There is a scam being run by employers across the country, and it is permitted by law.

Most employment law prohibit dismissal during or after maternity leave.  Yet it happens anyway.  This is because there are various “exceptions” in the legislation permitting dismissal where it is unrelated to the leave.

In Ontario, the Employment Standards Act, 2000 states:

53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

What this essentially means is that where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a pregnancy or parental leave reinstatement will not be required.

Although many employers try to fit employees within this exception, it is not meant to permit dismissal in cases that are not clearly unrelated to the leave.  The question usually asked is, but for the leave, would the employee have lost their job?

In my Metro news article from last week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

By Cédric P. Lamarche

Puisque l’internet permet l’accès à un monde électronique sans frontière, la majorité des employeurs adoptent des règles très rigides en ce qui a trait à la consultation de sites internet lors des heures de travail.  Effectivement, ces règles visent à réduire les activités qui ne se rapportent pas au travail, et plus particulièrement, l’accès au contenu explicite qui se trouve en ligne.  Grâce à des technologies sophistiquées qui permettent la détection et la documentation d’activités électroniques, les employeurs peuvent assurés avec beaucoup plus de facilité l’observation de ces règles.

Dans un article intitulé Surfing porn still popular at work, qui a été publié récemment dans le Globe & Mail, l’auteur discute du fait qu’un nombre très élevé de personnes consultent régulièrement des sites internet pornographiques lors des heures de travail.   Selon l’article, les résultats d’une recherche démontrent que 70% des gens qui accèdent des sites pornographiques le font lors des heures de travail.  À titre d’exemple, l’auteur présente le cas d’un avocat sénior qui fut trouvé à passer jusqu’à huit heures par jour à consulter des sites pornographiques alors qu’il était au travail.

La question suivante devient donc très pertinente pour les employeurs ainsi que les employés : Est-ce qu’un employeur peut congédier un employé, avec motif valable, pour avoir consulté des sites pornographiques au travail ?  À première vue, la réponse à cette question semble évidente.  Toutefois, comme c’est souvent le cas dans le domaine du droit du travail, elle ne l’est pas.

Alors que la consultation de sites pornographiques au travail semble constituer un acte grossier qui pourrait vraisemblablement nuire à la réputation d’un employeur et causer des répercussions sérieuses pour une entreprise, il faut considérer les protections qui sont offertes aux employés par l’entremise du Code des droits de la personne de l’Ontario.  Notamment, le Code protège les employés contre la discrimination fondée sur l’existence présumée ou réelle, actuelle ou antérieure, d’un handicap.  Il reste à savoir qu’est-ce qui peut possiblement être considéré comme étant un handicap.

Est-ce qu’une dépendance à la pornographie peut être considérée comme étant un handicap ?

Si la réponse à cette question est dans l’affirmative, comme c’est le cas pour la dépendance à des substances contrôlées ainsi qu’à l’alcool, un employeur pourrait avoir l’obligation de prendre des mesures d’adaptation envers l’employé souffrant d’un tel handicap.  Ainsi, un employeur qui congédie un employée pour avoir consulté des sites pornographies lors des heures de travail, pourrait faire face à une requête pour discrimination devant le tribunal des droits de la personne s’il peut-être démontré que l’employé souffre ou semble souffrir d’une dépendance à la pornographie.

Have you ever wanted to tell your boss to F-off?  Were you worried it would cost you your job?

In a recent Saskatchewan case, the court was asked to consider this very question.

Having worked for the same ownership at Regina-based Image 1 Hair Team for 22 years, hair stylist Lenna Bohay was upset that the Salon was sold to a coworker, Kelly Brown.

Brown confronted Bohay after work and Bohay admitted to a profanity laced conversation.  Brown said she was told to “F-off”.

Bohay was fired, allegedly for cause, and not given any severance, so naturally, she sued.  In the recent court decision, the judge found that although Bohay swore at her boss, he dismissal without pay or a warning was not justified.

The court rules that, given the employee’s long service,  the employer “was required to provide a warning to the plaintiff that her behaviour must improve before she could be dismissed.”

In this week’s Metro News column, I discuss the case in more detail and provide the following takeaways for both employers and employees:

• It is only the rarest misconduct, such as theft or dishonesty, that warrants dismissal without appropriate warnings.
• Profanity and rudeness must be addressed by corrective discipline, which is a gradual series of warnings.
• Consider mitigating circumstances.  Courts are more forgiving when misconduct is out of character.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP.  Dan@toronto-employmentlawyer.com

Have you ever wanted to criticize your boss but fear it may cost you your job?

