A Very Expensive Phone Call

| November 7th, 2011 | No Comments »

If you have ever filed a claim with the Ministry of Labour, there’s a chance that you might not like what you are about to read…

Last week in the Metro, employment lawyer Daniel Lublin tells the tale of a recently dismissed employee whose phone call to the Ministry of Labour ended up being anything but free.   

Intent on taking action against her former employer, a woman called the Ministry for information and was encouraged to proceed.  Without questioning the process, she filed her claim, and later found out that it had prohibited her from suing for further damages in court.

There is a disparity between what employees can claim through statutory minimums and common law notice.  Advice from the Ministry is free- and for most people, an easy first point of contact.  But as Lublin points out, people “are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion.”   

Don’t settle for less than you deserve.  If you believe you have a strong case and plan on proceeding, contact an employment lawyer.  

You can read the full article in Metro News at the link below: 

A Ministry Makes the Wrong Move

Herbal Magic Contract Upheld in Court

| October 26th, 2011 | No Comments »

There is a saying, “Hope for the best, and plan for the worst”.  When it comes to your employment, planning for the worst is critical – and a paper trail never hurts. 

Thomas McNeely was a senior executive at Herbal Magic, when a group of investors approached him about making a bid on the company.  Intent on becoming the next CEO, McNeely was actively involved in the negotiations, but reluctant to front any capital.  Eventually, he was persuaded by promises that he would be a long-term senior executive.   

The changeover occurred and McNeely was the new CEO for 7 months before being fired and removed from the board.  Believing that he was owed something more because of the promises made, he sued.  

Unfortunately for McNeely, the only thing relevant to verbal agreements in his contract was an “entire agreement” clause that nullified anything said that was not included in the contract.  Even though the defendant admitted to having made the statements, the judge ruled against McNeely.

While there are some cases in which broken promises can lead an employer into muddy waters (such as in the case of job inducement), it is best to err on the side of caution: ask for things in writing; review and negotiate employment contracts; and if it still doesn’t feel right, consult an employment lawyer.

The original article, written by employment lawyer Daniel Lublin can be found on the Metro News website *here*

Court Rules on ‘Kitchen Sink Contracts’

| October 5th, 2011 | No Comments »

Employers often draft overly broad and restrictive contracts that are applied unilaterally to employees.  The thought behind it is – bargain for more, and hope for the best.  In most cases this works, but recently two employers found out that playing it fast and loose has its repercussions.

Employment lawyer Daniel Lublin calls this the “kitchen sink approach to contracts” in his weekly column in the Metro.  One of the two cases he discusses in his most recent article could have some serious implications for Canadians.

In 1992, Tom Mason signed a contract that contained a provision restricting his ability to work with his company’s clients for a period of one year following his departure.  When Mason was fired 17 years later, he challenged the clause in court, and came up empty-handed.  As Mr. Lublin puts it, “Employers collectively sighed in relief since most court cases strike down these clauses based on the courts’ interpretation of what is fair, and not what the contract actually states.”  Thankfully for Mason, the Court of Appeal had a different opinion and declared the contract invalid.

Employers should take note that in cases of wrongful dismissal, the courts may side with the employee when deciding whether to uphold post employment restrictions.  Lublin says that this could result in employers paying out more in severance to avoid the negative fallout from a potentially void contract.  Hopefully, it will also lead to due consideration when drafting contracts to begin with.

 

Winners and Losers of the Workplace

| September 22nd, 2011 | No Comments »

It might surprise you to learn the extent to which your reactions in the workplace can determine your success or failure in the courtroom.

Over the past two weeks, employment lawyer Daniel Lublin has categorized the reactions of workplace “winners” and “losers” in his Metro news column.  The first article titled, “Don’t wage war on a work case” deals with some of the common pitfalls employees often fall victim to.  Regarding criticism in the workplace, Mr. Lublin highlights the importance of responding promptly – but also with caution.   In instances where you have larger “skeletons in the closet”, silence may be the best solution.

The second article, “Workplace winners always welcome” lays out 5 different attributes of successful employees:

  • The Peacemaker
  • The Stoic
  • The Opportunist
  • The Optimist and
  • The Game Changer

The winning employee acts strategically and avoids conflict.  When confronted with it, he is objective or remains silent until emotions have settled.  Recognizing the implications of timing, and maintaining a positive attitude (even if it’s forced) are all winning attributes.

