Toronto Employment Lawyer

Lawyer faces criminal charges after clients act on his advice

New York lawyer Felix Q. Vinluan, has been criminally charged on 13 counts after 10 nurses quit their job, allegedly on his advice.

The charges stem from an April 7, 2006 incident in which 10 clients of Mr. Vinluan mutually resigned from their position with Sentosa Care, a Long Island health care facility they worked for. The district attorney's office said the mass resignation endangered 6 critically ill patients, 5 of which were children -- because the resignations were not provided with advanced notice. 

The workers, who all immigrated to the United States from the Philippines in 2005, held at-will contracts. Vinluan claims, and his client's attest, that he simply advised them that as an at-will employee, their employment could be terminated at anytime by either the employer or employee.

The County D.A.'s office claims that Mr. Vinluan went beyond his normal scope of giving advice and instead, encouraged the workers to submit their resignation. District attorney Lato said in a recent interview "If all Mr. Vinluan did was advise, rather than 'encourage,' he wouldn't have been charged."

Vinluan asserts he is a target stemming from collusion between Sentosa's attorney's and County D.A. Spota after claims of a "secret meeting" between the two have surfaced. He further iterates Sentosa cannot afford to lose out on its pool of immigrant workers and is afraid of other worker's doing the same as his 10 clients.

Canadian employees are not subject to at-will employment and any attempt to insert language into their employment relatinship that provides less generous severance that the minimum employment standards is invalid.

The issue of wrongful resignations is more interesting.  Similar to the employers' obligation to provide advance notice of termination, employees must provide advance notice of their resignations, assuming there is no such contractual term that specifies another amount.  The amount of notice is dependant on how long it would reasonably take the employer to find a suitable replacement.  While wrongful resignation lawsuits in Canada are rare (proving a tangible economic loss is the reason), employees must still be careful.   

Even more interesting is whether or not Mr. Vinluan will be convicted.  The full article, found on Law.com, can be read here.

Daniel A. Lublin is a Canadian employment lawyer practicing exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.   

Head scarf issue leads to head ache

Canadian entrepreneur Sarah Desrosiers, is facing a legal battle after she denied employment to Bushra Noah because Noah would not abandon her traditional headscarf and display her hair if hired to work in the salon.

Desrosiers' London, England based Wedge Salon plans to battle Noah's suit. The small business owner claims that salon workers should showcase their hair to market their ability and essentially, their product. Noah, who has previous experience in salons, feels her headscarf does not hinder her ability to preform salon duties.

In respect of Ontario law, the Ontario Human Rights Code protects employees from discrimiantion in employment.  As a result, they cannot be adversly treated or discriminated against based on a set of 'grounds' including race, nationality, religion etc.  Employers do have a legal defence available, however.  In the case of Desrosiers, she would have to demonstate that the requirement of the position, to not wear a headscarf, is a bone fide occupational requirement - or an essential component of the job.   

The matter is scheduled to be heard in Central London's Employment Tribunal in the new year.

For more information, please see the original Toronto Star article here.

Daniel A. Lublin is a Toronto Employment Lawyer.  He can be reached at dan@toronto-employmentlawyer.com or through his Website www.toronto-employmentlawyer.com.

You better be sick or else...

According to a Canadian Press article on the CBC news website, a Malaysian Judge made a personal house call to  Khalid Arshad to verify his claim that he could not attend a scheduled trial due to sickness.

Judge Nurmala Salim drove the the troubled businessman's home wanting substantial proof that Arshad was in fact, bed ridden due to complications stemming from a recent stroke. Upon meeting with Arshad, Judge Salim agreed that Arshad did not have the medical capacity to attend the trial and accepted the claim.

You can read the article in full here.

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

Carpenter wins right to work nude

Recently a Superior Court Judge ruled in favor of allowing a carpenter to work in the buff.

According to the CBC, Oakland's Percy Honniball doesn't like to get his clothes dirty at work. His solution; work in the nude.

The Court sided with Honniball stating that he was not acting lewdly or seeking sexual gratification during his work.

See the CBC news article here.

Daniel A. Lublin is a Toronto Employment Lawyer practing in the law of wrongful dismissal.  He can be reached at dan@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.

Cumulative changes amount to constructive dismissal

Daniel A. Lublin, Toronto Metro News
Wednesday, July 18 2006

"Not many men have both good fortune and good sense."
- Titus Livy

John-Louis Drapeau was the consummate company man.  But when his job was gradually eroded, his loyalty quickly turned to fury.  Believing that his demotion was tantamount to a dismissal, Drapeau fled and then proceeded to sue his ex-employer.  His beliefs were vindicated at trial.

