Toronto Employment Lawyer

Unionized Employees Have No Hope In Court

Employment Law Question sent to me:  Is it possible to seek outside representation if one is a Unionized employee?

For the most part, you cannot sue your unionized employer in court; you must exhaust the grievance procedures provided in the collective agreement. 

Unionized employees need to consult with their union representatives.  An employment lawyer can supplement the opinion you are given, but generally he or she cannot take legal action on your behalf.  In appropriate cases, an employment lawyer may be able to take on a supervisory role with respect to a grievance or legal issue you have.   

Despite these restrictions, there are legal certain claims that a court will entertain even though they arose in the unionized environment.  Claims for wrongs such as sexual harassment, or defamation, may be brought in the courts, by a lawyer.  But you risk the court declining jurisdiction if the judge feels that it is better dealt with by an arbitrator, appointed pursuant to the collective agreement. 

Best of luck,
Daniel Lublin

For more employment law question and answers, see my column at www.executiveassistance.com 

Calculating Severance Pay

Metro Toronto News, Wednesday May 30, 2007
Daniel A. Lublin

Seldom is severance pay based on arithmetic.  Courts do not follow any defined rules in calculating how much severance to pay to a particular employee.  Neither does your ex-employer. Rather, a judge’s task is to consider all of the circumstances that either hinder or help a dismissed employee to find a new job. I am familiar with over 100 factors relevant to this determination. However, rarely will that many issues compete in any one case. More typically, there are four or five factors that are more often considered than others.

The time to replace a particular job is the single most important factor in your entitlement to severance pay, but it is also the most imprecise. A court will be particularly interested in how long it has, or ought to have, taken the employee to find a similar position, considering the relative skill, experience and training that employee possesses. Employees with greater credentials and industry-related sophistication are presumed to be able to re-employ more swiftly. However, rarely is this their reality.  The former manager who held a specialized position will experience difficulty in replacing the status, prestige or pay that she previously enjoyed and will be awarded greater severance to compensate for the longer period of time that she went without pay.

The length of employment is also considered. An employee’s entitlement to severance pay is proportionally related to the length of time that she had been employed, with a longer-term employee receiving more severance pay. For exceptionally long-term employees, finding a replacement job is more difficult because they have been out of the job market for longer and their skills or accreditations may have become obsolete. For this reason, shrewd employers frequently offer outplacement services as part of their initial offer of severance.

Courts award more severance pay to older employees. A judge’s inclination to grant older employees greater severance is not based on sympathy.  Rather, it is based on statistical data demonstrating that older employees, especially those past their mid-fifties, face a more daunting task in replacing a lost job. 

Canadian courts are instructed to follow precedent. Judges must follow previous court decisions unless the facts are dissimilar. Wrongful dismissal trials are, therefore, based as much on the prevailing precedents as they are concerned with the facts of any given case.

For more information, see Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 

Daniel A. Lublin is a Toronto employment lawyer. He can be reached at dan@toronto-employmentlawyer.com  or you can visit him on the web at www.toronto-employmentlawyer.com. 

Think Twice Before Taking Clients With You

A Business' greatest assets are its clients.  But those clients have legs.  And when they walk, the business follows. 

Daniel A. Lublin, Metro Toronto News -
Published Wednesday, May 23, 2007

Nothing infuriates a company more than news of an ex-employee soliciting away its most prized assets: the clients.  But clients, much like those employees, are not sedentary.  Seldom are they attracted to one company or another exclusively by virtue of the services they are offered.  Rather, their affiliation lies with the relationships that are build and the key employees who have built them.

Courts recognize that business relationships follow the employees who possess them and permit employers to protect their most valuable assets through contractual and equitable limits.  In today's employment contract, it is commonplace to find any combination of non-solicitation, non-competition and confidentiality clauses restricting your ability to work for the competition or solicit your book of business on the way out the door.

But not all post-employment behaviour amounts to infidelity.  In my Metro News article "Changing Jobs Require More than Giving Two Weeks' Notice" you can read the five legal points to remember, to keep you both in business and out of the courtroom

Daniel A. Lublin

Changes to Human Rights Code to Impact Litigants

Employment Law Shifts -- If it's broken, then fix it.

