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.

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

Head scarf head ache settled: Salon Owner Ordered to Pay $8000

| June 19th, 2008 | Comments Off on Head scarf head ache settled: Salon Owner Ordered to Pay $8000

The verdict is out: Human rights trump hair styles.

In November, 2007, Canadian entrepreneur, Sarah Desrosiers,
faced a legal battle after denying employment to Bushra Noah for wearing her
traditional headscarf and refusing to display her hair in Desrosier’s trendy London, England salon.

Desrosier claimed that she needed her employees to show off
their hairstyles to market her hair salon. After months of debating, the
employment tribunal panel has finally ruled that Desrosiers’ actions were
“indirect discrimination” against Noah.

The panel awarded Noah £4000 (the equivalent of about $8000
Cdn) for “injury to feeling” but dismissed her claims for direct religious
discrimination. The panel further stated that Desrosiers did not provide enough
evidence to demonstrate that a stylist with covered hair would have negatively
impacted her salon.

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

 

Summer Hours: The Latest Work Perk

| June 18th, 2008 | Comments Off on Summer Hours: The Latest Work Perk

America has started a new trend offering employees special summer hours to enhance
employee morale and overall quality of life. Will Canada follow?

“Summer Fridays” are gaining popularity among U.S. companies,
particularly small businesses looking for a competitive edge to attract new
employees. In an effort to ensure work-life balance, companies are giving
employees half-days or full days off on summer Fridays. Other options include
telecommuting or shift-sharing.

With rising gas prices, “Summer Fridays” offer employees the
chance to adjust their work arrangements and save both time and money.

If your employer is not offering Summer Fridays, or anything
of the like, propose the idea by: 

 Seeking out a manager at the executive level and
arguing the benefits of summer hours to the company. In particular, mention a
more cohesive company culture and increased worker productivity.

 Making clear that employees will still be accessible
via email and telephone.

 Offering to make up extra hours in the workweek for an
occasional Friday off.

For more: The Globe & Mail

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

 

Cross dressing judge ends quest to rescind resignation

| June 4th, 2008 | No Comments »

Last February U.S. Judge Robert Somma was arrested and charged with driving while intoxicated. Clad in a women’s dress, stockings, and pumps, his arrest led to much media scrutiny. Two days after pleading no contest to the charges, Mr. Somma tendered his resignation to the court system, giving them 2 weeks notice.

Once his 2 week notice period was nearing it’s end, Mr. Somma started the wheels in motion to rescind his resignation.  His attempt to be reinstated was accompanied by over 200 lawyers who sent letters in support of Somma.  His notice period was extended another month, however, his quest for reinstatement ended on May 30th with the court issued press release stating that Somma is "leaving to pursue other endeavors".

Rescinding a resignation is possible in certain circumstances. In my September 2007 article, True resignation is voluntary, I noted that employees are sometimes free to withdraw a resignation and continue as before.  This would be subject to whether or not the employer had ‘accepted’ the resignation by its actions or conductSee the case of Andrew Kieran for more.   

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