Toronto Employment Lawyer

"If winning isnt everything, why do they keep score?"

- Vince Lombardi, NFL Coach

As in any lawsuit, success or failure in a wrongful dismissal case is predicated on a combination of the facts of the claim, the prevailing law, the financial and psychological stability of the parties, the relative strengths and strategy applied by the counsel - and some luck.   

Just as these factors will influence the decisions your lawyer will make during the course of your case, the most important decision rests in your own hands: Selecting the proper lawyer. With countless factors to consider and a pool of nearly 60,000 lawyers in Canada to choose from, finding the ideal lawyer to navigate your case is a difficult, if not overwhelming, task.

Don’t go with a dabbler.

Most lawyers are still generalists, balancing an assortment of legal files. But employment law is specialized.  Success requires a comprehensive understanding of workplace law and a battle-tested background. Inquire what percentage of the lawyer's time is spent on employment law matters — and don't end up paying for his or her education.

Don’t be fooled by advertising.

A lawyer's search engine rankings are not indicative of his or her success. Internet-based advertising allows lawyers to snatch up rankings on Google or other search engines, which is not reflective of the quality of the lawyer, their firm, or the actual number of visitors to the site. Similarly, there are few limits to how lawyers can refer to themselves on their websites and in the media. The Ontario Law Society does not restrict family law and immigration lawyers from advertising expertise or proficiency in employment law, but this does not mean that they possess it. 

Schedule a consultation. 

Some lawyers advertise “free consultations.” This is their opportunity to assess whether you have a case, but not your opportunity to learn about the risks and costs of proceeding with one.  While an initial consultation fee may seem daunting, lawyers who charge one will stand behind the advice they give. 

Consider the costs.

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 billing practices.  Many lawyers offer a variety of billing methods for the legal fees, and flexibility can be an advantage.

Ask for references.

The best references are former clients or other lawyers practicing different areas of law. You should ask to speak with references who can comment on the lawyer's reputation and trustworthiness.

Common sense.

Does your lawyer listen to your concerns and understand the problem and the law? Are you confident your legal issue will be solved in a cost effective manner? Your instincts are usually your best self-defence.

Click here for the original article from Metro News

Daniel A. Lublin is a Toronto Employment Lawyer practicing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Squeegees get wiped

It's official, Canada's Supreme court will not entertain an appeal towards an Ontario law limiting panhandling and banning "squeegee kids".

It appears now that Canada's pierced and transient will have to search for other forms of self employment.

A hasty resignation can be costly

"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

Breach of policy has serious penalties

Ray Agosta literally took company policy into his own hands. Captured on security cameras and spotted by a loss prevention officer, Agosta was caught taking five items to his car he had not checked out of the store. However, when Agosta's story for taking the items didn't check out either, the cost to Agosta was more than just the bill for the food; he paid by losing his job.

Agosta, a manager at a Toronto area Longo's grocery store, was caught taking a few small items out of the store he had not paid for. When questioned, he argued the items were samples, given to him by their supplier. But even when taking samples from the store, company policy required all employees to seek permission from the store manager. After an investigation, Longo's fired Agosta. Agosta responded by suing Longo's for wrongful dismissal.

At trial, Longo's relied on its policy for removing items from the store, stating that employees caught taking items without permission "will be subject to disciplinary action which may or may not include termination, arrest and prosecution." Further, it argued that even though the amounts that Agosta took ere minimal, like yogurt and cream cheese, loss prevention is taken very seriously in the grocery business and Agosta had known and adhered to its policies before. For his part, Agosta argued that he had always asked for, and was consistently given approval to remove items from the store in the past.

Loss prevention in supermarkets is centered around Supermarket Shrink. It deals with the loss of profits due to several factors including shoplifting, goods expiring, and employee theft. In a survey approved by the American National Grocers Association, it was reported that employee theft was the largest category of shrink, making it a major theft prevention policy factor. 

Recently, an Ontario judge sided with Longo's and found that Agosta knew, understood and consistently followed the policy to get a manager's consent before taking any items from the store. The fact that Agosta had always been given permission to take items in the past didn't eliminate his responsibility to seek consent every time he considered taking a product from the store.

Justice Moore J. found that Agosta's termination was justified, agreeing with Longo's argument that Agosta could no longer be trusted.