What happens if you “go over your bosses” head to his or her manager with your concerns?  Can you be disciplined?

According to two recently release court decisions, employees are entitled to criticize their managers without fear of immediate dismissal, as long as the form and content of this criticism does not go over board.

In this week’s workplace law section of the Metro News, I review the cases of a B.C supervisor and a production manager who leapfrogged their bosses to write angry letters to the superiors at the company.  In the case of the production manager, he penned an angry letter to the company’s shareholders, knowing that the company was about to commence a share offerring.

In both cases, the courts said that criticism of the boss may reasonably be justified and will not necessary amount to cause for dismissal.  However, the manner and tone in which they express this criticism must always remain professional.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.  dan@toronto-employmentlawyer.com.

What is a constructive dismissal and when will it apply?

It is a fundamental change to a term of condition of an employee’s job.  Plain and simple.

Yet, despite a simple definition, it is often difficult to predict when a court will accept an employee is constructively dismissed.

In this week’s national workplace law column in the Metro News, I addressed the various categories of constructive dismissal:

Changed hours of work.

Reduction in compensation.

Temporary layoff.

Harassment or discrimination.

Changed responsibilities.

Probation.

To read the full article, click here.

Importantly, not every change to an employee’s job will amount to a deemed termination or constructive dismissal.  It is only changes to important terms and only those changes are without consent.

In other words, if an employee accepts a job (implicitly by continuing to work without protest) or expressly by agreeing to the change, they cannot later raise it as a reason to leave and pursue severance.

Until 2008, employers used to be able to provide advance notice to an employee that a change to his or her job would occur in the future.  if that notice was consistent with the amount of severance it would take to terminate that employee, then the job could be changed without consent and without triggering a constructive dismissal.  In theory, if you could fire an employee with six months pay, you could provide that employee six months’ notice of a fundamental change to her job, without liability for doing so.

However, the Ontario Court of Appeal changed that law in a case called Wroko v. Western Inventory, which stands for the proposition that working notice of changes is only effective if the employee is put on notice that, should he or she reject those changes, they will be left without a job.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.  Daniel can be reached at dan@toronto-employmentlawyer.com.

Employers often take a kitchen sink approach to drafting employment contracts. They bargain for excessive protection, no matter how junior or administrative the employee. However, in seeking such protection, they sometimes get none at all.

The key to drafting enforceable contracts is simplicity and consistency with the law.  For example, a severance clause that permits termination upon payment of 30 days would be considered illegal because the legislation in Ontario (and most other provinces) requires up to 8 weeks notice to terminate an employee without cause.

Similarly, there is no “right” to probation periods unless this is something that was agreed to and even then the clause will be only work if it precludes payment in excess of the statutory minimum.

Click here to read Daniel A. Lublin’s Metro article where he reviews probationary periods, severance provisions, constructive dismissal, policy manuals, resignations and restrictive covenants.

Daniel A. Lublin is a partner with Whitten & Lublin LLP, which is a team of legal experts who provide practice advice and advocacy for workplace issues.  Dan can be reached at dan@toronto-employmentlawyer.com.

A true resignation is a voluntary action.  Plain and simple.

Although there may be an intention to leave, courts will not construe that intention as a “resignation” unless it is acted upon and is unmistakable.

Another recent example is found in an Ontario case called Carmichael and Mantis Racing Inc, which can be read in full here.

Stan Carmichael and Ernie Jakubowski were friends with a common interest – both were Porsche aficionados. When Carmichael found himself without work, Jakubowski, the owner of Mantis Racing Inc., a high-end automotive shop involved in racing events throughout North-America, saw the potential to grow his business.

Over beers and a handshake, the two friends agreed that Carmichael would become Mantis’ new general manager.  However, their relationship would soon sour, resulting in a lawsuit for wrongful dismissal and an allegation that Carmichael resigned.

Carmichael won the case.  The Judge was not impressed with Mantis, its lawyer, or its defence.