Following this advice will help you succeed in the workplace and ensure that if you ever find yourself consulting an employment lawyer, you will have already tipped the scales in your favour.

Daniel Lublin writes a weekly employment law column in Metro News.  Other articles he has written are available online at the Metro News Website.

Five Common Blunders Employers Make

| August 19th, 2011 | No Comments »

Knowingly or unknowingly, employers engage in workplace practices that help tip the scales in favour of dismissed employees.  In last week’s Metro, employment lawyer Daniel Lublin describes five common workplace blunders, which are reviewed below:

1. Paying only the minimum on dismissal

Assuming it will go without protest, employers often make a practice of offering the minimum.  Read about a case*here* that explains why courts are critical of this approach.

2. Probation

Employers will often draft contracts that make it seem as though probationary periods and severance provisions are non-negotiable.  This is not the case.

3. Resignations

Employers may pressure an employee into leaving, but a true resignation must be voluntary.  Lublin writes about the consequences of being unclear on the difference between a termination and a resignation *here*.

4. Workplace investigations:

“Ironically, employees caught lying during the investigation will give their employers cause for dismissal when their initial behavior did not. “  The captain of a BC Ferry ship found this out the hard way when he was questioned during an investigation into the ship’s sinking.

5. Not properly documenting discipline

In order to uphold dismissal, Lublin says that “courts require that progressive or corrective means should be used first”.  Employment lawyer Cedric Lamarche offers some great ways to address poor conduct in an earlier entry that can be found *here*.

Being aware of these common misconceptions will help advise best practices for managers and HR staff – whereas turning the blind eye will likely lead to costly lawsuits.  Contact Whitten and Lublin if you are curious about how your workplace practices and policies measure up.

Be Careful How You Correspond with Managers

| August 10th, 2011 | No Comments »

Often, employees will draft letters to employers protesting a job change or explaining a particular action.  Some of the more “careful” ones will have lawyers do this for them, but a recent case from Vancouver illustrates why lawyers should be mindful of striking a proper balance between voicing a concern and “strong-arming” an employer.   Daniel Lublin writes about this unusual case in his weekly column in the Metro titled, “Sometimes a lawyer can be perilous”.

Sukhwinder Grewal was a branch manager for Khalsa Credit Union for almost 17 years.  When Grewal’s behavior was criticized by her boss, Dalbir Sohi, she would often respond with a written letter of explanation.  One day, Sohi discovered errors in some of the details for Grewal’s personal mortgage and sent a memo to bank personnel calling the mortgage a “scandal”.  Before he could speak with Grewal about it, she left on disability leave.

Grewal returned, displeased about the allegations and concerned that Sohi had crossed a line and invaded her privacy by investigating.  In response, Grewal’s lawyer drafted a letter that read:

We demand that within 21 days from the date of this letter you issue a written apology to Mrs. Grewal acknowledging that your actions in going to the board of directors, testifying on oath at the FICOM hearing, levelling this untrue accusation of a mortgage scandal at her and repeatedly making baseless allegations of performance failures in her job as a manager were done by you in bad faith with the intent of injuring Mrs. Grewal and her reputation. You must promise to refrain from any and all such conduct in the future…

In court, the judge agreed with the credit union’s view that Grewal’s actions and the strong wording in the letter had repudiated the employment contract.

Typically, dismissal for cause that is predicated upon a single action is only upheld in exceptional circumstances.  Because Grewal was a branch manager at the bank, the judge reasoned that “it was essential she retain the confidence of her superiors.”  Following the final letter, this was no longer possible.

Although the letter did not solely determine Grewal’s case, Lublin says that it certainly tipped the scales against her.  Employees should be careful of the extent to which they criticize superiors – although it is allowable, the courts recognize certain limits and are willing to enforce them.

“It’s possibly the worst fraud in workplace law”

| August 3rd, 2011 | No Comments »

Those were the words of employment lawyer Daniel Lublin in a recent column entitled “Be wary when signing an employment contract”.  What is the fraud that he refers to?  If you have ever signed an employment contract, there’s a good chance that you’ve experienced it, even if you weren’t aware it was happening.

Employees often sign contracts that can limit their rights and severance without even knowing it.  An imbalance of power and resources usually leads to one-sided and infamously employer-friendly negotiations.  Lublin tells the tale of a nameless woman who may find this out the hard way.

