Your legal questions answered

| November 17th, 2014 | No Comments »

Toronto Employment lawyer, Daniel Lublin hosted a live chat on the Globe and Mail’s Career section, where he answered reader’s legal questions regarding their employment law matters. These topics varied from terminations and severance packages, mass layoffs, non-compete/non-solicitation clauses, maternity leave legal rights and the legality with respect to employment contracts.

This month alone, the media has been soaring with news of mass terminations at SNC Lavalin Group Inc. (laying off 4,000 workers) and Wal Mart Canada (laying off 200 workers). Other big companies, such as CIBC and Bombardier have headed in the same path.  As a result, employees and employers alike are being affected and questioning what their legal rights are.

Mr. Lublin provided the following facts and suggestions to provide some sense of direction in regards to your employment matters:

  • An Employer can never absolve itself from the requirement to pay severance under the Legislation; if you are Employer- you can pre-define severance requirements to the minimum, if you are an Employee- you want to negotiate and challenge the severance clauses (amount of pay) or get rid of them altogether.
  • You should never be forced to sign anything on the spot!  Advise your Employer that you are not signing anything until you have a chance to review and consider the offer. Tell the Employer you will get back to them in a couple days.
  • Terminations for “cause” place an onus on the Employer to prove misconduct that was beyond reproach and intolerable. If it cannot be proven, you can be awarded wrongful dismissal damages. For “cause” terminations require no advanced warning and severance pay is not a requirement.
  • Always try negotiating with your Employer before resorting to a lawsuit. However, even in negotiating, you should consult with an Employment Law expert who can negotiate on your behalf and advise you on where and how you can negotiate.
  • Courts will uphold non-compete/non-solicitation clauses when drafted and implemented properly, and not overly restricted in terms of length or geography. That said, not too many clauses meet all of these requirements.

Teacher dismissed after 40 year-old risqué films discovered

| October 22nd, 2014 | No Comments »

Recently, 73 year-old Jacqueline Laurent Auger was dismissed from her place of employment at a Montreal prestigious private school, based on 40 year-old soft porn discovered by her students. This case is appealing in that it involves a former career in risqué films, but also in the context of the impermanent nature of short-term contracts. Toronto employment lawyer, David Whitten adds that this is a perfect example of how “past lives” can impact our employment in the digital age.

Mr. Whitten further explains that short term contracts impose no obligations on employers at the conclusion of the contract.  Indeed, severance is not payable if a short term contract expires and is not renewed.  Had Ms. Auger been an employee of indefinite duration, it is unclear whether or not her past “risqué film career” would have provided legal cause to terminate her without a severance.  However, her statement that the headmaster had “said something stupid” may very well have justified summary dismissal.

For employment law advice, based on your individual needs, consult with an expert who can guide you and provide legal advice.

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.

Computer ruling seen as “seismic shift” in workplace privacy rights

| March 28th, 2011 | 1 Comment »

Speaking with the Globe & Mail about the recent Ontario Court of Appeal decision on privacy rights in the workplace, Daniel Lublin had this to say;

“I would call the court of appeal finding a seismic shift in the way privacy rights are dealt with in the workplace.” “Until now most people generally assumed there was no reasonable expectation of privacy in work computers, and that would extend to work e-mail and Internet use… The court has now resoundingly said that there is a reasonable expectation of privacy in work technology that leaves the office.”

Click here for the full article.

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).

Phoenix Contract Turns to Ashes

| February 25th, 2011 | No Comments »

Employers often fear, with good reason, that assets, information and influence entrusted unto employees will one day be used against them.  In order to protect against this risk, employment contracts often contain post-employment restrictions that limit an employee’s ability to solicit or work for competition.

Daniel Lublin writes in the Metro about a case that exemplifies a fatal flaw many employers exhibit in attempt to protect their interests – ambiguity.

After Paul Brownlee left Phoenix Restorations Ltd., to work for a competing company, he solicited two former clients, despite having signed several employment contracts that prohibited both actions for a period of two years.  In order to put a stop to Brownlee, Phoenix applied for an interim court order.

The judge decided against upholding the restrictions for reasons that are not unfamiliar – the terms of the clause in question were overly broad.  The post-employment restrictions in place overstepped what could have been reasonably expected of Brownlee by limiting him from soliciting or working for competition that was unknown to him while at Phoenix.

Although it can be difficult when protecting personal interests, employers should refrain from overly ambitious goals and consider whether lesser restrictions can accomplish the same thing.  Had Phoenix been more specific in the scope of constraints, they might have been successful.

Daniel Lublin offers some good advice to employees considering departing: check twice to see if your contract limits post employment activity; although Phoenix lost this one, “Such clauses are commonplace in today’s employment contracts – and are increasingly being enforced.”

Small victory for transgendered and transsexual individuals

| February 16th, 2011 | No Comments »

By: Ellen A. S. Low

A private members bill recently passed through the House of Commons, Bill C-389, is intended to protect transgendered and transsexual citizens from discrimination on the basis of “gender identity” or “gender expression.”

The Canadian Human Rights Code already protects individuals on basis of sex and sexual orientation; however the bill would amend the Code to specifically prohibit discrimination against transgendered and transsexual persons.  The Bill also proposes to amend the Criminal Code to make crimes against transgender or transsexual people, a hate crime.

Supporters are concerned that the Bill might be a short-lived success, as it likely won’t survive the Senate.  However, with respect to the human rights element, Bill C-389 might be unnecessary.  A number of previous Canadian Human Rights decisions have clearly stated that “…discrimination on the basis of transsexualism constitutes sex discrimination.”  Interpreted in this way the ground of “sex” should be sufficient to protect transgendered and transsexual citizens from discrimination under the Code.  Then again, adding it expressly certainty couldn’t hurt.

