Employee Bonuses – when they amount to a wrongful dismissal?

| March 10th, 2010 | No Comments »

Employees don’t always get the bonus they deserve, but seldom will this amount to a successful lawsuit.

Veteran investment banker Kenneth Mathieson was well rewarded in his good years. In 2005, he earned a bonus of $1.1 million. However, when his employer, Scotia Capital, decided that he deserved only $360,000 in 2006 — the lowest bonus he had ever received — Mathieson believed the bank was attempting to force his resignation. He wasn’t about to go quietly.

Mathieson complained to management, who listened to his concerns, but remained firm in their decision: his 2006 performance was not at par with his colleagues, which led to his low bonus award. Eventually, fed up with Mathieson’s protests, the bank fired him. Mathieson sued, claiming that his bonus had been reduced in bad faith, among a handful of other claims

To read the full article, visit Daniel Lublin’s columnist page at Metro News.

Daniel Lublin is an employment lawyer focusing on the law of dismissal.  He can be reached at dan@toronto-employmentlawyer.com

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.

RBC Dominion Securities Inc. v. Merrill Lynch

| November 17th, 2008 | Comments Off on RBC Dominion Securities Inc. v. Merrill Lynch

In its recent decision in RBC Dominion Securities Inc. v. Merrill Lynch, the Supreme Court of Canada has reinforced an employee’s duty to provide reasonable notice of resignation as well as, reestablished an employee’s duty of good faith towards his or her employer.

The decisions stems from a case where branch manager Don Delamont arranged the mass departure of virtually the entire branch staff, and as a result, a large volume of the branch’s client base.

The Court awarded damages to RBC on 2 separate but similar fronts;

1. Damages payable by Delamontfor nearly $1.5M for breach of his fiduciary duty of good faith to his employer. The damages being calculated by estimating the branch’s losses for the 5 year period after the exodus; and

2. Damages payable by the non-management employees who failed to provide reasonable notice of their resignation. These damages were calculated based on the losses to RBC over a 2.5 week period, which amount to about $40,000 total.

What to take from this case? Management employees have a fiduciary duty to retain clients and employees. Also, because the Court established that non-management employees do not have the same fiduciary duty, employers may consider including more favorable resignation provisions into its employee contracts.

For employees, the decisions confirms the common law duty to provide fair resignation notice. This is much like an employer’s duty to provide fair termination notice to an employee.

Daniel A. Lublin is a Toronto Employment Lawyer focusing 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.


Class action lawsuits on the rise, but claimants should be wary

| September 26th, 2008 | Comments Off on Class action lawsuits on the rise, but claimants should be wary

“Greatness
lies not in being strong, but in the right use of strength." – Henry Ward
Beecher

It’s workplace law’s newest, and biggest, phenomenon: lawyers specializing in
class action lawsuits, joining together groups of employees with similar legal
claims. But mass justice may come with a price: employees, excited by the
prospects of multi-million dollar settlements, unaware that their interests may
not be aligned.

Don’t misunderstand. If you are one of the thousands of Canadian employees with
claims for overtime, unpaid wages or pensions, joining a class action lawsuit
makes sense. Pursuing the matter on an individual basis is neither
cost-effective nor does it garner the same attention from your ex-employer as a
$600-million lawsuit on behalf of 10,000 employees would, such as the suit the
CIBC currently faces for unpaid overtime. With the potential of recovering
seven-figure damage awards and moving their case’s coverage from this column to
the front page of the news, the temptation to sue as a group is difficult to
resist.

However, with recent workplace class action lawsuits for overtime and unpaid
wages sharing national headlines with large scale downsizing and layoffs, class
action lawyers have been sharpening their pens, taking aim at mass wrongful
dismissal actions. But not so fast. In wrongful dismissal suits, where the
individual facts of each ex-employee’s claim determines its ultimate merit, a
class proceeding may be a mass mistake. Here are some of my concerns:



• Not all class action lawsuits actually proceed. Class action firms spend
great time and expense attempting to have the case certified by a judge. Some
linger uncertified for years. For overtime claims, such as the CIBC case, which
is still pending, most employees remain at their jobs or have found others. But
in wrongful dismissal cases where the plaintiffs are unemployed, there is a
need for speedy settlements or quick summary judgments.

 


• How will settlement monies in class action wrongful dismissal suits be
appropriately distributed? As the Supreme Court recently confirmed in the Keays
case, damages for wrongful dismissal should be adjusted upwards or downwards
based on the unique individual circumstances of each plaintiff, such as any
particular reason that would cause one person to take longer to find another
job. 

 

Mass
lawsuits for wrongful dismissal may also create conflicting interests within
the members of the class. There will be instances where some ex-employees
should settle their claims, such as where re-employment is certain, while
others should hold out for a better deal. 

 

• How
will legal fees be equitably distributed? Class action lawsuits pay lawyers
based on a percentage of recovery. However, in a class action setting, the work
performed for each claimant is, in part, a duplication of the work performed
for the group. Further, if the lawyers are paid based on a percentage of
recovery for the group, what incentive do they then have to really consider the
unique circumstances facing each plaintiff?



In a mediation that I did last week, I represented five employees who are suing
their ex-employer for wrongful dismissal. It is not a class action suit, but I
have advanced their claims as a group, though each employee has a separate
claim. The mediator, one of the best known in Ontario, remarked that my clients were smarter to fight as a group rather than to stand
alone. “There is strength in numbers”, he argued while attempting to assure us
that the employer could not ignore five simultaneous claims.  He was
correct.

Although the case did not settle, we made our point.  If we could sue
individually but proceed as a group, what incentive do we have to join a class
action?

Daniel A. Lublin
is an employment lawyer focusing on the law of dismissal. He
can be reached at dan@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

 

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