Daniel A. Lublin is a Toronto Employment Lawyer, specializing in the law of wrongful dismissal. He can be reached by email or you can visit his firm’s website.
Contact Information
317 Adelaide St. West, Suite 1001
Toronto, Ontario
M5V 1P9
Tel (416) 640-1583
Toronto's Centre for Addiction and Mental Health has recently released findings from a study that indicate temporary and part-time employees are more susceptible to develop physical and mental work-related health problems than their full-time counterparts.
The results of the study on part-time and temporary workers health issues are not entirely surprising. Most part-time and temp employees receive limited training and often, do not qualify for workplace health benefits.
Scott Erwin will soon begin serving a bar imposed 15 month suspension for conduct stemming from a bartering agreement in which the Illinois attorney accepted lap-dances from his exotic dancer client in exchange for a reduction of legal fees.
In the United States, bartering legal fees for other lawful services is a legitimate way to satisfy an account. However, in Erwin's case, his client had made accusations with local authorities that he inappropriately touched her during the exchange.
Authorities were not satisfied with the evidence to lay a charge against the lawyer. The Illinois bar then conducted an investigation which led to Erwin's suspension.
Erwin's matter can be an excellent reminder to professionals everywhere that, although an act or agreement may technically be legal, it might be in your best interest to use some common sense when making such agreements.
“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.
Major accounting firm KPMG has recently settled the class action lawsuit launched on behalf of employees who claimed damages for unpaid overtime.
The settlement, expected to be worth about $10 million dollars, was announced last week. Employees now have until September 30th to claim their portion of the settlement.
Unfortunately for the employees affected by the claim, they now have another hurdle to jump before they can recoup damages. The employees must now prove that they fall into the class that has been awarded the damages.
As I 've stated in my previous post regarding the current Scotiabank and Bell Canada mass torts, a class action lawsuit, while appropriate for overtime and pension claims, may not always be in the best interest of the plaintiffs or may not be particularly practical in mass dismissal claims. In wrongful dismissal claims, class actions habitually fail to consider the individual employee's mitigation efforts, they regularly force a broad application of the Bardal principles, and there is often a duplication of work on client files.
A dispute between Muslim workers and a Nebraskan meat packing plant regarding employee breaks has recently made national and international news headlines.
The JBS Swift plant is in hot water after the termination of what is reported to be around 100 workers who took unauthorized breaks from work for their Ramadan prayers. The plants decision to terminate the employees has news message boards across North America abuzz, reigniting the debate regarding the accommodation of religious practices in the workplace.
The workers and management were to mediate their issues on Sunday (September 21st) however, no results of the meeting have been made pubic yet.
Workers in Ontario have the option of filing a complaint with the Ontario Human Rights Tribunal. Click here for the Tribunal's website.
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.
