By: Ellen A. S. Low

As temperatures continue to rise, both employers and employees may be wondering about their respective obligations when it comes to working in the heat.

Pursuant to the Occupational Health and Safety Act employers have a duty to take reasonable precautions to protect workers.  This includes an obligation to develop policies and procedures to protect workers in hot environments.

The Workplace Safety and Insurance Board (“WSIB”), Heat Stress Awareness Guide encourages employers to have a “Hot Weather Plan” to prevent preventing heat-related injuries and illnesses in the workplace.  The Hot Weather Plan should include regularly monitoring heat and humidity in the workplace using a thermal hygrometer, and adjusting work schedules to allow for water and rest breaks based on the humidex reading at specific work sites.

The Heat Stress Awareness Guide puts the onus on employers to develop and implement a Hot Weather Plan, but stresses that employees must also be familiar with the symptoms of heat stroke and heat exhaustion.  Both employers and employees should know the risks of working in a hot environment, and what can be done to reduce the potential risk of heat-related illnesses.

One example I’ve seen was a ‘heat plan’ at an automotive manufacturing plant where for each 45 minutes of work in the sun, employees were required to take a 15 minute ‘cooling break’ in a shaded area where water and popsicles were provided.

Violations of the Occupational Health and Safety Act can result in penalties. Employers should ensure they are compliant to avoid potentially hefty fines. Contact our office for more information on how to develop and implement a “Hot Weather Plan” or for further information on other workplace safety obligations.

Whitten & Lublin LLP is a team of legal experts who provide practical advice and advocacy for workplace issues.

By: Brian Norris

The recent and very public locker room gun-pulling incident between NBA players Gilbert Arenas and Javaris Crittenton has highlighted the importance for employers to create and enforce policy on workplace safety.

As many sports fans know, Arenas and Crittenton have now been suspended by the league for the remainder of the 2009-2010 season for brandishing guns in the Washington Wizard’s locker room. Some may interpret the NBA’s actions as “making an example” of the payers. Others, such as myself, see it as the league legitimizing and enforcing it’s policy outlined in the collective bargaining agreement; An agreement produced by the collective efforts of the NBA owners and the Players’ Union.

As previously mentioned by Daniel Lublin, if an employer wants to lean to it’s policies in support of a lawsuit, it is important for them to circulate and enforce clearly worded company policy.

With the introduction of Bill 168 in Canada, the issue of workplace safety regarding violence has been a hot topic as of late. The incident between Arenas and Crittenton and the manner in which the NBA dealt with it is a good example for all employers to take notice of.

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

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

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. 

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

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

Diane LaCalamita, former lawyer at McCarthy Tetrault, has filed a 12 million dollar wrongful dismissal suit against her former employer.

According to the National Post article, link below, she has declared that the blue chip firm discriminated against her on the bases of gender by not promoting her to be a partner. She claims that she was promised, but was never given, a promotion to an equity partner position. Furthermore, LaCalamita alleges the firm itself is "plagued by systematic gender-based discrimination and a culture of discrimination".

McCarthy Tetrault has outright denied the claims and has vowed to defend them vigorously. They claim LaCalamita, who has already received more than $200,000 in severance from the firm, did not meet their partnership criteria.

In my legal practice, I find that claims of failed promotions are difficult to sucessfully make out.  That is, the evidence is usually circumstantial and courts tend not to insert their opinion on decisions of promotion into the place of the employer. 

It is also interesting that McCarthy’s paid out $200,000 in severance to an employee without having her execute a release.  While some employment counsel see paying an employee after they leave as a strategy to curry favour in a lawsuit, by showing reasonablenss, I disagree.  Typically, I view this as, in effect, funding the litigation against the employer. 

For today’s original National Post article on the dispute, click 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