Earlier this week CBC posted an article titled, “Occupy supporter said he was fired”.   Occupy – being a global protest that aims to raise awareness on social and economic inequality.  If you’re wondering about the legality of the dismissal, read on…you might be surprised with the answer.

In this case, the employee was a barista at Sodexo, and was allegedly told via email:

You have been a wonderful contribution to the Sodexo team unfortunately due to your involvement in Occupy Calgary we do have to let you go.

Though he was present at the protest, the employee was curious as to how his employer found out.  Would it have mattered if Sodexo was misinformed?

It’s important to distinguish between what is legal and what is moral in circumstances like these.  Although Canadian employment law often affords employees the benefit of the doubt, employers still maintain the right to conduct business as they see fit, provided that they do so without discriminating.  When it comes to freedom of expression, employers can make “immoral” dismissals provided:

• They give appropriate notice;
• Provide pay in lieu of notice;
• Or provide valid rationale to substantiate a dismissal for cause, which would forfeit the prior entitlements.

Picture and video phones, instant messaging, social media – it’s easier than ever for your employer to get a lead on your activity off the clock.  Does this accountability make us more responsible individuals, or bind our expressions to our employer’s discretion?

If you have ever filed a claim with the Ministry of Labour, there’s a chance that you might not like what you are about to read…

Last week in the Metro, employment lawyer Daniel Lublin tells the tale of a recently dismissed employee whose phone call to the Ministry of Labour ended up being anything but free.   

Intent on taking action against her former employer, a woman called the Ministry for information and was encouraged to proceed.  Without questioning the process, she filed her claim, and later found out that it had prohibited her from suing for further damages in court.

There is a disparity between what employees can claim through statutory minimums and common law notice.  Advice from the Ministry is free- and for most people, an easy first point of contact.  But as Lublin points out, people “are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion.”   

Don’t settle for less than you deserve.  If you believe you have a strong case and plan on proceeding, contact an employment lawyer.  

You can read the full article in Metro News at the link below: 

A Ministry Makes the Wrong Move

There is a saying, “Hope for the best, and plan for the worst”.  When it comes to your employment, planning for the worst is critical – and a paper trail never hurts. 

Thomas McNeely was a senior executive at Herbal Magic, when a group of investors approached him about making a bid on the company.  Intent on becoming the next CEO, McNeely was actively involved in the negotiations, but reluctant to front any capital.  Eventually, he was persuaded by promises that he would be a long-term senior executive.   

The changeover occurred and McNeely was the new CEO for 7 months before being fired and removed from the board.  Believing that he was owed something more because of the promises made, he sued.  

Unfortunately for McNeely, the only thing relevant to verbal agreements in his contract was an “entire agreement” clause that nullified anything said that was not included in the contract.  Even though the defendant admitted to having made the statements, the judge ruled against McNeely.

While there are some cases in which broken promises can lead an employer into muddy waters (such as in the case of job inducement), it is best to err on the side of caution: ask for things in writing; review and negotiate employment contracts; and if it still doesn’t feel right, consult an employment lawyer.

The original article, written by employment lawyer Daniel Lublin can be found on the Metro News website *here*

Employers often draft overly broad and restrictive contracts that are applied unilaterally to employees.  The thought behind it is – bargain for more, and hope for the best.  In most cases this works, but recently two employers found out that playing it fast and loose has its repercussions.

Employment lawyer Daniel Lublin calls this the “kitchen sink approach to contracts” in his weekly column in the Metro.  One of the two cases he discusses in his most recent article could have some serious implications for Canadians.

In 1992, Tom Mason signed a contract that contained a provision restricting his ability to work with his company’s clients for a period of one year following his departure.  When Mason was fired 17 years later, he challenged the clause in court, and came up empty-handed.  As Mr. Lublin puts it, “Employers collectively sighed in relief since most court cases strike down these clauses based on the courts’ interpretation of what is fair, and not what the contract actually states.”  Thankfully for Mason, the Court of Appeal had a different opinion and declared the contract invalid.

Employers should take note that in cases of wrongful dismissal, the courts may side with the employee when deciding whether to uphold post employment restrictions.  Lublin says that this could result in employers paying out more in severance to avoid the negative fallout from a potentially void contract.  Hopefully, it will also lead to due consideration when drafting contracts to begin with.

It might surprise you to learn the extent to which your reactions in the workplace can determine your success or failure in the courtroom.

Over the past two weeks, employment lawyer Daniel Lublin has categorized the reactions of workplace “winners” and “losers” in his Metro news column.  The first article titled, “Don’t wage war on a work case” deals with some of the common pitfalls employees often fall victim to.  Regarding criticism in the workplace, Mr. Lublin highlights the importance of responding promptly – but also with caution.   In instances where you have larger “skeletons in the closet”, silence may be the best solution.

The second article, “Workplace winners always welcome” lays out 5 different attributes of successful employees:

• The Peacemaker
• The Stoic
• The Opportunist
• The Optimist and
• The Game Changer

The winning employee acts strategically and avoids conflict.  When confronted with it, he is objective or remains silent until emotions have settled.  Recognizing the implications of timing, and maintaining a positive attitude (even if it’s forced) are all winning attributes.

Following this advice will help you succeed in the workplace and ensure that if you ever find yourself consulting an employment lawyer, you will have already tipped the scales in your favour.

Daniel Lublin writes a weekly employment law column in Metro News.  Other articles he has written are available online at the Metro News Website.

