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

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.

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.

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

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Friday, September 23, 2011

8:30 am to 11:30 am

SuiteWorks Business Center

92 Caplan Ave.,

Barrie, Ontario L4N 0Z7

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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

Often, employees will draft letters to employers protesting a job change or explaining a particular action.  Some of the more “careful” ones will have lawyers do this for them, but a recent case from Vancouver illustrates why lawyers should be mindful of striking a proper balance between voicing a concern and “strong-arming” an employer.   Daniel Lublin writes about this unusual case in his weekly column in the Metro titled, “Sometimes a lawyer can be perilous”.

Sukhwinder Grewal was a branch manager for Khalsa Credit Union for almost 17 years.  When Grewal’s behavior was criticized by her boss, Dalbir Sohi, she would often respond with a written letter of explanation.  One day, Sohi discovered errors in some of the details for Grewal’s personal mortgage and sent a memo to bank personnel calling the mortgage a “scandal”.  Before he could speak with Grewal about it, she left on disability leave.

Grewal returned, displeased about the allegations and concerned that Sohi had crossed a line and invaded her privacy by investigating.  In response, Grewal’s lawyer drafted a letter that read:

We demand that within 21 days from the date of this letter you issue a written apology to Mrs. Grewal acknowledging that your actions in going to the board of directors, testifying on oath at the FICOM hearing, levelling this untrue accusation of a mortgage scandal at her and repeatedly making baseless allegations of performance failures in her job as a manager were done by you in bad faith with the intent of injuring Mrs. Grewal and her reputation. You must promise to refrain from any and all such conduct in the future…

In court, the judge agreed with the credit union’s view that Grewal’s actions and the strong wording in the letter had repudiated the employment contract.

Typically, dismissal for cause that is predicated upon a single action is only upheld in exceptional circumstances.  Because Grewal was a branch manager at the bank, the judge reasoned that “it was essential she retain the confidence of her superiors.”  Following the final letter, this was no longer possible.

Although the letter did not solely determine Grewal’s case, Lublin says that it certainly tipped the scales against her.  Employees should be careful of the extent to which they criticize superiors – although it is allowable, the courts recognize certain limits and are willing to enforce them.

Last week, 600 employees of an Oshawa call centre lost their jobs without pay and without notice.

IQT Solutions abruptly shut down locations in Ontario and Quebec and decided to move operations to Nashville, Tennessee where they had been promised a 1.6 million dollar incentive to create local jobs.

Thestar reported that Labour Minister Charles Sousa contacted the mayor of Nashville and that the city has since rescinded its offer until IQT can prove that it has dealt with any loose ends in Canada.

Recently, IQT has been through some tough times but has yet to file for bankruptcy, so the workers are currently ineligible for Canada’s Wage Earner Protection Program – a federal program that provides assistance for employees of recently bankrupted companies.  Sousa has requested that Ottawa make a special exception for these workers, but for anyone living paycheck to paycheck, the processing time of 4 to 6 weeks may be too little too late.

How can the government ensure that IQT abides by Canadian labour laws?  Right now, it seems like Nashville will determine that outcome.  Unemployed workers who seek legal advice will be able to sue company officers and directors for unpaid wages, but this will hardly amount to what they deserve since it won’t include severance.

With a tattered reputation and barrage of lawsuits awaiting them, it seems unlikely that IQT will surface in Canada again.  If Nashville continues to hold out, we may see a stalemate, which will hopefully discourage other companies from absconding for treasures abroad.

Many managers believe they have the power dismiss insubordinate employees, no matter how unreasonable the request.  The courts have consistently shown this not to be true.

Daniel Lublin illustrates this point in his weekly column in the Metro titled, “Employers shouldn’t mess with your vacation plans”.

On her way to a family reunion, Lerae Bigelow received a phone call from her boss demanding that she come in to work.  Believing this to be unreasonable, since she had booked the time off and explained that it was too late to reschedule, she refused and took her vacation as planned.  Upon her return, she was dismissed via text message and received no severance.

Below are some questions to consider regarding employer demands:

• Job duties: How far outside of the scope of your regular duties is the task?
• Safety: Do you consider the work to be unsafe? If so, the Ontario Health and Safety Act permits you to refuse without reprisal.
• Reasonableness:  How reasonable is the request? How reasonable would your refusal be? 
• Past behavior: How clean is your employment history?  Is this your first refusal or have you lost count?