Company policies can sway the outcome of a trial. In this case, the judge relied on five factors that companies must generally establish in order for a breach of a company policy to justify an employee's immediate dismissal:

1. the rules must be distributed;
2. the rules must be known by the employees;
3. the rules must be clear and understandable;
4. the rules must be consistently enforced; and
5. employees must be warned that they will be terminated if a rule is breached

As the case of Ray Agosta shows us, breaching policy can have serious consequences when the policy is properly applied.

For Agosta, it cost him his job.

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

Worker fired for not admitting blame

"To err is human; to forgive, divine."
- Alexander Pope

"Doh"
- Homer Simpson

A serious error doesn't necessarily justify discipline. but refusing to accept blame can cost you your job.

This notion stems from the 2007 decision in McGachie v. Victoria Immigrant and Refugee Centre. In this case we learn about Martha McGachie. Her employment was characterized by a series of errors and when the mistakes mounted, she finally  wore out her welcome at the Victoria, B.C., Immigrant & Refugee Centre.

The final straw for the employer occurred when McGachie, a counselor of the centre for nearly five years, sent a document to the government agency funding its operations without first seeking approval from her supervisor. This was contrary to the centre's standard policy. When the government agency reviewed the document, it realized the centre was providing services to some clients who were ineligible for funding. The agency thus clarified its policy and the centre was left unable to service a number of clients.

McGachie was then asked by her supervisor and the centre's director to acknowledge her mistake in writing. She responded in writing, but instead of admitting the error, she characterized their request as a "new term of employment tantamount to a probationary period". McGachie was fired shortly after and responded by suing for wrongful dismissal.

The court found that McGachie's dismissal was justified on the basis of her refusal to acknowledge the blame for the incident. Her error did warrant some form of discipline and the requirement to acknowledge the mistake was a reasonable request. On this basis, the court found that McGachie's refusal to accept blame was deemed insubordination and was ultimately, what lost her her case.

Valuable insight for both employers and employees into the law of wrongful dismissal can be derived from Martha McGachie's case:

• It is not open to an employee to simply refuse to obey a direction from a superior. The decisive questions is, however, whether or not the request was reasonable.

• A single mistake or even a series of consequential mistakes may not always convince the judge that the employee's dismissal for cause is a necessary or proportional response.

• Employee misconduct is not considered in isolation.

In McGachie's case, the court agreed that by directing her to acknowledge her mistake in writing, the employer had acted sensibly. Furthermore, the results of this case were undoubtedly, influenced by McGachie's employment history and the earlier mistakes she made.

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

Workplace harassment is a common employment law case

Here are five most frequent files appearing on my desk and in court dockets

1. Workplace Harassment
Following Canada's first million dollar workplace harassment award, I can expect to see more of these claims walk through my door. That being said, most harassment claims are not credible as employees' perceptions of their treatment are not dispositive of  the issue. The test is whether an employee can demonstrate continued employment was objectively intolerable, which must be in the eyes of the trial judge, not just those of the litigants.

2. Unjust performance appraisals
Employees often declare a critical review is either a form of harassment or management's concoction to force their resignation. For an unwarranted review to amount to a wrongful dismissal, an employer must have acted in bad faith and prevented the employee's improvement.

Justice Randall Echlin, in his decision for Ata-Ayi v. Pepsi Bottling Group, noted negative reviews, per se, do not lead to dismissal. He wrote;

It is essential to any healthy and constructive employment relationship that the employer be able to discuss in an open and candid fashion with its employees, so long as such discussion is proffered in good faith.  Sugar coating or minimizing legitimate concerns inhibits performance improvement and is work performance  not conducive to a healthy and vital working relationship.

3. Calculating severance pay
Courts do not follow any defined rules in calculating how much severance to pay an employee and neither does an ex-employer. At trial, a judge's task is to consider the circumstances however, four factors do prevail: tenure, age, re-employability, and type of job.

4. Employment contracts
Anything can be written into an employment contract, but not all promises can be enforced. In breaking a contract, most argue the contract provides less than the minimal employment standards, is vague, or the employee was denied the time or opportunity to have the contract reviewed, among other criteria. I elaborated on this premise in my recent column Employment Contracts Can Be Broken.

5. Off duty behavior
Employees who believe their conduct away from the office is immune from discipline are mistaken. Thanks to social networking websites such as Facebook, employers have the technological means- and occasionally the inclination- to monitor behavior away from the job.

Click here for the full article: Workplace harassment is a common employment law case