The woman was asked to sign a contract confirming her employment.  Several years later, she was fired and offered much less than someone of her age and seniority would expect.  Why? Years ago, she had unknowingly signed a contract that limited the amount she could potentially receive.  Although this fact may not determine her case, Lublin says that it would be much stronger had she never signed the contract. He also reminds employees that they need not sign a written contract to protect their rights – this unnecessary step of “confirming” an existing relationship can often amend it to an employee’s detriment.

There are several red flags to watch for when signing a contract that you can read about *here* and *here*.  In another article *here*, Lublin provides five helpful pointers that will ensure you get the most out of the next contract you sign.

Don’t be afraid to negotiate the terms of contracts or contact a lawyer to help you do so.

Employee’s Vacation Leads to Termination

| July 22nd, 2011 | 1 Comment »

Many managers believe they have the power dismiss insubordinate employees, no matter how unreasonable the request.  The courts have consistently shown this not to be true.

Daniel Lublin illustrates this point in his weekly column in the Metro titled, “Employers shouldn’t mess with your vacation plans”.

On her way to a family reunion, Lerae Bigelow received a phone call from her boss demanding that she come in to work.  Believing this to be unreasonable, since she had booked the time off and explained that it was too late to reschedule, she refused and took her vacation as planned.  Upon her return, she was dismissed via text message and received no severance.

Below are some questions to consider regarding employer demands:

  • Job duties: How far outside of the scope of your regular duties is the task?
  • Safety: Do you consider the work to be unsafe? If so, the Ontario Health and Safety Act permits you to refuse without reprisal.
  • Reasonableness:  How reasonable is the request? How reasonable would your refusal be? 
  • Past behavior: How clean is your employment history?  Is this your first refusal or have you lost count?

All of these questions matter to the courts.  Bigelow was successful in her claim for wrongful dismissal, but employees should be careful when dealing with employer demands.  As unreasonable as a request may be, your reaction could determine whether or not you get severance.

Other vacation-related articles:

Retirement home employee fired for going on vacation with a resident

Employee fired after mistakenly booking the wrong day off

Don’t Settle for the Minimum When Signing a Release

| July 18th, 2011 | No Comments »

Many employees are hesitant to sign employment releases, often with good reason.  Employers may offer very little, knowing that most employees are happy to take what they can get and fear that a refusal will get them a lengthy legal battle or nothing at all.

The statutory minimum for severance in Ontario has been widely scrutinized for being too low, and recently the courts penalized an employer for making a practice of offering the “bare minimum”.

Applying this ruling to releases, you would expect meager offers to be treated with equal discontent.  Unfortunately, as Daniel Lublin points out in a recent Metro article, this is not always the case.

Ten Spanish workers at Global Egg Corp. were offered a small amount of additional severance in exchange for signing a release that prevented them from taking legal action.  They signed the forms after being given one week to have a translator and lawyers look over them.  Regretting this decision, they approached the Human Rights Tribunal, but their case was dismissed at a preliminary hearing.

There is a gap between what employees are entitled to and what they deserve and often get in practice.  Because employers can “justify” paying out less, employees are often misinformed about what to accept.

Ensure that you negotiate the price for your silence beforehand.  Choose your lawyer wisely, and don’t settle for less than you deserve.

The Changing Face of Workplace Privacy

| July 10th, 2011 | No Comments »

Increased use of social media has continued to catapult workplace privacy to the forefront of employment law.  As the line that used to separate conduct at home from the workplace continues to fade, more and more employees are finding out one “tweet” too late that their actions are no longer exempt from discipline.

In the Metro, Daniel Lublin provides a workplace privacy cheat sheet to help employees navigate through any uncertainty.  Here are a few key points from the topics he covers in the article:

Medical History: Employers do not have the right to your entire medical history.  When requesting leave, all you need to provide is your date of return and required accommodations.

Facebook and Twitter: Online comments, whether done at home or in the workplace hold the potential for discipline, so be mindful of what you post.

References: “When you provide the name of a reference to a prospective employer, you implicitly provide permission to contact him or her” and will likely be unsuccessful in suing over an unfavourable reference.

Surveillance: Hidden cameras and surveillance are allowable if there is a reasonable basis to justify it.

Workplace Computers: Though employees lack privacy on workplace computers, a recent Ontario ruling indicates that employers have no right to information on personal devices given to employees.  (Read more about this decision *here*)

If you still have questions about workplace privacy or are concerned about whether your actions could lead to dismissal, contact Whitten and Lublin.