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 Peacemaker
• The Stoic
• The Opportunist
• The Optimist and
• The Game Changer

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.

Carol Bartz, the former CEO of Yahoo Inc. was recently fired by telephone.  The company’s poor etiquette cost them dearly when Bartz retaliated through email and interview.  First, she sent a message to the 1,400 staff members explaining what had happened.  Then,  she later interviewed with Fortune magazine calling board members “doofuses” and criticizing the chairman for not having the “balls” to tell her himself.

The whole debacle is being called a case of “how not to fire an executive”.  The Globe and Mail recently published an article quoting employment lawyer David Whitten on the matter.  Whitten explains that “the main objective for both management and the board should be damage control when you are going to change the captain of the ship. And that is done by a concerted message that both parties agree with and a messaging strategy that both parties stick with.”  Having burned that bridge, Yahoo may be in some trouble – with their board of directors under the microscope, it’s not likely that this is the last we have heard from Carol Bartz.

The article by Rita Trichur in the Globe and Mail can be found *here*.

Employers understand their obligations to employees on maternity leave.  But it doesn’t mean that they are happy about them.

Daniel Lublin of Whitten & Lublin was quoted in Canadian Business magazine regarding this issue.  The article can be read here

Most of Mayor Rob Ford’s efforts to cut the budget deficit have been met with opposition, and it looks like his latest proposal will be no different.  Recently, the National Post published an article written by David Whitten, partner of Whitten and Lublin, that provides a critical analysis of Ford’s voluntary buyout package for civil servants.

Under Ford’s program, applicants that meet management criteria can potentially receive up to 6 months’ pay in lump sum – and are scheduled to leave by the end of December.

Some of the outcomes Whitten predicts are as follows:

1. A negative impact on service quality – The expedited transition process will likely leave a heavy burden on the remaining employees and have an even worse impact on unsuccessful applicants that have already become invested in moving on.  Whitten explains that that this can lead to depression, a lack of motivation, and in some cases, anger.
2. Potentially discriminatory criteria – the criteria will likely favour employees with greater seniority, which could result in an influx of human rights lawsuits for ageism and public exposure of management’s criteria for applicants.
3. Less people running for the exit – This is the only upshot Whitten mentions.   The fact that so little is offered in the package may entice more employees to stay and take their chances with a larger severance payout.

Although the buyout may appear to cut costs, Whitten’s article makes it abundantly clear that the city could end up paying more in the long run for this poorly thought out plan.  The full article can be found *here*, and you can find some suggested alternatives near the end.  Although budget cuts are necessary, Whitten’s conclusion that the plan is “unsophisticated and self-defeating” stands to be validated very soon.

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.

David Whitten, partner of Whitten and Lublin LLP recently discussed the City of Toronto’s buyout package for municipal employees in Novae Res Urbis – “a limited circulation news service that helps important decision-makers stay current on municipal affairs”.

Whitten explains that the city’s buyout package could lead to further challenges- some of which could include dealing with lower offers of severance than Employment Standards Act entitlements as well as the offer of lump-sum payment of benefits rather than having access for the duration of the notice period.

Click the link below to view the full article titled, “Buyout Package Troubles” by Mark Ostler:

Novae Res Urbis – Friday, August 26, 2011

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

Knowingly or unknowingly, employers engage in workplace practices that help tip the scales in favour of dismissed employees.  In last week’s Metro, employment lawyer Daniel Lublin describes five common workplace blunders, which are reviewed below:

1. Paying only the minimum on dismissal

Assuming it will go without protest, employers often make a practice of offering the minimum.  Read about a case*here* that explains why courts are critical of this approach.

2. Probation

Employers will often draft contracts that make it seem as though probationary periods and severance provisions are non-negotiable.  This is not the case.

3. Resignations

Employers may pressure an employee into leaving, but a true resignation must be voluntary.  Lublin writes about the consequences of being unclear on the difference between a termination and a resignation *here*.

4. Workplace investigations:

“Ironically, employees caught lying during the investigation will give their employers cause for dismissal when their initial behavior did not. “  The captain of a BC Ferry ship found this out the hard way when he was questioned during an investigation into the ship’s sinking.

5. Not properly documenting discipline

In order to uphold dismissal, Lublin says that “courts require that progressive or corrective means should be used first”.  Employment lawyer Cedric Lamarche offers some great ways to address poor conduct in an earlier entry that can be found *here*.

Being aware of these common misconceptions will help advise best practices for managers and HR staff – whereas turning the blind eye will likely lead to costly lawsuits.  Contact Whitten and Lublin if you are curious about how your workplace practices and policies measure up.

Earlier this year, a former employee of JetBlue became a modern-day icon to disgruntled workers by way of an infamous resignation.  Following a confrontation with a passenger, airline attendant Steve Slater announced via intercom, “To the f—–g a–hole who told me to f–k off, it’s been a good 28 years.” He slid down the plane’s emergency chute, and minstrels will no doubt sing of his tale for years to come.

An article written in thestar recently reviewed Slater’s story as well as several others that have since occurred.  These public and publicized resignations seem to have a lot of employees on the edge of their seat, wavering in their judgment to perform their own theatrical grand-stand.

hittheslide.read-this.org is a website that encourages employees to quit their job “in style”.  Browsers are encouraged to send in videos that showcase how they “hit the slide” – a colloquial reference to Slater’s slide down the emergency chute.  Sounds pretty exciting right?

Before you grab your camcorder and hatch a scheme, consider some thoughts employment lawyer Daniel Lublin raises in the article.  Firstly, “Employers read blogs and Facebook profiles and twitter postings.”  Having your grand moment scattered about the web is not likely going to impress recruiters.

Lublin also says that “It’s a giant misconception that resignations require two weeks’ notice,” – If you are in a senior position or leave in a manner of bad faith, you may not only be losing your severance, but it could end up costing you a lot more if your employer decides to sue.  One of the outcomes of Slater’s case was jail time and a $10,000 fine.

Consider the consequences before “hitting the slide” – although you may entertain some coworkers and strangers on the net, this is one scenario where the costs definitely outweigh the momentary benefits.