Four tips published in my Metro workplace law article from this week that should ensure an appropriate severance package, or more.

Always negotiate
Companies realize that most people will just take what they are offered, happy to get anything at all. So they deliberately offer less than they are ultimately prepared to pay. There is usually some flexibility in the figures – so ask for more.

Patience
Since the majority of lawsuits settle well before trial, the key for dismissed employees is to appreciate when they have great facts on their side — and also when they don’t. As the costs associated with litigation act as a deterrent for employees, employers understand that most will accept a reduced settlement at the outset rather than waiting for more. However, if you have a good case, you can expect that many of your legal costs will be recovered – so be patient or be prepared to take a discount.

Select your lawyer wisely
The guidance of experienced counsel is imperative to ensure your case is properly advanced and persuasively argued and that critical mistakes are avoided. A lawyer’s Google rankings have nothing do with his or her legal skill. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practise it, on their websites and in the media — and they often do. Avoid legal practitioners who brandish promises of extraordinary results. In law as in life, if something is too good to be true, it is often is. Also avoid lawyers, or paralegals, who merely dabble in employment law, since they may not keep abreast of the recent developments — and worse, employers’ counsel often knows who they are.

Understand an employer’s apprehensions
They have skeletons in their closets as well. In one of my cases, we are arguing that an employer’s standard form employment contract is illegal. The cost to the company of paying this claim is irrelevant. If it loses, all of its contracts will be void.

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

By: Cedric P. Lamarche

A recent decision from the Ontario Human Rights Tribunal serves as a reminder that employers should tread carefully when dealing with employees suffering from disabilities.

Elsa Torrejon, a 51 one year old single mother, was employed with Weston Property Management Corp. of Toronto as a leasing agent.  In late January of 2009, Torrejon was diagnosed with stage II breast cancer and her physician recommended that she undergo treatment as soon as possible.  In light of the diagnosis and the treatment recommended by her physician, Torrejon advised her employer that she would require an indefinite leave from work in order to undergo surgery and treatment.  She advised Weston that she was well enough to remain at work until the day before her first scheduled surgery.  In response, Weston advised that her last day at work would in fact be her last day of employment with the company, merely 8 months after commencing work with Weston.  On her scheduled last day, Weston handed Torrejon her last paycheque, her T4 and her Record of Employment.

Claiming that she had been discriminated against on the basis of her disability, Torrejon brought an application before Ontario’s Human Rights Tribunal.

The Tribunal did not hesitate to find that in terminating her employment, Weston had discriminated against Torrejon on the basis of disability.  Specifically, the Tribunal concluded that Weston had failed to accommodate Torrejon by allowing her to take a leave of absence while she underwent treatment.  Based on the evidence at the hearing, it was clear that Weston did not understand an employer’s obligations under the applicable human rights legislation.  Weston openly admitted that it believed that it could legally terminate Torrejon’s employment as a result of her illness.

In order to compensate Torrejon for Weston’s violation of her human rights, the Tribunal ordered Weston to pay Torrejon $20,000.00 in general damages and for lost wages.  The Tribunal also required Weston to undergo human rights training due its complete lack of appreciation for an individual’s human rights.

In Ontario, employees are protected from discrimination and harassment in the workplace on the basis of disability.  This includes, past, present and perceived disabilities.  Pursuant to the Ontario Human Rights Code, employers have an obligation to accommodate disabled employees short of undue hardship.  This duty includes accommodating a disabled-related absence of work, such as the one Torrejon had requested from Weston. 

The law recognizes that accommodation is a shared responsibility.  Everyone involved, including the person seeking accommodation, should cooperate, share information and attempt to find mutually agreeable solutions.  Many accommodations can be made easily and at little cost.

After her first few shifts as a customer service representative with Money Mart in Toronto, Marjorie Harriott noticed that her boss, Desmond Wade, liked women a bit too much. Wade would often ogle at female customers and employees, staring at their breasts and rear ends, making comments that they found offensive. Wade would also come too close to the female staff, sometimes touching them, and making them feel uncomfortable to be around him.

Matters came to a head for Harriott when Wade approached her at work and started to massage her neck. Harriott reported the incidents to a manager, who indicated that the company’s human resources representative would look into it. When she never heard back, Harriott telephoned another manager in human resources and complained that she had been harassed. A few weeks later, she was called to a meeting and told that the matter had been investigated and was closed. According to Money Mart, Harriott had to “work it out” with Wade.

Upset about the company’s failure to adequately investigate what she felt was sexual harassment, Harriott recently took Money Mart to a human rights tribunal, which is equal to a court for discrimination-based matters.