Daniel A. Lublin, Metro Toronto News
Published: Wednesday, May 16, 2007

Since the mid-90’s, dissatisfied litigants of Ontario’s human rights regime have bemoaned its apparent shortcomings. A blend of limitations, owing their origins to the faulty composition of Ontario’s current human rights legislation, have ultimately left discrimination complainants without adequate redress. Complainants before the Human Rights Commission wait years before a resolution is reached, or imposed. Conversely, since the Commission lacks adequate discretion to immediately dismiss unmeritorious complaints, innocent corporate respondents are burdened with defending marginal complaints.

Referring to a “broken” human rights regime, Ontario Attorney General Michael Bryant announced the passage of new legislation, intended to repair the system.  The potential for court-ordered human rights awards will inevitably change the landscape of litigation, and thus, the gamble of having a case heard at trial. Employers should be ever more willing to trade compensation for an assurance that their name won’t end up in the news.

To read the full text of the article click "Changes to Ontario's Human Rights Regime to Impact Litigants"

Daniel Lublin appears on CTV's "The Verdict" with Paula Todd

On Thursday, CTV brought me in to be interviewed on-air, live, for Paula Todd's "The Verdict", which was my first television appearance, speaking as a lawyer.  The topic was obviously the recent Facebook.com maelstrom, which I have written about in the Toronto Star and Metro News, here and here, respectively.

I've been told by friends and colleagues that I was looking at the camera too much and may have even appeared "arrogant" (which, doesn't surprise me) but that the content of my argument was well-though out and evocative.  Joining me was Mr. Gary Gannage, who is the President of the union of employees at Queen's Park in Toronto, where the Ontario Government made news waves by banning Facebook at work, last week.  See the Toronto Star's article Facebook Banned for Ontario Staffers. 

Interestingly, Mr. Gannage argued that the Provincial Government's statements following its decision to ban Facebook, will perpetuate the stereotype that civil servants are wasting time at work.  I agreed with Gannage on this point, as it probably has and will continue to affect the image of the staffers.  My view, expressed on The Verdict was that Facebook will seldom be used for exclusively business purposes, while at work and that given the potential legal issues involved, the Government's ban was entirely appropriate and withing their prerogative to do so. 

I was actually hoping that I would be asked whether or not I was a Facebook user myself (as I am).  My response would have been that, being a user, I'm intimately aware of the potential for wasting time at work, as I've done so on many occasions. 

In my employment law practice, I expect the Facebook legal dilemma to continue to grow as more companies begin to recognize the potential legal problems involved, and ban access to the site for their employees.  I eagerly await the first wrongful dismissal case involving the issue as it will surely make media headlines. 

Recently, I was consulted by an employee who was terminated for cause after posting a video of himself at work on YouTube, the popular video sharing website, owned by Google.  My advice was that cause, although very difficult to demonstrate and prove, may have been appropriate in this case, given the employee appeared in company uniform, within the store, and outside of the store.  In my view, the potential damage to the Company's reputation, probably meant that the punishment fit the crime.  Usually, while issues of credibility and factual he said she said, play a starring role in any cause based allegations, as the employer will have to prove the conduct complained of actually occurred, in this case, I was able to contemplate the fact that the judge would be asked to download the YouTube video onto his or her own computer, thus demonstrating part of the dilemma faced by employers and employees. 

Facebook banned at work

"Employees should concern themselves more with losing their jobs, instead of losing access to Facebook at Work." -- Daniel Lublin 

Last week, the Toronto Star sought my legal opinion on Facebook at work and the recent provincial government's ban for it's nearly 2000 employees.  Unfortunately, the CBC cancelled my interivew on their Sunday morning show.  However, I'm fortunate enought to be able to publish more about the issue anyway, in my weekly workplace law column, in the Metro News.

My view is that seldom will Facebook be used for exclusively business purposes, while being accessed by employees at work.  Given the popularity of the site and the fact that employees can easily be linked to their employers, there are good reasons for applauding the Ontario government's decision to prohibit access to the site.  In essence, while there may be some social networking value to Facebook, more traditional networking mediums such as newsletters, the telephone and email, should not be abandoned in lieu of Facebook, where it is impossible, in my view, to divorce the social aspects from the business advantages. 