Carol Bartz, the former CEO of Yahoo Inc. was recently fired by telephone.  The company’s poor etiquette cost them dearly when Bartz retaliated through email and interview.  First, she sent a message to the 1,400 staff members explaining what had happened.  Then,  she later interviewed with Fortune magazine calling board members “doofuses” and criticizing the chairman for not having the “balls” to tell her himself.

The whole debacle is being called a case of “how not to fire an executive”.  The Globe and Mail recently published an article quoting employment lawyer David Whitten on the matter.  Whitten explains that “the main objective for both management and the board should be damage control when you are going to change the captain of the ship. And that is done by a concerted message that both parties agree with and a messaging strategy that both parties stick with.”  Having burned that bridge, Yahoo may be in some trouble – with their board of directors under the microscope, it’s not likely that this is the last we have heard from Carol Bartz.

The article by Rita Trichur in the Globe and Mail can be found *here*.

Most of Mayor Rob Ford’s efforts to cut the budget deficit have been met with opposition, and it looks like his latest proposal will be no different.  Recently, the National Post published an article written by David Whitten, partner of Whitten and Lublin, that provides a critical analysis of Ford’s voluntary buyout package for civil servants.

Under Ford’s program, applicants that meet management criteria can potentially receive up to 6 months’ pay in lump sum – and are scheduled to leave by the end of December.

Some of the outcomes Whitten predicts are as follows:

1. A negative impact on service quality – The expedited transition process will likely leave a heavy burden on the remaining employees and have an even worse impact on unsuccessful applicants that have already become invested in moving on.  Whitten explains that that this can lead to depression, a lack of motivation, and in some cases, anger.
2. Potentially discriminatory criteria – the criteria will likely favour employees with greater seniority, which could result in an influx of human rights lawsuits for ageism and public exposure of management’s criteria for applicants.
3. Less people running for the exit – This is the only upshot Whitten mentions.   The fact that so little is offered in the package may entice more employees to stay and take their chances with a larger severance payout.

Although the buyout may appear to cut costs, Whitten’s article makes it abundantly clear that the city could end up paying more in the long run for this poorly thought out plan.  The full article can be found *here*, and you can find some suggested alternatives near the end.  Although budget cuts are necessary, Whitten’s conclusion that the plan is “unsophisticated and self-defeating” stands to be validated very soon.

David Whitten, partner of Whitten and Lublin LLP recently discussed the City of Toronto’s buyout package for municipal employees in Novae Res Urbis – “a limited circulation news service that helps important decision-makers stay current on municipal affairs”.

Whitten explains that the city’s buyout package could lead to further challenges- some of which could include dealing with lower offers of severance than Employment Standards Act entitlements as well as the offer of lump-sum payment of benefits rather than having access for the duration of the notice period.

Click the link below to view the full article titled, “Buyout Package Troubles” by Mark Ostler:

Novae Res Urbis – Friday, August 26, 2011

Top Five Staffing Mistakes Managers Make and What to do About It!

—————————————————————————————————————————————

Friday, September 23, 2011

8:30 am to 11:30 am

SuiteWorks Business Center

92 Caplan Ave.,

Barrie, Ontario L4N 0Z7

 ————————————————————————————————————————————

Join David Whitten of Whitten &Lublin LLP and Theresa Dowsett of Workforce Acceleration and Ryan-Dowsett Paralegal Services for a FREE seminar for business owners. Learn the Top Five Staffing Mistakes Theresa encounters, and hear what David has to say on how to avoid making them and protecting yourself if you do.

David is a recognized employment law expert and a founding partner of Whitten & Lublin LLP, a boutique employment law firm focused on delivering strategic resolution to workplace issues and challenges. The firm offers expert advice to both employers and employees.  Therefore, David has experience on both sides of the table. To see David’s full bio, click *here*

Over the past 15 years, Theresa has created a full time management consulting and human resource management firm focusing on leadership development, team building, improving workplace culture, conflict resolution, building employee relations, and WSIB/Health & Safety Claims Management. Theresa has also been involved in numerous third party investigations into allegations of inappropriate behaviour at work so that companies may meet their due diligence obligations, and understand the underlying root cause of personality and operational problems at work.

The seminar is free, and seating is limited.

Please RSVP to Theresa at theresa@WorkforceAcceleration.com

Knowingly or unknowingly, employers engage in workplace practices that help tip the scales in favour of dismissed employees.  In last week’s Metro, employment lawyer Daniel Lublin describes five common workplace blunders, which are reviewed below:

1. Paying only the minimum on dismissal

Assuming it will go without protest, employers often make a practice of offering the minimum.  Read about a case*here* that explains why courts are critical of this approach.

2. Probation

Employers will often draft contracts that make it seem as though probationary periods and severance provisions are non-negotiable.  This is not the case.

3. Resignations

Employers may pressure an employee into leaving, but a true resignation must be voluntary.  Lublin writes about the consequences of being unclear on the difference between a termination and a resignation *here*.

4. Workplace investigations:

“Ironically, employees caught lying during the investigation will give their employers cause for dismissal when their initial behavior did not. “  The captain of a BC Ferry ship found this out the hard way when he was questioned during an investigation into the ship’s sinking.

5. Not properly documenting discipline

In order to uphold dismissal, Lublin says that “courts require that progressive or corrective means should be used first”.  Employment lawyer Cedric Lamarche offers some great ways to address poor conduct in an earlier entry that can be found *here*.

Being aware of these common misconceptions will help advise best practices for managers and HR staff – whereas turning the blind eye will likely lead to costly lawsuits.  Contact Whitten and Lublin if you are curious about how your workplace practices and policies measure up.