While the law of constructive dismissal is fact driven, employees can glean valuable advice from this case:

• courts don't confine the doctrine of constructive dismissal to a single or readily identifiable change to an employee's job.
• when changes are imposed, not every employee can simply pack up and place a call to their lawyer.  The changes must be obvious, negative and substantial - and must be so in the eyes of the judge, not just the litigants.
• An employee who consents to or condones significant changes can cry foul if the aftermath proves less than desirable.  Some form of protest must be registered. 
• employees with valid grievances may even have to remain in the altered job or risk failing to mitigate damages.  In order to unavail employers of this defence, counsel should always be consulted.

Click here for the entire article "Cumulative Demotion leads to Success in Court"

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

Some Rules are Meant to be Broken

- Managers refusal to comply with directive from boss didn't amount to misconduct.

Daniel A. Lublin, Toronto Metro News
Wednesday, July 4, 2007

About to leave on a much needed vacation, Evo Watson thought she had made plans for just about everything.  But when her boss demanded that she cancel her trip at the last minute, she realized the only contingency she had overlooked - was her own dismissal.

Both employers and employees should glean the following rules:

• where an employee intentionally disregards a clear, lawful and unequivocal order from a superior, her immediate dismissal may be justified;
• employers are entitled to instruct employees to perform given tasks.  These instructions are more likely to become unreasonable where they have little or no connection to the fulfillment of a condition of employment. 
• An employee with a blemished disciplinary past may curry less favour with teh employer - or the judge - when it comes to assessing his or her degree of insubordination. 

For more information, read Vacation Plans Costs Worker her Job

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 or via his Website www.toronto-employmentlawyer.com

Exceptions to Signed Contracts

Anything goes into employment contracts
-- but not all written contracts are enforced

Daniel A. Lublin, Toronto Metro News
Published Wednesday June 27, 2007

Written employment contracts represent employment law's most ambivalent feature.  Here are the top 5 ways to opt out of a signed deal:

• illegality
• ambiguity
• lack of consideration
• duress or unconscionability
• Changed Substratum

Click to read the entire article, "Employment Contracts Can be Broken".

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

Permanent Illness can put your Career at Risk.

Frustrating the Employment Contract

Daniel A. Lublin, Metro Toronto News
Published Wednesday June 20, 2007

Employers are entitled to expect their employees to show up for work.  Without a valid reason, employees who don't show up are subject to dismissal without pay.  Temporary illness, however, usually proffers that valid reason.  But what of the employee who's disability renders her unlikely to ever return to her job?  As Terry Ann Wilmot recently learned, illness is not always a shield from dismisal. 

To read the full, published, column, click "Long-Term Illness can Risk Career".

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 or through his firm's website www.toronto-employmentlawyer.com 

Judge Sues Over Lost Pants

Judge Now Only Wants $54 Million From Dry Cleaners for Lost Pants.

A judge who was seeking $67 million from a dry cleaners that lost his pants has loosened the belt on his lawsuit. Now, he's asking for only $54 million, according to a May 30 court filing in D.C. Superior Court.

Roy L. Pearson a District of Columbia administrative law judge, first sued Custom Cleaners over a pair of pants that went missing two years ago. He was seeking about $65 million under the D.C. consumer protection act and almost $2 million in common law claims.

He is now focusing his claims on signs in the shop that have since been removed. The suit alleges that Jin Nam Chung, Soo Chung and Ki Chung committed fraud and misled consumers with signs that claimed "Satisfaction Guaranteed" and "Same Day Service."

But Chris Manning, the Chungs' attorney, says that can be considered fraud only if the signs misled a "reasonable" person. No reasonable person, he says, would interpret them to be an unconditional promise of satisfaction.

Pearson, who is representing himself, said in an e-mail that the focus of the case, from the start, was based on the "false, misleading and fraudulent advertisements displayed by the Chungs."

Off Duty Conduct Can Affect the Health of Your Career

Daniel A. Lublin, Toronto Metro News
Published June 6, 2007

Employees who believe that their conduct away from the office is immune from discipline are mistaken.  Employers have the technological means and occasionally the inclination to monitor behaviour that occurs away from the job. And where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk.

Read the entire article Off Duty Actions Can Affect Your Job

• Criminal behaviour unrelated to the workplace but which nonetheless injures an employers interests can amount to cause for dismissal.
• Off-duty conduct that casts doubt on your honesty or the ability to perform your job can be cause for dismissal.
• When the public’s safety is in issue, your personal business becomes your employer’s problem.
• Where off-duty conduct creates a serious conflict of interest with the work of the organization, employees may successfully be fired for cause.

