Addressing Legal Issues Related to Mental Health

| May 21st, 2015 | No Comments »

The Mental Health of Employees at Work

Addressing the legal issues related to the mental health of employees at work is one of the more perplexing issues facing employers in Canada. It is because of the nature of this sensitive topic and a lack of awareness that issues begin stemming from mental health in an office environment. It is important to protect your employees and educate yourself on the steps to take to accommodate your employees. 

An Employer’s Lack of Awareness 

In the Globe and Mail article, Dealing with mental illness in the workplace, employment lawyer, Daniel Lublin, concludes that an employer’s lack of awareness of their employees’ mental well-being may not free them from liability in the event that violence occurs in the workplace. In the article, Mr. Lublin details and explains the following key points:

  • Employers have a duty to accommodate their employees so that the employee may fulfill their job responsibilities;
  • Employers have a duty to inquire where the mental state of their employee is in question;
  • Employees may even in some instances have a duty to disclose their mental illness to their employer;
  • Employers have a duty to prevent harm to others in the workplace by taking every reasonable measure to protect their employees from committing or being victims of violence;
  • Employers should establish procedures for informing their employees of health benefits and wellness programs that are available to them;
  • Employers should remain vigilant and record any unusual behaviours. They are responsible for ensuring employees receive all reasonable accommodations; and
  • Employers should regularly review and update their action plan for managing a potential or real fallout from workplace incidents.

It is hard to lose the game when you make the rules

| March 29th, 2011 | No Comments »

Privacy in the workplace continues to dominate the legal and policy discussions.

Most recently, Jerry Agar of CFRB 1010 and the Toronto Sun, addressed the issue in an editorial. Naturally, he sought the advice of employment lawyer, Daniel A. Lublin, prior to putting pen to paper. Commenting on the recent landmark decision, Mr. Lublin indicated it was a “seismic shift” in workplace privacy rights. Lublin encourages employers to create good information technology policies in the workplace. As he says; “It is hard to lose the game when you make the rules, so set good rules in place.

High school secretary moonlights as adult film star; What’s a principal to do?

| March 25th, 2011 | No Comments »

Adult film entertainer, Samantha Ardente, must have known the jig was up when a student at the high school she works at asked her for her autograph. During the day she worked as an administrative assistant at a Quebec City area high school. Outside of her day job, she was moonlighting as an adult film star.

The Globe & Mail and Metro News are two of many news outlets reporting the story. Who can blame them? The case in teaming with controversy as it raises many policy issues surrounding the affects of engaging in secondary employment and consequently, cause for dismissal (or the lack thereof).

Common Employment Law Questions

| December 8th, 2008 | No Comments »

Question:

If working in a salaried position and being in sales (during a time of low sales) can your employer "pull salary" away from you and place you solely on commission effective immediately, even if there is an employment contract signed stating the annual salary?

Answer:

Your employer cannot unilaterally change your compensation structure in a severe way. There are many cases that state going from salary to commission is a real and substantial change to your compensation such that you can consider this action as amounting to your dismissal. In other words, you can reject the change and look for other work or you may be able to simply leave and claim you were dismissed. You could then sue for damages for your economic losses while you are out of work.

As this area of the law is quite complex and your election is important, I would recommend meeting with an employment lawyer who can explain your rights to you in greater detail and build a strategy that best fits your particular situation.

For more information on constructive dismissal situations, like the one above, please see my free employment law advice page on constructive dismissal, here.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful and constructive dismissal. He can be reached at dan@toronto-employmentlawyer.com.

UK Haidresser losses job after shaving profits from employer

| November 21st, 2008 | Comments Off on UK Haidresser losses job after shaving profits from employer

Mark McMorrine will likely be styling hair in prison for the next 18 months.

The Lasswade, Scotland hairdresser was recently convicted of theft and fraud stemming from a scheme in which he stole equipment from the salon which employed him and sold it via his eBay account. It is reported that McMorrine netted more $125,000 from the sale of the items which ranged from flattening irons to posh shampoos.

Theft from one’s employer has long been regarded as cause for dismissal. In McMorrine’s case, he lost both his job and his freedom. Please visit Canadian Employment Law Today for more on this story.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com.

RBC Dominion Securities Inc. v. Merrill Lynch

| November 17th, 2008 | Comments Off on RBC Dominion Securities Inc. v. Merrill Lynch

In its recent decision in RBC Dominion Securities Inc. v. Merrill Lynch, the Supreme Court of Canada has reinforced an employee’s duty to provide reasonable notice of resignation as well as, reestablished an employee’s duty of good faith towards his or her employer.

The decisions stems from a case where branch manager Don Delamont arranged the mass departure of virtually the entire branch staff, and as a result, a large volume of the branch’s client base.

The Court awarded damages to RBC on 2 separate but similar fronts;

1. Damages payable by Delamontfor nearly $1.5M for breach of his fiduciary duty of good faith to his employer. The damages being calculated by estimating the branch’s losses for the 5 year period after the exodus; and

2. Damages payable by the non-management employees who failed to provide reasonable notice of their resignation. These damages were calculated based on the losses to RBC over a 2.5 week period, which amount to about $40,000 total.