In my Workplace Law column in this week’s Metro News, I discuss the case 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: Ellen Low

After a month of speculation, it appears that the salacious details of the supposed affair between Lisa Rundle, the former director of Rights and Contracts at Penguin Canada, and the former president of Penguin Canada, David Davidar, are destined to remain a mystery.

In June, Rundle launched a $500,000.00 lawsuit against Davidar and her former employer claiming she was the victim of 3 years of sexual harassment and was constructively dismissed when she complained about Davidar’s behaviour.

Rundle claimed that Davidar initiated his advances by leering and making suggestive comments, but stated things culminated during a business trip to Frankfurt where he allegedly sexually assaulted her by forcing his way into her hotel room, grabbing her wrists, and forcing his tongue into her mouth.

Not surprisingly, Davidar denied sexually assaulting or harassing anyone and maintained he was “happily married”.  He admitted the two had a “consensual, flirtatious relationship,” and that they kissed twice, but denied that Rundel objected at any time.

On Tuesday, July 7, 2010, the matter was reportedly settled out of court.  The parties have apparently resolved all their issues and promised to stay silent about the terms of settlement.  However, earlier today Penguin confirmed that Rundel will be returning to her old job.

The situation above describes the dilemma between acceptable harmless, at-work flirtation and fraternization, and unjustifiable intimidation in the form of sexual harassment.  It is important to remember that to be harassment, the conduct has to be unwelcome.  This means the victim has to either inform the aggressor that the conduct is unwelcome, or the harasser ought to know the conduct is unwelcome.

Sexual harassment in the workplace is a serious issue.  In previous discussions we’ve established that sexual harassment in the workplace gives rise to human rights issues as well as a claim for constructive dismissal.

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.

By: Cédric P. Lamarche

The upcoming G20 has spurred much talk about the large sums of money that the Canadian government is spending on the event.  Reports indicate that the Harper government plans on spending almost 1-billion for the summit.

Securing Toronto’s downtown core during the short meeting “requires the largest deployment of security personnel for a major event in Canadian history.”  According to the RCMP, the deployment of police, military and private security personnel will cost an estimated $321 million.

Due to the sudden need for security personnel and the hefty amounts invested, many government subsidized security positions have become available.  These positions are very appealing for many who currently work in the private security industry and earn meager wages.  According to newspaper advertisements by a company awarded a federal government contract, security guards hired for the event will earn approximately $20-$24 per hour.  This represents about double the average hourly wage earned by security guards in Ontario.

Some private security firms have expressed concerns regarding the retention of their staff during the summit.  As mass hiring begins, many private security firms are concerned that the attractive salaries will result in a high attrition rate, which may lead to staff shortages.

As attractive as the highly paid work opportunities may appear, security personnel should be very careful before bailing on their current employers.  Employment contracts often contain restrictive covenants (such as non-competition clauses) limiting one’s activities while employed, or following the termination of employment.  The breach of an enforceable restrictive covenant may give rise to legal liability.

The simple fact that an employment contract contains a non-competition clause does not automatically mean that it is enforceable.  Canadian courts will scrutinize these types of clauses very carefully to determine whether or not they should apply.  Restrictive clauses will be enforced if the courts conclude that the restrictions are reasonable to protect the proprietary interests of an employer as well as the interests of an employee to pursue his/her skills and earn a livelihood in a free and open market.  The question is whether a restrictive covenant does more than what is necessary to protect legally recognized interests of employers.

Whether or not a restrictive covenant is enforceable will depend on the circumstances of every case.  Before crossing the street to work for the competition, employees are encouraged to be diligent and have their employment contracts reviewed by employment law experts.

Cédric Lamarche is an employment lawyer with Whitten & Lublin LLP, which is a team of legal experts who provide practical advice and advocacy for workplace issues.

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: Cedric Lamarche

For many businesses, customers and clients are hot commodities. In an age where “googling” a few key words can generate an infinite list of hits, businesses attract and retain clients not only as a result of the good deals they offer, but also as a result of the relationships that exist between their clients and the business’ employees. Since employees frequently move from one employer to the other, it’s no surprise that many employers often try to protect their customer and client pools by including restrictive clauses in their employment contracts. Examples of restrictive clauses that have been included in employment contracts and that have been upheld by the courts include non-competition and non-solicitation provisions.

As one can imagine, when employees leave their employment to pursue other opportunities, legal issues often arise as a result of restrictive provisions. On the one hand, businesses want to protect their client base and their proprietary information and, on the other hand, employees want to continue working in the same industry and continue servicing those clients with whom they have cultivated relationships over time. The courts will generally deal with these types of disputes cautiously as a result of the various policy concerns, including the fact that restrictive clauses often limit an individual’s ability to work in their craft or in their field of expertise.