Often, employees find themselves in the “twilight zone,” somewhere between wanting to leave and having been fired.  For employees that want to avoid being characterized as resigning, they should follow these guidelines:

• Resist taking any steps that can be construed as voluntarily withdrawing from the workplace, as difficult as that may be.
• Immediately protest a characterization that there has been a resignation, if it wasn’t the intended result.
• If unclear, request that your options be outlined in writing and seek specialized advice before taking any action.

– Daniel A. Lublin is a partner with the the employment law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com.

Sometimes employees too easily confuse who gets to call the legal shots.  Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken. This is the tale of one employee who learned this lesson the hard way.

Working out of the Toronto-area offices of software developer VoiceGenie Technologies, Crinu Iliescu quickly wore out his welcome. Hired only 15 months earlier as a software QA manager, Iliescu swiftly lost the firm’s trust after his response to a manager’s email accusing him of underperformance. Iliescu wrote his boss, the HR manager and the president with five demands he required them to meet before he would return to work.

In Daniel Lublin’s weekly Metro Column, he discusses the case of Crinu Iliescu, who was viewed as “abandoning” his job after refusing to meet his employer’s requirements to improve his performance.   The full column can be read here and the case can be read here.

The case stands for the proposition that, while employees do retain certain rights, rejecting a reasonable performance improvement plan is usually a poor option. 

Even if such a plan is imposed in bad faith (which often does occur), protest the plan in writing and continue to work in the meantime. You retain the right to complain at a later time without jeopardizing your own continued employment.

Daniel A. Lublin is a partner at the employment law firm Whitten & Lublin LLP, who specializes in the law of dismissal.

An individual’s experience, related below, provides an example of why you should be careful when you call the Ministry of Labour. 

Following her termination, an individual contacted the Ontario Ministry of Labour, seeking advice about her situation. She had not yet contacted a lawyer and the ministry representative who was randomly assigned to pick up the phone did not immediately encourage her to do so. 

The two spoke at length about her matter. The individual explained that she had not been paid termination or severance pay, at which point she was encouraged to make a statutory complaint. This was the first error. The ministry enforces the provincial legislation only, but it does not provide a remedy for common law damages such as wrongful dismissal, which in this case actually made up the bulk of this person’s claim. 

Without training in employment law, neither the ministry representative nor the individual realized their mistake. As a long-term employee, this person was entitled to considerably more than what the Ontario Employment Standards Act could offer. As well, since the legislation caps damages at $10,000, which courts do not, the individual had an upper limit to her claim. 

Although the ministry could easily address and then remedy her complaint, this was not the problem. It was that once it has taken steps to do so, an individual loses the right to file a wrongful dismissal claim. Here, since this person’s damages were in excess of the statutory minimum, the bulk of her damages then would be relinquished – an issue that most employment lawyers would spot as a matter of course.   

The ministry has safeguards, but they are not always effective. No surprise there. After most complaints are made, the ministry mails the claimant a standard form letter explaining that if the complaint is not withdrawn within two weeks, the claimant will not be able to file a wrongful dismissal claim. However, since most people will believe, even if incorrectly, that they received “advice” from the ministry, they are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion. The result is that they are then stuck with their original claim. 

This example is not an exception. The ministry’s hotline, which fields calls from prospective complaints, should explain only what the Act says and how it may have been interpreted in the past. There is no mandate to provide recommendations, or worse, to provide advice. Yet it happens anyway when some of the Ministry’s representatives habitually blur this distinction.  When they do, the public’s interests may be subverted.

– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

By Brian Norris

Contrary to all the recent work by governments to stimulate the global economy, Iceland has recently passed law to prohibit profiting from striptease shows. Citing concerns with issues like human trafficking, the law was unanimously past this week in the island nation.

The new law, seen to many as a progressive step advancing woman’s rights, has thrown Icelandic employers into a realm of uncertainty. Uncertain about the scope of the law and uncertain of the impact the new regulation will have on their businesses. It appears that there will be some time before the scope of the law is clarified; either through further legislation or through the common law.

What can Canadian employers and employees do when changes in the law affect their business?

Club owner and employer, Asgeir Davidsson, had the right idea. He decided not to act until he spoke with his employment counsel. It is important for employers to seek advice on how to conform to, or abide by, the applicable laws as the onus regarding compliance is overwhelmingly larger for employers when compared to employees. Furthermore, the penalties for violating the laws are generally harsher than that for employees.

Brian Norris is the Office Manger of Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees.