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.

In an article titled, “Employers can’t impose major changes” Daniel Lublin discusses the repercussions employees often face when they refuse to perform tasks outside of their job description.

Donald Duguay worked as Cubex driller in mine production. He was asked by his employer to perform bolting work, despite having stated in his interview that he did not want to. He shadowed a bolter for a few hours, before he was asked to step in. When he refused, he was immediately fired for insubordination.

Duguay successfully sued for wrongful dismissal and was awarded severance. The court agreed that bolting was outside of his job description and that such a duty should have been made clear to him at the time he was hired.

The Ontario Health and Safety Act gives all employees in Ontario the right to refuse work they believe is unsafe. Daniel Lublin explains that Duguay’s success “came against the backdrop of a request to perform dangerous work with little training.” This decision should not serve as an indication that employees can refuse undesirable work. Lublin cautions employees that “Mistakenly interpreting a change in their job as being major will rebound poorly on them, not their employer”.

Missy Alison and her daughter were sitting down at a Starbucks when she overheard a conversation taking place at a nearby table.   An employee named Jeffrey was losing his job, and for some reason his sexual orientation was a topic of discussion.  According to Alison, when Jeffrey expressed concerns about a hostile work environment he was told that “if he was not, ‘Part of the solution, he was the problem,’ and his two weeks notice would not be needed.”  When Jeffrey left, Alison allegedly heard the three women make homophobic remarks such as, “It’s not like he turned gay last week”.

What can a person do when they witness something so emotionally gut-wrenching?  It seems more and more, they are turning to social media.  In recent years, there have been many negative outcomes stemming from emotionally-driven blog posts, tweets and status updates, but it may turn out that social media outlets can also be a source of accountability for corporations.  This has already been illustrated over the past year through the response seen after TTC commuters began documenting the activities of bus drivers with smart phones.   This raises an interesting question: How much of an impact can an informed, action-oriented public have on a company’s policies and procedures?

Missy Alison wrote Starbucks a letter of complaint and “tweeted” about the experience to spread the word.  The Toronto Star reports that her blog readership went from 300 to over 100,000 in just a few days.

Starbucks replied via twitter saying, “Your blog post is very concerning. It doesn’t correspond with our values or who we are as a company” and later followed up with a phone call.  They also gained a lot of attention with the following Facebook status update that has over 4000 “likes” so far:

“We pride ourselves on being a great place to work and have zero tolerance for discrimination of any kind. Please see this blog post regarding a report of a recent incident.”

Alison succeeded in drawing attention to her account of a discriminatory incident.  Starbucks responded by addressing the issue head-on in a timely manner through various social media platforms, and has impressed a lot of people, including Alison.  A proactive approach to social media can provide many benefits to employers.  In this example, Starbucks was able to make use of negative publicity to raise awareness on their company mandate for inclusive hiring practices.

You showed up for work like any other day and carried about your business until you were called into your manager’s office.  Minutes later, you stand there wondering how it all happened so fast.

Next time, don’t get caught off-guard.  Arm yourself by recognizing the “Signs that you might be about to get fired”, and go down swinging (metaphorically of course).

Employment Lawyer Daniel Lublin offers some great insight into the symptoms of a looming dismissal in his weekly Metro article.  The full article is well worth a read, but here are a few highlights of signs to watch for:

• Sudden unfounded scrutiny;
• A lack of constructive feedback;
• Loss of important work to other employees;
• Criticism for small errors that were previously overlooked;
• Being left out of important meetings;
• Receiving memo’s that outline instructions that were previously given verbally;
• And poor performance appraisals, even if you’ve done a good job.
• Be especially vigilant close to the time when bonuses are paid out.

Although many of these signs could potentially mean that you aren’t doing your job well, they are also often concocted to substantiate a decision that has already been made to fire you.  If you start to notice the signs, don’t wait around for it to happen – contact a lawyer to find out what your options are.

Mary Poppins may work for free, but Lilianne Namukasa most certainly doesn’t, and she is making her point in the Ontario Superior Court to any employer who would tell fellow nannies otherwise.

Namukasa claims that she was forced into a homeless shelter after being fired without cause, having been paid only $2,100 for two years of work.  According to The Toronto Star, Namukasa is seeking $162,000 claiming breach of contract and other entitlements, plus an additional $33,000 for wrongful dismissal.

