
In Canada, employees can make legal claims against employers for reprisal, constructive dismissal, harassment and discrimination when there is a loss of work due to rejecting the sexual advances of another employee or supervisor. These claims can be brought at provincial human rights tribunals or through the courts.
In order to prevent exposure from these claims, employers should consider the following advice:
- implement clear policies on sexual harassment and consistently enforce them.
- conduct investigations by a third party or neutral investigator as soon as allegations of harassment occur. Do not jump to conclusions without first providing the alleged harasser an opportunity to respond. The point of the investigation is to find the truth not to condemn one side or the other.
- Conduct annual training with managers and supervisors on addressing allegations of workplace harassment and how to apply appropriate policies in place.
- Consult an employment lawyer right away. If there are holes in your case, don’t learn of them when you first read an ex-employee’s lawsuit.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. He can be reached at dan@toronto-employmentlawyer.com. Daniel acts for employers and employees in all workplace law matters.
