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.

Changes to the Human Rights Code and its impact

| March 18th, 2015 | No Comments »

In light of the 2008 changes to the Human Rights Code (Code), it is possible for an employee to file a wrongful dismissal lawsuit and receive Human Rights damages without first appealing to the Ontario Human Rights Tribunal. In Lee Partridge v. Botany Dental Corporation, the employee sued her former employer for wrongful dismissal and also requested compensation for family status discrimination under the Human Rights Code.

Ms. Partridge was an employee of Botany Dental Corporation for over 7 years. Her initial job title as a Dental Hygienist meant that her work hours were from 9:00 a.m. – 5:00 p.m. Once promoted to office manager she received the benefit of having flexible work hours. Soon after, Ms. Partridge went on maternity leave. Before her return, she was told that her position as office manager was not available to her and neither were the flexible work hours. The employer placed Ms. Partridge back into her initial title with extended hours and reduced pay. Ms. Partridge’s concern was her inability to set up child care arrangements where her work hours did not make it feasible. The Court agreed that she had been discriminated against on the basis of family status and was awarded human rights damages of $20,000.

Since the changes to the Code came into effect, Lee Partridge v. Botany Dental Corporation is of a select few of cases where the Courts have awarded damages of this kind.  The Courts have made an example of the employer’s obligation to accommodate legitimate child care needs not child care preferences. On the other hand, employees must prove that they have met their obligation of seeking reasonable child care arrangements but have found no feasible solution available.

Bullied employee-wanting to resign?

| October 30th, 2014 | No Comments »

Too often we hear about bullied employee who is mistreated to such an extent that he/she feels the only recourse is to resign.  However, a forced resignation does not necessarily mean that this is true.  When an employee works in an environment that is intolerable, what options are applicable?

Daniel Lublin, Toronto employment lawyer explains that a forced resignation is not a true resignation.  In fact, it can be classified as a dismissal. The onus falls on the employee to convince the judge that the work conditions and/or conduct were such that a reasonable person could not be expected to continue with employment.

To be informed further on this topic, read Daniel Lublin’s Globe and Mail column and full article I’m unionized, can I sue my employer or union?

 

Protecting yourself from being dismissed

| August 29th, 2014 | No Comments »

Securing your employment is something every employee wants and it is reasonable for an employee to want protection from being dismissed.  In the worst case scenario, employees want to know, what legal options do I have to ensure that I am protecting myself from being terminated?  Toronto Employment Lawyer, Daniel Lublin explains some valuable insight in his most recent Globe and Mail column.

Imagine being a long-tenured employee being offered a new position with another company.  How can an employee protect themselves from termination during the first year? Mr. Lublin explains that leaving a long-tenured position for another company without protection is cause for concern. As an employee, you are entitled to negotiate your salary and the same applies to any other terms of your employment, including the termination language and probationary clause.   There are also events where employers allow their employees to take items home from work.  In the event that an employee is accused of stealing and then fired, what recourse does that employee have? Daniel Lublin offers his response by saying that you cannot steal when you have permission to take it. If this action was and is still condoned, you have options.

Read Daniel Lublin’s Globe and Mail column and full article How can I ensure I won’t be fired at a new job?

Employee fired over an injury sets legal precedent in Ontario

| April 9th, 2014 | 1 Comment »

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.

Without severance payment

| September 6th, 2013 | No Comments »

Can employer refuse to pay severanceIs it illegal for an employer to refuse to pay severance and under which circumstances can they do this?  What legal avenues are available and when do you need to consult with an expert?  In his latest Globe and Mail video of a series, Daniel Lublin, Toronto Employment Lawyer explains  when severance can be refused and which legal forum is best for each case.  When can my company refuse to pay me severance? video can be watched in the Globe and Mail’s Career section.

How to Handle a Severance Negotiation

| August 16th, 2013 | No Comments »

Many laid off employees want to know if they should accept their employer’s offer of severance or if they can negotiate for more. As with most things in life, severance can be negotiated, and one should always ask for more. Most often, an employer’s first offer is their lowest and not necessarily the most fair. However, knowing if the package presented is fair and negotiating for more requires legal knowledge and an understanding of what a fair offer of severance is.

 

Understanding Fair Severance

The key to severance negotiation is knowing where you stand in the negotiation process: are you in a position of strength or a position of weakness? Watch Daniel Lublin’s video for The Globe and Mail for tips on how to know where you stand.

 

What Should You Look for in a Severance Negotiation?

Severance negotiation is more than just determining compensation. The packages may also include letters of reference, outplacement counseling, and even legal fees. You have the right to negotiate in all of these areas.

 

Are Benefits Included?

 

Employees are entitled to working notice of termination, meaning that you should be informed of termination while you’re still at work. Thus, if you had received benefits as part of your employment, you should expect those benefits to remain in place with your severance.

