See Daniel A. Lublin’s Globe& Mail column in the Report on Business regarding “what to do when your position eliminated” which addresses the issue of constructive dismissal in workplace law.
Two intoxicated executives who caused the diversion of an Air Canada flight have been dismissed for unprofessional behavior, the Globe and Mail reports.
According to one passenger, the two Ontario residents were seen fighting with flight attendants, subdued by the crew, and handcuffed to their seats. The two men pleaded guilty to mischief and have been ordered to pay $72,000 in restitutions. One of the statements provided by the company was that Research in Motion (RIM) “expects that its employees conduct themselves in a manner reflective of our strong principles and standards of business behavior.” Although this case seems pretty clear cut, it is worth flagging a few things:
Damage control goes beyond appeasing the public. Amidst considerable pressure to act quickly, ensure that you don’t do so rashly. If you’re still uncertain, don’t hesitate to reach out for advice from a lawyer.
David Whitten, partner of Whitten and Lublin was recently quoted in a Toronto Star article by Morgan Campbell titled, “Too sexy for the cubicle”.
The article explores a study published by University of Ottawa professor Tracy Vaillancourt that suggests women in the office act aggressively towards peers they perceive as physically attractive.
The experiment recorded the reactions of women awaiting an interview after they had been approached by an assistant wearing either khakis or a miniskirt. The study found that 97% of the women involved felt hostile towards the assistant in the miniskirt, whereas they hardly noticed the one in conservative attire.
Vaillancourt believes that this hostility is hardwired in women as an evolutionary competition for a mate. Whitten, an expert on workplace bullying, believes that these reactions can be explained in a different way. He says, “It’s not a conflict for a mate. The proverbial mate is the job”. Particularly when opportunities are scarce, competition for advancement can cause hostility. Two solutions Whitten suggests are sensitivity training and a comprehensive dress code.
Whether it’s competition for a mate driving this hostility or competition for advancement, there are some clear lessons for employees. Be ready for potentially negative responses to provocative clothing, and mindful of the impact it can have on relationships with colleagues.
Employment lawyer David Whitten was recently published in the November 21st issue of Canadian HR Reporter, a national journal for human resources professionals. The article titled, “Deconstructing random drug, alcohol testing” tackles an issue that recently surfaced as a result of a fatal accident involving a TTC bus and its driver who was later convicted of drug possession.
The accident, which occurred in August of this year, caused the TTC to reevaluate their policy for drug and alcohol testing. When words like “mandatory” were brought up, the TTC union and members of public raised the issue of employee privacy. Whitten picks up from there in describing the risks and rewards of different policy options for HR managers.
Firstly, breathalyzer tests are less invasive of an employee’s privacy and less likely to be opposed. Why? Because the breathalyzer measures an employee’s impairment at the time of the test, whereas other tests can show drug use from weeks prior and are less accurate in determining impairment.
Policies that call for the immediate dismissal of employees who fail drug tests are generally rejected by courts, as addiction is a form of disability that employers have a duty to accommodate for.
Ultimately, Whitten says that the best measure is to abide by the “Golden Rule” – treat employees with the same dignity and respect that you would expect in similar circumstances. For example, if an employee is in a position in which sobriety is required to uphold public safety, consider transferring them elsewhere while they seek help. Compassion can go a long way in creating a positive corporate culture, and it will also go a long way in court, should your actions ever be challenged.
Daniel Lublin of Whitten & Lublin will be live taking readers questions on the Globe & Mail Careers section at 12:00 p.m. EST on Wednesday, November 30th. You can join the discussion by logging on here.
Earlier this week CBC posted an article titled, “Occupy supporter said he was fired”. Occupy – being a global protest that aims to raise awareness on social and economic inequality. If you’re wondering about the legality of the dismissal, read on…you might be surprised with the answer.
In this case, the employee was a barista at Sodexo, and was allegedly told via email:
You have been a wonderful contribution to the Sodexo team unfortunately due to your involvement in Occupy Calgary we do have to let you go.
Though he was present at the protest, the employee was curious as to how his employer found out. Would it have mattered if Sodexo was misinformed?
It’s important to distinguish between what is legal and what is moral in circumstances like these. Although Canadian employment law often affords employees the benefit of the doubt, employers still maintain the right to conduct business as they see fit, provided that they do so without discriminating. When it comes to freedom of expression, employers can make “immoral” dismissals provided:
Picture and video phones, instant messaging, social media – it’s easier than ever for your employer to get a lead on your activity off the clock. Does this accountability make us more responsible individuals, or bind our expressions to our employer’s discretion?
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
There is a saying, “Hope for the best, and plan for the worst”. When it comes to your employment, planning for the worst is critical – and a paper trail never hurts.
Thomas McNeely was a senior executive at Herbal Magic, when a group of investors approached him about making a bid on the company. Intent on becoming the next CEO, McNeely was actively involved in the negotiations, but reluctant to front any capital. Eventually, he was persuaded by promises that he would be a long-term senior executive.
The changeover occurred and McNeely was the new CEO for 7 months before being fired and removed from the board. Believing that he was owed something more because of the promises made, he sued.
Unfortunately for McNeely, the only thing relevant to verbal agreements in his contract was an “entire agreement” clause that nullified anything said that was not included in the contract. Even though the defendant admitted to having made the statements, the judge ruled against McNeely.
While there are some cases in which broken promises can lead an employer into muddy waters (such as in the case of job inducement), it is best to err on the side of caution: ask for things in writing; review and negotiate employment contracts; and if it still doesn’t feel right, consult an employment lawyer.
The original article, written by employment lawyer Daniel Lublin can be found on the Metro News website *here*
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.
It might surprise you to learn the extent to which your reactions in the workplace can determine your success or failure in the courtroom.
Over the past two weeks, employment lawyer Daniel Lublin has categorized the reactions of workplace “winners” and “losers” in his Metro news column. The first article titled, “Don’t wage war on a work case” deals with some of the common pitfalls employees often fall victim to. Regarding criticism in the workplace, Mr. Lublin highlights the importance of responding promptly – but also with caution. In instances where you have larger “skeletons in the closet”, silence may be the best solution.
The second article, “Workplace winners always welcome” lays out 5 different attributes of successful employees:
The winning employee acts strategically and avoids conflict. When confronted with it, he is objective or remains silent until emotions have settled. Recognizing the implications of timing, and maintaining a positive attitude (even if it’s forced) are all winning attributes.
Following this advice will help you succeed in the workplace and ensure that if you ever find yourself consulting an employment lawyer, you will have already tipped the scales in your favour.
Daniel Lublin writes a weekly employment law column in Metro News. Other articles he has written are available online at the Metro News Website.
