Q&A: Is my non-compete agreement binding 15 years later?

| August 4th, 2015 | No Comments »

QUESTION

A contract is a document drafted by the employer and signed by their respective employee. It is up to the employee to review this document and, if in agreement with the content, the employee signs it away, binding them to those terms. One particular clause that comes up often during discussion is the non-compete agreement.

A non-compete is a form of restrictive covenant drafted by the employer which restricts the employee from working for another industry. Let’s say an employee signed a non-compete 15 years ago and was not given a copy. Readers from the Globe and Mail would like to know, can the employee be bound by this agreement today? Or does he/she need to sign every so often to make it valid?

ANSWER

The Non-Compete Agreement

Well-known Globe and Mail columnist for the Report of Business and Toronto Employment lawyer, Daniel Lublin answers this question with his expertise. He says that non-compete agreements do not need to be renewed, unless stated otherwise in the contract. It is also worth mentioning that the agreement is not deemed invalid simply because the employee did not receive a copy of the agreement. An employer can rely on this document regardless.

To find out more on this topic, read Daniel Lublin’s column and full article I have to work through my severance. Is this legal?

The Highlights of Off-Duty Conduct

| June 24th, 2015 | No Comments »

Termination Due to Off-Duty Conduct

The vulgar, off-duty conduct of Hydro One employee, Shawn Simoes, has brought concern for many employees. After all, it’s not often that an employee is terminated by their employer for their actions outside of work. Even less likely, that they are identified and such behaviour is made public. Unfortunately, that was the case for Mr. Simoes. Many who viewed the video with the City News reporter have raised a number of questions. Primarily, does his conduct warrant a termination for cause? And to what extent can an employer discipline the employee for their off-duty conduct?

Factors Considered by the Courts

In Ontario, a termination for cause holds a high threshold to prove. Factors considered by the courts include whether or not the conduct:
1.         Harms the company’s reputation or product;
2.         Renders the employee incapable of performing his or her duties satisfactorily;
3.         Makes other employees reluctant to work with him or her;
4.         Is a serious breach of the Canadian Criminal Code; or
5.         Makes it difficult for the company to properly manage its services or direct its
            workforce.
Bearing these factors in mind, employees should be watchful of what they say, orally and in writing. Be mindful that everyone is watching, and with social media outlets, everything you write and/or post is made available to just about everyone.

Remain Consistent with Your Office Policy

Employers beware of what you classify as just cause. The merits of a case are judged on a case-by-case basis. Remember to remain consistent with your office policy on disciplining employees for off-duty conduct, as maintaining this strategy will drastically improve your chances of your case being a success. That being said, it is best to leave your employment matters to the experts.

Q&A: Do you have the right to a harassment-free work environment?

| June 1st, 2015 | 1 Comment »

QUESTION

I have decided that my experience with my boss is in fact harassment and bullying. My performance is over managed, and performance reviews are used as a form of discipline, not coaching. I’m unjustly criticized and made to feel unwelcome. It’s humiliating. I have a doctor’s note detailing the high levels of anxiety and panic I developed. What options do I have? 

ANSWER

Legislation and a Harassment-Free Work Environment

Under Ontario’s occupational health and safety legislation, you have a right to a harassment-free work environment. The actions to which you are subjected must amount to something more than just a personality conflict, and rise up to something along the lines of malicious treatment. You may want to review your company’s anti-harassment policy (if one exists) and file a written harassment complaint. Your employer is obligated to investigate the allegations, and make a good faith determination as to the best course of action to address them.

Participating in an Investigation

You have a right to participate in the investigation and learn the outcome. You also have a right to be free from reprisals (i.e. punishments) for exercising your right to file the complaint. If this happens or the complaint is mishandled, you may have the right to treat your employment as terminated and seek a severance from the company.

Stepping Away From the Situation 

Given your health situation, it would make sense for you to be away from the workplace while this is happening. You can send your doctor’s note to your manager or HR, and inquire about your company’s short-term disability benefits – and if necessary, long-term disability benefits – for income replacement while you’re off work. If the company does not offer these benefits, you may be eligible for Employment Insurance medical benefits for up to 15 weeks. That will give you some time to regroup and consider further options going forward. You have the right to a harassment-free work environment and can step away from a situation that is affecting your health and well-being.

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.

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.

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

Employers limiting limitations; Where’s the consideration?

| July 22nd, 2008 | No Comments »

American employers have begun to ask new employees to sign a waiver which effectively reduces the limitation period for employment law claims to 6 months after the loss.

Our friends at Law.com recently reported how DaimlerChrysler Corp. won a battle to enforce such an agreement. Mee Sanders was denied portions of her claim against her union and ex-employer because the Court ruled that Sanders waived her legal right to a 2 year limitation period when she applied for the position, thus reducing it to a 6 month limitation period.

The clause that Chrysler relied on, shown below, is brought to the attention of all applicants during the job application process.

In consideration of Chrysler’s review of my application, I agree that any claim or lawsuit arising out of my employment with, or my application for employment with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. While I understand that the statute of limitations for claims arising out of an employment action may be longer than six (6) months, I agree to be bound by the six (6) month period of limitations set forth herein and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.

In Canada the enforcement of a similar clause is doubtful.  Canadian courts will not enforce contractual clauses that provide employees with less than their statutory entitlement.  In other words, if the clause is viewed as illegal, it is void for public policy reasons. 

While Canadian employees can agree to limit their entitlements to less than they would receive had there been no clause in their contract, there are still various tests that must be met in order to enforce such a clause. 

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