Toronto Employment Lawyer

BC Human Rights Tribunal supports transsexual's termination

On May 27, 2008 the British Columbia Human Rights Tribunal ruled in favour of BC Ferries with respect the the firing of transsexual employee, Deborah Magnone.

Deborah, who was previously known as Marshall John Magnone, claimed her termination was the result of rumours surrounding her 1984 sex-reassignment.

The Tribunal ruled differently. They cited two September, 2004 incidents as cause for termination. One of which resulted in a vessel being steered into a "hard-landing", potentially compromising the sea-worthiness of the vessel. In it's ruling, the Tribunal stated that Ms. Magnone had "failed to establish that her transsexualism was a factor in her termination".

At the Tribunal, the burden of proof is for the complainant to make out a "Prima Facie" case, in other words, demonstrating initial merit.  If a prima facie case is made out, the burden then shifts to the respondent to show that discrimination did not occur. 

Click here for a link to the Tribunal's decision.

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

Law protects employers against unfair competition

Thinking of jumping ship to the competition?  You better think twice before taking your clients with you.

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, do not stay 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 built and the key employees who have built them.

In permitting business relationships to follow the employees who possess them, courts have generally condoned open competition by ex-employees as long as the means are not manifestly unfair.  But this is not so where an employment contract prevents such behaviour.

Canadian courts may go to great lenghts to prevent what the judge may perceive as unfair competition.  Upon departing, employees should first pause for the following reasons:

• Contractual provisions limiting solicitation and or competition are commonplace in today’s employment contract – and they are increasingly being enforced.   
• In addition to contractual obligations, all employees have implied duties of good faith and fidelity towards their employers, which prohibit taking confidential client information to use in competition against a former employer.
• Employees entrusted with control over the business or even key aspects of it may be viewed as fiduciaries who are required to act in the company’s best interest long after their departure.

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

Employers can make mistakes too

Despite workplace laws favouring their legal position, management errors made in the administration of human resources can put a company's name on the front page of a Statement of Claim.

Here are 5 pivotal employment law mistakes that a company can make;

Bad Faith Dismissal - In 1997 the Supreme Court ruled that the manner in which an employee is terminated can attract additional liability. On average, employers have been forced to pay upwards of three additional months of salary, where the employee proves that pre- or post-termination conduct was unfair, insensitive, humiliating, or unreasonable. Due to this broad panoply of behaviour meeting this threshold, bad faith claims appear in over half the workplace lawsuits that I manage. I strongly advise that employers without experience in handling terminations seek out advice or risk paying damages in excess of the true value of the claim.

Resignations - The law of resignation requires clear and unequivocal actions or statements demonstrating and intention to voluntarily leave. In a recent B.C. case, the judge noted that employers have an onus not to pounce on an intemperate utterance of an emotional employee. The lesson for employers is, if you want to ensure that an employee has actually resigned, ask them to take their time and confirm intentions in writing.

Paying only the statutory minimum - Canada provides the minimum amount of notice or pay terminated employees are to receive. Aside from some other negotiated amount, most employees are entitled to the more generous "common law" severance payments imposed by the courts. As judges have historically agreed, employers who are only prepared to pay a fired employee the minimum amount must also be prepared to hear from his or her lawyer. Employment standards legislation across

Failing to conduct an investigation - If you want to rely on misconduct as grounds for dismissal, allegations must be thoroughly investigated by a trained and neutral party. The allegations should be put to the employee, who should be given the benefit of time and an opportunity to respond. In one notorious case where the outcome of an investigation was decided in advance, not only was the employee awarded wrongful dismissal damages and his legal costs, but the employer was forced to pay additional damages for the humiliating manner in which the dismissal was executed. While these guidelines appear simple, the courts have increasingly chastised bogus or perfunctory investigations.

Not properly documenting discipline - If you want to rely on misconduct as grounds for dismissal, demotion, or even a negative performance review, Canadian courts require that progressive or corrective means should be used first. Managers should send letters to employees clearly identifying areas of concern, offer suggestions for recovery and set out the consequences of an inability to improve.

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

Tread lightly as an employee

In my previous item, I offered my five favorite employer errors. Here are my top five mistakes employees  make at work:

Not reviewing an employment contract - Not many clients I encounter want their employer to be able to demote them, cut their salary, dismiss them without notice, or even banish them to a remote location. However, employment contracts are written by the employer and are usually loaded with language protecting the company's own legal position. Despite laws that construe ambiguous terms in the employee's favour, if the contract has been reviewed and signed before employment begins, an employee is often held to the deal that was made, whether it is fair or not.

Protest disciplinary letters or negative performance reviews - Unless you challenge discipline or negative appraisals, your employer's view of events lurks undisputed in your human resources file, waiting to be used should the need arise or if your employer is predisposed to build a case for cause.Unless you agree with the cants and content of the discipline, respond immediately and assert your view of the events and any mitigating factors.

Negotiate termination packages - While employees are seldom deprived of the opportunity to meet with a lawyer - and often are encouraged to do so - not all heed this advice. My initial demand letters on behalf of dismissed employees usually seek five or six concessions. A stark contrast to to average one or two that are known by employees prior to meeting with me.

Don't rush to judgment - If you have a dispute with your employer, consider a mediation or other sort of resolution to solve the problem. A British Columbia court recently ruled that cause for dismissal is developed when an employee has filed a lawsuit against his or her current employer. Employees should keep in mind that a sincere intention to resolve a dispute at the outset will pay dividends in a future legal action.

Misusing email and internet - Employers own the communications equipment and systems and can review on-line habits at their pleasure. If you want assurance that you're not crossing the line by committing such actions as checking your personal email, facebook account, or investment portfolio, employees should review all computer policies in place and use discretion when loggin on.

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