Geographic Relocation and Constructive Dismissal

| February 17th, 2017 | No Comments »

Constructive dismissal is when an employer alters the fundamental conditions of the employment contract, which gives the employee little choice but to resign. Many employees do feel that relocation is constructive dismissal. The general rule for establishing constructive dismissal is whether the employment contract has been fundamentally changed. Relocation may be a fundamental change to the employment contract as displayed in past court cases. The following are a few factors to be aware of when deciding to seek representation by an employment lawyer.

It is important to be aware of whether relocation is an implied term of the employment contract as terms of the employment contract are often not in writing. ‘Implied’ terms are certain provision that should be reasonably assumed even though not formally written. In the case of a relocation request from an employer, the request may be implied in a number of circumstances. This includes whether the employer has relocated other workers in the past, whether the business is international (has many locations internationally), and the size of the organization. When the business is international and the position is not a demotion, it is generally seen as an implied condition of the employment contract and therefore not grounds for constructive dismissal.

Other factors to be aware of are whether the relocation is temporary, whether there are changes to other fundamental terms of the employment contract (such as pay and responsibilities), whether relocation expenses are being covered by the employer and whether undue hardship will result from the relocation. Further, the relocation must be done in good faith (i.e. for a legitimate business purpose). If you feel that a relocation request would be constructive dismissal for the reasons mentioned or any other factors, it is important to seek legal consultation from an employment law expert.

Courts have ruled against employers when relocation was not a term included in writing within an employment contract, even when the business was international with offices in other countries. For employers, it advisable to included relocation clauses in initial written employment contracts if this is a reasonable expectation given the nature of the company’s operation. For any uncertainties, seek the advice of an employment lawyer.

Bullied employee-wanting to resign?

| October 30th, 2014 | No Comments »

Too often we hear about bullied employee who is mistreated to such an extent that he/she feels the only recourse is to resign.  However, a forced resignation does not necessarily mean that this is true.  When an employee works in an environment that is intolerable, what options are applicable?

Daniel Lublin, Toronto employment lawyer explains that a forced resignation is not a true resignation.  In fact, it can be classified as a dismissal. The onus falls on the employee to convince the judge that the work conditions and/or conduct were such that a reasonable person could not be expected to continue with employment.

To be informed further on this topic, read Daniel Lublin’s Globe and Mail column and full article I’m unionized, can I sue my employer or union?

 

Without severance payment

| September 6th, 2013 | No Comments »

Can employer refuse to pay severanceIs it illegal for an employer to refuse to pay severance and under which circumstances can they do this?  What legal avenues are available and when do you need to consult with an expert?  In his latest Globe and Mail video of a series, Daniel Lublin, Toronto Employment Lawyer explains  when severance can be refused and which legal forum is best for each case.  When can my company refuse to pay me severance? video can be watched in the Globe and Mail’s Career section.

Councilor’s Indemnification Causes City-wide Insurrection

| May 31st, 2011 | No Comments »

City councilor Terry Whitehead was recently found guilty of defamation in a case that has cost Hamilton tax payers $15,000 so far.  What’s even more troubling to Hamiltonian’s is the fact that Whitehead’s actions fell completely outside of his duties as a councilor.

Thespec.com writes that the councilor’s quarrel began following a council vote to share Flamborough Downs casino profits with the rest of the city.  Whitehead was “singled out, criticized, threatened and spat on for spearheading the move to share the slot revenues”.  He also claims to have received threatening phone calls in the days that followed. 

Four days later at 2:11 am (a period of time the judge said was more than enough to cool off), Whitehead sent and email to Free Flamborough chairman Roman Sarachman calling him a “destructive, mean-spirited, irrational liar that does not deserve the time of day”.  The email was copied to the mayor and other council members.  Whitehead describes his actions as having been in the heat of the moment, and says that he “used a sledgehammer when (he) should have used a finer tool.”  He also called Sarachman “the head of the snake” and said he would continue acting on behalf of the community with the same “voracity”.   

The city’s advisors on the case deemed Whitehead’s actions to be both within the scope of his duties and as having been done in good faith.  This allowed his legal fees to be covered through the city’s indemnification by-law.  In his ruling, Justice James Turnbull said, “It is incomprehensible that an email with such comments fell within the scope of his duties as a city councilor.”