What to take from this case? Management employees have a fiduciary duty to retain clients and employees. Also, because the Court established that non-management employees do not have the same fiduciary duty, employers may consider including more favorable resignation provisions into its employee contracts.

For employees, the decisions confirms the common law duty to provide fair resignation notice. This is much like an employer’s duty to provide fair termination notice to an employee.

Daniel A. Lublin is a Toronto Employment Lawyer focusing in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com

Daniel A. Lublin, Toronto Employment Lawyer, wins suit without calling a single witness

| October 1st, 2008 | No Comments »

In a recent Ontario Superior Court decision, Adjemian v. Brook Crompton North America, 2008 CanLII 27469 (ON S.C.), Daniel A. Lublin successfully argued for and won a Motion for Summary Judgment, effectively winning the case without calling a single witness.

As reported in the Canadian Cases on Employment Law (67 C.C.E.L. (3d) 118), Justice Perell awarded a judgment in favour of Ms. Adjemian for damages stemming from her wrongful dismissal amounting to $61,944.65 plus pre and post judgment interest and legal fees.

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com.


Don’t be too quick on the trigger with the send button.

| September 16th, 2008 | Comments Off on Don’t be too quick on the trigger with the send button.

As reported by the Toronto Star, Rick Sullivan sent an email to pal Jason Wade regarding rumours about former co-worker, Ronald Harrington.  The contents alleged that Harrington was dismissed from his previous employment for “cooking the books”. Wade, director of operations for WesTower, Harrington’s new employer, shared the email with Harrington. The email was eventually shared with George Patton, Harrington’s previous employer and the person Sullivan alleged to have fired Harrington.

Harrington claimed that the contents of Sullivan’s email were defamatory and resulted in stress and panic attacks. The suit was settled out-of-court for about $7,800.00.   

The underlying principle of this matter is that sending a malicious email, even if only addressed to one person, can have a much broader touch that ever imagined.  Many people who use email do not consider that the service essentially keeps a written record of all correspondence. As Harrington did, many of my clients often rely on email records to support their claim.

The lesson learned here, as I have mentioned in my weekly column several times, when dealing with electronic communication, employees and employers should always observe the following advice;

1. Thoroughly review and follow any workplace computer and Internet misuse policies.
 
2. Exercise caution when communicating with or providing advice to clients or colleagues.   

3.  Allow common sense to prevail.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

BC Human Rights Tribunal supports transsexual’s termination

| May 30th, 2008 | Comments Off on BC Human Rights Tribunal supports transsexual’s termination

On May 27, 2008 the British Columbia Human Rights Tribunal ruled in favour of BC Ferries with respect the the firing of transsexual employee, Deborah Magnone.

Deborah, who was previously known as Marshall John Magnone, claimed her termination was the result of rumours surrounding her 1984 sex-reassignment.

The Tribunal ruled differently. They cited two September, 2004 incidents as cause for termination. One of which resulted in a vessel being steered into a "hard-landing", potentially compromising the sea-worthiness of the vessel. In it’s ruling, the Tribunal stated that Ms. Magnone had "failed to establish that her transsexualism was a factor in her termination".

At the Tribunal, the burden of proof is for the complainant to make out a "Prima Facie" case, in other words, demonstrating initial merit.  If a prima facie case is made out, the burden then shifts to the respondent to show that discrimination did not occur. 

Click here for a link to the Tribunal’s decision.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Don’t be too quick to sign

| March 26th, 2008 | Comments Off on Don’t be too quick to sign

This is the cautionary tale of two cases that reveal the fate of employees too quick to sign their names…

In Barr v. Pennzoil-Quaker State Canada Inc. the court ruled that the deal was less than what Barr could have received and was "unfortunate". However, it was not so bad that it was prepared to set it aside.

In Titus v. William F. Cooke Enterprises senior Ontario lawyer Douglas Titus was dismissed by William F. Cooke Enterprises and immediately agreed to its offer of severance. Titus read the termination documents at the meeting, including the release, which states in bold, capitalized letters: "I have read this document and I understand that it contains a full and final release of all claims … I am signing this document voluntarily."  Titus signed his name and left with a cheque in his pocket.  Later on he sued, claiming the release was signed under duress and the deal he received was less than fair. But Titus, a lawyer for more than 20 years experience, with self-professed experience in employment law, couldn’t convince the court that the deal he signed was so unfair it should be invalid.  According to the court, "with eyes wide open", he declined both opportunities, preferring to immediately accept the package instead.

These cases provide a stark message for employees when confronted with an offer of severance on an ironclad release: Fair or not, seldom will a signed document be set aside. Employees can avoid this result by observing the following advice:

Like any commodity, a termination package is usually negotiable. Seek specialized counsel before signing your name.

Duress, coercion or unconscionability are not easily proven – especially when the employee is given time to consider the offer. 

Ask for more time or the opportunity to meet with a lawyer if the terms of an offer or release are unclear.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com