My article in the Metro today, Facebook Access Denied, offerred the following legal perspective:

• employees are too easily confusing freedom of speech with freedom from workplace consequences;
• As Facebook’s popularity continues to rise, so will the number of ex-employees looking for new work, along with seeing their names on the front of one of my statements of claim;
• Spending an inordinate amount of time on Facebook while at work is tantamount to theft of an employer’s time, which may be cause for dismissal;
• Employees making unsavoury and unmonitored comments can potentially compromise a company’s reputation, trade secrets, or its competitive advantage — even if the reader mistakenly construes a posting as having been authorized by the company.  Given the value placed on confidential information, courts are more likely to respect an employer’s decision to precipitously fire an employee whose posting compromised, or even potentially compromised, a competitive advantage;
• Criminal laws can also be invoked if employees harass or intimidate coworkers via Facebook;
• Unlike general Internet use, Facebook allows users to post information online for others to see, and later revisit. Postings of offensive comments, pictures or stories become incontrovertible evidence of an employee’s behaviour.  The ability to create, disseminate and maintain postings on Facebook means the evidence can be traced back to its originators long after the fact;
• Employers maintain the legal right to discipline or dismiss for off-duty conduct.  Facebook profiles and postings created and maintained outside of working hours and on employees’ personal time can be cause for dismissal, if the content brings their employer’s reputation into disrepute;
• While there are no current judgments considering the propriety of a dismissal for Facebook use, Canadian employers can anticipate creative employee-side lawyers challenging their decisions before the courts.

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

Toronto Star interviews Daniel Lublin on Facebook issues at work

From a legal standpoint, employers have good reason to specifically prohibit the use of Facebook at work, according to Daniel Lublin, an employment law expert based in Toronto.

On Friday, the Toronto Star sought Daniel A. Lublin's legal opinion when it comes to the recent Facebook at work dilemma.  On Wednesday, the Provincial Government banned the use of Facebook at work.  Read the article "Facebook banned for Ontario Staffers".  In its follow up piece, the business editors weighed in on the issue and looked to Lublin for the legal aspects of banning Facebook at work.  Read the full article "Worries Follow Rise of Facebook".  Excepts of the article can be found below.

"First, employees are wasting inordinate time on Facebook, given the popularity of the site and the reality that most use it exclusively for nonbusiness purposes, such as chatting with friends," Lublin wrote in an email.

"Second, unlike general Internet use, Facebook allows users to post information on line for others to see, and later revisit, which can potentially compromise a company's reputation, trade secrets or its competitive advantage."

Facebook indirectly encourages people to chat about work by inviting them to disclose their place of employment and then automatically linking them with registered co-workers, Lublin also wrote.

Users can get into trouble even if the damaging comments are written on their own time and computer, he also wrote.

Harassed Employees Have Options

The law now leans towards workers as harassed employees are no longer without a legal remedy.   

Workplace abuse may have been obvious but rarely did it amount to a paid vacation.

Employees faced with a workplace abuser used to visit their doctor for a prescription or a note requesting a leave of absence.  Except in extraordinary cases, employees were without a legal remedy, as courts had little, if any, appetite to walk into the workplace and order bosses to be nicer to their subordinates.  The reality for most: either leave - or lose - your job. 

But the abuser no longer gets to act with legal impunity.  Now, equipped with the knowledge that he or she can sue for significant damages, tormented employees call their employment lawyer.

Just as I discussed in my May 2, 2007 Metro News Column (read here) employees have options when it comes to an abusive boss:

-- Where abuse leaves an employee's job objectively intolerable, she should resign and sue for constructive dismissal, but only after first discussing the merits of your case with me.

-- Request that a workplace investigation be commenced to substantiate allegations of an abusive boss.

-- If there is a discriminatory motive, consider commencing a complaint at the Ontario Human Rights Commission.

Employees no longer have to hide in a legal box, without recourse.  When it comes to an abusive boss, legal options do exist.