Should you accept a demotion due to your illness?

| October 2nd, 2015 | No Comments »

Question:

I was injured at work and subsequently diagnosed with an autoimmune disease, which my doctor says is likely related to the injury but not really provable.   My performance at work has suffered due to this disease, also because of absences due to hospital visits and the like.  I had never been written up before until my injury and now it seems like they are trying to get rid of me. They are essentially forcing me to step down from my management position or I feel like I will be fired.  As it stands now, I have actually agreed to step down, so it may be too late for me to do anything about it, but I feel that I was railroaded into this decision. 

Answer:

You are not required to accept a unilateral demotion, especially if the reason your performance has suffered is related to an illness.  Your employer is required to accommodate your autoimmune disease, and related absences, to the point of undue hardship.  Tell the employer you’ve changed your mind – you are no longer prepared to move into the new job; you want to be accommodated in your existing management position. If they refuse, call a lawyer or the human rights legal support centre.

Based on your individual needs, the experts can guide you step-by-step and provide thorough legal advice.

My Boss Made Significant Changes to My Employment

| August 27th, 2015 | No Comments »

Drastic Changes to My Employment

The concept of an employer making a change to a workers employment is not odd. It’s possibly more common than we think. The issue employees take is the extent and significance of these changes, and this concern has legal merit. Take for instance employee A, who has independently worked in their department, earning commissions based on sales. Suddenly, the employer explains that a colleague (employee B) will be working with employee A, and based on his/her performance, employee A’s commission will be dependent on employee B’s sales as well. Readers of the Globe and Mail are interested in finding out, can an employer legally make such a significant change to their employment?

Claims for Constructive Dismissal

Daniel Lublin, Toronto employment lawyer provides his professional opinion by explaining that the answer lies in determining how significant the changes are to an employee’s work duties and their compensation. An employer must seek the employees consent to the changes or provide reasonable notice of the changes. When changes to an employees work duties and compensation are significant, an employee may claim constructive dismissal and sue for lost wages.

Claims for constructive dismissal are unique on a case-by-case basis. As such, retaining a lawyer to provide you with case specific advice is crucial. Consult with our team at Whitten and Lublin to book your appointment and read Daniel Lublin’s Globe and Mail column and full article Does my boss have the right to change my compensation and work load?

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.

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.

Employment terminations

| October 10th, 2014 | No Comments »

Employment terminations can be cruel, and finding a lawyer that suits your wallet, is intimidating.  All termination scenarios vary from employee to employee, and finding a lawyer to counsel you every step of the way is the best advice.  In the Globe and Mail’s Report on Business, Toronto employment lawyer, Daniel Lublin says dismissed employees should never sign termination documents, such as a release, without at least having them first reviewed by a lawyer.

Daniel Lublin explains this further and answers some questions from readers regarding constructive dismissals.  In particular, where an employer assigns a vastly different role in a different location, what are your legal rights? Daniel Lublin explains that an employer cannot force you to take on a vastly different role in a different location. You do not have to accept the change rather; you can protest this in writing. If your employer refuses, you may have the option to sue in court for constructive dismissal.

Read Daniel Lublin’s Globe and Mail column and full article Can my company force me to take a wildly different job?

Your work is eliminated and you have a new role offer

| September 25th, 2014 | No Comments »

A situation can arise where your job is eliminated and the employee is offered a different role with the same wage. The problem is that this new position has the potential to cause health complications. Other factors such as age and the environment of work are not suitable for you to accept this offer. What are your legal rights in this regard?

Employment lawyer, Daniel Lublin explains that an employer has a legal duty to accommodate an employee by finding a suitable alternative or modifying the work conditions in a reasonable way.  Without the employee’s agreement, the employer cannot change the work in a negative way. When changes are made in a negative way and without your consent, it can lead to what is known as a constructive dismissal.

To read more on this principle, it can be explained further by reading Daniel Lublin’s full article Can my employer cut off my disability payments? and column in the Globe and Mail.

Employment law rights regarding your health benefits and origin of proceeding

| August 6th, 2014 | 2 Comments »

Employment lawyer, Daniel Lublin has answered some essential questions in the Globe and Mail regarding employment law rights. Read his responses to several readers’ questions below:

Question:

Is an employer legally permitted to reduce or eliminate an employee’s health benefits?

Answer:

Employers can make only minor changes to your compensation without your consent. There is case law that states that anything more than a 15-per-cent change in compensation is a breach of contract that entitles you to leave your position and sue for damages while you look for another job. This is referred to as a constructive dismissal, but the 15-per-cent figure is just a guideline. Even a 5-per-cent change to your compensation may in some cases amount to a constructive dismissal.

Question:

Is it practical for employees who reside out of Ontario, but are working for an Ontario registered company, to sue in Ontario or in their local province?

Answer:

It is an issue of choice. In Canada, a person or company who starts a lawsuit makes the decision on where to sue, but a defendant can challenge that choice if there was no real connection between the jurisdiction that was selected by the plaintiff and the case. Your strategic choice would weigh on whether or not you wish to travel to and from Ontario or the legal costs associated with enforcing a judgment in Ontario.

To read more of Daniel Lublin’s articles and find more information about your rights refer to “Employment rights regarding your health benefits and origin of proceeding”.

Can my employer change my regular work schedule?

| August 5th, 2014 | 20 Comments »

All work environments have different expectations for an employee’s work schedule.  A long term employee could be well adjusted to his/her schedule when they are told by their employer that it is about to change. Is an employer legally allowed to change the work schedule and what are the implications?

Question:

 Can an employer change an employee’s work schedule?  In my case, I was working 7:00am to 4:00 pm, Monday to Friday for the last 7 years and now my company has told me to work some evenings and some weekends.  Can I refuse?

Answer: 

An employer is permitted to set hours of work and to make certain limited changes to your hours of work.  Work environments are not static and employers can require employees to work outside of their regular working hours.  However, if the employer makes a significant change to your work schedule without your agreement, such as requiring you to regularly work evenings and weekends, this may trigger a constructive dismissal.  You can refuse to accept the change in hours, in which case the employer may terminate your employment.  In these circumstances, you are entitled to demand a severance package.  Even if the employer does not formally terminate your employment, you can resign from your job and demand a severance package as though your employment had been terminated.    Ultimately, the employee bears the onus of establishing that s/he has been constructively dismissed from their job.  There is no specific formula in terms of what type of change in working hours triggers a constructive dismissal.   Each case is decided on its own facts and in particular, decisions are based on whether the employee has other obligations or circumstances that may make the change in work hours particularly onerous.