Reading last week’s headlines about the case of Debrahlee Lorenzana, the New York banker claiming she was fired because her good looks distracted her male colleagues, raised an alarm as to the public’s various misconceptions of critical issues in workplace law. Here are just a few of them.
In one article, the author claimed that Lorenzana’s wrongful dismissal case against her employer sparked a debate over “workplace sexual harassment.” Turning this case into an issue of sexual harassment could indeed be an interesting development in workplace law – except that it is wrong.
Is it discriminatory to rely on looks when firing an employee? In another article, the author suggested that if Lorenzana was treated differently because of her appearance, it could constitute discrimination under human rights laws. This would also be a major development in human rights law, except that it is also wrong.
In my Metro news article from this 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. You can reach Daniel at dan@toronto-employmentlawyer.com. For even more on workplace law, follow him on Twitter at www.twitter.com/danlublin.
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.
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.
Employees don’t always get the bonus they deserve, but seldom will this amount to a successful lawsuit.
Veteran investment banker Kenneth Mathieson was well rewarded in his good years. In 2005, he earned a bonus of $1.1 million. However, when his employer, Scotia Capital, decided that he deserved only $360,000 in 2006 — the lowest bonus he had ever received — Mathieson believed the bank was attempting to force his resignation. He wasn’t about to go quietly.
Mathieson complained to management, who listened to his concerns, but remained firm in their decision: his 2006 performance was not at par with his colleagues, which led to his low bonus award. Eventually, fed up with Mathieson’s protests, the bank fired him. Mathieson sued, claiming that his bonus had been reduced in bad faith, among a handful of other claims
To read the full article, visit Daniel Lublin’s columnist page at Metro News.
Daniel Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com
A canadian woman working as a top executive at a London, England company is suing her boss for 8 million dollars in a UK Employment Tribunal for allegations that he brought prostitutes to meetings and repeatedly called her a "stupid blonde" before she was fired, as reported in a National Post article here.
In Canada it is an implied term in every employment relationship that employees be treated with decency and civility, the breach of which can lead to damages for termination, commonly known as a "constructive dismissal." An example of a constructive dismissal case can be read here.
In addition, Canadian legislation prohibits discrimination or harassment based on grounds such as gender or race.
Daniel Lublin is a lawyer with Whitten & Lublin which is an employment law firm in Toronto, Ontario assisting employees and employers with workplace legal matters.
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.
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.
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.
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.
“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.