Despite these examples, proving just cause often remains a daunting task for employers. Both they, and their employees, should gauge the following rules.

1. Proof of misconduct may not be present, but it seldom matters if it is conduct that is, or is likely to be, ruinous to the interests or reputation of the employer.
2. Proving just cause for dismissal is more likely to be successful if there are negative public consequences or unfavourable publicity brought on as a result of off-duty conduct.
3. Off-duty behaviour that renders other employees unwilling to work with the perpetrator can be grounds for immediate dismissal.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of discipline and wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or you can visit him on the web at www.toronto-employmentlawyer.com

Million dollar class-action lawsuit against CIBC for OVERTIME

A CIBC bank teller is taking on one of the biggest financial institutions in Canada as the lead plaintiff in a class-action lawsuit that alleges CIBC fails to pay overtime to customer service staff.

The lawsuit, filed today in Ontario Superior Court, alleges CIBC non-management employees are assigned heavy workloads that cannot be completed within standard working hours, and that, at least in the bank teller's, she was told not to claim any of it as overtime.

The claim is seeking $500 million in damages on behalf of all the company's approximately 10,000 customer service staff.

What is the law regarding overtime:

• Banks are federally incorporated companies and are regulated by the Canada Labour Code.
• The Code states that federally incorporated businesses may not require or permit non management employees to work beyond eight hours per day or 40 hours per week without paying overtime.
• In Ontario, non federal companies (pretty much any organization that is not a bank, telecommunication company, airline etc) are regulated by the Ontario Employment Standards Act.
• The Act allows employers and employees to agree, in writing, to work overtime.  In the absence of such an agreement, employers cannot require employees to work more than 48 hours in a week and in any case, must pay employees overtime for work performed, in excess of 44 hours in a week. 

See news coverage of this story in the

National Post

CTV.ca

CBC.ca

The Toronto Star

Dara's Story

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.

Wan't to fire that Slacker? The best defence is always a good offence.

Armed with the knowledge that an employer can contract out of all but its minimum statutory obligations, I’m mystified why more businesses don’t follow the trend.  Nevertheless, for those proactive organizations concerned about the bottom line, the key is to draft contractual provisions that will withstand judicial scrutiny. 

Just as my Metro News Column provided the 5 tips for any employee about to begin a new job (read here), in my view, employers would be well advised to make the first move.  The roadmap to victory is the flipside of my recipe for employees.  Although, I can’t guarantee that my approach will be infallible, by introducing these measures, victory will occur more often than not.  And, as the saying goes, the best defence is always a good offence. 

For employers with the motivation to diminish the amount of severance paid, better yet, to a mediocre employee, I offer the following eight tips to ensure a valid and enforceable termination provision. 

1.      Make certain that prior to the point at which the employment offer is made, the prospective candidate has receipt of any offer letter, contract, agreement or otherwise that is being relied upon to comprise the terms of employment.  This will avoid any confusion, or worse, misrepresentation that goes to the terms of the offer. 

2.      The prospective candidate should always be encouraged to obtain independent legal advice or at the very least, be given ample time to consider the nature of the contract.  A clear case of duress is a recipe for disaster when it comes to a severance limiting provision. 

3.      Even if the employee has received appropriate counsel, care should be taken to point out the meaning of the more sophisticated terms, and draw the employee’s attention to the fact of a severance limiting provision.  The individual presenting the offer should document this conversation.   

4.      If re-negotiating the terms of an existing employee’s position, fresh consideration (some compensation or other benefit) must be provided to the employee.   

5.      Severance limiting language must be clear and unambiguous.  A small degree of uncertainty is a prescription for courts to interfere with the bargain an employer though it had made.   

6.      The termination provision must provide the employee with the minimum amount of severance provided by the governing legislation.  In Ontario, the Employment Standards Act, 2000 sets out a ladder of minimum severance payments for any dismissed employee.  The legislation should be specifically and clearly referenced in the contract itself.  In the contracts that I prepare for my employer clients, I actually provide slightly more than the minimum standards as an employee need to execute a release for what she was already entitled to under the legislation.     

7.      An otherwise valid contract can be struck down as unconscionable or unreasonable.  While the Employment Standard Act, 2000 is a great starting point, employers should renegotiate greater amounts of severance as employees gain tenure or increased value with the organization.   