Namukasa’s wage theft may come as a shock, but sadly there are many vulnerable workers in Canada that face similar circumstances.  The Workers’ Action Centre (WAC), a non-profit organization is advocating on behalf of Namukasa to raise awareness on wage theft, and to lobby for changes to Ontario’s Employment Standards Act (ESA).

Workers in Ontario are protected by the ESA for things like unpaid wages, vacation pay, minimum wage and severance.  The cap for damages is $10,000 and most claims must be made a maximum of 6 months after the last day of employment.

The WAC wants this cap raised to $25,000 and the time limit extended to 3.5 years.  Why?  To use this case as an example, Namukasa is claiming nearly $200,000.  She may not receive that much, but had she filed her claim through the Ministry of Labour, she would have been limited to $10,000.  In the case of vulnerable workers who are often owed more than $10,000, this causes a disparity between protected rights and the provinces ability to enforce them in court.

Unfortunately, this issue will not be resolved by simply increasing the time limit.  Last year, the Ontario government increased its number of ESA investigators in an attempt to reduce the backlog of complaints.    Extending the time limit for claims would no doubt increase the backlog once more.  If the government does decide to increase the cap, it will have to strengthen the support system as well, or it will have traded one inadequacy for another.

Canada’s employment law is governed through common law – meaning that law is passed down through a body of previous rulings that are given precedence in courts.  There are gleaning examples of cases that have shaped the legal landscape we now find ourselves in.  That being said, we still have a long way to go. 

In a recent article by Daniel Lublin titled, “Supreme Court decisions make big impact” he uses two major cases to illustrate the importance of applying case law consistently.

Keays v. Honda:

Before Keays, employers were liberally penalized for dismissing employees in a negative manner.  The courts quickly found out that nearly every employee with a grievance felt they had been fired in “bad faith”.  This groundbreaking case introduced the stipulation that employees had to substantiate “bad faith” claims with evidence of actual harm.    

Evans v. Teamsters Local Union No. 31: 

Some of the craftier employers will often offer a return to work to employees that sue for wrongful dismissal.  Because employees have a duty to mitigate their losses after dismissal, turning down such an offer could potentially be damaging to a case.  Courts caught on to the fact that not all employers make honest propositions and thankfully, exceptions to the rule were made.  In the case that a work environment has become harmful or humiliating, it would be unreasonable to require an employee to return. 

Though these rulings have had a significant positive impact in the courts, Lublin contends that lower courts have not applied them consistently, and in some cases, not at all.  Both employees and employers should be mindful that precedence is no silver bullet.  As Lublin puts it, “the game may be different but the decisions are often the same”.

Employers often get outlandish explanations from employees who call in sick.  Typically, one call won’t result in dismissal.  In this case it did, even though the reason provided was a pretty good one. 

An article written in the Metro by Daniel Lublin highlights how easy it is for poor communication to lead to dismissal. 

Jansje Beggs contacted her employer Westport Foods following the loss of her mobile home and explained that she didn’t know when she would be in.  After a month without contact, Westport drafted a record of employment indicating that she had resigned.  A month later, Beggs arrived with a doctor’s note in hand explaining her absence.  She was surprised to hear about her resignation and even more suprised that her note failed to make a difference in Westport’s decision. 

The BC Court of Appeal recognized that there had been a misunderstanding between Westport and Beggs but concluded that Westport had effectively fired her when they failed to consider the newly produced medical documentation.

Although Beggs won her case, Lublin draws emphasis to the fact that she “found herself in a twilight zone somewhere between having abandoned her job and having been fired.”  He explains how important it is for employees to “Resist taking any steps that can be construed as voluntarily withdrawing from the workplace”.  Beggs was right to protest her resignation and seek council, but a doctor’s note will not always suffice.  Rather than chance it, employees should do their best to communicate clearly, even during distressing situations.

The ever growing involvement of social media in our society has had a profound  impact on our lives. To some, the greatest impact occurs when their employment is terminated due to comments or images posted on websites such as Twitter or Facebook. As such, many employees share concerns about their online profile and the potential affects on their employment.

What should an employee do to ensure they do not find themselves as the recipient of a termination letter? In today’s Toronto Star, Mr. Lublin suggests checking workplace policy manuals is a good start.