Toronto Employment Lawyer

Wan't to fire that Slacker? The best defence is always a good offence.

Armed with the knowledge that an employer can contract out of all but its minimum statutory obligations, I’m mystified why more businesses don’t follow the trend.  Nevertheless, for those proactive organizations concerned about the bottom line, the key is to draft contractual provisions that will withstand judicial scrutiny. 

Just as my Metro News Column provided the 5 tips for any employee about to begin a new job (read here), in my view, employers would be well advised to make the first move.  The roadmap to victory is the flipside of my recipe for employees.  Although, I can’t guarantee that my approach will be infallible, by introducing these measures, victory will occur more often than not.  And, as the saying goes, the best defence is always a good offence. 

For employers with the motivation to diminish the amount of severance paid, better yet, to a mediocre employee, I offer the following eight tips to ensure a valid and enforceable termination provision. 

1.      Make certain that prior to the point at which the employment offer is made, the prospective candidate has receipt of any offer letter, contract, agreement or otherwise that is being relied upon to comprise the terms of employment.  This will avoid any confusion, or worse, misrepresentation that goes to the terms of the offer. 

2.      The prospective candidate should always be encouraged to obtain independent legal advice or at the very least, be given ample time to consider the nature of the contract.  A clear case of duress is a recipe for disaster when it comes to a severance limiting provision. 

3.      Even if the employee has received appropriate counsel, care should be taken to point out the meaning of the more sophisticated terms, and draw the employee’s attention to the fact of a severance limiting provision.  The individual presenting the offer should document this conversation.   

4.      If re-negotiating the terms of an existing employee’s position, fresh consideration (some compensation or other benefit) must be provided to the employee.   

5.      Severance limiting language must be clear and unambiguous.  A small degree of uncertainty is a prescription for courts to interfere with the bargain an employer though it had made.   

6.      The termination provision must provide the employee with the minimum amount of severance provided by the governing legislation.  In Ontario, the Employment Standards Act, 2000 sets out a ladder of minimum severance payments for any dismissed employee.  The legislation should be specifically and clearly referenced in the contract itself.  In the contracts that I prepare for my employer clients, I actually provide slightly more than the minimum standards as an employee need to execute a release for what she was already entitled to under the legislation.     

7.      An otherwise valid contract can be struck down as unconscionable or unreasonable.  While the Employment Standard Act, 2000 is a great starting point, employers should renegotiate greater amounts of severance as employees gain tenure or increased value with the organization.   

8.      Contracts should include a severability provision ensuring that if one aspect of the contract is struck down as unenforceable, the remaining terms of the contract will survive. 

Daniel A. Lublin is a Toronto employment lawyer, specializing in discipline and dismissal.  He can be reached at www.toronto-employmentlawyer.com

For additional information on employment contracts, and specifically the law of consideration, see Michael Fitzgibbon's article here

Selecting the proper employment lawyer for your case

"If winning isn't everything, then why do they keep score?" - Vince Lombardi

When it comes to winning a battle with your former employer, selecting the winning lawyer for your wrongful dismissal or employment law matter is no easy task. 

Most lawyers argue that the success or failure of a case, is predicated on a combination of the facts and merits of the claim, the prevailing law, the financial and psychological stability of the parties, the relative strengths and weaknesses of the counsel involved and, not least, some luck.  My view is otherwise.  Luck should have little or no impact on the ultimate outcome of negotiations or a lawsuit. Rather, an infallible strategy is a prescription for winning the case that will compensate for even the worst twists of fate.

I offer the following advice to help you select a winner:

• Don’t go with a dabbler:
  Many lawyers maintain a diverse practice, balancing a variety of different types of legal files. Employment law, however, is a very specialized field where devising a successful strategy for the file requires a comprehensive understanding of the law and a battle-tested background. Therefore, inquire what percentage of the lawyer’s time is spent on employment law matters or otherwise.
• Don’t be fooled by advertising:
  a lawyer’s quality is not always transparent upon viewing his or her website or other advertising mediums. Internet based advertising allows lawyers to pay for their ranking on internet search engines, which is not always reflective of the quality of the lawyer or firm or the actual number of visitors to the site. Therefore, I suggest you peruse a number of websites and pay particular attention to the content of the advertising, not just the ranking or form.
• Schedule a consultation:
  Once you have short listed your potential candidates, contact the lawyer’s office and schedule a consultation. Most firms will charge a fee to meet with a client for the first time. Generally, lawyers that give free consultations are much more reluctant to provide the specific legal advice you need to make an informed decision about your case.
• Evaluate the lawyer:
  Upon meeting with a lawyer, you should consider: how well they listen to you, whether they understand the problem and the law and whether you remain confident that your legal issue will be solved in a cost effective manner. As relationships between counsel and client can sometimes make or break the case, it is of prime importance that you choose a lawyer who you trust and have developed an excellent rapport with.
• Ask for references:
  The best references are former clients or other lawyers practicing different areas of law. You should ask to contact references who can comment on the lawyer’s skills and trustworthiness.
• Money Matters:
  If asked, a lawyer should predict to the best of his or her ability the potential costs of your case. You should also review the lawyer’s retainer agreement and discuss the lawyer’s billing practices. Many billing methods are used for the payment of legal fees, and a lawyer’s flexibility is an advantage to consider.
• Common sense:
  It goes without saying, but your instincts are usually your best self-defence.

Daniel A. Lublin is a Toronto Employment Lawyer, specializing in the law of discipline and dismissal.  He can be reached at mailto:dan@toronto-employmentlawyer.com or www.toronto-employmentlawyer.com

Reinstatement Isn't an Option for Employees

Canadian Employment Law provides a buffet of remedies for the dismissed employee.  However as two ontario litigants recently learned, reinstatement isn't currently offerred on the menu.  See the full version of my article below.   

-- Reinstatement isn’t an option for Canadian employees

Canadian employment law provides a buffet of remedies for an aggrieved employee to pick and choose from. As Mr. and Ms. Anil and Neerja Sharma learned, however, reinstatement isn’t currently offered on the menu.

Anil and Neerja Sharma were fighting for their jobs and for their reputations. The couple had found their dream jobs as sales agents for Quadrus Investment Services, a subsidiary of London Life Insurance. Unfortunately for the Sharmas, their dreams came to an abrupt end when, under the cloud of a fraud investigation, they were suspended and then fired. The couple sued for wrongful dismissal, and before a trial could be held, they brought a preliminary motion, asking the court to reinstate them to their jobs and to force Quadrus and London Life to issue a notice to the industry and their clients, stating that they hadn’t done anything wrong.

At the hearing of the motion, it wasn’t clear whether the Sharmas were at fault. But it didn’t matter.  Reinstatement and compelling a declaration from their ex-employer weren’t remedies available to them, even had they ultimately been successful at trial.

Much to the chagrin of many non-unionized ex-employees, reinstatement to their old job is a remedy not often sought and less frequently granted:

-- Employees can seldom persuade a court to forcibly reunite them with their ex-employer. To succeed, damages must be an inadequate remedy and supervising the parties must be both possible and preferable – an unlikely occurrence. Thus, in my own practice, I often counsel these employees to spend their time, and resources, seeking compensation if wronged.

But reinstatement is a desirable, and attainable, remedy in alternative legal forums:

-- Where allegations of discrimination are manifest, I’ll pursue a claim under provincial or federal human rights legislation. If the claim is meritorious, a human rights tribunal can order reinstatement.  Often, the prospect of having to welcome back a terminated employee is so daunting that employers are quick to empty their pockets in exchange for a withdrawal of the claim.

-- Unionized employees receive the benefit of the right to reinstatement, negotiated directly into their collective agreements. Grievance arbitrators can, therefore, order an employee back to the workplace, even years after the break-up.

-- Non-managerial employees working for a federally regulated employer, such as a bank, or airline, can pursue an unjust dismissal complaint under the Canada Labour Code, which permits an arbitrator to award, among other remedies, reinstatement. While most of my federally regulated clients are not desirous of reinstatement, it is the potential of returning where unwanted that can influence the settlement position of an otherwise inflexible ex-employer.

-- Employers who run afoul of the pregnancy and parental leave protections offered to employees under the Employment Standards Act face having an employment standards officer investigate their practices and then issue an order requiring the reinstatement of a terminated employee.

Non-unionized employees do have a modicum of hope. When the Human Rights Code is amended shortly, it appears that judges will have the power to order reinstatement, force an employer to write a letter of reference and even make employers post letters of apology in the workplace or the media. The potential for such incalculable awards, along with damages for wrongful dismissal, ups the ante of litigation, and thus, the gamble of having a case heard at trial. Employers will be ever more willing to empty their pockets in exchange for the assurance that their name won’t end up in the morning news.

