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.

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. Mainly because 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.

To learn about what other aspects of a severance package can be negotiated and how, watch Daniel Lublin’s video in the Globe and Mail, Should I negotiate for more severance?

How do you calculate severance?

| August 12th, 2013 | No Comments »

Employment ContractThere are 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.

To find out more about how to calculate your severance watch Daniel Lublin’s video in the Globe and Mail.

 

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.

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.

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.

 

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 not negotiable and that after their dismissal they are entitled to only 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 really just 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 simply accept, 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?

He says, if your employer is not playing by the rules 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 either.  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.

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.

Parent’s worst fear – will I have my job back after my parental leave

| August 27th, 2012 | No Comments »

Most often, employees considering or expecting to become parents, face concerns about whether they will still have a job to return to after their parental leave is over.

Overwhelmed by new parenthood duties and the possibility of losing their job, it may be harder than you think to find all the necessary information and to know your rights in the event that it happens to you.

Toronto Employment Lawyer, Daniel Lublin talks about common situations of terminations while on parental leave in his latest article published in the Globe & Mail, Can a company terminate someone on parental leave?.

Human rights and employment standards legislation across Canada prohibits termination and adverse treatment because of an employee’s intention to become pregnant, her pregnancy, or for taking a parental leave.

An exception is that an employer can terminate an employee who is on parental leave if the reasons for the termination are unrelated to the leave.  However, employers must show that the termination was unrelated to the employee’s pregnancy or leave, and this is often not an easy task.

Regardless of the reason for a termination during parental leave, employers are required to pay severance to the employee.  However, employers are not required to provide the severance figures to an employee who is still on leave.  Some will agree to provide numbers as a courtesy if required by the employee and where the employer’s decision to terminate has already been made.

This topic is without a doubt, one of the most misunderstood and contentious issues in employment law.  To learn more about your options, refer to our related article, Maternity Leave can thwart dismissal, found on our website.

Signing a release without legal consultation?

| July 12th, 2012 | No Comments »

At the time of termination, employees need to ensure they are treated fairly.  In some cases employers will present them with a release and ask them to sign it on the spot or within minimal days to consider their offer.  Employees need to be responsible for what they do and sign.

In a recent case highlighted by employment lawyer Daniel Lublin in the Globe and Mail, Eric Rubin, who was 63 at the time, had worked at Home Depot Canada Inc. for nearly 20 years when he was suddenly fired in what Home Depot described as a restructuring.  Mr. Rubin was told it was his last day at the company and given a letter confirming his dismissal and encouraging him to sign a release.  He was unaware of what he was actually entitled to, and he therefore signed the documents on the spot, believing that Home Depot’s offer to him was fair.  However, soon after, Mr. Rubin realized that he had made a mistake.

In the court’s view, Home Depot had taken advantage of an older and long-term employee.  Accordingly, the court struck down the release, awarding Mr. Rubin double the amount of severance than he was initially offered, plus his legal costs – an amount more in line with what is considered fair.

In his latest article published in the Globe and MailDaniel Lublin, offers the following advice to any Canadian employee faced with an offer of severance and release:

  • Employers do not assess their severance obligations based on what is considered fair.  They make offers of severance based on what employees are likely to agree to, since most people are unaware that they can negotiate or sue for more.  For this reason, most severance packages are negotiable, so ensure that you are receiving a fair offer before agreeing to its terms.
  • Tell your employer you need more time to meet with a lawyer or financial adviser to ensure you fully understand the terms of the severance package.  Very few companies will refuse to provide a few extra days to consider an offer, aware that denying this request could cause to challenge any agreement.
  • Try to understand the interplay between what the legislation requires and employer to provide in terms of severance and what it is actually providing.  Many severance packages offer employees little more than the statutory minimum, which will almost never be fair.

It is always good to consult with an expert before signing any document since not all stories end successfully, as this one.  The full article written by Daniel Lublin can be read in the Globe and Mail.

 

 

 

Does my social media account belong only to me?

| June 12th, 2012 | No Comments »

A decade ago, employers had an issue with controlling their employees’ online use at work; today the same problem is much wider and stretches to employees’ use of social media profiles.  Every employer hopes for word of their business to go viral, whether it is through a Tweet, Facebook message or blog.  However, a bad viral message can be damaging to the company’s reputation.  How can employers prevent this and can they dictate what employees say or write?

In his recent article in the Globe and Mail, Employment Lawyer, Daniel Lublin writes about a growing concern in today’s society of how your personal social media profile and work social media profile can collide.

Who owns the online profile?  If the profile was created, populated and maintained by an individual and is for his or her personal use, then he or she is the owner.  In situations where social media profiles are created for work or that have business purpose, the profile itself and all of the contents within are owned by the employer, even if an individual or group of individuals were responsible for its popularity and content.

Online posts.  In some circumstances, employers can control what is posted on a social media profile because most employees’ public profiles are directly linked to their employer’s websites or social media profiles.  Therefore, personal opinions can easily be confused with those of their employers.  When this occurs, employers are within their rights to demand that employees remove that content, or possibly lose their job.

Accessing social media accounts.  Prospective employees have no legal obligation to provide his or her social media password and they can readily refuse.  As well, an employer can refuse to hire any candidate that does not comply with their hiring process, subject only to the prohibition against discrimination in hiring based on human rights laws.  Current employees may be subject to a policy (if an employer has one) that permits it to access and monitor e-mail sent from work or away from work but through the company’s servers.  Since employers own workplace computers and the servers they are connected to, they are allowed to monitor them with proper notice.

For more information on this growing issue of social media privacy in the workplace, you can read the full article here.