All of these questions matter to the courts.  Bigelow was successful in her claim for wrongful dismissal, but employees should be careful when dealing with employer demands.  As unreasonable as a request may be, your reaction could determine whether or not you get severance.

Other vacation-related articles:

Retirement home employee fired for going on vacation with a resident

Employee fired after mistakenly booking the wrong day off

Every so often, the media draws attention to the inherent conflict between an employee’s freedom of expression and an employer’s right to conduct business as they see fit.  Most recently, a former employee of Abercrombie and Fitch has claimed that she was fired after refusing to remove her Muslim headscarf.

When Hani Khan was hired as a stockroom employee, she was told by her manager that she could wear her hijab, so long as it was in company colours.  Four months later, she was asked to remove it and lost her job when she refused.

This is the latest lawsuit faced by the retail giant.  Others include discriminatory hiring practices and the dismissal of an employee with a prosthetic arm.

What appears to be at the root of these complaints is Abercrombie’s controversial “Look Policy”, which outlines stringent criteria for the physical appearance of employees in order that they might represent the “Abercrombie look”.  Employees are scrutinized for things like hairstyle, facial hair, tattoos and use of make-up (all of which are not prohibited grounds of discrimination).  Because Khan’s hijab is related to a prohibited ground of discrimination (religion), she would be protected by human rights legislation.

Putting legislation aside, Abercrombie still faces the procedural problem of having accepted Khan’s wearing of the hijab at the time of her hiring, and later changing their mind.

Abercrombie will have to evaluate whether the benefits of strict adherence to their “look policy” outweighs the damage that is being done to their reputation.  If they decide to continue unaffected, managers should be well-trained on the criteria for which they can and cannot hire and fire employees.  Knowing the difference between freedom of expression and freedom of religion is worth the while, as the courts will accept the former and not the latter as being within the employers’ purview.

The difference between a termination and a resignation seems pretty obvious, but in case you missed the memo from HR, you cannot fire an employee and view them as having resigned. 

In an article written in the Metro, Daniel Lublin tells the story of Peitro Saladini, an overnight supervisor at Affinia Canada Corp.  Saladini was an exemplary employee, whose hard work and dedication was rewarded with a promotion to the daytime shift. 

When the work load increased, Paladini was told his shift would change, and he was to take on more responsibility without a pay increase.  Initially, he agreed, but began to feel that he was being taken advantage of.  When Saladini approached his boss and protested the change, he was told that if he failed to report to his new shift, the company would consider him as having resigned.   

Saladini sued for wrongful dismissal and won.  Lublin explains that, “Canadian courts are loath to uphold resignations proffered under circumstances of pressure or an ultimatum and instead will usually find that the employee had been fired.”

If you have recently resigned under pressure or an ultimatum, you may be entitled to severance you never received.  Contact Whitten and Lublin to learn more about your rights and entitlements.

Following Vancouver’s loss in Game 7 of the Stanley Cup final, Canucks fans took to the streets. Cars were overturned and set ablaze, store fronts were smashed and looted, and those who didn’t take part watched wide-eyed in disbelief.

An Acura car dealership employee was fired after being identified as a looter via Youtube – but not before the dealership received a flood of emails from customers threatening a boycott because of Acura’s “support for vandals and looters”.

The National Post website has a collection of high quality photos posted that have made identification of rioters an easy task.  So what do you do as an employer when you spot an employee looting or dancing on top of a police car?

It’s important to understand that these circumstances create a Catch-22:

1. If employers knowingly keep an employee that has been identified, they potentially face boycotts;
2. If they appease the public by terminating employment, they potentially face lawsuits for wrongful dismissal.

Because of the time-sensitive nature of these decisions, it can be difficult to gauge the best course of action.  Before dismissing employees for suspicious behavior outside of the workplace, consider the following:

• Avoid relying solely on photographic evidence – misconstruing an employee as having been involved could end in a costly lawsuit;
• Have a conversation with the employee before drawing any conclusions;
• Evaluate the nature of the supposed crime.  For example, the decision to fire a looter might be made easier if their role in the organization is one that necessitates trust, i.e. a treasurer or inventory manager.

The importance of how employees conduct themselves outside of the workplace is an area that continues to develop as the use of social media becomes more prevalent.  Rather than risk potential lawsuits, contact an employment lawyer to find out if your gut reaction can be cause for dismissal.