Question:

If working in a salaried position and being in sales (during a time of low sales) can your employer "pull salary" away from you and place you solely on commission effective immediately, even if there is an employment contract signed stating the annual salary?

Answer:

Your employer cannot unilaterally change your compensation structure in a severe way. There are many cases that state going from salary to commission is a real and substantial change to your compensation such that you can consider this action as amounting to your dismissal. In other words, you can reject the change and look for other work or you may be able to simply leave and claim you were dismissed. You could then sue for damages for your economic losses while you are out of work.

As this area of the law is quite complex and your election is important, I would recommend meeting with an employment lawyer who can explain your rights to you in greater detail and build a strategy that best fits your particular situation.

For more information on constructive dismissal situations, like the one above, please see my free employment law advice page on constructive dismissal, here.

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

Mark McMorrine will likely be styling hair in prison for the next 18 months.

The Lasswade, Scotland hairdresser was recently convicted of theft and fraud stemming from a scheme in which he stole equipment from the salon which employed him and sold it via his eBay account. It is reported that McMorrine netted more $125,000 from the sale of the items which ranged from flattening irons to posh shampoos.

Theft from one’s employer has long been regarded as cause for dismissal. In McMorrine’s case, he lost both his job and his freedom. Please visit Canadian Employment Law Today for more on this story.

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

In its recent decision in RBC Dominion Securities Inc. v. Merrill Lynch, the Supreme Court of Canada has reinforced an employee’s duty to provide reasonable notice of resignation as well as, reestablished an employee’s duty of good faith towards his or her employer.

The decisions stems from a case where branch manager Don Delamont arranged the mass departure of virtually the entire branch staff, and as a result, a large volume of the branch’s client base.

The Court awarded damages to RBC on 2 separate but similar fronts;

1. Damages payable by Delamontfor nearly $1.5M for breach of his fiduciary duty of good faith to his employer. The damages being calculated by estimating the branch’s losses for the 5 year period after the exodus; and

2. Damages payable by the non-management employees who failed to provide reasonable notice of their resignation. These damages were calculated based on the losses to RBC over a 2.5 week period, which amount to about $40,000 total.

What to take from this case? Management employees have a fiduciary duty to retain clients and employees. Also, because the Court established that non-management employees do not have the same fiduciary duty, employers may consider including more favorable resignation provisions into its employee contracts.

For employees, the decisions confirms the common law duty to provide fair resignation notice. This is much like an employer’s duty to provide fair termination notice to an employee.

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

In a recent Ontario Superior Court decision, Adjemian v. Brook Crompton North America, 2008 CanLII 27469 (ON S.C.), Daniel A. Lublin successfully argued for and won a Motion for Summary Judgment, effectively winning the case without calling a single witness.

As reported in the Canadian Cases on Employment Law (67 C.C.E.L. (3d) 118), Justice Perell awarded a judgment in favour of Ms. Adjemian for damages stemming from her wrongful dismissal amounting to $61,944.65 plus pre and post judgment interest and legal fees.

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. 

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

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.   

3.  Allow common sense to prevail.

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

The verdict is out: Human rights trump hair styles.

In November, 2007, Canadian entrepreneur, Sarah Desrosiers,
faced a legal battle after denying employment to Bushra Noah for wearing her
traditional headscarf and refusing to display her hair in Desrosier’s trendy London, England salon.

Desrosier claimed that she needed her employees to show off
their hairstyles to market her hair salon. After months of debating, the
employment tribunal panel has finally ruled that Desrosiers’ actions were
“indirect discrimination” against Noah.

The panel awarded Noah £4000 (the equivalent of about $8000
Cdn) for “injury to feeling” but dismissed her claims for direct religious
discrimination. The panel further stated that Desrosiers did not provide enough
evidence to demonstrate that a stylist with covered hair would have negatively
impacted her salon.

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

America has started a new trend offering employees special summer hours to enhance
employee morale and overall quality of life. Will Canada follow?

“Summer Fridays” are gaining popularity among U.S. companies,
particularly small businesses looking for a competitive edge to attract new
employees. In an effort to ensure work-life balance, companies are giving
employees half-days or full days off on summer Fridays. Other options include
telecommuting or shift-sharing.

With rising gas prices, “Summer Fridays” offer employees the
chance to adjust their work arrangements and save both time and money.

If your employer is not offering Summer Fridays, or anything
of the like, propose the idea by: 

- Seeking out a manager at the executive level and
arguing the benefits of summer hours to the company. In particular, mention a
more cohesive company culture and increased worker productivity.

- Making clear that employees will still be accessible
via email and telephone.

- Offering to make up extra hours in the workweek for an
occasional Friday off.

For more: The Globe & Mail

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

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

This is the cautionary tale of two cases that reveal the fate of employees too quick to sign their names…

In Barr v. Pennzoil-Quaker State Canada Inc. the court ruled that the deal was less than what Barr could have received and was "unfortunate". However, it was not so bad that it was prepared to set it aside.

In Titus v. William F. Cooke Enterprises senior Ontario lawyer Douglas Titus was dismissed by William F. Cooke Enterprises and immediately agreed to its offer of severance. Titus read the termination documents at the meeting, including the release, which states in bold, capitalized letters: "I have read this document and I understand that it contains a full and final release of all claims … I am signing this document voluntarily."  Titus signed his name and left with a cheque in his pocket.  Later on he sued, claiming the release was signed under duress and the deal he received was less than fair. But Titus, a lawyer for more than 20 years experience, with self-professed experience in employment law, couldn’t convince the court that the deal he signed was so unfair it should be invalid.  According to the court, "with eyes wide open", he declined both opportunities, preferring to immediately accept the package instead.

These cases provide a stark message for employees when confronted with an offer of severance on an ironclad release: Fair or not, seldom will a signed document be set aside. Employees can avoid this result by observing the following advice:

Like any commodity, a termination package is usually negotiable. Seek specialized counsel before signing your name.

Duress, coercion or unconscionability are not easily proven – especially when the employee is given time to consider the offer. 

Ask for more time or the opportunity to meet with a lawyer if the terms of an offer or release are unclear.

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