At a time when “internet firings” are growing at relentless pace,  Whitehead’s case raises the question of whether council members should have privileges not afforded to the rest of the public, that are being paid for by the public.  At the very least, with all the press that this story has received, Hamiltonian’s will have the opportunity to perform their own check and balance come re-election time.

AMD Slow to Process Need for a New CEO

| January 17th, 2011 | No Comments »

Recently, The Financial Post reported that California-based company Advanced Micro Devices (AMD) is, once again, in the market for a new CEO. With the release date of its newest microprocessor fast approaching, Dirk Meyer’s resignation comes at an inopportune time.

AMD Chief Financial Officer Thomas Seifert has agreed to step in on a temporary basis while the company searches for new leadership, but the tremors of Meyer’s resignation were evident in the 9% drop in stock price following the announcement.

Meyer was appointed in 2008 shortly after AMD’s acquisition of ATI Technologies.  He captained the company through the merger, increased company stock by 75%, and maintained a steady vision to develop the new “Fusion” chip – so why has he decided to jump ship?

Several reports have speculated that board members were not satisfied that Meyer was, “moving fast enough to capitalize on market segments like tablet computers.”  While competing against Intel’s colossal 80% stronghold in the computer chip market, AMD maintained a focus on personal PC’s – A decision that they are likely reading about on their Ipads as having been a gross oversight.

It seems peculiar that months before the release of the project that drew the bulk of Meyer’s attention, he has decided to resign.  Alternatively, it is plausible that the board pushed him out due to poor direction.  Whatever the reason for Meyer’s abnegation, AMD will face some difficult decisions in the months to come.  With faith in their new product line wavering from Meyer’s departure, and years of catch-up due in the hand-held market, a drastic change will have to be made.

This should serve as a wake-up call to tech companies in particular that the blind following of company leadership can have adverse results.  Board members should be mindful of the repercussions of a poorly timed corporate restructuring.

You Can’t Fire Me, I Quit! (But Can I Still Have Severance?)

| December 8th, 2010 | No Comments »

Parmjit Gill was a machinist at A & D Precision Ltd., before he fired himself from his job.  You’re probably asking, how?

Gill was known to complain about his pay, and he didn’t take well to constructive criticism.  He wasn’t your model employee for work ethic, so when he spoke about leaving, he wasn’t taken seriously. 

Following a confrontation with the president of the company, Gill left the shop, assuming that he had been fired.   Everyone else assumed he had finally quit.  At trial, Gill’s plea for severance was unsuccessful because he neglected to express a desire to return to work – he even refused to come back after a supervisor asked him to stay. 

Daniel Lublin writes about this case in his weekly article in the Metro titled, “Blunder your resignation, pay the price”.   He explains that Gill’s is a common case, and employees should expect a similar outcome if they don’t follow some basic guidelines.  The maxim of which is the quote he begins his article with,

“Silence is the virtue of fools.”  ~ Francis Bacon

Employment Law: Performance Plan’s may have to be accepted

| April 7th, 2010 | No Comments »

 

Sometimes employees too easily confuse who gets to call the legal shots.  Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken. This is the tale of one employee who learned this lesson the hard way.

Working out of the Toronto-area offices of software developer VoiceGenie Technologies, Crinu Iliescu quickly wore out his welcome. Hired only 15 months earlier as a software QA manager, Iliescu swiftly lost the firm’s trust after his response to a manager’s email accusing him of underperformance. Iliescu wrote his boss, the HR manager and the president with five demands he required them to meet before he would return to work.

In Daniel Lublin’s weekly Metro Column, he discusses the case of Crinu Iliescu, who was viewed as “abandoning” his job after refusing to meet his employer’s requirements to improve his performance.   The full column can be read here and the case can be read here.

The case stands for the proposition that, while employees do retain certain rights, rejecting a reasonable performance improvement plan is usually a poor option. 

Even if such a plan is imposed in bad faith (which often does occur), protest the plan in writing and continue to work in the meantime. You retain the right to complain at a later time without jeopardizing your own continued employment.

Daniel A. Lublin is a partner at the employment law firm Whitten & Lublin LLP, who specializes in the law of dismissal.

Constructive Dismissal

| January 20th, 2010 | 1 Comment »

Work responsibilities can change on a dime.

Here is the cautionary tale of two employees who incorrectly assumed their employers had no right to change the terms of their jobs.