Former trader ordered to re-pay 4.9 billion Euro to former employer

| October 20th, 2010 | No Comments »

By: Ellen A. S. Low

Reported earlier this October, former trader, Jerome Kerviel, was sentenced to three years in jail and ordered to re-pay his former employer 4.9 billion euro.

The French bank, Société Generale, accused Kerviel of a rogue trading scandal that apparently cost the bank close to 5 billion Euros.  Kerviel allegedly made bets of up to 50 million euro on futures contracts.  Although Kerviel admitted that he regularly exceeded trading limits and entered false transactions to cover up the size of his bets, he insists the bank and his bosses knew about actions all along and were ok with it so long as the Bank was making money.  Not surprisingly, the Bank denied any knowledge of Kerviel’s “wrongdoing” whatsoever, while Kerviel insists that he was just the ‘fall guy’.

In general, if an employer knows an employee is doing something they shouldn’t be, but turns a blind eye and fails to take any measures to correct the wrong or address the behaviour, the employer will have effectively ‘condoned’ the wrongdoing.  An employer who condones bad behaviour loses the right to fire an employee for the misconduct.  Essentially, it would unjust for an employer to lull the employee into a belief that his or her behaviour is acceptable only to later use the same misconduct to fire the employee.

However, the onus is on the fired employee to demonstrate that the employer knew about the activity and either permitted it, or acted as though it were permissible.  With his in mind, Kerviel plans to appeal the trial decision stating he hopes “to prove once and for all that I wasn’t the only one in the boat.”

The dismissed employee’s handbook

| August 18th, 2010 | No Comments »

Four tips published in my Metro workplace law article from this week that should ensure an appropriate severance package, or more.

Always negotiate
Companies realize that most people will just take what they are offered, happy to get anything at all. So they deliberately offer less than they are ultimately prepared to pay. There is usually some flexibility in the figures – so ask for more.

Patience
Since the majority of lawsuits settle well before trial, the key for dismissed employees is to appreciate when they have great facts on their side — and also when they don’t. As the costs associated with litigation act as a deterrent for employees, employers understand that most will accept a reduced settlement at the outset rather than waiting for more. However, if you have a good case, you can expect that many of your legal costs will be recovered – so be patient or be prepared to take a discount.

Select your lawyer wisely
The guidance of experienced counsel is imperative to ensure your case is properly advanced and persuasively argued and that critical mistakes are avoided. A lawyer’s Google rankings have nothing do with his or her legal skill. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practise it, on their websites and in the media — and they often do. Avoid legal practitioners who brandish promises of extraordinary results. In law as in life, if something is too good to be true, it is often is. Also avoid lawyers, or paralegals, who merely dabble in employment law, since they may not keep abreast of the recent developments — and worse, employers’ counsel often knows who they are.

Understand an employer’s apprehensions
They have skeletons in their closets as well. In one of my cases, we are arguing that an employer’s standard form employment contract is illegal. The cost to the company of paying this claim is irrelevant. If it loses, all of its contracts will be void.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

Terminating a disabled employee can be a costly decision

| July 16th, 2010 | No Comments »

By: Cedric P. Lamarche

A recent decision from the Ontario Human Rights Tribunal serves as a reminder that employers should tread carefully when dealing with employees suffering from disabilities.

Elsa Torrejon, a 51 one year old single mother, was employed with Weston Property Management Corp. of Toronto as a leasing agent.  In late January of 2009, Torrejon was diagnosed with stage II breast cancer and her physician recommended that she undergo treatment as soon as possible.  In light of the diagnosis and the treatment recommended by her physician, Torrejon advised her employer that she would require an indefinite leave from work in order to undergo surgery and treatment.  She advised Weston that she was well enough to remain at work until the day before her first scheduled surgery.  In response, Weston advised that her last day at work would in fact be her last day of employment with the company, merely 8 months after commencing work with Weston.  On her scheduled last day, Weston handed Torrejon her last paycheque, her T4 and her Record of Employment.

Claiming that she had been discriminated against on the basis of her disability, Torrejon brought an application before Ontario’s Human Rights Tribunal.

The Tribunal did not hesitate to find that in terminating her employment, Weston had discriminated against Torrejon on the basis of disability.  Specifically, the Tribunal concluded that Weston had failed to accommodate Torrejon by allowing her to take a leave of absence while she underwent treatment.  Based on the evidence at the hearing, it was clear that Weston did not understand an employer’s obligations under the applicable human rights legislation.  Weston openly admitted that it believed that it could legally terminate Torrejon’s employment as a result of her illness.

In order to compensate Torrejon for Weston’s violation of her human rights, the Tribunal ordered Weston to pay Torrejon $20,000.00 in general damages and for lost wages.  The Tribunal also required Weston to undergo human rights training due its complete lack of appreciation for an individual’s human rights.

In Ontario, employees are protected from discrimination and harassment in the workplace on the basis of disability.  This includes, past, present and perceived disabilities.  Pursuant to the Ontario Human Rights Code, employers have an obligation to accommodate disabled employees short of undue hardship.  This duty includes accommodating a disabled-related absence of work, such as the one Torrejon had requested from Weston. 

The law recognizes that accommodation is a shared responsibility.  Everyone involved, including the person seeking accommodation, should cooperate, share information and attempt to find mutually agreeable solutions.  Many accommodations can be made easily and at little cost.