8.      Contracts should include a severability provision ensuring that if one aspect of the contract is struck down as unenforceable, the remaining terms of the contract will survive. 

Daniel A. Lublin is a Toronto employment lawyer, specializing in discipline and dismissal.  He can be reached at www.toronto-employmentlawyer.com

For additional information on employment contracts, and specifically the law of consideration, see Michael Fitzgibbon's article here

Reinstatement Isn't an Option for Employees

Canadian Employment Law provides a buffet of remedies for the dismissed employee.  However as two ontario litigants recently learned, reinstatement isn't currently offerred on the menu.  See the full version of my article below.   

-- Reinstatement isn’t an option for Canadian employees

Canadian employment law provides a buffet of remedies for an aggrieved employee to pick and choose from. As Mr. and Ms. Anil and Neerja Sharma learned, however, reinstatement isn’t currently offered on the menu.

Anil and Neerja Sharma were fighting for their jobs and for their reputations. The couple had found their dream jobs as sales agents for Quadrus Investment Services, a subsidiary of London Life Insurance. Unfortunately for the Sharmas, their dreams came to an abrupt end when, under the cloud of a fraud investigation, they were suspended and then fired. The couple sued for wrongful dismissal, and before a trial could be held, they brought a preliminary motion, asking the court to reinstate them to their jobs and to force Quadrus and London Life to issue a notice to the industry and their clients, stating that they hadn’t done anything wrong.

At the hearing of the motion, it wasn’t clear whether the Sharmas were at fault. But it didn’t matter.  Reinstatement and compelling a declaration from their ex-employer weren’t remedies available to them, even had they ultimately been successful at trial.

Much to the chagrin of many non-unionized ex-employees, reinstatement to their old job is a remedy not often sought and less frequently granted:

-- Employees can seldom persuade a court to forcibly reunite them with their ex-employer. To succeed, damages must be an inadequate remedy and supervising the parties must be both possible and preferable – an unlikely occurrence. Thus, in my own practice, I often counsel these employees to spend their time, and resources, seeking compensation if wronged.

But reinstatement is a desirable, and attainable, remedy in alternative legal forums:

-- Where allegations of discrimination are manifest, I’ll pursue a claim under provincial or federal human rights legislation. If the claim is meritorious, a human rights tribunal can order reinstatement.  Often, the prospect of having to welcome back a terminated employee is so daunting that employers are quick to empty their pockets in exchange for a withdrawal of the claim.

-- Unionized employees receive the benefit of the right to reinstatement, negotiated directly into their collective agreements. Grievance arbitrators can, therefore, order an employee back to the workplace, even years after the break-up.

-- Non-managerial employees working for a federally regulated employer, such as a bank, or airline, can pursue an unjust dismissal complaint under the Canada Labour Code, which permits an arbitrator to award, among other remedies, reinstatement. While most of my federally regulated clients are not desirous of reinstatement, it is the potential of returning where unwanted that can influence the settlement position of an otherwise inflexible ex-employer.

-- Employers who run afoul of the pregnancy and parental leave protections offered to employees under the Employment Standards Act face having an employment standards officer investigate their practices and then issue an order requiring the reinstatement of a terminated employee.

Non-unionized employees do have a modicum of hope. When the Human Rights Code is amended shortly, it appears that judges will have the power to order reinstatement, force an employer to write a letter of reference and even make employers post letters of apology in the workplace or the media. The potential for such incalculable awards, along with damages for wrongful dismissal, ups the ante of litigation, and thus, the gamble of having a case heard at trial. Employers will be ever more willing to empty their pockets in exchange for the assurance that their name won’t end up in the morning news.

Daniel A. Lublin is a Toronto employment lawyer.  He can be reached at dan@toronto-employmentlawyer.com or www.toronto-employmentlawyer.com.

Daniel Lublin featured in Canadian Employment Law Today

Most employees believe that their employment contracts can seldom be varied without their consent.  However, as an Ontario judge recently confirmed, the tables are turned when advance warning is provided.

This month, my article on an employer's ability to change your job was published in Canadian Employment Law Today, which is a leading publication for employers and human resources managers.  Excerpts from the article can be found here.  I'll be publishing additional articles for Canadian Employment Law Today and will post them as they become available. 

Initially my article was published in my weekly column in the Metro News, which is distributed throughout the Greater Toronto Area. The article first appeared on March 7, 2007 and can be read here.  Links to all of my recent Metro News articles can also be found here.  

If you would like to read the case, the Ontario Superior Court of Justice's decision, in Wronko v. Western Inventory Service Ltd, can be read here.