Experiencing an enrolment crisis, Acadia University decided it had no other choice but to remove oversight of enrolment and admissions from Paula Cook Mackinnon’s job.

Mackinnon, who had been employed by the university in a senior role for 19 years, disagreed. Believing that the university could not remove an important aspect of her job without advance notice or consultation with her, Mackinnon penned a letter to the president stating that she viewed the changes as significant and tantamount to a demotion.  She gave the university a few days to consider her concerns and provide a response.

When the university did not respond to Mackinnon’s letter before her deadline, she shut off her BlackBerry, cleaned out her personal items from her office and swiftly left the premises, never to return.

The law of constructive dismissal provides that an employee can treat fundamental changes to her job as effectively amounting to a termination.  And in Canadian workplace law, when you are terminated without a good reason, you are entitled to severance.

Justice Gregory Warner, who wrote the recent decision, correctly noted that the issue was not whether Mackinnon had “quit” her job, but whether she had a good enough reason to leave.

However, it could not be said that Mackinnon’s job was substantially different following the changes, as enrolment amounted to less than one quarter of her job. The university was entitled to reasonable leeway with changing business needs.

Similarly, in another recent case, Bank of Nova Scotia executive David Chapman resigned, claiming a reduction in his salary and the bank’s failure to honour a promise amounted to his termination. Although Chapman’s salary was reduced by 13 per cent, it was only the variable component of his pay, such as stock options, shares and bonuses that changed, not his base salary. Agreeing with the bank and dismissing Chapman’s case, the court found that Chapman’s pay could be reduced because he was always part of a variable compensation model and had remained in the applicable range for his position.

Why should employees and employers care about these cases?

Employers often assume incorrectly that they can change an employee’s job as they see fit.  Just as often, employees wrongly assume that their jobs cannot be changed without their consent. As similar facts don’t always lead to the same results, especially in workplace law, my advice is to consider a mutual resolution instead of always marching to the courtroom’s doors.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@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

A hasty resignation can be costly

| August 16th, 2007 | 3 Comments »

"We only part to meet again"
John Gay

Seldom do employers bother to sue their ex-employees. But the tables are turned when a hasty resignation proves costly.

Few have heard of a lawsuit for wrongful resignation. Once thought to be a remote claim, there are cases that have found their way to the courts in recent years and awakened the prospects of companies looking to recover damages caused by an employee who departs without giving a warning or even a goodbye.

Here are three different cases where an employee’s impetuous departure lead to a decision of wrongful resignation;

1. Offering his services for only a few months, Gary Bradley resigned from Carleton Electric leaving the former employer with substantial economic loses. After his resignation, Bradley surprised his former employer by suing for unpaid wages. Instead of defending the merits of Bradley’s lawsuit alone, it responded by suing him for wrongful resignation-and won. Bradley’s failure to provide appropriate notice of his resignation proved costly; he was ordered to pay Carleton Electric $10,000.

2. When the general manager and two salesmen of Sure-Grip Fasteners left, without notice, and opened a competing business a few kilometers away, Sure-Grip was left without a sales staff in Southern Ontario. To add insult to injury, the former employees started to solicit orders from former customers. After the trial was heard, Sure-Grip had the last laugh when it was awarded $75,000 from the group of ex-employees for their failure to give reasonable notice of their resignations.

3. A group of RBC Dominion Securities employees left en masse to join a competing firm, incensing their ex-employer. After the trial was heard, the judge decided the ex-employees were liable to pay damages for resigning without adequate notice.

Few employers bother to sue ex-employees for not providing enough notice of their resignation. As these examples demonstrate, these lawsuits typically arise in the context of defending a claim for wrongful dismissal. The consequences of a successful suit against an ex-employee can be severe.

So if you are thinking about resigning, here are four legal principles to keep your career on track and your case out of court;

1. The proper measure to calculate an employee’s duty to give notice is based on the amount of time it would reasonably require the employer to find a replacement.

2. If you posses specialized skills or are contemplating leaving the employer in a vulnerable situation, your duty to give advanced notice is heightened.

3. In assessing your obligation, consider the labour market and your employer’s ability to replace you.

4. You may have a contractual duty to give advanced notice. Have counsel review your employment agreement(s) to determine whether any specific period of notice was agreed to and whether it must be followed.

It’s good practice to err on the side of caution. by doing so, you can avoid an irate ex-employer making you the next example of a wrongful resignation.

Click here for the original article from Metro News

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