Daniel A. Lublin is a Toronto employment lawyer.  He can be reached at dan@toronto-employmentlawyer.com or www.toronto-employmentlawyer.com.

More Free Legal Advice

This is an excerpt from my "Ask Daniel" question and answer column through Executive Assistance Inc.

Question:
"My employment was terminated due to job restructuring. My question is what is the difference between severance package and continuance of salary. The termination letter outlined the severance arrangements As " .... you will be paid all amounts due and owing through July 15 2007 as well as any outstanding vacation pay which may be owed to you in respect of service up to today...benefits are still extended until July 15th....". What happened if on on before July 15, I am able to find another job. Will appreciate if you can help me with some advice. This is the first time in my career that I am being let go. Thank you very much."

Daniel's Answer:
"The difference between a severance package and continuance of salary is merely semantics. Legally, you are entitled to notice of termination of pay in lieu thereof, which can take on various forms such as continuance, a lump sum payment or even working notice. It appears that your package will not be offset by any earnings through re-employment. However, employers sometimes do terminate severance payments when you obtain a similar job. I encourage you to meet with an employment lawyer to review whether or not the package you received was sufficient."

Employment Insurance Benefits

“In this world nothing can be said to be certain, except death and taxes.” — Benjamin Franklin

Employees gripe about deductions for Employment Insurance taken directly from their paychecks.  However, few are familar with when and how they can apply for benefits. 

My recent column in the Metro News offers employees advice that will ensure they receive benefits more often than not.  Below is an excerp from the column.  The full column can be read here.

• Do not delay. If you wait longer than four weeks to submit your claim, the government may deny it, regardless of your eligibility or entitlement.
• Request a record of employment. To complete an application, you need a record of employment, issued by your employer or ex-employer. Although employers have a legal duty to provide the form shortly after any disruption of earnings, not all do so promptly and some don’t do it at all. Therefore, be prepared to present proof of employment in your application. You may be asked to provide pay stubs, cancelled paycheques, T4 slips, or work schedules.
• Challenge allegations of misconduct. An employee who was fired for misconduct is disentitled to EI.  However, just because an employer alleges misconduct existed, doesn’t necessarily make it so.
• Don’t resign without legal advice. Employees who resign without a legitimate reason are not entitled to collect EI. Legitimate reasons include a harassing or intolerable work environment, a serious and negative change in working conditions or a substantial decrease in pay.
• Remain ready, willing and able to work. You are only entitled to benefits for when you are capable and available for work. If you take a holiday, don’t look for suitable work or refuse an offer of suitable employment, you may be disentitled to benefits.
• Don’t forget to appeal. If you disagree with a determination or believe you are entitled to benefits that have been withheld, you have the legal right to appeal the decision.

Free legal advice

Have employment law questions?  Get answers from an expert!

I have recently partnered with Toronto based staffing placement firm Executive Assistance Inc. and offer answers to specific employment law questions here.  Feel free to drop me a line. 

Blogging done right

"Defending yesterday -- that is, not innovating -- is far more risky than making tomorrow"
- Peter Drucker, management guru

A well deserved thank you, to my industry friends Rob Hyndman and Kate Morgan, for assisting with the inception of my blog.   

Rob Hyndman's is a technology lawyer and his blog is an authority in technology circles.

Kate Morgan is the President of Podwise Social Media Inc., which developes business for companies by integrating blogs and podcasts into their marketing efforts. 

Daniel Lublin featured in Canadian Employment Law Today

Most employees believe that their employment contracts can seldom be varied without their consent.  However, as an Ontario judge recently confirmed, the tables are turned when advance warning is provided.

This month, my article on an employer's ability to change your job was published in Canadian Employment Law Today, which is a leading publication for employers and human resources managers.  Excerpts from the article can be found here.  I'll be publishing additional articles for Canadian Employment Law Today and will post them as they become available. 

Initially my article was published in my weekly column in the Metro News, which is distributed throughout the Greater Toronto Area. The article first appeared on March 7, 2007 and can be read here.  Links to all of my recent Metro News articles can also be found here.  

If you would like to read the case, the Ontario Superior Court of Justice's decision, in Wronko v. Western Inventory Service Ltd, can be read here.