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.

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.


American meatpacking plant fires Muslim workers for unauthorized prayer breaks

| September 22nd, 2008 | Comments Off on American meatpacking plant fires Muslim workers for unauthorized prayer breaks

A dispute between Muslim workers and a Nebraskan meat packing plant regarding employee breaks has recently made national and international news headlines.

The JBS Swift plant is in hot water after the termination of what is reported to be around 100 workers who took unauthorized breaks from work for their Ramadan prayers. The plants decision to terminate the employees has news message boards across North America abuzz, reigniting the debate regarding the accommodation of religious practices in the workplace.

The workers and management were to mediate their issues on Sunday (September 21st) however, no results of the meeting have been made pubic yet.

Workers in Ontario have the option of filing a complaint with the Ontario Human Rights Tribunal.  Click here for the Tribunal’s website. 

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 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

Sexism allegations rock Toronto law office

| June 25th, 2008 | 1 Comment »

Diane LaCalamita, former lawyer at McCarthy Tetrault, has filed a 12 million dollar wrongful dismissal suit against her former employer.

According to the National Post article, link below, she has declared that the blue chip firm discriminated against her on the bases of gender by not promoting her to be a partner. She claims that she was promised, but was never given, a promotion to an equity partner position. Furthermore, LaCalamita alleges the firm itself is "plagued by systematic gender-based discrimination and a culture of discrimination".

McCarthy Tetrault has outright denied the claims and has vowed to defend them vigorously. They claim LaCalamita, who has already received more than $200,000 in severance from the firm, did not meet their partnership criteria.

In my legal practice, I find that claims of failed promotions are difficult to sucessfully make out.  That is, the evidence is usually circumstantial and courts tend not to insert their opinion on decisions of promotion into the place of the employer. 

It is also interesting that McCarthy’s paid out $200,000 in severance to an employee without having her execute a release.  While some employment counsel see paying an employee after they leave as a strategy to curry favour in a lawsuit, by showing reasonablenss, I disagree.  Typically, I view this as, in effect, funding the litigation against the employer. 

For today’s original National Post article on the dispute, click here.

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

Termination for toonie theft upheld

| June 2nd, 2008 | Comments Off on Termination for toonie theft upheld

Nine years after being caught on camera for stealing a toonie from her employer, Tim Horton’s, Charlene Walsh may now have some answers about her termination.

In 1999 Walsh was fired with cause for the toonie theft which was caught on the company video surveillance. In one way or another, her case has been struggling through the Courts since that time. 

Last week, the Court unanimously found that Ms. Walsh’ most recent appeal, headed by her counsel Ernest Guiste, had no basis to revisit the jury’s 2006 finding, which dismissed Walsh’s $10-million lawsuit against Tim Horton’s and the Toronto Police, alleging wrongful dismissal and malicious prosecution. 

The National Post reported that Mr. Guiste argued that the police improperly charged Walsh because they received free coffee from Tim Horton’s.  She was also acquitted of the criminal charge. 

To read more about this matter, click here for today’s National Post article.

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

Think before you let your fingers do the talking

| April 28th, 2008 | No Comments »

Personal Digital Assistants (PDA’s), such as BlackBerrys, have grown in popularity. So much so, that employer’s are beginning to regulate the use of these devices at and even away from work. The reason: employees are confusing their privacy rights with freedom from workplace consequences.

When a PDA is provided by an employer or accessed through it’s network, employees should have no reasonable expectation of privacy. Therefore, when personal use in permitted, employees should concern themselves more with losing their jobs – instead of simply losing unlimited access to their PDAs.

Regarding personal use, employees should keep in mind the following;

Amongst other actions, checking your Facebook account, sport scores, and flirting with friends over instant messaging while at work can be tantamount to theft of an employer’s time. This may amount to cause for dismissal.

Criminal laws can be invoked if employees harass or intimidate coworkers via their BlackBerry. Don’t forget, PDAs normally keep a record of messages sent and received.

While not reported in Canada, there are currently claims in U.S. courts made by pedestrians injured by motorists driving while messaging on their PDA.

Employers maintain the legal right to discipline or dismiss employees for off-duty conduct. So make sure you’re not the employee texting inappropriate jokes to a colleague during drinks after hours.

Rapid messages  fired off from BlackBerrys tend to be less formal and thoughtful. Employees should keep in mind that they are liable for advice given, even if it is misconstrued because of a poorly drafted PDA email.

Many larger organizations have legal requirements that mandate the storage of all business communications. So a text message to your pal via your work BlackBerry can find their way into your employer’s inbox too.

Employees should thoroughly review and follow workplace computer and internet misuse policies and presume they apply to your PDA. Exercise caution with communicating with or providing advising clients or colleagues and allow common sense to prevail.

To avoid legal action, employers who have been doling out BlackBerry’s to workers might want to consider implementing a workplace-wide policy regarding the PDA’s use. Recent class action suits against employers for unpaid overtime has initiated widespread fear that PDA use after work hours will be the next jumping off point for future class action suit. See Tresa Baldas’ article from the National Law Journal for more information on this. 

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

Anything goes with job contracts

| March 13th, 2008 | Comments Off on Anything goes with job contracts

Canadian employers often protest that workplace laws favor their employees. My view is otherwise.

Most employees lack the necessary bargaining leverage or sophistication to renegotiate unfavorable contract language. Should confrontation ensue, a well-drafted employment contract creates an uphill battle for the employee.  That being said, not all written promises will be enforced.

Employees faced with an ironclad agreement may argue as follows:

If the employer applies duress or coercion, the agreement may be struck down.

In one case that I am handling, the employee claims that she was denied the opportunity to speak to her lawyer, despite requesting it, and was further told a demotion would be forthcoming if she did not sign her name. If the judge agrees that these pressures amount to a lack of consent, the agreement will be set aside.

Where an agreement forms such a departure from commercial morality, a court may intervene to ensure fairness.

In limited cases, a deal may be set aside where the party with stronger bargaining leverage preys on the weaker party, usually the employee, to create such an inequitable agreement that it would be substantially unfair to uphold. Beware: improvident deals between parties on unequal footing may be unfortunate, but unless the deal is offensive, it will be enforced.

If an agreement is illegal, it will be invalid.

Employers often attempt to oust their obligation to pay lengthy severance by drafting a contract that provides less severance that the minimum standards found in provincial legislation. In these cases the contract, or that portion, will be void.

Agreements must have proper "consideration" to be enforced.

Once a deal has been agreed to, it cannot be changed unless the employer offers extra value (a raise, bonuses, etc.) so the employee may decide whether to accept that deal. For example, Trusty Francis accepted an offer of employment from CIBC. On his first day he was presented with a number of forms and agreements that attempted to limit his entitlement to three months’ salary if he was fired. The Ontario Court of Appeal found Francis’ employment contract was consummated when he agreed to the first offer of employment and, because nothing of new value was given when he showed up at work, the agreements he was given to sign were unenforceable. Otherwise, the Court reasoned, an employer could unilaterally impose new terms of employment at any time and an employee would be without leverage to negotiate.

Contract language must be clear.

Where the language in the contract is not sufficiently clear, courts will construe the language in favor of the person who did not draft it. Customarily, the employee received the benefit of this rule.

Severability provisions may not always be effective.

Many employers insert severability provisions into contracts stating if a part of the contract is found void, the court should carve it out of the contract. These contracts risk being foiled in their entirety, as courts naturally refuse to rewrite the bargain that was previously made.

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