Severance negotiation can be a strenuous and stressful process, but keep this tips in mind and you should be able to get a fair package after your termination.

 

How do you calculate severance?

| August 12th, 2013 | No Comments »

Employment Contract

Daniel Lublin’s video for the Globe and Mail a few factors to consider.  First, is there an employment agreement that outlines the severance required?  If there is, is it even legal?  Many employment agreements do not comply with Canadian or provincial law and are disregarded by the courts.

If there is no agreement or if the agreement is not enforceable, Canadian courts follow the “common law” which will consider factors such as:

 

  1. Your age;
  2. Your tenure,
  3. The type of job you held;
  4. How long it will take you to find similar employment; and
  5. Precedents.

 

Legal Precedents to Calculate Severance

The truth is, there’s no rule of thumb for you to calculate the correct severance. In a suit, the courts will essentially look at the extenuating circumstances and decide what they think is fair. That being said, there are ways to make an estimate.

 

Standards for Calculating Severance

In each situation of termination, there are statutes found in provincial employment standards legislation that sets out the minimum compensation and notice for termination. Employers must always follow these standards, and are in contravention of the law if they do not. Use a law firm to find these standards, and help you to answer the question of how to calculate severance.

 

Employee fired after calling in sick to play in softball tournament

| July 15th, 2013 | No Comments »

 

A former Telus employee’s termination for lying about being sick and instead taking the day off to play in a softball tournament was recently upheld by the Alberta Court of Queen’s Bench.

 

Sickness and Softball Don’t Mix

Jarrod Underwood was a five-year employee of Telus. He asked to get one of his regularly scheduled shifts off in order to play in a softball tournament, but the request was denied because no other employees were available to take his shift. The morning of the tournament, Mr. Underwood told his manager that he would be missing work due to “unforeseen circumstances.” Knowing about the softball tournament and suspicious of his absence due to his prior request to have the day off, the manager went to the ballpark, where he saw Mr. Underwood pitching in the tournament.

When Mr. Underwood’s manager confronted him about the incident, he admitted to playing softball, but claimed that he missed work due to suffering food poisoning. He insisted that, while he was too sick to work, he was well enough to participate in the softball tournament. As a result of the incident, Telus terminated Mr. Underwood’s employment, claiming that the trust relationship had been irreparably damaged by his dishonesty.

 

Court Decides Employee Fired After Calling In Sick

The matter was taken to arbitration, where the arbitrator accepted the employee’s explanation that he was too ill to work that day, but that he was still well enough to play softball due to being able to appropriately manage his illness from the ballpark but not the workplace. The arbitrator ordered Telus to reinstate Mr. Underwood with a 30-day suspension. Telus appealed to the Court of Queen’s Bench, which overturned the arbitrator’s decision. The Court found that Mr. Underwood’s version of events defied “logic and common sense,” and ruled that the arbitrator’s conclusion that the employee was actually sick was unreasonable. Given that the employee had lied to his employer about being sick, the trust relationship was indeed irreparably damaged. The Court thus upheld Mr. Underwood’s termination. It goes to show that in certain cases, an employee can be fired after calling in sick.

 

This post was guest-authored by Nathan Rayan.

 

My ex-employer refused to pay my severance! Can he do that?

| March 25th, 2013 | No Comments »

Being laid off does not make it any easier for an employee to realize what his/her rights are or what next steps should be taken. Many employees believe severance packages are non-negotiable and that after their dismissal they are only entitled to what the employer offers. This amount is usually no more than their statutory right to severance, found in employment standards legislation; so they sign whatever they are given.

 

Should you simply sign whatever has been offered?

Often, employers offer what they believe employees will accept, not what they are actually entitled to, because they know that statistically most employees will be happy to get anything at all. So, it is always wise to ask for more!

Then again, can the employer then change their mind about their offer and refuse to pay, when an employee asks for more?  Toronto Employment Lawyer, Daniel Lublin has recently answered a similar question in his Globe and Mail article Can my ex-employer refuse to pay severance?

 

Advice on employers refusing severance

He says if your employer refused to pay your severance, it makes your case against them even stronger.

Mr. Lublin explains that when you are laid off without cause, employment standards legislation states that you are automatically entitled to a statutory severance payment based on your tenure.  This is not something that can be taken away, and it is not negotiable. Even if negotiations are cut off, these payments must still be made, and they must be made immediately following your termination.

When it comes to long serving employees, the statutory amounts should never be overlooked and employers are required to provide a more generous severance package than what is required by employment standards legislation.

 

Will the courts help if your employer refused to pay severance?

Courts usually have sympathy when it comes to long-term employees, especially if the employer is not playing by the rules.  In any case, the only way you might end up with nothing at all is if you let your ex-employer take advantage of you.

If you have been terminated and want to know if your offer is fair, the best decision you can make is to contact an employment lawyer who can explain and guide you through your negotiation process, making sure that your entitlements are maximized.