In a recent case before the Alberta Court of Queen’s Bench, the court considered how far an employer should be permitted to go in imposing restrictive clauses to an employee who was already working for the employer. In doing so, it confirmed many of the rules that employers should follow in order to ensure the existence of fair contractual terms between parties that are often on unequal footing.

Accordingly, employers who wish to protect themselves should consider playing by the following rules:

• Employment agreements should ideally be concluded before an employee starts work.

• If an employer wishes to create a written employment contract or modify an existing contract midway through an employer/employee relationship, it should:

o provide something of value to the employee in exchange for signing the contract;

o advise the employee to consult legal counsel, and confirm this in writing;

o explain the restrictive clauses to the employee;

o inform how, if at all, the employment role will change if the employee refuses to sign the contract

o Ensure that the restrictive clauses are relevant to the employee’s position (i.e. not overly broad and too onerous with respect to the position).

Cedric Lamarche is a lawyer with Whitten & Lublin LLP, an employment law office assisting employers and employees on various workplace legal matters. .

On Friday, the Supreme Court of Canada released its long awaited decision in Keays v. Honda.  The full text of the decision can be read here.

Below is my practical overview of the decision and how it will impact employee dismissals, moving forward. 

1.  The court confirmed that the proper analysis used to determine reasonable notice, should remain consistent with the Bardal principles.  Reasonable notice should be assessed based on the employee’s age, tenure, character of employment and the availability of similar employment, having regard to training qualifications and experience.  By doing so, the SCC clarified that the distinction between whether the employee was managerial or not should be less relevant.  It is the entire test that should be dispositive.      

2.  The "catastrophic" aspect of this case, in my view, relates to the Court’s decision to abolish the former Wallace principle, which allowed the court to extend the period of reasonable notice, based on the manner of dismissal.  Although the Court clarified that damages based on the manner of dismissal are still compensable, in essence, the Court’s decision will limit or restrict the punitive or ‘deterrant’ effect of such awards and focus on compensating employees for actual losses suffered.  The problem lies in the new requirement, from this case, to show evidence of actual harm suffered in order to obtain compensation for mental distress surrounding dismissals, which will make mental distress damages harder to obtain.  By imposing this onus on employees, employers have less incentive to protect employees at a time when they are vulnerable ie. at the time of their termination — because potential harm is no longer significant. 

3.  I will call the new and unified approach to damages for mental distress and the conduct of dismissal, emanating from this decision, as "Keays damages" – which will replace the former Wallace damages and aggravated damages.  Keays damages represent mental distress damages for the manner of dismissal.  In order for employees to obtain Keays damages, they must prove that the employer’s conduct has resulted in actual harm, such as, for example, a longer period of unemployment or reduced re-employment prospects.  For their part, employers will argue that the employee’s mental distress is not compensable where the employee has produced no evidence of of an actual loss.  We will have to wait for lower court decisions to interpret this case and develop a body of jurisprudence setting out the paramaters of and quantum of Keays damages.   

4.  The SCC overturned the Court of Appeal’s confirmation of the trial decision, which stated that discrimination is an independant actionable wrong, which was required in order to obtain punitive damages.  The Court confirmed that actions for discrimination should be before human rights tribunals – although, I view this as inconsistent with the recent changes to the human rights scheme, in Bill 107, which expressly permit employee’s to seek damages for discrimination before court’s as well as human rights tribunals. 

Daniel A. Lublin is an employment lawyer focussing on the law of dismissal.  Reach him at dan@toronto-employmentlawyer.com or through his website www.toronto-employmentlawyer.com.

Canadian employees are not subject to at-will employment.  But their American counterparts are: Kenneth Smalley and four other plaintiffs were fired when their former employer The Dreyfus Corporation, terminated their employment without cause after the parent company Mellon Financial Corp. merged the taxable fixed income group with another fund group they owned, Standish Ayer & Woods.

The Plaintiffs contend they joined Dreyfus on the advice that the group would not be merged. Their claims of breach of contract and fraudulent inducement fell on deaf judicial ears. Chief Judge Kaye, relying  on the precedent established in Murphy v. American Home Prods. Corp., 58 NY2d 293, 305 (1983), found there was no grounds for the claim.

Relying on the Murphy decision, the Court ruled that, regarding at-will workers, "either the employer or the employee… may terminate the at-will employment for any reason, or for no reason". It further backed the previous decision adding "In the decades since Murphy, we have repeatedly refused to recognize exceptions to, or pathways around, these principles worked at-will or with no formal guarantee of employment".

Under Canadian law, at-will employment contracts are illegal.  At a minimum, employees are entitled to, at least, the amounts set out in the applicable provincial or federal legislation.  Any attempt to contract out of, or provide to the employee less than, the minimum standards would be considered void.   

For more information on employee’s need for proper contract review prior to signing, see my previous Metro News article; Contract Terms are Binding.

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